• Mark Ryan

Sacketts File Their 9th Cir. Reply Brief

The Sacketts today filed their reply brief in their 9th Cir. appeal of their loss in the D. Idaho case challenging the EPA 309(a) enforcement order. The lower court ruled that EPA was not arbitrary and capricious in issuing the order because the wetland on the Sackett's property was jurisdictional under the 2008 Guidance, which was in effect at the time EPA issued the order. (See my June 24, May 22, April 16, April 9, and March 30 blogposts for more on the Sackett case.)

The Sacketts are now arguing that the Rapanos plurality decision dictates that the court find the wetland to be nonjurisdictional. Because the 9th Cir. has already twice rejected the plurality opinion in favor of the Kennedy significant nexus standard, that's not likely going to happen, and I suspect the PLF knows that. They're hoping to get to the Supreme Court.

Also at issue is mootness. EPA is arguing that the case is moot because the agency withdrew the order early this year. PLF argues the case is not moot because the JD finding the site to be jurisdictional is still out there and theoretically enforceable. Unfortunately, there is no JD. I worked on the Sackett case while at EPA, and neither the Corps nor EPA ever issued a JD for the site. It'll be interesting to see if the Court adopts PLF's argument that the EPA inspection report concluding that the site is jurisdictional is the functional equivalent of a JD. I doubt it.

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