CPR Joins Amicus Brief in WOTUS Case

In 2007, Idaho couple Michael and Chantell Sackett prepared to build a house in an existing subdivision. They broke ground and began excavation and backfilling on their lot. That’s when the long arm of environmental regulators reached in.


To grasp what happened, you need to know that this plot of land isn’t connected to any navigable waters. It’s across the road from existing houses and, beyond that a little distance, from Priest Lake. The Sackett property isn’t linked in a watery way to the lake.


Bureaucrats applied Clean Water Act regulations’ “navigable waters” and “waters of the United States” (WOTUS) vagueness to the Sacketts’ land, despite the absence of surface waters, such as a creek, conjoining.


Fifteen years later, the Sacketts are once again taking their case against this regulatory taking to the U.S. Supreme Court. Conservatives for Property Rights has joined with the Atlantic Legal Foundation and the Committee for Justice on an amicus brief supporting the Sacketts.


In 2007, the Environmental Protection Agency and the U.S. Army Corps of Engineers claimed the Sacketts’ property is a “wetland” in their prodigious interpretation of the Clean Water Act. The agencies ordered work to halt and the land owners to return the plot to its natural condition—or face huge fines.


From 2008 to 2012, the Sacketts fought in court for the right to challenge the EPA-Corps ruling. The couple won that question at the U.S. Supreme Court.


From then till 2019, district court litigation crawled along over the question of the EPA’s and Corps’ control under the CWA over this plat of dry land. The district court and the Ninth Circuit ruled for the Administrative State; the Supreme Court has taken the case on appeal.


The bottom line is that these bedeviled property owners have owned a vacant parcel of land in a developed neighborhood since 2004, and regulatory caprice has blocked the owners from developing their property, making any improvements on it or deriving any economic benefit from their land, all because of a too-flexible, arbitrary rule and excessive bureaucratic discretion. This exemplifies just what the Administrative State is and how it rolls.

The appellants have asked SCOTUS to address whether the standard from the Justice Scalia-authored plurality opinion in Rapanos v. United States (547 U.S. 715 (2006)) should apply instead of the Justice Kennedy-written opinion the lower courts chose. The high court seems inclined to weigh the proper legal test for the WOTUS regulatory regime.


The Rapanos plurality opinion standard is “wetlands with a continuous surface connection to bodies that are ‘waters of the United States’ in their own right,” whereas the Kennedy concurrence opts for a nebulous “significant nexus” of wetland to navigable water (emphasis added).


The Atlantic Legal-CPR-Committee for Justice amicus brief urges SCOTUS to adopt the clearer, more fact-based “surface connection” standard “as a necessary condition for establishing Clean Water Act jurisdiction over wetlands.”


This approach employs the legal canon of constitutional avoidance. It would reduce the risk of triggering Fifth Amendment Takings Clause concerns in EPA-Corps’ uncompensated regulatory takings every time the agencies unilaterally prohibit use of private property via loosey-goosey CWA regulations.


This case holds broad constitutional and property-rights importance for all land owners, including private citizens, farmers, ranchers and other business owners. Here’s hoping the court goes with the clearer “continuous surface connection” rule.

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