Sacketts to Continue Fight

OMAHA (DTN) -- Idaho property owners Mike and Chantell Sackett will have a chance to have a court hear the merits of their Clean Water Act legal case, after a federal appeals court rejected an EPA motion to dismiss their appeal.

The EPA filed a motion on April 1 in the U.S. Court of Appeals for the Ninth Circuit in San Francisco to dismiss the case against the Sacketts. The Sacketts countered by filing a motion on April 9 opposing the motion to dismiss.

In 2012, the U.S. Supreme Court ruled in favor of the Sacketts in their lawsuit against the EPA, providing farmers and other landowners a legal leg to stand on when it comes to challenging Clean Water Act determinations. Prior to that ruling, landowners were unable to legally challenge determinations.

The EPA said in an April 3 statement to DTN the agency believes the case is closed.

The Sacketts argued in their April 9 court motion the EPA has yet to provide certainty about the future use of the property declared by EPA in 2008 to be a federally protected wetland.

"EPA has declined to date to clarify whether it continues to assert regulatory authority over the Sacketts' home site, or whether its intent 'not to issue a similar order in the future' will apply if the Sacketts proceed to build on the lot," the Sacketts' motion said.

"Without this clarification, the best reading of the March 13, 2020, letter is that EPA will not enforce against the Sacketts for their past action of clearing the lot but may do so if they take future action on the property."

The Sacketts have asked the court to declare the jurisdictional determination on their property violates the Clean Water Act and "fails to establish that the Sacketts' vacant lot is actually federally protected 'navigable waters.'"

In a March 13 letter from EPA's Susan Parker Bodine, assistant administrator for enforcement and compliance assurance, the agency said it withdrew the 2008 compliance order. The letter stated EPA had decided several years ago to no longer enforce the ACO against the Sacketts.

"Appellee EPA reports that it decided several years ago not to pursue civil enforcement against the Sacketts," the April 9 motion said.

"This is news to the Sacketts. The March 13, 2020, letter is the first time that decision was communicated. Instead of advising the Sacketts at the time, EPA held the decision for 'several years' -- until the eve of the deadline to file its brief in this appeal. EPA has failed to moot this case by withdrawing the compliance order on the eve of its briefing date, while leaving the underlying jurisdictional determination in place."

Until this April, the Sacketts continued to be subject to an administrative compliance order, or ACO, requiring them to come into compliance or face fines of up to $75,000 per day.

Landowners have often learned about EPA wetland determinations by mail, with little chance to challenge those decisions.

The Sacketts were told by EPA and the Ninth Circuit they could not get a direct court review of EPA's claim that a two-thirds-of-an-acre parcel on their land is wetlands and that they must follow an EPA compliance order.

In writing the opinion for the unanimous court, the late Supreme Court Justice Antonin Scalia said, "We conclude that the compliance order in this case is final agency action for which there is no adequate remedy other than APA (Administrative Procedure Act) review, and that the Clean Water Act does not preclude that review."

Yet, the Ninth Circuit later ruled against the Sacketts in their appeal challenging whether EPA ever proved there are wetlands on their property.

The Sacketts bought a small parcel in 2005 with the intent to build a home.

They obtained a county permit to build, but EPA claimed the property is wetlands and ordered the couple to return the land to what EPA said was its original state or pay penalties -- all without the ability to challenge EPA's wetland ruling.

Todd Neeley can be reached at

Follow him on Twitter @toddneeleyDTN

View From the Cab
Miles between farms can be a plus when weather isn't cooperating. DTN's View From the Cab farmers aren't afraid to spread out, but it doesn't mean the logistics are always easy.
View From the Cab
Miles between farms can be a plus when weather isn't cooperating. DTN's View From the Cab farmers aren't afraid to spread out, but it doesn't mean the logistics are always easy.
DTN Retail Fertilizer Trends
Retail fertilizer prices remained flat this planting season, with none of the eight major fertilizers tracked by DTN showing a price change of more than 5% for the past seven weeks.
Call the Market
The Cattle on Feed reports aren't something that many producers sit down at night to study, but seeing that the last two COF reports have differed upwards of 22% to 23% compared to placements in 2019, the recap of the reports may hold tangible information about the upcoming fall feeder cattle market.
Ag Sales to China Tick Upward
Agricultural sales are rising and trade officials reiterate that China is making progress on the phase-one agreement, but sales lag far behind the prospect of reaching figures promised in the trade deal signed in January.
Sacketts to Continue Fight
A federal appeals court denied EPA's motion to dismiss an appeal by an Idaho property owner who has fought an alleged Clean Water Act violation for years.
CFAP Enrollment Begins
Enrollment for the Coronavirus Food Assistance Program begins on Tuesday, but some cattle producers on a Facebook event over the weekend still had questions about how USDA is implementing the program and how losses are being determined. The program pays mainly for livestock and crops sold from Jan. 15 through April 15.
Todd's Take
Nearly everywhere we turn, U.S. ag markets are suffering from a lack of demand flow. Where coronavirus is to blame, there is not much we can do; but in the case of soybeans, couldn't there be a better way?
COVID-19 Tests Slow Internet
The COVID-19 pandemic forced students to learn from home and many people to work from home. Here's how some of them adapted in rural areas and what more is needed to help them.