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United States Court of Appeals for the Ninth Circuit
August 9, 2021, Resubmitted, Seattle, Washington; August 16, 2021, Filed
[*1079] FRIEDLAND, Circuit Judge:
Plaintiffs Chantell and Michael Sackett purchased a soggy residential lot near Idaho's Priest Lake [**4] in 2004. They planned to build a home on the property, but the project became entangled in a regulatory dispute. Shortly after the Sacketts began placing sand and gravel fill on the lot, they received an administrative compliance order from the Environmental Protection Agency ("EPA"). The order stated that the property contained wetlands subject to protection under the Clean Water Act ("CWA"), and that the Sacketts had to remove the fill and restore the property to its natural state. Instead, the Sacketts sued EPA in 2008, contending that the agency's jurisdiction under the CWA does not extend to their property. The case has been winding its way through the federal courts ever since. When the parties were briefing this appeal, EPA abruptly withdrew its compliance order.
We first consider whether EPA's withdrawal of the compliance order, twelve years after it first issued, moots this case. We hold that it does not. We then decide whether jurisdiction under the CWA extends to the Sacketts' lot. We hold that it does and thus affirm the district court's grant of summary judgment in EPA's favor.
] Congress enacted the CWA "to restore and maintain the chemical, physical, and biological integrity [**5] of the Nation's waters." 33 U.S.C. § 1251(a). The Act extends to all "navigable waters," defined as "waters of the United States, including the territorial seas," and it prohibits any person who lacks a permit from discharging pollutants, including rocks and sand, into those waters. Id. §§ 1311(a), 1362(6), (7), (12). If EPA finds that a violation is occurring, one of its enforcement options is to issue an administrative compliance order—as was issued to the Sacketts. Id. § 1319(a). A compliance order describes the nature of the violation and requires the recipient to cease the illegal discharge activity. See id. To enforce a compliance order, EPA may bring an enforcement action in federal district court. Id. § 1319(b).
Since the CWA was enacted, agencies and courts have struggled to identify the outer definitional limits of the phrase "waters of the United States," which in turn defines the scope of the federal government's regulatory jurisdiction under the CWA. The U.S. Army Corps of Engineers (the "Corps") first issued regulations defining "waters of the United States" in the 1970s, shortly after the CWA took effect. Initially, the Corps determined that the CWA covered only waters that were navigable in fact, see 39 Fed. Reg. 12,115, 12,119 (Apr. 3, 1974), but the Corps later adopted [**6] different, broader interpretations that remained in effect at the time the Sacketts received the compliance order, see 42 Fed. Reg. 37,122, 37,144 (July 19, 1977); 51 Fed. Reg. 41,206, 41,250-51 (Nov. 13, 1986); 53 Fed. Reg. 20,764, 20,774 (June 6, 1988).
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8 F.4th 1075 *; 2021 U.S. App. LEXIS 24329 **; 51 ELR 20159; 2021 AMC 379
MICHAEL SACKETT; CHANTELL SACKETT, Plaintiffs-Appellants, v. U.S. ENVIRONMENTAL PROTECTION AGENCY; MICHAEL S. REGAN, Administrator,1 Defendants-Appellees.
Subsequent History: US Supreme Court certiorari granted by, in part Sackett v. Epa, 2022 U.S. LEXIS 751 (U.S., Jan. 24, 2022)
Prior History: [**1] Appeal from the United States District Court for the District of Idaho. D.C. No. 2:08-cv-00185-EJL. Edward J. Lodge, District Judge, Presiding. Argued and Submitted November 19, 2020. Submission Withdrawn December 1, 2020.
Sackett v. United States EPA, 2020 U.S. App. LEXIS 16499 (9th Cir. Idaho, May 22, 2020)
EPA, wetlands, compliance, waters, moot, Marks, tributary, plurality, adjacent, Lake, regulations, navigable waters, Memo, agency's action, site visit, concurrence, district court, nexus, withdraw, administrative record, summary judgment, reasoning-based, observations, intervening, capricious, cessation, permanent, quotation, fill, similarly situated
Environmental Law, Clean Water Act, Coverage & Definitions, Discharges, Navigable Waters, Enforcement, Government Civil Actions, Pollutants, Natural Resources & Public Lands, Wetlands Management, Governments, Courts, Authority to Adjudicate, Civil Procedure, Appeals, Standards of Review, De Novo Review, Evidence, Burdens of Proof, Allocation, Justiciability, Mootness, Real Controversy Requirement, Voluntary Cessation Exception, Constitutional Law, Case or Controversy, Conduct Capable of Repetition, Administrative Law, Judicial Review, Administrative Record, Abuse of Discretion, Arbitrary & Capricious Standard of Review, Summary Judgment Review, Standards of Review, Judgments, Summary Judgment, Entitlement as Matter of Law, Substantial Evidence, Judicial Precedent, Affirmative Defenses, Statute of Limitations, Federal Preemption