Sackett v. Envtl. Prot. Agency

• Decision Date: 21 March 2012
• Docket Number: No. 10–1062.,10–1062.
• Citation: 132 S.Ct. 1367,182 L.Ed.2d 367,566 U.S. 120
• Parties: Chantell SACKETT, et vir, Petitioners v. ENVIRONMENTAL PROTECTION AGENCY, et al.
• Court: U.S. Supreme Court

566 U.S. 120

132 S.Ct. 1367

182 L.Ed.2d 367

Chantell SACKETT, et vir, Petitioners

v.ENVIRONMENTAL PROTECTION AGENCY, et al.

No. 10–1062.

Supreme Court of the United States

Argued Jan. 9, 2012.

Decided March 21, 2012.

Damien M. Schiff, Sacramento, CA, for Petitioners.

Malcolm L. Stewart, Washington, DC, for Respondents.

Leslie R. Weatherhead, Witherspoon Kelley, Spokane, WA, M. Reed Hopper, Damien M. Schiff, Counsel of Record, Pacific Legal Foundation, Sacramento, CA, for Petitioners.

Scott C. Fulton, General Counsel, Carol S. Holmes, David J. Drelich, Ankur K. Tohan, Steven M. Neugeboren, Mary Ellen Levine, Richard T. Witt, Attorneys, U.S. Environmental Protection Agency, Washington, DC, Donald B. Verrilli, Jr., Solicitor General, Robert G. Dreher, Acting Assistant Attorney General, Malcolm L. Stewart, Deputy Solicitor General, Counsel of Record, Ginger D. Anders, Assistant to the Solicitor General, Lisa E. Jones, Aaron P. Avila, Jennifer Scheller Neumann, Attorneys, Department of Justice, Washington, DC, for Respondents.

Justice SCALIA delivered the opinion of the Court.

We consider whether Michael and Chantell Sackett may bring a civil action under the Administrative Procedure Act, 5 U.S.C. § 500 et seq., to challenge the issuance by the Environmental Protection Agency (EPA) of an administrative compliance order under § 309 of the Clean Water Act, 33 U.S.C. § 1319. The order asserts that the Sacketts' property is subject to the Act, and that they have violated its provisions by placing fill material on the property; and on this basis it directs them immediately to restore the property pursuant to an EPA work plan.

I

The Clean Water Act prohibits, among other things, "the discharge of any pollutant by any person," § 1311, without a permit, into the "navigable waters," § 1344 —which the Act defines as "the waters of the United States," § 1362(7). If the EPA determines that any person is in violation of this restriction, the Act directs the agency either to issue a compliance order or to initiate a civil enforcement action. § 1319(a)(3). When the EPA prevails in a civil action, the Act provides for "a civil penalty not to exceed [$37,500] per day for each violation."¹ § 1319(d). And according to the Government, when the EPA prevails against any person who has been issued a compliance order but has failed to comply, that amount is increased to $75,000—up to $37,500 for the statutory violation and up to an additional $37,500 for violating the compliance order.

The particulars of this case flow from a dispute about the scope of "the navigable waters" subject to this enforcement regime. Today we consider only whether the dispute may be brought to court by challenging the compliance order—we do not resolve the dispute on the merits. The reader will be curious, however, to know what all the fuss is about. In United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985), we upheld a regulation that construed "the navigable waters" to include "freshwater wetlands," id., at 124, 106 S.Ct. 455, themselves not actually navigable, that were adjacent to navigable-in-fact waters. Later, in Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U.S. 159, 121 S.Ct. 675, 148 L.Ed.2d 576 (2001), we held that an abandoned sand and gravel pit, which "seasonally ponded" but which was not adjacent to open water, id., at 164, 121 S.Ct. 675, was not part of the navigable waters. Then most recently, in Rapanos v. United States, 547 U.S. 715, 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006), we considered whether a wetland not adjacent to navigable-in-fact waters fell within the scope of the Act. Our answer was no, but no one rationale commanded a majority of the Court. In his separate opinion, THE CHIEF JUSTICE expressed the concern that interested parties would lack guidance "on precisely how to read Congress' limits on the reach of the Clean Water Act" and would be left "to feel their way on a case-by-case basis." Id., at 758, 126 S.Ct. 2208 (concurring opinion).

The Sacketts are interested parties feeling their way. They own a ²/₃–acre residential lot in Bonner County, Idaho. Their property lies just north of Priest Lake, but is separated from the lake by several lots containing permanent structures. In preparation for constructing a house, the Sacketts filled in part of their lot with dirt and rock. Some months later, they received from the EPA a compliance order. The order contained a number of "Findings and Conclusions," including the following:

"1.4 [The Sacketts' property] contains wetlands within the meaning of 33 C.F.R. § 328.4(8)(b) ; the wetlands meet the criteria for jurisdictional wetlands in the 1987 ‘Federal Manual for Identifying and Delineating Jurisdictional Wetlands.’

"1.5 The Site's wetlands are adjacent to Priest Lake within the meaning of 33 C.F.R. § 328.4(8)(c). Priest Lake is a ‘navigable water’ within the meaning of section 502(7) of the Act, 33 U.S.C. § 1362(7), and ‘waters of the United States' within the meaning of 40 C.F.R. § 232.2.

"1.6 In April and May, 2007, at times more fully known to [the Sacketts, they] and/or persons acting on their behalf discharged fill material into wetlands at the Site. [They] filled approximately one half acre.

. . . . .

"1.9 By causing such fill material to enter waters of the United States, [the Sacketts] have engaged, and are continuing to engage, in the ‘discharge of pollutants' from a point source within the meaning of sections 301 and 502(12) of the Act, 33 U.S.C. §§ 1311 and 1362(12).

. . . . .

"1.11 [The Sacketts'] discharge of pollutants into waters of the United States at the Site without [a] permit constitutes a violation of section 301 of the Act, 33 U.S.C. § 1311." App. 19–20.

On the basis of these findings and conclusions, the order directs the Sacketts, among other things, "immediately [to] undertake activities to restore the Site in accordance with [an EPA-created] Restoration Work Plan" and to "provide and/or obtain access to the Site ... [and] access to all records and documentation related to the conditions at the Site ... to EPA employees and/or their designated representatives." Id., at 21–22, ¶¶ 2.1, 2.7.

The Sacketts, who do not believe that their property is subject to the Act, asked the EPA for a hearing, but that request was denied. They then brought this action in the United States District Court for the District of Idaho, seeking declaratory and injunctive relief. Their complaint contended that the EPA's issuance of the compliance order was "arbitrary [and] capricious" under the Administrative Procedure Act (APA), 5 U.S.C. § 706(2)(A), and that it deprived them of "life, liberty, or property, without due process of law," in violation of the Fifth Amendment. The District Court dismissed the claims for want of subject-matter jurisdiction, and the United States Court of Appeals for the Ninth Circuit affirmed, 622 F.3d 1139 (2010). It concluded that the Act "preclude[s] pre-enforcement judicial review of compliance orders," id., at 1144, and that such preclusion does not violate the Fifth Amendment's due process guarantee, id., at 1147. We granted certiorari. 564 U.S. ––––, 131 S.Ct. 3092, 180 L.Ed.2d 911 (2011).

II

The Sacketts brought suit under Chapter 7 of the APA, which provides for judicial review of "final agency action for which there is no other adequate remedy in a court."

5 U.S.C. § 704. We consider first whether the compliance order is final agency action. There is no doubt it is agency action, which the APA defines as including even a "failure to act." §§ 551(13), 701(b)(2). But is it final? It has all of the hallmarks of APA finality that our opinions establish. Through the order, the EPA " ‘determined’ " " ‘rights or obligations.’ " Bennett v. Spear, 520 U.S. 154, 178, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (quoting Port of Boston Marine Terminal Assn. v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71, 91 S.Ct. 203, 27 L.Ed.2d 203 (1970) ). By reason of the order, the Sacketts have the legal obligation to "restore" their property according to an agency-approved Restoration Work Plan, and must give the EPA access to their property and to "records and documentation related to the conditions at the Site." App. 22, ¶ 2.7. Also, " ‘legal consequences ... flow’ " from issuance of the order. Bennett, supra, at 178, 117 S.Ct. 1154 (quoting Marine Terminal,supra, at 71, 91 S.Ct. 203). For one, according to the Government's current litigating position, the order exposes the Sacketts to double penalties in a future enforcement proceeding.² It also severely limits the Sacketts' ability to obtain a permit for their fill from the Army Corps of Engineers, see 33 U.S.C. § 1344. The Corps' regulations provide that, once the EPA has issued a compliance order with respect to certain property, the Corps will not process a permit application for that property unless doing so "is clearly appropriate." 33 CFR § 326.3(e)(1)(iv) (2011).³

The issuance of the compliance order also marks the " ‘consummation’ " of the agency's decisionmaking process. Bennett, supra, at 178, 117 S.Ct. 1154 (quoting Chicago & Southern Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 113, 68 S.Ct. 431, 92 L.Ed. 568 (1948) ). As the Sacketts learned when they unsuccessfully sought a hearing, the "Findings and Conclusions" that the compliance order contained were not subject to further agency review. The Government resists this conclusion, pointing to a portion of the order that invited the Sacketts to "engage in informal discussion of the terms and requirements" of the order with the EPA and to inform the agency of " any allegations [t]herein which [they] believe[d] to be inaccurate." App. 22–23, ¶ 2.11. But that confers no entitlement to further agency review. The mere possibility that an agency might reconsider in light of "informal discussion" and invited contentions of inaccuracy does not suffice to make an otherwise final agency action nonfinal.

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