Sackett v. United States Envtl. Prot. Agency

• Decision Date: 17 September 2010
• Docket Number: No. 08-35854.,08-35854.
• Citation: 622 F.3d 1139
• Parties: Chantell SACKETT; Michael Sackett, Plaintiffs-Appellants, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; Steven L. Johnson, Administrator, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

622 F.3d 1139

Chantell SACKETT; Michael Sackett, Plaintiffs-Appellants,

v.UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; Steven L. Johnson, Administrator, Defendants-Appellees.

No. 08-35854.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted Dec. 9, 2009.

Submission Withdrawn Dec. 23, 2009.

Resubmitted Aug. 18, 2010.

Filed Sept. 17, 2010.

Leslie R. Weatherhead, Witherspoon Kelley Davenport & Toole, Spokane, WA; M. Reed Hopper, Damien M. Schiff (argued), Pacific Legal Foundation, Sacramento, CA, for the plaintiffs-appellants.

Ankur K. Tohan, United States Environmental Protection Agency, Seattle, WA; Ronald J. Tenpas, Assistant Attorney General; Cynthia J. Morris, Aaron P. Avila, Jennifer Scheller Neumann (argued), United States Department of Justice Environment and Natural Resources Division, Washington, DC, for the defendants-appellees.

Appeal from the United States District Court for the District of Idaho, Edward J. Lodge, District Judge, Presiding. D.C. No. 2:08-cv-00185-EJL.

Before: ROBERT R. BEEZER, RONALD M. GOULD and RICHARD C. TALLMAN, Circuit Judges.

OPINION

GOULD, Circuit Judge:

We determine whether federal courts have subject-matter jurisdiction to conduct review of administrative compliance orders issued by the Environmental Protection Agency pursuant to the Clean Water Act, 33 U.S.C. § 1319(a)(3), before the EPA has filed a lawsuit in federal court to enforce the compliance order. We join our sister circuits and hold that the Clean Water Act precludes pre-enforcement judicial review of administrative compliance orders, and that such preclusion does not violate due process.

I

Chantell and Michael Sackett (“the Sacketts”) own a 0.63-acre undeveloped lot in Idaho near Priest Lake (“the Parcel”). In April and May of 2007, the Sacketts filled in about one-half acre of that property with dirt and rock in preparation for building a house.

On November 26, 2007, the EPA issued a compliance order against the Sacketts. The compliance order alleged that the Parcel is a wetland subject to the Clean Water Act (“CWA”) and that the Sacketts violated the CWA by filling in their property without first obtaining a permit. ¹ The compliance order required the Sacketts to remove the fill material and restore the Parcel to its original condition. The compliance order states that “[v]iolation of, or failure to comply with, the foregoing Order may subject Respondents to (1) civil penalties of up to $32,500 per day of violation ... [or] (2) administrative penalties of up to $11,000 per day for each violation.”

The Sacketts sought a hearing with the EPA to challenge the finding that the Parcel is subject to the CWA. The EPA did not grant the Sacketts a hearing and continued to assert CWA jurisdiction over the Parcel. The Sacketts then filed this action in the United States District Court for the District of Idaho seeking injunctive and declaratory relief. They challenged the compliance order as (1) arbitrary and capricious under the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2)(A); (2) issued without a hearing in violation of the Sacketts' procedural due process rights; and (3) issued on the basis of an “any information available” standard that is unconstitutionally vague.

The district court granted the EPA's Federal Rule of Civil Procedure 12(b)(1) motion to dismiss the Sacketts' claims for lack of subject-matter jurisdiction. It concluded that the CWA precludes judicial review of compliance orders before the EPA has started an enforcement action in federal court. The Sacketts filed a Federal Rule of Civil Procedure 59(e) motion for clarification and reconsideration that was also denied. The Sacketts appealed. We have jurisdiction pursuant to 28 U.S.C. § 1291.

II

We review de novo the dismissal of a complaint for lack of subject-matter jurisdiction.

Mangano v. United States, 529 F.3d 1243, 1245 n. 2 (9th Cir.2008).

The EPA has determined that the Sacketts discharged pollutants into the waters of the United States in violation of the CWA. When the EPA identifies a CWA violation, it has three main civil enforcement options. ² First, it can assess an administrative penalty. 33 U.S.C. § 1319(g). When the EPA assesses an administrative penalty, the alleged violator is entitled to “a reasonable opportunity to be heard and to present evidence,” the public is entitled to comment, and any assessed penalty is subject to immediate judicial review. 33 U.S.C. § 1319(g)(4), (8). Second, the EPA can initiate a civil enforcement action in federal district court. 33 U.S.C. § 1319(b). Third, the EPA can issue, as it did here, an administrative “compliance order.” 33 U.S.C. § 1319(a).

A compliance order “is a document served on the violator, setting forth the nature of the violation and specifying a time for compliance with the Act.” S. Pines Assocs. by Goldmeier v. United States, 912 F.2d 713, 715 (4th Cir.1990). The EPA derives its power to issue compliance orders from 33 U.S.C. § 1319(a)(3), which states:

Whenever on the basis of any information available to him the Administrator finds that any person is in violation of section 1311, 1312, 1316, 1317, 1318, 1328, or 1345 of this title, ... he shall issue an order requiring such person to comply with such section or requirement, or he shall bring a civil action in accordance with [33 U.S.C. § 1319(b) ].

To enforce a compliance order, the EPA must bring an enforcement action in federal court under 33 U.S.C. § 1319(b). The compliance order issued against the Sacketts exposed them to potential court-imposed civil penalties not to exceed $32,500 “per day for each violation” of the compliance order. ³ 33 U.S.C. § 1319(d); 40 C.F.R. § 19.4. In assessing the amount of the penalty, courts “shall consider the seriousness of the violation or violations, the economic benefit (if any) resulting from the violation, any history of such violations, any good-faith efforts to comply with the applicable requirements, the economic impact of the penalty on the violator, and such other matters as justice may require.” 33 U.S.C. § 1319(d).

The Sacketts argue that compliance orders are judicially reviewable prior to the EPA filing an enforcement action in federal court. The CWA, however, does not expressly provide for pre-enforcement judicial review of compliance orders. See 33 U.S.C. § 1319. The Sacketts argue that federal courts are nonetheless authorized to conduct pre-enforcement review of compliance orders pursuant to the APA. Under the APA, “[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review.” 5 U.S.C. § 704. Agency action is not reviewable under the APA, however, where the relevant statute “preclude[s] judicial review.” 5 U.S.C. § 701(a)(1).

Whether the CWA precludes pre-enforcement review of compliance orders is an issue of first impression in our circuit. We begin with the presumption favoring judicial review of administrative action. See Abbott Labs. v. Gardner, 387 U.S. 136, 140, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), overruled on other grounds by Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). That presumption is overcome, however, “whenever the congressional intent to preclude judicial review is fairly discernible in the statutory scheme.” Block v. Cmty. Nutrition Inst., 467 U.S. 340, 351, 104 S.Ct. 2450, 81 L.Ed.2d 270 (1984) (quotation marks omitted). “Whether and to what extent a particular statute precludes judicial review is determined not only from its express language, but also from the structure of the statutory scheme, its objectives, its legislative history, and the nature of the administrative action involved.” Id. at 345, 104 S.Ct. 2450. The CWA does not expressly preclude pre-enforcement judicial review of such compliance orders. So we must consider the other factors identified by the Supreme Court to determine whether the CWA impliedly precludes pre-enforcement judicial review.

In this assessment, we do not work from a blank slate. Every circuit that has confronted this issue has held that the CWA impliedly precludes judicial review of compliance orders until the EPA brings an enforcement action in federal district court. See, e.g., Laguna Gatuna, Inc. v. Browner, 58 F.3d 564 (10th Cir.1995); S. Ohio Coal Co. v. Office of Surface Mining, Reclamation & Enforcement, 20 F.3d 1418 (6th Cir.1994); S. Pines Assocs. by Goldmeier v. United States, 912 F.2d 713 (4th Cir.1990); Hoffman Group, Inc. v. EPA, 902 F.2d 567 (7th Cir.1990). Many district courts have also so held. See, e.g., Sharp Land Co. v. United States, 956 F.Supp. 691, 693-94 (M.D.La.1996); Child v. United States, 851 F.Supp. 1527, 1533 (D.Utah 1994); Bd. of Managers, Bottineau Cnty. Water Res. Dist. v. Bornhoft, 812 F.Supp. 1012, 1014-1015 (D.N.D.1993); McGown v. United States, 747 F.Supp. 539, 542 (E.D.Mo.1990); Fiscella & Fiscella v. United States, 717 F.Supp. 1143, 1146-47 (E.D.Va.1989). The reasoning of these courts is persuasive to us, as well as the broad uniformity of consensus on this issue.

First, we look to the structure of the statutory scheme and the nature of the administrative action involved. Here, Congress gave the EPA a choice of “issu[ing] an order requiring such person to comply with such section or requirement, or ... bring[ing] a civil action [in district court].” 33 U.S.C. § 1319(a)(3) (emphasis added). Authorizing pre-enforcement judicial review of compliance orders would eliminate this choice by enabling those subject to a compliance order to force the EPA to litigate all compliance orders in court. E.g., Hoffman Group, 902 F.2d at 569. Such a result would be discordant with the statutory scheme.

Moreover, no sanctions can be imposed, or injunctions issued, for noncompliance with a compliance order until the EPA brings a civil enforcement action in district court. See 33 U.S.C. § 1319(d); Hoffman Group, 902 F.2d at 569. Given that an...