Yesterday, the Sacketts of Idaho were handed their most recent litigation defeat by a three judge panel of the Ninth Circuit Court of Appeals.  In ruling against the Sacketts the panel held that Justice Kennedy's 2006 "significant nexus" test for determining the reach of the Clean Water Act remains the law of the Ninth Circuit even though EPA regulations currently valid in the Ninth Circuit, and everywhere else, reject that test from Justice Kennedy's concurring opinion in Rapanos which did not, even then, command the support of a majority of the Justices of the United States Supreme Court.

Lara Beaven, of Inside EPA, reports that the panel first denied EPA's request to dismiss the case against the Sacketts on the ground that it would be unfair to the Sacketts to deny them their day in court. In a classic case of "with friends like these" the panel then ruled against the Sacketts.

The panel's legal gymnastics to reach this conclusion could be the basis for an entire law school seminar.  One thing seems certain.  This won't be the last time we'll be reading about the Sacketts' tangles with EPA and the Ninth Circuit which began at the turn of the century and have already involved the Supreme Court once.

For those of you who missed my earlier 2012 and 2021 updates on the Sacketts, they purchased a wet lot on which they intended to build a home.  EPA ordered them to halt that construction and remove fill they had placed on the lot based on the Agency's conclusion that the lot was a wetland within the reach of the Federal Clean Water Act and the Sacketts did not have the permit necessary to fill it.  The Sacketts challenged the order in court as several years later the Supreme Court determined they had the right to do.

Yesterday, the Ninth Circuit panel ruled that ancient EPA order, which EPA specifically said it did not want to enforce, was valid because there was a "significant nexus" between the Sacketts' lot and a Water of the United States.  The panel dispenses with the contrary EPA regulation in a footnote indicating that EPA has said it intends to reconsider it, which is true, but the panel fails to mention in that footnote, or anywhere else, that EPA has told a District Court in the Ninth Circuit that regulation should remain the law while it is doing its reconsidering.

The Ninth Circuit panel further prebuts the obvious observation that it is improperly failing to defer to EPA by reference to "the Sacketts' primary legal argument [which] is that they are entitled to prevail as a matter of law based on the unambiguous text of the [Clean Water Act] as interpreted by the Rapanos plurality, no matter what regulatory interpretation EPA adopts."   

In the meantime, as I wrote earlier this summer following a similarly dismissive of EPA decision on the right coast (Following First Circuit Panel's decision, does EPA even matter anymore?, July 2, 2021), we are left to ponder the likelihood that, for the foreseeable future, it will be judges, and not the agency charged by Congress with implementing the Clean Water Act, that will be dominating the application of the Act.    

“If we are to take EPA’s letter at face value, the agency caused the Sacketts to litigate cross-motions for summary judgment in the district court, participate in mediation, and then pursue this appeal after the agency had already concluded it would never enforce the challenged compliance order,”