House Building Delay

For a more balanced and nuanced description (not available from the federalist), see:

At the end of nearly two hours of argument in Sackett v. EPA, the justices appeared torn between wanting to protect the nation's waters and the desire to have more clarity for property owners, who can face stiff fines for violating the Clean Water Act."

One thing that bugs me is the Sacketts got the necessary permits from the local officials according to the article I cited. How many officials are people supposed to contact before doing something? The federal government is such a big quagmire that the average person can easily get trapped in situations like this. The Sacketts are paying a fine by not being able to use their ground.

I'd trust the court filings (available from the court website) over the reporting from a rather blatently biased website. Wait and see what the Justices decide, read their decision (will also be available on the court website) after it is announced, and then judge the decision on its merits.

Anything else is pointless speculation.

Since the lot is a "navigable waterway", buy an old 100' yacht and have it set up in the middle of the lot. In most states, a boat dwelling is not taxable.

And just for giggles, put Gilligan's Island on the mailbox.

Someone said definition has been extended to the point where a lawyer might get his feet wet.

So, I've spent the afternoon reading the original district court opinion, and the 9th circuit opinion and the petition for certiori.

Basically, the Sackets bought some wetlands and started to fill them in, which is a violation of the clean water act (CWA). Here is the Sacketts site:

https://www.google.com/maps/place/1604+Kalispell+Bay+Rd,+Priest+River,+ID+83856/@48.5703912,-116.9210682,190m/data=!3m1!1e3!4m5!3m4!1s0x5363b3d6a0e7d2a9:0xff17eb479e2c89a6!8m2!3d48.5707719!4d-116.9201517 The fill is very visible, as are the rest of the wetlands north of the highway bounding the north side of their property.

The land met all the requirements to be listed under the clean water act as a wetland (pictures taken by the EPA inspector show standing water, and hydrophilic vegatation on the property adjacent to the fill, and subsurface flow towards the lake, through the property, to the lake).

This all occurred in 2008.

The Sacketts filed suit in district court, and lost. Handily. The Sacketts appealed to the 9th circuit, and lost. Handily. The Sacketts appealed to the Supreme Court. I didn't see anything in the record that would support anything other than affirming the

Their (Sacketts) argument rests on a single point; to wit, how to interpret an earlier supreme court decision in an earlier Clean Water Act case (Rapanos), with respect to the definition of "navigatable waters". The Rapanos case was split, with a concurring (only with respect to remanding back to lower court) opinion by Justice Kennedy. Both the district court and the 9th circuit concurred with Justice Kennedy's opinion: "the connection between a non-navigable water or wetland may be so close, or potentially so close, that the Corps [ed. Army Engineers] may deem the water or wetland a 'navigable water' under the Act... Absent a significant nexus, jurisdiction under the Act is lacking"

Both the plurality opinion in Rapanos and the dissent would uphold CWA jurisdiction over non-navigable tributaries that are "relatively permenent" -- waters that typically flow year-round or seasonally.

Justice Scalia in the opinion wrote that "tributaries that go at intervals, broken, fitful do not fall under the Act".

It seem clear from the record that in this case, Justice Scalia's description doesn't apply to the wetlands in question; both the circuit and appeals courts concurred in this.

This is the question before the court now; which interpretation of Rapanos applies here.

The entire record can be found by googling for

Or by going to

Note that the petition is written in very inflamatory language; it's written by lawyers (with an axe to grind, most likely, since it is unlikely that the Sacketts themselves could pay for

It's pretty clear that anyone would have assumed the land was wetlands, just by looking at them; not to mention starting to fill them in. The Sacketts didn't do their homework, and it bit them.

LOL

The lakefront property owners around here seem to be in a contest to see who can have the greenest weed-free lawn. I've often wondered how toxic the weed and feed stuff is when it runs off into the lake. I think they've realized there is an algae problem in the lake but they blame that on the farmer's fertilizer runoff.

Another nugget from the Governments Response to the Petition for Certiori:

Petitioners purchased the property in 2004. Pet. App. A8. Eight years earlier, the Corps had determined that the property contains wetlands that qualify as "wa- ters of the United States," 33 U.S.C. 1362(7), thus trig- gering the CWA's requirement to obtain a permit be- fore dumping any fill material, such as gravel, onto the wetlands. Administrative Record 92-95. In 2007, with- out obtaining any permit under the CWA, petitioners trucked in approximately 1714 cubic yards of gravel and sand to fill the wetlands and prepare the site for build- ing. C.A. E.R. 195; Pet. App. A8-A9.

So, unless Idaho is really messed up, the seller would have been required to disclose to the Sacketts that the property was covered by the CWA and they'd need a permit from the Army to build on it.

Even if Idaho didn't require disclosure, the EPA offers free assessments, if asked.

Looking worse and worse for the Sackett case.

They chose a great name, the Federalist Society. It congers up images of the Federalist Papers, Alexander Hamilton, James Madison, John Jay. great thinkers, smart men, wise men, great patriots. It's hard to separate those images from the current group, but one should not give too much credit to their name. It doesn't mean that the staff or the memebers of the Federalist Society reach that level. I suspect some come nowhere close.

Just to add a bit more context around this. Back in 2020, under the Trump-appointed administrator, Andrew Wheeler, the EPA promulgated a new rule that adopted the Scalia interpretation from Rapanos (and narrowed it significantly); this was called the Navigable Waters of the United States Rule (NWPR); this was published April 21, 2020.

"Specifically, the rule established four categories of jurisdictional waters: (1) The territorial seas and traditional navigable waters; (2) tributaries of such waters; (3) certain lakes, ponds, and impoundments of jurisdictional waters; and (4) wetlands adjacent to other jurisdictional waters (other than jurisdictional wetlands). Id. at 22273." pp.9 - 10 below

See the Proposal for Rule, the first link is the PDF (79 dense, 3-column pages).

As for Adminstrator Wheeler, his wiki page is pretty complete, but this stood out:

"Since 2009, he represented the coal producer Murray Energy,[19] privately owned by Robert E. Murray, a supporter of President Trump.[20] Murray Energy was Wheeler's best-paying client, paying at least $300,000,[4] and possibly as much as $3,300,000[21] during the period 2009-2017."

Yes, as an attorney, one should represent one's client faithfully, regardless of what the attorney believes, thinks or wants[*]. That said, it is clear from the record that Adminstrator Wheeler was using politics, not science to craft the new Navigable Waters rule when the CWA requires science-based decisions.

Says the party of mask mandates, mandates for untested vaccines and unconstitutional censorship. Good grief.

And more: