The EPA responded by issuing a “compliance order,” requiring them to take immediate action to remove all deposited fill material and restore the lot to its original condition. The order required them to plant new trees and shrubs and to maintain a fence around the lot for three growing seasons.
The restoration would cost an estimated $27,000, according to the Sacketts. The EPA added a potent incentive – the Sacketts would be fined $37,500 each day the couple failed to bring the property within compliance of the EPA order.
The Sacketts asked the EPA to conduct an administrative hearing to examine whether the property really was a “wetland” subject to federal regulation. The agency refused.
That’s when the Sacketts took their case to federal court, hoping a district judge would conduct a hearing to determine whether the EPA had jurisdiction over their land.
The judge threw the case out. A panel of the Ninth US Circuit Court of Appeals also dismissed the case.
The courts ruled that since the EPA action was merely an administrative order, and not final action by the agency, the Sacketts could not file a federal lawsuit until the agency took enforcement action against them.
The case is important because it raises a question about the scope of federal regulation under the Clean Water Act and what recourse, if any, land owners have once they are threatened with potentially bankrupting administrative orders.
Lawyers for the Sacketts are asking the court to decide whether they are entitled to take their dispute to a federal judge, and if not, whether the agency action violates the Sacketts’ constitutional right to due process.
One solution suggested by the appeals court was that the Sacketts could apply for a federal permit. If the permit was denied, they could then appeal the denial in federal court.
But lawyers for the Sacketts say this would only allow the Sacketts to challenge the permit determination, not the underlying compliance order. The regulations require the Sacketts to resolve the compliance order before applying for a permit.