MICHAEL SACKETT; CHANTELL SACKETT, Plaintiffs-Appellants, v. U.S. ENVIRONMENTAL PROTECTION AGENCY; MICHAEL S. REGAN, Administrator, Defendants-Appellees.
No. 19-35469
United States Court of Appeals for the Ninth Circuit
August 16, 2021
Resubmitted August 9, 2021
Before: Ronald M. Gould and Michelle T. Friedland, Circuit Judges, and Jill A. Otake, District Judge. Opinion by Judge Friedland
D.C. No. 2:08-cv-00185-EJL. FOR PUBLICATION. Appeal from the United States District Court for the District of Idaho. Edward J. Lodge, District Judge, Presiding. Argued and Submitted November 19, 2020. Submission Withdrawn December 1, 2020. Seattle, Washington.
Mootness / Environmental Law
The panel affirmed the district court‘s summary judgment in favor of the Environmental Protection Agency (“EPA“) in an action brought by plaintiff landowners, challenging an EPA compliance order that stated that plaintiffs’ property contained wetlands subject to protection under the Clean Water Act (“CWA“) and that directed them to remove fill and restore the property to its natural state.
When the parties were briefing this appeal, in a letter to plaintiffs, EPA abruptly withdrew its compliance order. The panel held that the EPA‘s withdrawal of the order did not moot this case. EPA‘s stated intention not to enforce the amended compliance order or issue a similar one in the future did not bind the agency, and EPA could potentially change positions under new leadership. In addition, the letter did nothing to alter EPA‘s litigation position that it has authority to regulate the plaintiffs’ property. Accordingly, the panel could not conclude that it was “absolutely clear”
The panel next addressed the district court‘s refusal to strike a July 2008 Memo by EPA wetlands ecologist John Olson from the administrative record. The Memo contained observations and photographs from Olson‘s visit to plaintiffs’ property. The panel held, pursuant to its review under the Administrative Procedure Act, that the district court did not abuse its discretion in permitting EPA to include the July 2008 Memo in the administrative record.
Turning to the entry of summary judgment on the merits, the panel held that, under Northern California River Watch v. City of Healdsburg, 496 F.3d 993, 999-1000 (9th Cir. 2007), Justice Kennedy‘s understanding of “significant nexus” in his concurring opinion in Rapanos v. United States, 547 U.S. 715 (2006), provided the governing standard for determining when wetlands are regulated under the CWA. The panel rejected plaintiffs’ arguments that Northern California River Watch v. City of Healdsburg was no longer law of the circuit. Applying the significant nexus standard, the panel held that the requirements of the concurrence and the applicable regulations were satisfied here. The panel concluded that EPA reasonably determined that plaintiffs’ property contained wetlands. It further determined that the record plainly supported EPA‘s conclusion that the wetlands on plaintiffs’ property were adjacent to a jurisdictional tributary and that, together with a similarly situated wetlands complex, they had a significant nexus to Priest Lake, a traditional navigable water, such that the property was regulable under the CWA and the relevant regulations.
Anthony L. François (argued) and Damien M. Schiff, Pacific Legal Foundation, Sacramento, California, for Plaintiffs-Appellants.
Brian C. Toth (argued) and David Gunter, Attorneys; Eric Grant, Deputy Assistant Attorney General; Jean E. Williams, Acting Assistant Attorney General; Environment and Natural Resources Division, United States Department of Justice, Washington, D.C.; Karyn Wendelowski, Attorney, United States Environmental Protection Agency, Washington, D.C.; for Defendants-Appellees.
OPINION
FRIEDLAND, Circuit Judge:
Plaintiffs Chantell and Michael Sackett purchased a soggy residential lot near Idaho‘s Priest Lake in 2004. They planned to build a home on the property, but the project became entangled in a regulatory dispute. Shortly after the Sacketts began placing sand and gravel fill on the lot, they received an administrative compliance order from the Environmental Protection Agency (“EPA“). The order stated that the property contained wetlands subject to protection under the Clean Water Act (“CWA“), and that the Sacketts had to remove the fill and restore the property to its natural state. Instead, the Sacketts sued EPA in 2008, contending that the agency‘s jurisdiction under the CWA does not extend to their property. The case has been winding its way through the federal courts ever since. When the parties were briefing this appeal, EPA abruptly withdrew its compliance order.
I.
A.
Congress enacted the CWA “to restore and maintain the chemical, physical, and biological integrity of the Nation‘s waters.”
Since the CWA was enacted, agencies and courts have struggled to identify the outer definitional limits of the phrase “waters of the United States,” which in turn defines the scope of the federal government‘s regulatory jurisdiction under the CWA. The U.S. Army Corps of Engineers (the “Corps“) first issued regulations defining “waters of the United States” in the 1970s, shortly after the CWA took effect. Initially, the Corps determined that the CWA covered only waters that were navigable in fact, see 39 Fed.
As relevant here, the regulations defined “waters of the United States” to include “wetlands” that are “adjacent” to traditional navigable waters and their tributaries. See
Finally, and most relevant here, in Rapanos v. United States, 547 U.S. 715 (2006), the Court vacated two decisions upholding the application of the CWA to wetlands connected to distant navigable waters via ditches or artificial drains. Id. at 757. In his plurality opinion, Justice Scalia, joined by three other Justices, articulated one test for determining whether wetlands could be regulated under the CWA, id. at 739, while Justice Kennedy authored a concurrence articulating a different test, id. at 779-80. The parties here
B.
In 2004, the Sacketts purchased a 0.63-acre lot near Priest Lake, one of the largest lakes in Idaho. The property is bounded by roads to the north and south. To the north, across Kalispell Bay Road, lies the Kalispell Bay Fen, a large wetlands complex that drains into an unnamed tributary. That tributary feeds Kalispell Creek, which, in turn, flows southwest of the Sacketts’ property and then empties into Priest Lake. To the south, across another road, is a row of homes fronting Priest Lake. The Sacketts’ property is 300 feet from the lake.
In May 2007, having obtained building permits from their county, the Sacketts began backfilling the property with sand and gravel to create a stable grade. EPA and Corps officials soon visited the property and, believing the property contained wetlands that might be subject to the CWA, suggested that work stop absent a permit from the Corps.
Six months later, EPA issued the Sacketts a formal administrative compliance order. The order stated that the property contained wetlands subject to the CWA. It went on to explain that the Sacketts’ placement of fill material onto half an acre of their property without a discharge permit constituted a violation of the CWA. The Sacketts were ordered to “immediately undertake activities to restore the Site” in keeping with a “Restoration Work Plan” provided by EPA, and they were given five months to complete the remediation. The order also informed the Sacketts that failure to comply could result in civil and administrative penalties of over $40,000 per day.
On April 28, 2008, shortly before the deadline for compliance, the Sacketts sued EPA, seeking declaratory and injunctive relief. The Complaint alleged that the agency‘s issuance of the compliance order was arbitrary and capricious under the Administrative Procedure Act (“APA“),
On May 15, 2008, EPA and the Corps again inspected the site. EPA wetlands ecologist John Olson took field notes on the property and its surroundings, and he completed a seven-page jurisdictional determination (“JD“), in which he concluded that the Sacketts’ lot contained wetlands subject to regulation under the CWA.
That same day, after Olson reported his findings to his superiors at the agency, EPA issued the Sacketts an amended compliance order that extended the dates for compliance but otherwise mirrored the original order. The amended order reiterated that the property contained wetlands subject to CWA regulation, that the Sacketts’ discharge of fill material was pollution in violation of the CWA, and that their continued noncompliance could result in significant monetary sanctions. The amended compliance order “supersede[d] and replace[d]” the original compliance order.
Six weeks later, on July 1, 2008, Olson authored a memorandum (the “July 2008 Memo“), in which he memorialized his observations from the May site visit. The
EPA moved to dismiss the Sacketts’ lawsuit, contending that the original compliance order was not “final agency action . . . subject to judicial review” under the APA.3
On remand, the Sacketts amended their Complaint to challenge the amended compliance order, and district court proceedings continued for seven more years. In March 2019, the district court entered summary judgment in EPA‘s favor, holding that the agency‘s issuance of the amended compliance order was not arbitrary or capricious. In the same order, the district court denied a motion by the Sacketts to strike from the administrative record the July 2008 Memo and materials referenced therein but also explained that summary judgment would have been appropriate even if those materials were not considered.
The Sacketts timely appealed both the grant of summary judgment and the denial of the motion to strike. Following
EPA then moved to dismiss the appeal as moot. According to the agency, its withdrawal of the amended compliance order effectively granted the Sacketts complete relief, which mooted the case. The Sacketts disagreed, explaining that the status of their property remains unsettled and that EPA did not withdraw the 2008 JD, in which Olson concluded that the agency has authority under the CWA to regulate the Sacketts’ property.4
II.
A.
We review de novo whether a case has become moot. Biodiversity Legal Found. v. Badgley, 309 F.3d 1166, 1173 (9th Cir. 2002). “A case that becomes moot at any point during the proceedings is ‘no longer a “Case” or “Controversy” for purposes of Article III,’ and is outside the
The already “heavy burden” of establishing mootness is even heavier for EPA here because its mootness argument stems from its own voluntary conduct—namely its decision to withdraw the amended compliance order. When a defendant voluntarily ceases challenged conduct, mootness follows only “if subsequent events [make] it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Friends of the Earth, Inc. v. Laidlaw Env‘t Servs. (TOC), Inc., 528 U.S. 167, 189 (2000) (emphasis added) (quoting United States v. Concentrated Phosphate Exp. Ass‘n, 393 U.S. 199, 203 (1968)).
In deciding whether EPA has met its burden of establishing that its letter withdrawing the amended compliance order mooted this case, our decision in Porter v. Bowen, 496 F.3d 1009 (9th Cir. 2007), is instructive. In Porter, the operators of websites that encouraged interstate “vote swapping” for the 2000 presidential election brought a
We reversed, holding that the Secretary “fail[ed] to carry the ‘heavy burden’ of establishing that it is ‘absolutely clear’ that California will not threaten to prosecute the owners of [the websites] if they create vote-swapping websites in the future.” Id. at 1017. We explained that the letter “d[id] not suggest that it [wa]s binding on the Secretary of State,” and that a new Secretary of State who had since entered office “could initiate the prosecution of vote-swapping websites at her discretion.” Id. Finally, we observed that “the Secretary has maintained throughout the nearly seven years of litigation . . . that [the Secretary] had the authority under state law to threaten [the plaintiffs] with prosecution,” a position that the plaintiffs believed violated their rights. Id.
The Sacketts’ situation is directly analogous. EPA‘s stated intention not to enforce the amended compliance order or issue a similar one in the future does not bind the agency, and EPA could potentially change positions under new leadership. Further, the letter did nothing to alter EPA‘s position throughout this litigation that it has authority to regulate the Sacketts’ property. Indeed, during oral argument, counsel for the agency was unwilling to represent that the agency lacked authority over the property and, even after more than a decade of litigation, could not answer questions about whether the Sacketts could develop their land. The agency could have disavowed the JD, but it
EPA‘s arguments to the contrary are unavailing. First, EPA contends that the “inscribed-by-hand, unsigned, never issued” JD, which it refused to disavow, cannot be considered “final agency action.” But this is a red herring. Even if the 2008 JD itself would not constitute “final agency action” required to bring an APA claim because it lacks the “hallmarks of APA finality,” see Sackett, 566 U.S. at 126, that is beside the point. The “final agency action” requirement was already satisfied by the original compliance order when the Sacketts filed this lawsuit, as the Supreme Court specifically held. Id. at 131; see also United Steel, Paper & Forestry, Rubber, Mfg., Energy, Allied Indus. & Serv. Workers Int‘l Union v. Shell Oil Co., 602 F.3d 1087, 1091-92 (9th Cir. 2010) (explaining that “post-filing developments” do not defeat statutory requirements for jurisdiction “if jurisdiction was properly invoked as of the time of filing“). The question we now face is whether the agency can end the litigation by voluntarily withdrawing the challenged order. As the Supreme Court has emphasized, whether a suit may be initiated and whether it may be terminated as moot are different inquiries. Cf. Laidlaw, 528 U.S. at 190 (“[T]here are circumstances in which the prospect that a defendant will engage in (or resume) harmful conduct may be too speculative to support standing, but not too speculative to overcome mootness.“).
Accordingly, we conclude that the JD is relevant not because of its potential to serve as “final agency action,” but rather because it demonstrates EPA‘s refusal to concede that it lacks the authority to regulate the Sacketts’ land. See Fikre
Second, EPA argues that the Sacketts already received “full relief” when the agency withdrew its amended compliance order. Again, we disagree. EPA‘s argument ignores the practical realities of the Sacketts’ predicament. If we were to dismiss this case as moot, the Sacketts would not have prevailed in any meaningful sense; rather, they would be stuck in the same regulatory quagmire they have been in for the past thirteen years. As we have explained, nothing prevents the agency from reinstating the amended compliance order, issuing a new one, or possibly even pursuing another avenue of enforcement available to it under the CWA. Withdrawal of the amended compliance order, therefore, hardly affords the Sacketts “full relief.” See United States v. Tanoue, 94 F.3d 1342, 1344 (9th Cir. 1996). By contrast, if we were to side with the Sacketts on the merits and grant the requested declaratory relief, they would finally be on solid ground when resuming construction.
The fact that the Sacketts’ central legal challenge remains unresolved distinguishes this case from the authorities relied on by EPA. In Oregon Natural Resources Council v. Grossarth, 979 F.2d 1377 (9th Cir. 1992), for example, the plaintiffs challenged a proposed timber sale by the U.S. Forest Service, alleging in part that the Forest Service had failed to prepare a required Environmental Impact Statement (“EIS“). Id. at 1378. While the case was pending, the plaintiffs simultaneously pursued an
The situation facing the Sacketts is distinguishable in both respects. EPA‘s decision to withdraw the amended compliance order was not the result of a judgment from an intervening administrative proceeding. The agency provided no explanation for why, “several years ago,” it resolved not to enforce the amended compliance order against the Sacketts, but it appears to have been a voluntary agency decision. Moreover, there is evidence in the record from which we could form a “reasonable expectation” that the same allegedly unlawful conduct by EPA could recur, given that the agency apparently still believes it has authority under the CWA to regulate the Sacketts’ property.
Third, to bolster its claim that the case is moot, EPA invokes the general presumption of good faith that the government traditionally enjoys in the context of mootness by voluntary cessation. See Am. Cargo Transp., Inc. v. United States, 625 F.3d 1176, 1180 (9th Cir. 2010) (“The government‘s change of policy presents a special
Here, although we similarly presume EPA withdrew its amended compliance order in good faith, the agency‘s conduct prevents that presumption from carrying the day. As explained, we are not confident that the agency has permanently ceased attempting to regulate the Sacketts’ land. In addition, we note that, although EPA represents that it resolved “several years ago” not to enforce the amended compliance order, it informed the Sacketts of this development only on the eve of EPA‘s filing deadline for its
Lastly, EPA argues that the new definition of “waters of the United States” it adopted in 2020, see 85 Fed. Reg. 22,250, 22,273 (Apr. 21, 2020), governs its authority over wetlands such that any judicial decision regarding the prior regulation “would be purely advisory.” But the Sacketts’ primary legal argument is that they “are entitled to prevail as a matter of law based on the unambiguous text of the [CWA] as interpreted by the Rapanos plurality, no matter what regulatory interpretation EPA adopts.” Therefore, a decision resolving whether the Sacketts’ interpretation of the CWA is correct will not be purely advisory.
At bottom, the central dispute in this case remains unresolved. The Sacketts are still, thirteen years later, seeking an answer to whether EPA can prevent them from developing their property. Accordingly, we hold that this case is not moot.
B.
Before turning to the merits, we address the district court‘s refusal to strike Olson‘s July 2008 Memo from the
A court reviews agency action under the APA by considering the “whole record” that was before the agency when it undertook the challenged action.
We hold that the district court did not abuse its discretion in permitting EPA to include the July 2008 Memo in the administrative record. Although the memo postdates the issuance of the amended compliance order by six weeks, it simply memorializes the observations and conclusions that Olson and a Corps official made during their May site visit and attaches other information available to EPA before the order issued. Specifically, the memo consists of photos Olson took during the May site visit, historical aerial photos that Olson had examined “[p]rior to visiting the site,” general maps of the area, Olson‘s observations from the May site
Indeed, the record shows that the July 2008 Memo repeats the observations that informed the challenged agency action. Declarations from EPA officials establish that, shortly after his site visit, Olson called EPA‘s Regional Counsel to relay his findings and his conclusion that the Sackett property contained wetlands subject to the CWA. The Regional Counsel then relayed Olson‘s findings to EPA‘s Office of Ecosystems, Tribal, and Public Affairs, and recommended based on those findings that the Office issue the amended compliance order. Because the July 2008 Memo thus conveys the same information that the agency considered and relied on in issuing the amended compliance order, we cannot say the district court abused its discretion in declining to strike it from the record. Cf. Thompson v. United States Dep‘t of Lab., 885 F.2d 551, 555 (9th Cir. 1989) (explaining that the “whole administrative record” for purposes of judicial review of agency action includes materials “directly or indirectly considered by agency decision-makers” (emphasis omitted) (quoting Exxon Corp. v. Dep‘t of Energy, 91 F.R.D. 26, 33 (N.D. Tex. 1981))).
C.
We now turn to whether EPA was entitled to summary judgment on the merits. We review the district court‘s grant of summary judgment de novo. Nw. Env‘t Advocs. v. EPA, 537 F.3d 1006, 1014 (9th Cir. 2008). The Sacketts’ core
As for EPA’s conclusion that there were in fact wetlands on the property, we review the agency’s conclusion for substantial evidence. Ctr. for Biological Diversity v. Esper, 958 F.3d 895, 910 (9th Cir. 2020). That standard is easily satisfied. The applicable regulations define wetlands as “those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions.”
No opinion garnered a majority. Justice Scalia, writing for four Justices, rejected the regulatory definition of “adjacency” and instead concluded that, under the statute, “waters of the United States” extend only to “relatively permanent, standing or flowing bodies of water” and to wetlands with a “continuous surface connection” to such permanent waters. Id. at 739, 742.
Justice Kennedy concurred in the judgment. He accepted the regulatory definition of adjacency, id. at 775 (Kennedy, J., concurring in the judgment), but he rejected the Corps’ position that wetlands are necessarily “waters of the United States” any time they are “bordering, contiguous [with], or neighboring” a tributary,
Although the Scalia plurality did not entirely reject the concept of a “significant nexus,” which derived from earlier Supreme Court caselaw, it opined that only wetlands with a “physical connection” to traditional navigable waters had the requisite nexus to qualify as “waters of the United States.” Id. at 755 (plurality opinion).
The Sacketts argue that the Scalia plurality provides the governing legal standard. They further argue that, because their property does not contain wetlands with a continuous surface connection to any “waters of United States,” the agency’s assertion of jurisdiction over their property ran afoul of the CWA and the APA.
In interpreting Rapanos to evaluate this argument, we are not writing on a blank slate. In Northern California River Watch v. City of Healdsburg, 496 F.3d 993 (9th Cir. 2007), we concluded that “Justice Kennedy’s concurrence provides the controlling rule of law” from Rapanos. Id. at 999–1000. To reach this determination, we engaged in the inquiry the Supreme Court established in Marks v. United States, 430 U.S. 188 (1977), under which the controlling holding of a fractured decision is “the narrowest ground to which a majority of the Justices would assent if forced to choose in almost all cases.” Healdsburg, 496 F.3d at 999. In determining that narrowest ground, we relied heavily on the Seventh Circuit’s decision in United States v. Gerke Excavating, Inc., 464 F.3d 723 (7th Cir. 2006)
The Sacketts contend that a later en banc decision of our court fatally undermines Healdsburg such that it is no longer law of the circuit. In United States v. Davis, 825 F.3d 1014 (9th Cir. 2016) (en banc), we clarified how we perform a Marks analysis to interpret a fractured decision. We reflected “that the Marks inquiry at times has ‘baffled and divided the lower courts that have considered it,’” and we observed that two approaches to applying Marks had come to predominate: a reasoning-based approach and a results-based approach. Id. at 1020–21 (quoting Nichols v. United States, 511 U.S. 738, 746 (1994)). Under the reasoning-based approach, courts “look to those opinions that concurred in the judgment and determine whether one of those opinions sets forth a rationale that is the logical subset of other, broader opinions. When, however, no common denominator of the Court’s reasoning exists, we are bound only by the specific result.” Id. at 1028 (quotation marks omitted). Under the results-based approach, the controlling holding from the fractured case in question is the rule that “would necessarily produce results with which a majority of the Justices . . . would [have] agree[d].” Id. at 1021 (quoting Planned Parenthood of Se. Pa. v. Casey, 947 F.2d 682, 694 (3d Cir. 1991), aff’d in part, rev’d in part, 505 U.S. 833 (1992)). Our court in Davis embraced the reasoning-based approach, see id. at 1028, and we remain bound by that holding.
It is not. We explained in Davis that the narrowest opinion for purposes of a Marks analysis is the opinion that concurs in the judgment that is “the logical subset of other, broader opinions,” and which therefore represents “a common denominator of the Court’s reasoning.” Davis, 825 F.3d at 1028. In Healdsburg, our Marks analysis consisted of a single paragraph that endorsed the Seventh Circuit’s Marks analysis in Gerke. See Healdsburg, 496 F.3d at 999–1000.
Gerke, in turn, elaborated on why the Kennedy concurrence articulated a narrower ground for reversing than did the Scalia plurality such that “the Kennedy concurrence is the least common denominator.” Gerke, 464 F.3d at 725.
Admittedly, Gerke’s analysis does not fit neatly into either a reasoning-based or a results-based Marks framework, and portions of the opinion are consistent with the results-based Marks analysis that we rejected in Davis. See, e.g., id. (explaining that Justice Kennedy’s approach will yield a result that will command five votes “in most cases”) (emphasis omitted). The results-based aspects of Gerke present some tension with Davis, but to be superseded under Miller v. Gammie, “[i]t is not enough for there to be some tension between the intervening higher authority and prior circuit precedent, or for the intervening higher authority to cast doubt on the prior circuit precedent.” Lair v. Bullock, 697 F.3d 1200, 1207 (9th Cir. 2012) (citation and quotation marks omitted). Thus, although Gerke is not a paradigmatic example of a reasoning-based Marks analysis, it is not “clearly irreconcilable” with such an approach. And because Healdsburg adopted Gerke’s application of Marks, we conclude that Healdsburg’s “theory or reasoning” was
The Sacketts also contend that Healdsburg is clearly irreconcilable with intervening authority in another way. They argue that Healdsburg relied on the Rapanos dissent in its Marks analysis, and that shortly after Davis, we held that dissents could not be considered for purposes of a Marks analysis. The Sacketts cite to our decision in Cardenas v. United States, 826 F.3d 1164 (9th Cir. 2016), in which we wrote that the “narrowest opinion must represent a common denominator of the Court’s reasoning; it must embody a position implicitly approved by at least five Justices who support the judgment.” Id. at 1171 (emphasis added) (quoting Davis, 825 F.3d at 1020). But this language in Cardenas is no more than a direct quotation from Davis, a decision in which we explicitly reserved judgment on the very question that the Sacketts assert Cardenas decided. Davis, 825 F.3d at 1025 (“Here, we assume but do not decide that dissenting opinions may be considered in a Marks analysis.”); id. at 1025 n.12 (“We note that . . . the D.C. Circuit explicitly stated that it was not free to combine a dissent with a concurrence to form a Marks majority. We emphasize here, however, that we do not decide that issue.” (quotation marks and citation omitted)). Thus, Davis cannot stand for the proposition that dissents are off-limits in a Marks inquiry, and neither can Cardenas, which cited Davis only in passing and did not consider that question.10
For all these reasons, the Sacketts’ arguments fail, and Healdsburg remains law of the circuit—meaning the Kennedy concurrence is still the controlling opinion from Rapanos.11
We therefore apply Justice Kennedy’s “significant nexus” inquiry to evaluate whether EPA has jurisdiction to regulate the Sacketts’ property. In answering this question, we also use the regulations that were in effect when EPA issued the amended compliance order.12 See United States v. Lucero, 989 F.3d 1088, 1104–05 (9th Cir. 2021) (holding that the definition of “waters of the United States” from the regulation that was in place at the time of the defendant’s conduct applied, despite the promulgation of a new regulation that narrowed that definition while the case was pending on appeal). The Sacketts’ only challenge to those regulations is premised on the Scalia plurality being the controlling opinion.
Under the APA, a court may set aside agency action if it is “arbitrary, capricious . . . or otherwise not in accordance with law.”
It is clear that the requirements of the Kennedy concurrence and the applicable regulations are satisfied here. The record plainly supports EPA’s conclusion that the wetlands on the Sacketts’ property are adjacent to a jurisdictional tributary and that, together with the similarly situated Kalispell Bay Fen, they have a significant nexus to Priest Lake, a traditional navigable water.
First, there was nothing arbitrary about EPA’s determination that the Sacketts’ wetlands were adjacent to a jurisdictional tributary, and thus fell into the relevant regulatory definition of “waters of the United States.”
We turn next to Justice Kennedy’s “significant nexus” inquiry: whether “the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’” Rapanos, 547 U.S. at 780 (Kennedy, J., concurring in the judgment).
At the time of the amended compliance order, EPA had explained that “‘[s]imilarly situated’ wetlands include all wetlands adjacent to the same tributary.” U.S. EPA & Army Corps of Engineers, Clean Water Act Jurisdiction Following the U.S. Supreme Court’s Decision in Rapanos v. United States & Carabell v. United States (June 5, 2007),
The record further supports EPA’s conclusion that these wetlands, in combination, significantly affect the integrity of Priest Lake. Water from these wetlands makes its way into Priest Lake via the unnamed tributary and Kalispell Creek. According to the July 2008 memo, these wetlands provide important ecological and water quality benefits; indeed, the memo identified this wetlands complex, which is one of the five largest along the 62-mile Priest Lake shoreline, as “especially important in maintaining the high quality of Priest Lake’s water, fish, and wildlife.” The agency’s conclusion that the Sacketts’ wetlands, combined with the similarly situated Fen, “significantly affect the chemical, physical, and biological integrity of” Priest Lake was a reasonable one which we will not second-guess. Rapanos, 547 U.S. at 780 (Kennedy, J., concurring in the judgment); see also San Luis & Delta-Mendota Water Auth., 747 F.3d at 621 (emphasizing that “we do not sit as a panel of referees on a professional scientific journal, but as a panel of generalist judges obliged to defer to a reasonable judgment by an agency” (brackets omitted) (quoting City of Los Angeles v. Dep’t of Transp., 165 F.3d 972, 977 (D.C. Cir. 1999)))).
III.
For the foregoing reasons, we affirm the district court’s grant of summary judgment in EPA’s favor.
AFFIRMED.
View south from Kalispell Bay Road along east edge of Sackett property, taken during 2008 site visit.
View north from Old Schneiders Road of south and west edges of property, taken during 2008 site visit.
East side of the lot showing strip of excavated ground that was being filled when EPA officials arrived, taken during 2007 site visit.
Notes
In the years since the challenged compliance order issued, EPA and the Corps have continued to revise the regulatory definition of “waters of the United States” under the CWA. In 2015, the agencies proposed the Clean Water Rule, 80 Fed. Reg. 37,054 (June 29, 2015). But implementation of the Clean Water Rule was stayed pursuant to multiple court challenges, and two courts eventually decided that the rule was “unlawful” and remanded it to the agencies. See Georgia v. Wheeler, 418 F. Supp. 3d 1336, 1372 (S.D. Ga. 2019); Texas v. EPA, 389 F. Supp. 3d 497, 504-06 (S.D. Tex. 2019). The agencies ultimately repealed the Clean Water Rule and reinstated the pre-2015 regulatory definition. See 84 Fed. Reg. 56,626, 56,659-60 (Oct. 22, 2019).
On January 23, 2020, EPA and the Corps promulgated yet another regulatory definition of “waters of the United States.” See 85 Fed. Reg. 22,250, 22,273 (Apr. 21, 2020). The agencies, however, are currently
reevaluating that Rule, in keeping with President Biden‘s executive order Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis, Exec. Order No. 13990, 86 Fed. Reg. 7037 (Jan. 20, 2021). See Definition of “Waters of the United States“: Rule Status and Litigation Update, U.S. EPA, https://www.epa.gov/nwpr/definition-waters-united-states-rule-status-and-litigation-update (last updated Apr. 23, 2021) (“Consistent with the Executive Order, EPA and the [Corps] are reviewing the [2020] Rule.“).In the district court, the Sacketts moved to strike additional documents that were cited in the July 2008 Memo. On appeal, however, the Sacketts only provide argument on why the July 2008 Memo itself should be stricken. We therefore consider only whether that memo was appropriately included in the administrative record. See Miller v. Fairchild Indus., Inc., 797 F.2d 727, 738 (9th Cir. 1986) (“The Court of Appeals will not ordinarily consider matters on appeal that are not specifically and distinctly argued in appellant‘s opening brief.“).