Sackett v. United States Environmental Protection Agency

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

CHANTELL SACKETT; MICHAEL 
SACKETT,
Plaintiffs-Appellants, No. 08-35854
v.
 D.C. No.
2:08-cv-00185-EJL
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY; STEVEN L. OPINION
JOHNSON, Administrator,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Idaho
Edward J. Lodge, District Judge, Presiding

Argued and Submitted
December 9, 2009
Submission Withdrawn December 23, 2009
Resubmitted August 18, 2010
Seattle, Washington

Filed September 17, 2010

Before: Robert R. Beezer, Ronald M. Gould and
Richard C. Tallman, Circuit Judges.

Opinion by Judge Gould

14335
14338 SACKETT v. USEPA

COUNSEL

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

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

OPINION

GOULD, Circuit Judge:

We determine whether federal courts have subject-matter
jurisdiction to conduct review of administrative compliance
 SACKETT v. USEPA 14339
orders issued by the Environmental Protection Agency pursu-
ant 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 compli-
ance 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 penal-
ties of up to $32,500 per day of violation . . . [or] (2) adminis-
trative 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 chal-
1
The compliance order charged the Sacketts with discharging pollutants
into the waters of the United States, absent a permit, in violation of 33
U.S.C. § 1311(a).
14340 SACKETT v. USEPA
lenged 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 pol-
lutants 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 admin-
istrative penalty. 33 U.S.C. § 1319(g). When the EPA
assesses an administrative penalty, the alleged violator is enti-
tled 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 admin-
istrative “compliance order.” 33 U.S.C. § 1319(a).
2
Criminal penalties are also available. 33 U.S.C. § 1319(c).
 SACKETT v. USEPA 14341
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 accor-
dance with [33 U.S.C. § 1319(b)].

[1] 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 compli-
ance order.3 33 U.S.C. § 1319(d); 40 C.F.R. § 19.4. In assess-
ing the amount of the penalty, courts “shall consider the
seriousness of the violation or violations, the economic bene-
fit (if any) resulting from the violation, any history of such
violations, any good-faith efforts to comply with the applica-
ble 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
3
The maximum per-day penalty amount increased to $37,500 effective
January 12, 2009. 40 C.F.R. § 19.4.
14342 SACKETT v. USEPA
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).

[2] Whether the CWA precludes pre-enforcement review
of compliance orders is an issue of first impression in our cir-
cuit. We begin with the presumption favoring judicial review
of administrative action. See Abbott Labs. v. Gardner, 387
U.S. 136, 140 (1967), overruled on other grounds by Califano
v. Sanders, 430 U.S. 99 (1977). That presumption is over-
come, however, “whenever the congressional intent to pre-
clude judicial review is fairly discernible in the statutory
scheme.” Block v. Cmty. Nutrition Inst., 467 U.S. 340, 351
(1984) (quotation marks omitted). “Whether and to what
extent a particular statute precludes judicial review is deter-
mined 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. 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.

[3] 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 Sur-
face 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.
 SACKETT v. USEPA 14343
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.

[4] 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 requir-
ing 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 dis-
cordant with the statutory scheme.

[5] 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 enforcement action gives an opportunity for judicial
consideration of the compliance order, we infer that Congress
intended that all challenges to the compliance order be
brought in one proceeding. See id.; cf. Middlesex County Sew-
erage Auth. v. Nat’l Sea Clammers Ass’n, 453 U.S. 1, 14
(1981) (“In the absence of strong indicia of a contrary con-
gressional intent, we are compelled to conclude that Congress
provided precisely the remedies it considered appropriate.”).

[6] In addition, by contrast to how it treated compliance
orders, Congress set forth an explicit mechanism for judicial
review of administrative penalties assessed by the EPA for
CWA violations. See 33 U.S.C. § 1319(g)(8). Congress’s
14344 SACKETT v. USEPA
express grant of judicial review for administrative penalties
helps to persuade us that the absence of a similar grant of
judicial review for compliance orders was an intentional
omission that must be respected. See S. Ohio Coal Co., 20
F.3d at 1426.

[7] Second, we look to the objectives of the statutory
scheme. Here, courts have concluded that compliance orders,
like pre-enforcement administrative orders in other environ-
mental statutes, are meant to “allow EPA to act to address
environmental problems quickly and without becoming
immediately entangled in litigation.” S. Pines Assocs., 912
F.2d at 716; see also S. Rep. No. 92-414, at 3730 (1972)
(“One purpose of these new requirements is to avoid the
necessity of lengthy fact finding, investigations, and negotia-
tions at the time of enforcement. Enforcement of violations of
requirements under this Act should be based on relatively nar-
row fact situations requiring a minimum of discretionary deci-
sion making or delay.”). This goal of enabling swift corrective
action would be defeated by permitting immediate judicial
review of compliance orders.

[8] Third, we consider the legislative history of the CWA.
The enforcement provisions of the CWA were modeled on
enforcement provisions in the Clean Air Act (“CAA”), and
many courts have relied on similar provisions in the CAA in
concluding that the CWA precludes pre-enforcement judicial
review of compliance orders. Laguna Gatuna, 58 F.3d at 565;
S. Pines Assocs., 912 F.2d at 716; see also S. Rep. No. 92-
414, at 3730. During the enactment of the CAA, the Confer-
ence Committee which reconciled the House and Senate ver-
sions of the CAA deleted a provision in the Senate’s version
of the bill that would have expressly provided for pre-
enforcement review of CAA administrative compliance
orders. See Lloyd A. Fry Roofing Co. v. EPA, 554 F.2d 885,
890 (8th Cir. 1977). At least one court has inferred from this
deletion that it was intended to preclude pre-enforcement judi-
cial review of compliance orders. See id. (citing Gulf Oil
 SACKETT v. USEPA 14345
Corp. v. Copp Paving Co., 419 U.S. 186, 200 (1974)). Such
an inference is not unassailable. See Andrew I. Davis, Judicial
Review of Environmental Compliance Orders, 24 Envt’l L.
189, 199 (1994). Nevertheless, and subject to the general cau-
tion with which we must view all legislative history not
adopted by both houses and enacted as law, that inference is
supported by the structure of the CWA and its statutory lan-
guage discussed above.

[9] In view of the above considerations, we hold that a
congressional intent to preclude pre-enforcement judicial
review of compliance orders is “fairly discernible in the statu-
tory scheme.” Block, 467 U.S. at 351.

III

[10] The Sacketts argue that CWA compliance orders must
be judicially reviewable before enforcement because preclu-
sion of pre-enforcement review violates their due process
rights. They rely on the Eleventh Circuit’s opinion in Tennes-
see Valley Authority v. Whitman, 336 F.3d 1236 (11th Cir.
2003) [hereinafter TVA], in which that court identified consti-
tutional problems with a similar compliance-order provision
in the CAA, see id. at 1260. The Eleventh Circuit concluded
that the complete preclusion of judicial review of compliance
orders issued under the CAA would raise serious constitu-
tional questions where compliance orders, “if ignored, lead[ ]
automatically to the imposition of severe civil penalties and
perhaps imprisonment.” Id. at 1256. The chief problem with
the CAA, as the Eleventh Circuit saw it, was that a compli-
ance order could be issued by the EPA “on the basis of any
information available” without any hearing, and that the CAA
made civil and criminal penalties dependent on violations of
compliance orders whether or not there was an actual viola-
tion of the CAA. See id. (citing Davis, supra at 194
(“Regardless of the merits of the alleged violation underlying
the compliance order, disregarding the order potentially sub-
jects the recipient to accruing daily penalties.”)).
14346 SACKETT v. USEPA
[11] If the CWA is read in the literal manner the Sacketts
suggest, it could indeed create a due process problem. Like
the CAA, the CWA permits the EPA to issue compliance
orders “on the basis of any information available,” 33 U.S.C.
§ 1319(a)(3), which presumably includes “a staff report,
newspaper clipping, anonymous phone tip, or anything else
that would constitute ‘any information,’ ” TVA, 336 F.3d at
1241 (observing that “[t]he standard is less rigorous than the
probable cause standard”). And according to the plain text of
the enforcement provision, “any person who violates any
order issued by the Administrator under [33 U.S.C.
§ 1319(a)], shall be subject to a civil penalty . . . for each vio-
lation.” 33 U.S.C. § 1319(d). Thus, the Sacketts’ reading of
the CWA suggests that they risk substantial financial penalties
for violating the compliance order, even if they did not violate
the CWA, if the EPA establishes in an enforcement proceed-
ing that the compliance order was validly issued based on
“any information available.” See TVA, 336 F.3d at 1259 (con-
cluding that “[t]he district courts serve as forums for the EPA
to conduct show-cause hearings”).

[12] We decline to interpret the CWA in this manner. The
civil penalty provision of the CWA is “not a model of clari-
ty.” Atl. States Legal Found., Inc. v. Tyson Foods, Inc., 897
F.2d 1128, 1137 (11th Cir. 1990). Although the term “any
order” in 33 U.S.C. § 1319(d) could be interpreted to refer to
all compliance orders issued on the basis of “any information
available,” the term could also be interpreted to refer only to
those compliance orders that are predicated on actual, not
alleged, violations of the CWA, as found by a district court
in an enforcement action according to traditional civil evi-
dence rules and burdens of proof.

[13] Mindful of the Supreme Court’s repeated instruction
that “every reasonable construction must be resorted to, in
order to save a statute from unconstitutionality,” Edward J.
DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Const. Trades
Council, 485 U.S. 568, 575 (1988) (quoting Hooper v. Cali-
 SACKETT v. USEPA 14347
fornia, 155 U.S. 648, 657 (1895)), we believe that the latter
interpretation is the better interpretation of “any order” in
§ 1319(d). The EPA is authorized only “to commence a civil
action for appropriate relief, including a permanent or tempo-
rary injunction, for any violation for which [the EPA] is
authorized to issue a compliance order.” 33 U.S.C. § 1319(b)
(emphasis added). Read carefully, this provision does not
authorize the EPA to bring enforcement actions for mere vio-
lations of compliance orders. Rather, to enforce a compliance
order, the EPA must bring an action alleging a violation of the
CWA itself. Given that the CWA does not empower the EPA
to bring an enforcement action on the basis of a violation of
a compliance order alone, it follows that a court cannot assess
penalties for violations of a compliance order under § 1319(d)
unless the EPA also proves, by a preponderance of the evi-
dence, that the defendants actually violated the CWA in the
manner alleged.4 Under this interpretation, if the EPA does
not prove that the CWA was actually violated, the compliance
order is unenforceable, even if it was validly issued on the
basis of “any information available.” We therefore hold that
the term “any order” in § 1319(d) refers only to orders predi-
cated on actual violations of the CWA as identified by a dis-
trict court in an enforcement proceeding according to
traditional rules of evidence and standards of proof.

The Sacketts further allege that forcing them to wait until
the EPA brings an enforcement action “ignores the realities of
[their] circumstances,” because of the “frightening penalties”
they risk accruing by refusing to comply. The increase in pen-
alties from noncompliance with an administrative order not
subject to immediate judicial review, however, does not nec-
4
This interpretation of the term “any order” is in accord with other cir-
cuits’ readings of the CWA. See, e.g., Hoffman Group, 902 F.2d at 569
(“Hoffman cannot be compelled to comply with the Compliance Order
without an opportunity to challenge the Order’s validity in court.”); S.
Pines Assocs., 912 F.2d at 717 (“Southern Pines and Vico can contest the
existence of EPA’s jurisdiction if and when EPA seeks to enforce the pen-
alties provided by the Act.”).
14348 SACKETT v. USEPA
essarily constitute a due process violation. See Thunder Basin
Coal Co. v. Reich, 510 U.S. 200, 218 (1994) (“Although the
[Mine] Act’s civil penalties unquestionably may become
onerous if petitioner chooses not to comply, the Secretary’s
penalty assessments become final and payable only after full
review by both the Commission and the appropriate court of
appeals.”). Rather, statutory preclusion of pre-enforcement
judicial review of administrative orders violates due process
only when the “practical effect of coercive penalties for non-
compliance [is] to foreclose all access to the courts” so that
“compliance is sufficiently onerous and coercive penalties
sufficiently potent that a constitutionally intolerable choice
might be presented.” Id.

[14] We are not persuaded that the potential consequences
from violating CWA compliance orders are so onerous so as
to “foreclose all access to the courts” and create a “constitu-
tionally intolerable choice.” We reach this conclusion for two
reasons. First, the CWA has a permitting provision. See 33
U.S.C. § 1344(a). The Sacketts could seek a permit to fill
their property and build a house, the denial of which would
be immediately appealable to a district court under the APA.
See 33 C.F.R § 331.10; 5 U.S.C. § 704. If the Sacketts were
denied a permit and then took an appeal, they could challenge
whether their property is subject to the jurisdiction of the
CWA. See id.; Baccarat Fremont Devs., LLC v. U.S. Army
Corps of Eng’rs, 425 F.3d 1150, 1154 (9th Cir. 2005) (con-
cluding that the Army Corps had jurisdiction over the plain-
tiff’s property under the CWA). Therefore, rather than
completely foreclosing the Sacketts’ ability to use their prop-
erty or challenge CWA jurisdiction, the CWA channels judi-
cial review through the affirmative permitting process. See
Shalala v. Ill. Council on Long Term Care, Inc., 529 U.S. 1,
19 (2000) (noting the distinction “this Court has often drawn
between a total preclusion of review and postponement of
review” and highlighting similar “channeling require-
ment[s]”); United States v. Dunifer, 219 F.3d 1004, 1008 (9th
Cir. 2000) (“[I]t is important to note that this is not a case in
 SACKETT v. USEPA 14349
which Dunifer had no means to obtain judicial review of the
regulations. Dunifer could have applied for a license and
sought a waiver of the applicable FCC rules . . . .” (citing
Thunder Basin, 510 U.S. at 212-13)).

[15] Second, the civil penalties provision is committed to
judicial, not agency, discretion. See 33 U.S.C. § 1319(d). The
amount of the penalty for noncompliance with a CWA com-
pliance order is to be determined by a court and is determined
on the basis of six factors: (1) the seriousness of the violation,
(2) the economic benefit resulting from the violation, (3) any
history of CWA violations, (4) good-faith efforts to comply,
(5) the economic impact of the penalty on the violator, and (6)
such other matters as justice may require. Id. Any penalty ulti-
mately assessed against the Sacketts would therefore reflect a
discretionary, judicially determined penalty, taking into
account a wide range of case-specific equitable factors, and
imposed only after the Sacketts have had a full and fair oppor-
tunity to present their case in a judicial forum.

[16] We therefore hold that precluding pre-enforcement
judicial review of CWA compliance orders does not violate
due process.

IV

In conclusion, we hold that it is “fairly discernable” from
the language and structure of the Clean Water Act that Con-
gress intended to preclude pre-enforcement judicial review of
administrative compliance orders issued by the EPA pursuant
to 33 U.S.C. § 1319(a)(3). We further interpret the CWA to
require that penalties for noncompliance with a compliance
order be assessed only after the EPA proves, in district court,
and according to traditional rules of evidence and burdens of
proof, that the defendants violated the CWA in the manner
alleged in the compliance order. Thus we do not see any sharp
disconnect between the process given a citizen and the likely
penalty that can be imposed under the CWA. Under these cir-
14350 SACKETT v. USEPA
cumstances, preclusion of pre-enforcement judicial review
does not violate the Sacketts’ due process rights. The district
court properly dismissed this case for lack of subject-matter
jurisdiction.5

AFFIRMED.

5
Given this conclusion, we need not and do not reach the claims of due
process violations based on the failure to provide notice and a hearing
before an impartial tribunal or the contention that the CWA compliance
order provision is impermissibly vague.