A U.S. Supreme Court decision released May 25 has encouraged some opponents of President Biden’s sweeping 30x30 initiative to set aside vast amounts of land for conservation purposes.

The Sackett v. EPA case involved a dispute between the Sackett family and the Environmental Protection Agency (EPA). Michael and Chantell Sackett purchased a piece of land near Priest Lake, Idaho, and planned to build a house, but the EPA issued a compliance order, claiming that their property contained wetlands and therefore fell under the jurisdiction of the Clean Water Act. 

This compliance order demanded the Sacketts cease construction and restore the area or face significant fines.

Arguing they were denied their due process rights, the Sacketts challenged the EPA’s authority to issue such compliance orders without the opportunity for judicial review. The case eventually reached the Supreme Court in 2012, and the court unanimously ruled in favor of the Sacketts. 

The decision established that property owners have the right to seek pre-enforcement judicial review of compliance orders issued by the EPA under the Administrative Procedure Act.

Lawyer James Burling said the Sackett opinion is important for a number of reasons.

“First, it shows that the court, with respect to wetland regulation, recognizes the way we've done things for nearly 50 years is not working," he said. "When you have a regulatory scheme where ordinary people cannot figure out if their property is something they can use effectively, or if their use lands them in federal prison, that's a regulatory scheme that has been oppressive and tyrannical for decades now.” 

In a similar case, a father and son spent 18 months in federal prison. They were freed when a judge said they were convicted and sentenced for putting clean sand on dry land.

“I think that’s unconscionable,” Burling said. “It’s absurd, and I use the words again, tyrannical and oppressive, to try to have this kind of control over people’s private property. I think it’s important that we protect the environment, that we do things in a reasonable way. But it’s been decades since anybody has just simply gone onto the soil with bulldozers and the heck with what happens to their neighbors." 

Burling said this is about power, policy and politics.

“It's simply a way of wresting control of the property from the people who own it and giving it to the bureaucrats and the environmental advocates that are supporting it,” he said. “It's a tenet of the law and history for as long as there have been people that those who control the property have the power." 

Biden’s 30x30 conservation initiative, which critics say is aimed at expanding federal land ownership, has spurred controversies and debates.

These include discussions surrounding presidential authority, the size of monuments, protection of natural resources, the inclusion of non-federal lands, management of agencies, land use restrictions and the process of creating monuments. The initiative itself seeks to increase the overall amount of land that is federally owned as part of broader conservation efforts.

Burling, vice president for legal affairs for the Pacific Legal Foundation, chooses to take a wider view based on centuries of policy and practice.

“I know a lot of people are focusing on the initiative, but in some ways it isn’t any different from the emphasis on taking property out of private hands,” Burling told Federal Newswire. “It's been going on for decades, and so it’s just a continuation of that. I think it’s more of a marketing angle than it is of any substantive policy changes." 

Approximately 640 million acres of land in the United States are owned by the federal government, representing around 28% of the total land area of 2.27 billion acres.

Advocates for property rights have a sunset clause to strike a balance between national conservation interests and the concerns of private landowners. Under the proposed sunset clause, the duration of federal easements on private properties would be capped at 30 years. The inclusion of sunset provisions aims to prevent federal conservation efforts from becoming permanent fixtures on private properties, emphasizing the need for a balanced and flexible approach.

Burling said as more and more land is tied up in conservation programs or taken over by state and federal governments, there is a diminishing amount of productive capacity.

Circling back to the Sackett decision, Burling sees it as a recognition by the court that we need to have clear rules that define the extent of federal jurisdiction.

“You recall that the Constitution says the federal government has only limited powers," he said. "One of those powers is the power to regulate commerce. But when we get to ‘Well, you have to regulate everything that affects navigable waterways and that anything that might affect a tributary and then anything in a watershed of a tributary,’ you’re going down a path where the federal government is controlling more and more than the Constitution allows." 

In a unanimous decision, the Supreme Court ruled against the EPA, stating that the agency’s interpretation of the wetlands, covered by the Clean Water Act, does not align with the law's text and structure. Justice Samuel Alito, who authored the opinion, emphasized the law only extends its reach to “wetlands with a continuous surface connection to bodies of water that are ‘waters of the United States’ in their own right.’” This ruling overturns a previous decision by the U.S. Court of Appeals for the Ninth Circuit, which had favored the EPA.

The case has been significant in clarifying the rights of property owners when faced with compliance orders from federal agencies and has been viewed as a victory for individual property rights and due process. It has also raised discussions about the balance between environmental protection and property rights.

Burling also supports a proposal to limit conservation easements to 30 years, instead of in perpetuity.

“I think there absolutely should be limits on easements, and 30 years is as good a number as any,” he said. “A lot of the conservation easements we’ve seen in the last 40 years, these so-called perpetual easements, there are a whole lot of reasons why I find them to be very problematic."