The United States Supreme Court has finished releasing opinions for its 2022-2023 term.  There were a number of opinions related to agricultural law issues that are worth highlighting.

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Sackett v. EPA [Opinion]

We have extensively covered this case dealing with the proper definition of “waters of the United States” under the Clean Water Act.  [Blog post / Podcast episode]  The Justices issued an interesting opinion in which they unanimously held the “significant nexus test” is not the proper test to determine whether a wetland constitutes a WOTUS and that the Sackett’s property did not constitute a WOTUS.  The Justices disagreed on the proper test to use when determining whether a wetland  falls under the definition of WOTUS.  A five-justice majority held  jurisdiction extends only to wetlands that are “as a practical matter indistinguishable from waters of the United States,” which requires the party asserting jurisdiction over adjacent wetlands to show first  the adjacent body of water is a relatively permanent body of water connected to a traditional interstate navigable water, and  the wetland as a continuous surface connection with that water, making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.   The remaining 4 justices would have applied a slightly broader test that would include the majority’s definition but would also include wetlands separated from a covered water only by a man-made dike or barrier, natural river berm, beach dune, or the like.

While this case answers these important questions, others remain.

One such question is how to properly define “tributaries.”  It appears that a majority of justices agree with Justice Scalia’s test from Rapanos that there are two categories of jurisdictional waters:  (1) relatively permanent bodies of water connected to traditional interstate navigable waters; and (2) wetlands with such a close physical connection to those waters that they were ‘as a practical matter indistinguishable’ from WOTUS.  There was, however, no discussion of the application of the “relatively permanent bodies of water connected to traditional interstate navigable waters” standard, or how that might apply to cases involving tributaries.  It will also remain to be seen how the EPA will revise its current WOTUS rule in light of this decision.  The EPA plans to release its revised rule by September 1. [Read announcement here.]

National Pork Producers Council v. Ross [Opinion]

A number of fractured opinions resulted in a ruling that California’s Proposition 12 will be allowed to stand.  Again, we’ve written and discussed this opinion in great detail.  [Blog post / Podcast episode]. Untangling where each of the Justices landed proved complicated.  All Justices agreed that National Pork Producers (NPPC) failed to allege a facially discriminatory law.  All Justices rejected NPPC’s proposed “almost per se” rule related to extraterritorial effects.  A majority of Justices believe that NPPC failed to satisfy its burden of sufficiently alleging a substantial burden on interstate commerce.  Four of these Justices would have remanded the case back to apply the Pike balancing test, but Justice Barrett does not believe that such balancing is a proper role for courts.  Because of this, she does not vote to remand, but sides with the other four Justices that dismissal is proper.  A majority of Justices (Roberts, Alito, Kavanaugh, Jackson, Sotomayor, Kagan) believe courts can properly balance interests under Pike.  However, as noted above, Justices Sotomayor and Kagan believe NPPC failed to sufficiently plead a substantial burden and, therefore, they do not get to the balancing test.

Could another lawsuit adequately plead the facts the Court found missing in this case?  Will other states continue to pass their own versions of Proposition 12?  How will this impact the cost of pork products?  How will Proposition 12 compliance be evaluated and enforced?  These questions loom large after this decision.

Tyler v. Hennepin County [Opinion]

In this unanimous decision, the Court held that the County committed a taking of Ms. Tyler’s property when it sold her home for $40,000 to satisfy a $15,000 tax bill and kept the $25,000 difference for itself rather than returning it to Ms. Tyler.  This case was dismissed by both the trial court and the US Court of Appeals for the Eighth Circuit.  The US Supreme Court reversed in an opinion authored by Chief Justice Roberts. First, the Court found Ms. Tyler did have standing to bring this claim.  Second, the Court found that she did state a claim under the Takings clause and is entitled to just compensation. Justices Gorsuch and Jackson issued a concurring opinion stating that although the Court need not reach the Excessive Fines Clause claim, they note mistakes in the lower courts’ reasoning when dismissing this claim.

Arizona v.  Navajo Nation  [Opinion]

The Court also ruled on an important water law case involving federal reserved water rights for Tribes.  Here, the question was what is required of the United States to comply with an 1868 treaty establishing the Navajo Reservation when it comes to water rights.  Justice Kavanaugh authored a majority opinion holding that while the treaty certainly did reserve water necessary to accomplish the purpose of the Reservation, the US government is not required to “take affirmative steps” to secure water rights for the Navajo Tribe.  The majority opinion stated, “it is not the Judiciary’s role to rewrite and update this 155-year-old treaty.  Rather, Congress and the President may enact–and often have enacted–laws to assist the citizens of the western United States, including the Navajos, with their water needs.”  Thus, it reversed the lower court and dismissed the case.  Justice Thomas concurred to express concern with the lower court’s interpretation of the “trust relationship” between the Tribe and the US.  Justice Gorsuch filed a dissenting opinion, joined by Justices Sotomayor, Kagan, and Jackson who believed that the majority opinion answered the wrong question.  The dissent believes the Navajo Nation did not ask the court to order the federal government to take “affirmative steps” to secure water for the Navajos, but instead the Navajo Nation merely asked for the US to identify the water rights it holds for them.  This request, the dissenters said, is “nothing remarkable” and they would affirm the lower court and let the Navajo’s case proceed.

This case may have broad implications for Tribes across the West when it comes to water rights.  The issue of federally reserved water rights, including the amount specifically reserved and the obligation on the federal government pursuant to such reservations is not going away anytime soon.