Major New Developments in the First Federal Wetlands Case to be Decided in Virginia After Sackett

The Sackett Case

In 2023 the U.S. Supreme Court upended 50 years of wetlands regulation when, in Sackett, it ruled that so-called “isolated” wetlands are beyond the reach of federal wetlands regulators (i.e. the U.S. Army Corps of Engineers) unless a “continuous surface connection” joins the wetland to a traditional navigable water.  My June 2023 article in this blog and my podcast in September 2023 offer thorough explanations of the Sackett decision.

The First Legal Test for Sackett in the Virginia Courts

Four years before the Supreme Court decision in Sackett, a landowner in Ashland, Virginia began clearing and filling 21 acres of isolated wetlands.  This was a bold move.  Prior to Sackett, filling isolated wetlands without a permit was in most instances a forbidden act.  The landowner risked strong legal sanction that could include a fine, an order to restore the site to its former condition, criminal conviction, and even potential jail time.  The environmental regulators learned what he was doing.  They warned him.  More than once.  He defied them.  Then came the Sackett decision.  It appeared that the landowner’s risky gamble had paid off.  Then, six months after Sackett, the United States decided to test the limits of Sackett by filing a civil suit against the landowner in Richmond, Virginia. 

Shutterstock: Gorodenkoff Photography

The case is pending in the U.S. District Court in Richmond Virginia under the name U.S. v. Chameleon LLC and Layne, case number 3:23-cv-00763.  My blog post in May 2024 gives the background on how the case came about.  The Chameleon case is significant.  It is the first contest to play out in Virginia, as between the so-called “property rights” crowd and the federal bureaucrats at the U.S. Army Corps of Engineers who are responsible, in the first instance, to administer the nation’s wetlands laws.  The initial battle in this legal war went to the “property rights” crowd, as explained in my September 2024 article in this blog. 

How the Landowner Prevailed in the Initial Battle With the Government

The case began when the United States filed with the Court its Complaint against the landowner.  The landowner filed a Motion to Dismiss.  This type of motion attacks the Complaint, by pointing out alleged defects.  Recall that the Supreme Court in Sackett said that the federal government cannot regulated an isolated wetland unless there is a “continuous surface connection” that joins the wetland to a traditional navigable water.  The United States’ Complaint stated that the “continuous surface connection” was present.  The landowner argued, and the Court agreed, that the Complaint was defective because the government did not spell out in the Complaint any of the basic facts supporting the assertion.  The Court, therefore, dismissed the defective Complaint but offered the government the opportunity to repair the defects and then file a new version, called an Amended Complaint. 

The Government’s Tactic After Losing the Initial Battle – File an Amended Complaint

The government filed the Amended Complaint on November 15, 2024.  Click here to see the document.  The government dropped out of the Amended Complaint two of the three wetland areas that it claimed were subject to its jurisdiction in the original Complaint.  The other change is that the government traced the path of the “continuous surface connection” from the Chickahominy River, a traditional navigable water, to the sole wetland area now remaining in the Amended Complaint. 

Shutterstock: Icemanphotos

The Landowner’s Response – File Another Motion to Dismiss

On January 2, 2025, the landowner filed a Motion to Dismiss the Amended Complaint.  Click here to see the landowner’s Motion to Dismiss.  The landowner filed a 97-page Brief, to accompany the Motion to Dismiss.  This unusually voluminous Brief explains in some detail the factual basis and legal reasoning on which the landowner relies to support his Motion to Dismiss.  Click here to see the landowner’s Brief.   

The Government Opposes the Motion to Dismiss

On January 17, 2025, the government filed its Brief opposing the landowner’s Motion to Dismiss.  Click here to see the government’s Opposition Brief. 

Next Steps

The landowner has the right to file one further brief, known as a “reply brief”, rebutting (if he can) the points the government made in its Opposition Brief.  Briefing will be closed, and the Motion to Dismiss will be ripe for decision by the Court, once the landowner files his reply brief or allows the deadline to pass without filing a reply brief.  Notably, the landowner on January 17, 2025, also filed a Motion to Stay the various ancillary proceedings in the case pending a decision on the landowner’s Motion to Dismiss.  Click here to see the landowner’s Brief filed in support of his Motion to Stay.  I will continue to monitor developments in this very important case.  Stay tuned for further updates!

Conclusion

I and the attorneys with whom I work have strong connections and significant legal experience.  As you can tell from the time a few years ago when I stripped off my shoes and got in the water to fend off a criminal enforcement action that an environmental regulator threatened against my client, I go the extra mile to protect our clients, if that is what is needed to get the job done.    

Contact me if you would like me to publish more articles on wetlands law.  Of course, you can always contact me for advice and assistance in connection with other needs specific to your particular situation.