We need a name for the property-protecting canon the Supreme Court used in Sackett, the recent Clean Water Act case, and I propose calling it the Sagebrush Canon.
The name is inspired, of course, by the Sagebrush Rebellion, which admittedly more involved public lands as opposed to public regulation of private lands. But the vibes line up.
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The unacknowledged ancestor of the Sagebrush Canon is Scalia’s dissent in Babbitt v. Sweet Home, an ESA case. Nowhere mentioned in Sackett, Babbitt is nonetheless a close parallel — except for the result. 1970s environmental statute, clash between statutory definition and historic usages, broad agency interpretation blessed by legislative amendment, property rights vs. green values. (Also, odd twist, the landowner is invoked by Scalia and Alito, not the Court’s Westerners.)
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As with MQD, one could debate whether the Sagebrush Canon is new with Sackett. Both cite prior cases that make similar moves. Yet this canon probably has legs that the precursors didn’t. That has as much do to with the Court’s perceived receptivity to future invocations of it, and some lower courts’ willingness to run with it, than with anything different about the latest formula of words. Again, like MQD. Sagebrush is poised to be an importantly new canon, but we don’t know for sure yet.
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Aaron Bruhl