11/27/2025
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Developer Tells 9th Circ. SF Island Wrongly Labeled Wetlands
By Juan-Carlos Rodriguez · Listen to article
Law360 (November 26, 2025, 5:26 PM EST) -- The former owner of an island in the San Francisco Bay is asking the Ninth Circuit to reverse a lower court ruling that he illegally destroyed "critical" wetlands without first receiving a Clean Water Act permit.
A California federal judge made the ruling in September 2020, and after further legal wrangling in that court that finally concluded in July this year, the matter is now before the Ninth Circuit. John Donnelly Sweeney and Point Buckler Club on Monday told the appeals court that U.S. District Judge Kimberly J. Mueller's ruling runs afoul of a 2023 U.S. Supreme Court ruling that significantly narrowed the federal government's wetlands jurisdiction under the Clean Water Act.
"Here the district court held that defendants John Sweeney and Point Buckler Club LLC violated [the Clean Water Act] by placing dirt on dry land — dry land that was nevertheless classified as a 'wetland,'" Sweeney and the club said in an opening brief.
Judge Mueller's ruling ran afoul of the high court's decision in Sackett v. U.S. Environmental Protection Agency, they said. In that 5-4 decision, the majority said that in order for a wetland to be subject to Clean Water Act jurisdiction, it must be "indistinguishable" from "relatively permanent, standing or continuously flowing bodies of water" such as streams, oceans, rivers or lakes that are normally considered navigable waters of the United States.
"Here the wetlands could hardly have been more distinguishable: The surrounding waters were waters, and the wetlands were dry land," the appellants said. "The court, at the government's urging, improperly interpreted the 'indistinguishable' requirement into nonexistence."
Point Buckler is a small island in Suisun Marsh and once functioned as a tidal system with native vegetation that filtered out pollutants located in a "heavily utilized fish migratory corridor" until the island's owner developed the site to the point that it no longer serves the same ecological purpose, Mueller said in her 2020 decision.
The EPA sued Sweeney and the Point Buckler Club, which Sweeney owns, in 2017 for allegedly excavating soil to build a new, 3-foot-high levee around the island to facilitate a kiteboarding business.
Sweeney also allegedly used a bulldozer to widen the levee, excavated four ponds, and also moved helicopter pads, shipping containers and other equipment onto the island.
Judge Mueller in 2020 found Sweeney and the club liable for discharging fill without a Clean Water Act permit, but ordered further proceedings on a remedy. In 2023, the Point Buckler Club filed for bankruptcy, but the judge in July still imposed a restoration plan on Sweeney and the club.
Aside from their argument that the district judge's opinion doesn't comply with Sackett, the appellants argued the way the judge applied the Clean Water Act in the case "is unconstitutionally vague because it does not give an ordinary person notice of what is impermissible."
"No ordinary person would think that placing dirt on the dry land at Point Buckler was discharging into 'waters,'" they said.
And they said Judge Mueller incorrectly barred them from asserting as a defense that the EPA "committed a physical taking-without-just-compensation by taking control over the entire island, and a no-economic-use taking by preventing defendants from making any economic use of the island."
The EPA declined to comment Wednesday.
Sweeney and the Point Buckler Club are represented by Lawrence S. Bazel of Briscoe Prows Kao Ivester & Bazel LLP.
The EPA is represented by Robert P. Stockman of the U.S. Department of Justice's Environment and Natural Resources Division.
The case is U.S. v. John Donnelly Sweeney et al., case number 25-2498, in the U.S. Court of Appeals for the Ninth Circuit.
--Editing by Janice Carter Brown.
