IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS GALVESTON DIVISION ) ) ) ) ) ) ) ) ) )

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1 Case 3:15-cv Document 49 Filed in TXSD on 02/26/16 Page 1 of 5 IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS GALVESTON DIVISION STATE OF TEXAS, et al., v. Plaintiffs, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al., Defendants. Civil Action No. 3:15 cv 0162 STATES MOTION TO HOLD IN ABEYANCE THEIR MOTION FOR PRELIMINARY INJUNCTION [UNOPPOSED AS TO RELIEF REQUESTED] Plaintiffs, the States of Texas, Louisiana, and Mississippi, ( States have pending before this Court a Motion for Preliminary Injunction. (Dkt. 39, 40 On February 19, 2016, the Court ordered that further briefing on the States Motion for Preliminary Injunction be postponed pending further Order of the Court on Defendants motion for a stay of this case pending a decision by the Sixth Circuit on whether it has exclusive jurisdiction under 33 U.S.C. 1369(b(1 to hear all challenges to the Clean Water Rule, 80 Fed. Reg. 37,054 (June 29, (Dkt. 47 The Sixth Circuit issued a decision on February 22, 2016, denying the States motions to dismiss and retaining jurisdiction in that court. The Federal Defendants notified this Court of that decision and of their intent to file a motion to dismiss this action. (Dkt. 48

2 Case 3:15-cv Document 49 Filed in TXSD on 02/26/16 Page 2 of 5 The States now move this Court to hold their Motion for Preliminary Injunction in abeyance. Holding the Motion for Preliminary Injunction in abeyance is appropriate because there is a nationwide stay of the Clean Water Rule still in place in light of the Sixth Circuit s ruling, but if that nationwide stay were to dissolve for any reason, the States Motion for Preliminary Injunction before this Court would need to be considered promptly in order to avoid immediate and irreparable harm to the States. Briefing on the Motion for Preliminary Injunction has already been suspended by this Court s February 19, 2016, Order. But that Order is tied to further Order of the Court on Defendants Motion for a Stay of this action pending the Sixth Circuit s decision on jurisdiction. Abeyance of the States Motion for Preliminary Injunction will have the further benefit of avoiding any disagreement among the parties as to whether that Motion for Stay remains live before the Court and avoiding any need for further requests for suspension of Defendants briefing (or for that briefing to begin. Briefing on the Federal Defendants Motion to Dismiss, when such motion is filed, would be unaffected by this abeyance and should proceed unabated. Although the Federal Defendants have consistently implied that the Sixth Circuit s ruling on jurisdiction is dispositive here, it is not; indeed, the Sixth Circuit rests its fractured jurisdictional determination solely on its own precedent, distinguishing and rejecting the contrary views of other circuits. This Court has an independent obligation to determine whether subjectmatter jurisdiction exists. Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006. This motion to hold the Motion for Preliminary Injunction in abeyance will allow the parties and this Court to focus on that determination of subject-matter jurisdiction. 2

3 Case 3:15-cv Document 49 Filed in TXSD on 02/26/16 Page 3 of 5 The States respectfully move this Court to grant this Motion and hold their Motion for Preliminary Injunction in abeyance until further Order of the Court. Respectfully Submitted, KEN PAXTON Attorney General of Texas CHARLES E. ROY First Assistant Attorney General SCOTT A. KELLER Solicitor General JAMES E. DAVIS Deputy Attorney General for Civil Litigation PRISCILLA M. HUBENAK Chief, Environmental Protection Division MATTHEW B. MILLER Assistant Attorney General Texas Bar No matt.miller@texasattorneygeneral.gov Southern District Bar No Linda B. Secord LINDA B. SECORD Assistant Attorney General Texas Bar No linda.secord@texasattorneygeneral.gov Southern District Bar No OFFICE OF THE ATTORNEY GENERAL OF TEXAS ENVIRONMENTAL PROTECTION DIVISION P.O. Box 12548, MC-066 Austin, Texas Tel. ( Fax. ( JEFF LANDRY Attorney General of Louisiana WILBUR L. BILL STILES First Assistant Attorney General /s/ Steven B. Beaux Jones STEVEN B. BEAUX JONES La. Bar Roll No Southern District ID No DUNCAN S. KEMP, IV La. Bar Roll No Southern District Application Pending Assistant Attorneys General Environmental Section Office of the Louisiana Attorney General 1885 N. Third Street Baton Rouge, Louisiana Phone: ( Fax: ( Jonesst@ag.state.la.us Attorneys for the State of Louisiana JIM HOOD Attorney General of the State of Mississippi /s/ Mary Jo Woods MARY JO WOODS Special Assistant Attorney General Miss. Bar No Mississippi Attorney General s Office Post Office Box 220 Jackson, Mississippi Phone: ( Facsimile: (

4 Case 3:15-cv Document 49 Filed in TXSD on 02/26/16 Page 4 of 5 Attorneys for the State of Texas mwood@ago.state.ms.us Attorneys for the State of Mississippi CERTIFICATE OF CONFERENCE In accordance with Court Procedure 6.A.1, counsel for the States conferred with opposing counsel and have been informed that their position is that while the Federal Defendants do not agree with all of the statements in the motion, the Federal Defendants do not oppose the relief requested. CERTIFICATE OF SERVICE I certify that on February 26, 2016, a copy of the foregoing Motion for Preliminary Injunction was served electronically through the U.S. District Court for the Southern District of Texas s CM/ECF system on all registered counsel. /s/ Linda B. Secord 4

5 Case 3:15-cv Document 49 Filed in TXSD on 02/26/16 Page 5 of 5 IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS GALVESTON DIVISION STATE OF TEXAS, et al., v. Plaintiffs, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al., Defendants. Civil Action No. 3:15 cv 0162 [Proposed] ORDER Having considered Plaintiff States Motion to Hold in Abeyance their Motion for Preliminary Injunction, the Court finds good cause exists for granting the Motion. Therefore, it is ORDERED that the States Motion for Preliminary Injunction is in abeyance pending further Order of the Court. SIGNED at Galveston, Texas, this day of, George C. Hanks, Jr. United States District Judge