Appellate Case: Document: Date Filed: 01/29/2018 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS
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1 Appellate Case: Document: Date Filed: 01/29/2018 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA; NATIONAL FEDERATION OF INDEPENDENT BUSINESS; TULSA REGIONAL CHAMBER; PORTLAND CEMENT ASSOCIATION; STATE CHAMBER OF OKLAHOMA, FOR THE TENTH CIRCUIT January 29, 2018 Elisabeth A. Shumaker Clerk of Court v. Plaintiffs - Appellants, No (D.C. No. 4:15-CV CVE-PJC) (N.D. Okla.) UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; E. SCOTT PRUITT, in his official capacity as Administrator of the United States Environmental Protection Agency; UNITED STATES ARMY CORPS OF ENGINEERS; JO-ELLEN DARCY, in her official capacity as Assistant Secretary of the Army (Civil Works), Defendants - Appellees PACIFIC LEGAL FOUNDATION; CATO INSTITUTE; SOUTHEASTERN LEGAL FOUNDATION; STATE OF ALABAMA; STATE OF ALASKA; STATE OF ARIZONA; STATE OF ARKANSAS; STATE OF COLORADO; STATE OF FLORIDA; STATE OF GEORGIA; STATE OF IDAHO; STATE OF INDIANA; STATE OF KANSAS; STATE OF KENTUCKY; STATE OF LOUISIANA; STATE OF MICHIGAN; STATE OF MISSISSIPPI; STATE OF
2 Appellate Case: Document: Date Filed: 01/29/2018 Page: 2 MISSOURI; STATE OF NEBRASKA; NEW MEXICO STATE ENGINEER; NEW MEXICO ENVIRONMENT DEPARTMENT; STATE OF NEVADA; NORTH CAROLINA DEPARTMENT OF ENVIRONMENTAL QUALITY; STATE OF NORTH DAKOTA; STATE OF OHIO; STATE OF SOUTH CAROLINA; STATE OF SOUTH DAKOTA; STATE OF TENNESSEE; STATE OF TEXAS; STATE OF UTAH; STATE OF WEST VIRGINIA; STATE OF WISCONSIN; STATE OF WYOMING; AMERICAN ROAD AND TRANSPORTATION BUILDERS ASSOCIATION; THE AMERICAN FARM BUREAU FEDERATION; AMERICAN FOREST & PAPER ASSOCIATION; AMERICAN PETROLEUM INSTITUTE; GREATER HOUSTON BUILDERS ASSOCIATION; LEADING BUILDERS OF AMERICA; NATIONAL ALLIANCE OF FOREST OWNERS; NATIONAL ASSOCIATION OF HOME BUILDERS; NATIONAL ASSOCIATION OF MANUFACTURERS; NATIONAL ASSOCIATION OF REALTORS; NATIONAL CATTLEMEN S BEEF ASSOCIATION; NATIONAL CORN GROWERS ASSOCIATION; NATIONAL MINING ASSOCIATION; NATIONAL PORK PRODUCERS COUNCIL; NATIONAL STONE, SAND & GRAVEL ASSOCIATION; PUBLIC LANDS COUNCIL; TEXAS FARM BUREAU; U.S. POULTRY & EGG ASSOCIATION, Amici Curiae. STATE OF OKLAHOMA EX REL. MIKE HUNTER, in his official capacity as 2
3 Appellate Case: Document: Date Filed: 01/29/2018 Page: 3 Attorney General of Oklahoma, v. Plaintiff - Appellant, No (D.C. No. 4:15-CV CVE-FHM) (N.D. Okla.) UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; UNITED STATES ARMY CORPS OF ENGINEERS; E. SCOTT PRUITT, in his official capacity as Administrator of the United States Environmental Protection Agency; JO-ELLEN DARCY, in her official capacity as Assistant Secretary of the Army for Civil Works, Defendants - Appellees PACIFIC LEGAL FOUNDATION; CATO INSTITUTE; SOUTHEASTERN LEGAL FOUNDATION; STATE OF ALABAMA; STATE OF ALASKA; STATE OF ARIZONA; STATE OF ARKANSAS; STATE OF COLORADO; STATE OF FLORIDA; STATE OF GEORGIA; STATE OF IDAHO; STATE OF INDIANA; STATE OF KANSAS; STATE OF KENTUCKY; STATE OF LOUISIANA; STATE OF MICHIGAN; STATE OF MISSISSIPPI; STATE OF MISSOURI; STATE OF NEBRASKA; NEW MEXICO STATE ENGINEER; NEW MEXICO ENVIRONMENT DEPARTMENT; STATE OF NEVADA; NORTH CAROLINA DEPARTMENT OF ENVIRONMENTAL QUALITY; STATE OF NORTH DAKOTA; STATE OF OHIO; STATE OF SOUTH CAROLINA; STATE OF SOUTH DAKOTA; STATE OF TENNESSEE; STATE OF TEXAS; STATE OF UTAH; STATE OF WEST 3
4 Appellate Case: Document: Date Filed: 01/29/2018 Page: 4 VIRGINIA; STATE OF WISCONSIN; STATE OF WYOMING; AMERICAN ROAD AND TRANSPORTATION BUILDERS ASSOCIATION; THE AMERICAN FARM BUREAU FEDERATION; AMERICAN FOREST & PAPER ASSOCIATION; AMERICAN PETROLEUM INSTITUTE; GREATER HOUSTON BUILDERS ASSOCIATION; LEADING BUILDERS OF AMERICA; NATIONAL ALLIANCE OF FOREST OWNERS; NATIONAL ASSOCIATION OF HOME BUILDERS; NATIONAL ASSOCIATION OF MANUFACTURERS; NATIONAL ASSOCIATION OF REALTORS; NATIONAL CATTLEMEN S BEEF ASSOCIATION; NATIONAL CORN GROWERS ASSOCIATION; NATIONAL MINING ASSOCIATION; NATIONAL PORK PRODUCERS COUNCIL; NATIONAL STONE, SAND & GRAVEL ASSOCIATION; PUBLIC LANDS COUNCIL; TEXAS FARM BUREAU; U.S. POULTRY & EGG ASSOCIATION, Amici Curiae. ORDER AND JUDGMENT * Before LUCERO, PHILLIPS, and MORITZ, Circuit Judges. Plaintiffs filed these actions in the United States District Court for the Northern District of Oklahoma to challenge a regulation issued by the Environmental * This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P and 10th Cir. R
5 Appellate Case: Document: Date Filed: 01/29/2018 Page: 5 Protection Agency defining the term waters of the United States for purposes of the Clean Water Act. The district court dismissed both cases, concluding that such challenges must be brought in the United States Circuit Court of Appeals pursuant to 33 U.S.C. 1369(b)(1). We consolidated the subsequent appeals. Following oral argument, the Supreme Court granted certiorari in a case raising the same issue. Nat l Ass n of Mfrs. v. Dep t of Def., 137 S. Ct. 811 (2017). We abated these appeals pending the Court s decision in that case. The Supreme Court has now held that the regulation at issue falls outside the ambit of 1369(b)(1), and any challenges to the Rule therefore must be filed in federal district courts. Nat l Ass n of Mfrs. v. Dep t of Def., U.S., No , 2018 WL , at *4 (Jan. 22, 2018). We accordingly LIFT the abatement, REVERSE, and REMAND to the district court for further proceedings. Entered for the Court Per Curiam 5
6 Appellate Case: Document: Date Filed: 01/29/2018 Page: 1 Elisabeth A. Shumaker Clerk of Court UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT OFFICE OF THE CLERK Byron White United States Courthouse 1823 Stout Street Denver, Colorado (303) January 29, 2018 Chris Wolpert Chief Deputy Clerk Mr. John J. Carwile Atkinson, Haskins, Nellis, Brittingham, Gladd & Fiasco 1500 ParkCentre 525 South Main Tulsa, OK Mr. John Michael Connolly Mr. William Consovoy Consovoy McCarthy 3033 Wilson Boulevard, Suite 700 Arlington, VA Mr. P. Clayton Eubanks Office of the Attorney General for the State of Oklahoma 313 N.E. 21st Street Oklahoma City, OK Karen R. Harned NFIB Small Business Legal Center 1201 F Street NW, Suite 200 Washington, DC Mr. Andrew D. Herman Miller & Chevalier Chartered th Street N.W. Washington, DC Ms. Mary Elizabeth Kindelt McDonald, McCann, Metcalf & Carwile 15 East 5th Street, Suite 1400 Tulsa, OK Mr. Steven P. Lehotsky U.S. Chamber Litigation Center 1615 H Street, NW
7 Appellate Case: Document: Date Filed: 01/29/2018 Page: 2 Washington, DC Mr. James P. McCann McDonald, McCann, Metcalf & Carwile 15 East 5th Street, Suite 1400 Tulsa, OK Mr. Thomas R. McCarthy Consovoy McCarthy 3033 Wilson Boulevard, Suite 700 Arlington, VA Michael H. Park Consovoy McCarthy Park 3 Columbus Circle, 15th Floor New York, NY Mr. Warren Postman U.S. Chamber Litigation Center 1615 H Street, NW Washington, DC Luke A. Wake NFIB Small Business Legal Center 1201 F Street NW, Suite 200 Washington, DC RE: , , Chamber of Commerce, et al v. EPA, et al Dist/Ag docket: 4:15-CV CVE-PJC Dear Counsel: Enclosed is a copy of the order and judgment issued today in this matter. The court has entered judgment on the docket pursuant to Fed. R. App. P. Rule 36. Pursuant to Fed. R. App. P. Rule 40, any petition for rehearing must be filed within 14 days after entry of judgment. Please note, however, that if the appeal is a civil case in which the United States or its officer or agency is a party, any petition for rehearing must be filed within 45 days after entry of judgment. Parties should consult both the Federal Rules and local rules of this court with regard to applicable standards and requirements. In particular, petitions for rehearing may not exceed 15 pages in length, and no answer is permitted unless the court enters an order requiring a response. If requesting rehearing en banc, the requesting party must file 6 paper copies with the clerk, in addition to satisfying all Electronic Case Filing requirements. See Fed. R. App. P. Rules 35 and 40, and 10th Cir. R.35 and 40 for further information governing petitions for rehearing.
8 Appellate Case: Document: Date Filed: 01/29/2018 Page: 3 Please contact this office if you have questions. Sincerely, Elisabeth A. Shumaker Clerk of the Court cc: Timothy S. Bishop Chad Clamage Julio N. Colomba Bridget DiCosmo Amy Jeanne Dona Andrew James Doyle Anthony L. Francois John David Gunter II Kimberly S Hermann M. Reed Hopper Richard Peter Hutchison Lara Katz Michael B. Kimberly Robert Lundman Mithun Mansinghani Cathryn Dawn McClanahan Eric Murphy Michael J. O'Neill E. Scott Pruitt Matthias L. Sayer Ilya Shapiro Patrick R. Wyrick EAS/jm
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