Case 3:15-cv RRE-ARS Document 91 Filed 10/13/15 Page 1 of 8 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NORTH DAKOTA SOUTHEASTERN DIVISION

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1 Case 3:15-cv RRE-ARS Document 91 Filed 10/13/15 Page 1 of 8 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NORTH DAKOTA SOUTHEASTERN DIVISION STATES OF NORTH DAKOTA, ALASKA, ) ARIZONA, ARKANSAS, COLORADO, ) IDAHO, MISSOURI, MONTANA, ) NEBRASKA, NEVADA, SOUTH DAKOTA, ) and WYOMING; NEW MEXICO ) ENVIRONMENT DEPARTMENT; and NEW ) MEXICO STATE ENGINEER ) Plaintiffs, ) Case No. 3:15-cv RRE-ARS ) v. ) ) UNITED STATES ENVIRONMENTAL ) PROTECTION AGENCY, et al. ) ) Defendants. ) STATES REPLY IN SUPPORT OF MOTION FOR SCHEDULING ORDER Pursuant to N.D. Civ. L.R. 7.1(B), the States of North Dakota, Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, South Dakota, and Wyoming, and the New Mexico Environment Department and New Mexico State Engineer (the States ), by and through undersigned counsel, respectfully submit this reply in support of their motion to establish a scheduling order (Dkt. No. 82). The U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers (collectively the Agencies ) oppose the States motion to establish a schedule for proceeding with this case. The Agencies suggest that it would be a waste of resources to proceed in this Court because a decision by the Judicial Panel on Multidistrict Litigation ( MDL Panel ) on centralizing all of the district court cases challenging the WOTUS Rule is imminent. They also contend that a delay in this proceeding is warranted because the Sixth Circuit Court of Appeals

2 Case 3:15-cv RRE-ARS Document 91 Filed 10/13/15 Page 2 of 8 has ordered briefing and will be ruling on the issue of whether challenges to the WOTUS Rule are properly brought in district court, as this Court has already determined. See Dkt. No. 89. These circumstances do not justify delaying these proceedings. First, the Agencies assertion that this Court should delay proceeding in this case until the MDL Panel decides on consolidating and transferring this case is moot. On October 13, 2015, the MDL Panel issued its decision denying the Agencies request to transfer and consolidate this case. See Order Denying Transfer, In Re: Clean Water Rule: Definition of Waters of the United States, MDL No. 2663, Dkt. No. 163 (JPML October 13, 2015). 1 A copy of the MDL Panel s Order is attached hereto as Exhibit A. Since the case will not be centralized, the Agencies cannot justify continued delay in this case. Second, this Court has already ruled that it has jurisdiction to hear the States challenge to the WOTUS Rule the Agencies assertion that this Court should wait for the Sixth Circuit to rule on the same issue ignores the fact that this Court has conclusively, and properly, decided that question already. See Dkt. No. 70, at 3-6. This Court has already established the basis for its jurisdiction and need not wait for the Sixth Circuit to concur with its ruling to allow this case to proceed. The Agencies claim that delaying this case until the Sixth Circuit issues a decision on jurisdiction will conserve resources, yet given the expedited briefing schedule and the Sixth Circuits recent Order of Stay, which imposed a nationwide halt to implementation of the WOTUS Rule, the Sixth Circuit s decision on jurisdiction would be expected relatively shortly after briefing the jurisdictional issue concludes on November 4, See In re: Environmental Protection Agency and Department of Defense Final Rule: Clean Water Rule Definition of 1 This decision also renders the Agencies Renewed Motion for Stay (Dkt. No. 81) moot because that motion only sought to stay this case until the MDL Panel issued its decision. 2

3 Case 3:15-cv RRE-ARS Document 91 Filed 10/13/15 Page 3 of 8 Waters of the United States, 80 Fed. Reg. 37,054 (June 29, 2015), Order of Stay, Case Nos /3822/3853/3887, Dkt (6th Cir. Oct. 9, 2015). A copy of the Sixth Circuit s Order is attached hereto as Exhibit B. Thus, the actions required of the parties in this case if a scheduling order were established, are limited to lodging a complete administrative record 2 and negotiations and motions regarding the completeness of the record. These actions are necessary regardless of how the Sixth Circuit rules. In light of the MDL Panel s Order, counsel for North Dakota contacted the counsel for the Agencies to inquire about the possibility of conferring to establish a scheduling order to obviate the need for this Court to intervene here. Counsel for the Agencies responded that it was not interested in establishing any schedule to proceed with this case. See Correspondence, attached hereto as Exhibit C. For the reasons set forth above, and in their Motion For Scheduling Order, the States respectfully request this Court issue an Order establishing a schedule for proceeding with this case that includes a timeline for the Agencies to lodge the administrative record, with a complete index including an identification of documents withheld from the record based on an assertion of the deliberative process privilege or any other assertion of privilege. 2 The index lodged in the Sixth Circuit is incomplete it does not include entries identifying documents that are being withheld based on an assertion of privilege. See United States v. Ernstoff, 183 F.R.D. 148 (D.N.J. 1998). The Agencies have conceded in pleadings before this Court that documents regarding the promulgation of the WOTUS Rule are being withheld. See Dkt. No. 66, at 6-7. Thus, the Agencies assertion that the index provided in the Sixth Circuit is sufficient for the States to begin preparing their case is in error. 3

4 Case 3:15-cv RRE-ARS Document 91 Filed 10/13/15 Page 4 of 8 Dated this 13th day of October, STATE OF NORTH DAKOTA WAYNE STENEHJEM /s/paul M. Seby Paul M. Seby Special Assistant Attorney General Holland & Hart, LLP 555 Seventeenth Street, Suite 3200 Denver, CO Phone: (303) Fax: (303) pmseby@hollandhart.com Wayne K. Stenehjem Attorney General Jennifer L. Verleger Margaret I. Olson Assistant Attorneys General Office of Attorney General 500 N. 9th Street Bismarck, ND Phone: (701) wstenehjem@nd.gov jverleger@nd.gov maiolson@nd.gov Attorneys for Petitioner State of North Dakota. STATE OF ALASKA CRAIG W. RICHARDS /s/ Ruth Hamilton Heese (with permission) Ruth Hamilton Heese Senior Assistant Attorney General 123 Fourth Street P.O. Box Juneau, AK Telephone: (907) Facsimile: (907) ruth.hamilton.heese@alaska.gov Attorneys for Petitioner State of Alaska. 4

5 Case 3:15-cv RRE-ARS Document 91 Filed 10/13/15 Page 5 of 8 STATE OF ARIZONA MARK BRNOVICH /s/ John R. Lopez IV (with permission) John R. Lopez IV Solicitor General Office of the Arizona Attorney General 1275 W. Washington St. Phoenix, AZ Telephone: (602) Facsimile: (602) John.Lopez@azag.gov Attorneys for Petitioner State of Arizona. STATE OF IDAHO LAWRENCE G. WASDEN /s/ Douglas M. Conde (with permission) Douglas M. Conde Deputy Attorney General Office of the Attorney General Department of Environmental Quality 1410 N. Hilton, 2nd Floor Boise, ID Telephone: (208) Facsimile: (208) douglas.conde@deq.idaho.gov STATE OF COLORADO CYNTHIA H. COFFMAN /s/ Frederick R. Yarger (with permission) Frederick R. Yarger Solicitor General Colorado Attorney General's Office 1300 Broadway, 10th Floor Denver, Colorado Telephone: (720) fred.yarger@state.co.us Attorneys for Petitioner State of Colorado STATE OF MISSOURI CHRIS KOSTER /s/ J. Andrew Hirth (with permission) J. Andrew Hirth Deputy General Counsel PO Box 899 Jefferson City, MO Telephone: (573) Facsimile: (573) andy.hirth@ago.mo.gov Attorneys for Petitioner State of Missouri. Attorneys for Petitioner State of Idaho. 5

6 Case 3:15-cv RRE-ARS Document 91 Filed 10/13/15 Page 6 of 8 STATE OF MONTANA TIM FOX /s/ Alan Joscelyn (with permission) Alan Joscelyn Chief Deputy Attorney General 215 North Sanders PO Box Helena, MT Telephone: (406) Facsimile: (406) AlanJoscelyn@mt.gov Attorneys for Petitioner State of Montana. STATE OF NEBRASKA DOUGLAS J. PETERSON /s/ Justin D. Lavene (with permission) Justin D. Lavene Assistant Attorney General Dave Bydalek Deputy Attorney General 2115 State Capitol Building PO Box Lincoln, NE Telephone: (402) Facsimile: (402) justin.lavene@nebraska.gov Attorneys for Petitioner State of Nebraska. STATE OF NEVADA ADAM PAUL LAXALT /s/ Lawrence VanDyke (with permission) Lawrence VanDyke Solicitor General Office of the Attorney General 100 N. Carson Street Carson City, NV Telephone: (775) LVanDyke@ag.nv.gov Attorneys for Plaintiff State of Nevada. STATE OF WYOMING PETER K. MICHAEL /s/ Peter K. Michael (with permission) Peter K. Michael Attorney General James Kaste Deputy Attorney General David Ross Senior Assistant Attorney General Wyoming Attorney General s Office STATE OF SOUTH DAKOTA MARTY J. JACKLEY /s/ Charles D. McGuigan (with permission) Charles McGuigan Chief Deputy Attorney General Office of the Attorney General 1302 E. Highway 14, Suite 1 Pierre, SD Telephone: (605) Facsimile: (605) Charles.McGuigan@state.sd.us Attorneys for Plaintiff State of South Dakota. NEW MEXICO ENVIRONMENT DEPARTMENT /s/ Jeffrey M. Kendall (with permission) Jeffrey M. Kendall General Counsel Kay R. Bonza Assistant General Counsel 1190 St. Francis Drive, Suite N-4050 Santa Fe, NM Telephone: (505) Facsimile: (505)

7 Case 3:15-cv RRE-ARS Document 91 Filed 10/13/15 Page 7 of State Capitol Cheyenne, WY Telephone: (307) Facsimile: (307) peter.michael@wyo.gov james.kaste@wyo.gov dave.ross@wyo.gov jeff.kendall@state.nm.us Attorneys for Petitioner New Mexico Environment Department. Attorneys for Petitioner State of Wyoming. NEW MEXICO STATE ENGINEER /s/ Gregory C. Ridgley (with permission) Gregory C. Ridgley General Counsel Matthias L. Sayer Special Counsel 130 South Capitol Street Concha Ortiz y Pino Building P.O. Box Santa Fe, NM Telephone: (505) Facsimile: (505) greg.ridgley@state.nm.us matthiasl.sayer@state.nm.us STATE OF ARKANSAS LESLIE RUTLEDGE /s/ Jamie Leigh Ewing (with permission) Jamie Leigh Ewing Assistant Attorney General 323 Center Street, Suite 200 Little Rock, AR Direct Dial: (501) Fax: (501) jamie.ewing@arkansasag.gov Attorneys for State of Arkansas. Attorneys for Petitioner New Mexico State Engineer. 7

8 Case 3:15-cv RRE-ARS Document 91 Filed 10/13/15 Page 8 of 8 CERTIFICATE OF SERVICE I hereby certify that on October 13, 2015, I electronically filed the foregoing STATES REPLY IN SUPPORT OF MOTION FOR SCHEDULING ORDER with the Clerk of the Court using the CM/ECF system, which will send notification of this filing to the attorneys of record. /s/ Paul M. Seby _3 8