One of the frustrating but fascinating aspects of our challenge to the expansive Clean Water Act rule, redefining “waters of the United States” (WOTUS) subject to federal control, is that the federal courts have yet to determine conclusively whether the numerous challenges to the rule should be heard in the district courts or in the court of appeals.
The district court in North Dakota has held it has jurisdiction to hear the case whereas the Sixth Circuit Court of Appeals has held it has jurisdiction to hear the case. We believe the district courts are the proper venue for challenging the new rule. Therefore, as we explained here, we petitioned the Sixth Circuit to reconsider. But today, that court decided to not rehear or reconsider its determination that all challenges to the WOTUS rule should be litigated in that court. This means that we, and sixty other plaintiffs, will have to decide whether to petition the venue ruling to the Supreme Court of the United States or argue the case in the Sixth Circuit.
There are certain advantages to litigating the case in the Sixth Circuit because that court has already determined the WOTUS rule is likely invalid and has prohibited implementation of the rule nationwide until it makes a final decision. And briefing would be streamlined because the various challenges would be consolidated in a single court. However, a determination of the proper venue is an important question because it could affect how and where plaintiffs may challenge questionable rule-making under the Clean Water Act in future cases, and perhaps other laws as well.
Stay tuned for more on this case at a later date.