March 25, 2016

PLF seeks en banc rehearing of sixth circuit jurisdictional ruling in WOTUS challenge

By Anthony L. Francois Senior Attorney

This week PLF asked the full Sixth Circuit Court of Appeals to rehear whether jurisdiction over challenges to the WOTUS rule is proper in the federal appeals courts or the federal trial courts. A month ago a three judge panel of the same court ruled that the appeals courts have jurisdiction instead of the trial courts. As Damien Schiff explained at the time, all three judges differed on whether and why that was so. Perhaps their only point of agreement was that it is necessary to depart from the text of the applicable statute in order to find jurisdiction in the appellate courts.

For those keeping score at home, PLF has two parallel cases pending against the WOTUS rule: one in the federal trial court in Minnesota (which we think is the proper court), and one in the Sixth Circuit Court of Appeals (in the event jurisdiction is ultimately determined to be in the appeals courts). The rehearing petition we just filed is in the appellate court action, while the trial court action remains stayed pending resolution of the jurisdictional question.

We will keep you posted on the all the latest developments in the WOTUS litigation, and we look forward to getting past the procedural preliminaries and on to the merits.

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Waters of the United States

In 2015 PLF challenged the Environmental Protection Agency’s proposed rule to stretch federal control to nearly every pond, ditch, and puddle in the nation as nothing more than an outrageous—and illegal—power grab under cover of the Clean Water Act. And under the Act, people who are harmed by such rules have six years to sue in federal district court. That is, until the EPA rewrote the rule, trying to prevent legal action by giving property owners just 120 days to sue, and then only in federal appellate courts. On January 22, 2018, the U.S. Supreme Court rejected the EPA’s power play and unanimously ruled for PLF and property rights. The High Court agreed with PLF that the EPA cannot shelter its “waters of the United States” rule from judicial review by arbitrarily limiting where victims can sue.

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