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.