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Washington Cattlemen's Association v. United States Environmental Protection Agency

United States District Court, D. Minnesota

November 8, 2016

Washington Cattlemen's Association;, California Cattlemen's Association; New Mexico Cattle Growers Association; New Mexico Wool Growers, Inc.; New Mexico Federal Lands Council; Duarte Nursery, Inc.; Pierce Investment Company; LPF Properties, LLC; Hawkes Company, Inc.; Oregon Cattlemen's Association; and Coalition of Arizona/New Mexico Counties for Stable Economic Growth, Plaintiffs,
v.
United States Environmental Protection Agency, Gina McCarthy, United States Army Corps of Engineers, and Jo Ellen Darcy, Defendants.

          MEMORANDUM OPINION AND ORDER

          DONOVAN W. FRANK United States District Judge

         INTRODUCTION

         Plaintiffs Washington Cattlemen's Association, California Cattlemen's Association, New Mexico Cattle Growers Association, New Mexico Wool Growers, Inc., New Mexico Federal Lands Council, Duarte Nursery, Inc., Pierce Investment Company, LPF Properties, LLC, Hawkes Company, Inc., Oregon Cattlemen's Association, and Coalition of Arizona/New Mexico Counties for Stable Economic Growth (collectively, “Plaintiffs”) filed this lawsuit against Defendants United States Environmental Protection Agency (“EPA”), Gina McCarthy, United States Army Corps of Engineers (“Corps”), and Jo Ellen Darcy (collectively, “Defendants”) after the EPA and the Corps promulgated a final rule under the Clean Water Act, 33 U.S.C. § 1251, et seq. Plaintiffs sued Defendant McCarthy in her official capacity as Administrator of the EPA, and they sued Defendant Darcy in her official capacity as Assistant Secretary of the Army, Civil Works. For the reasons stated below, the Court grants Defendants' motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1). (Doc. No. 34.)

         BACKGROUND

         The Clean Water Act prohibits release of any “pollutant” into “navigable waters” except as specifically allowed. 33 U.S.C. §§ 1311(a), 1362(12). It defines “navigable waters” as “the waters of the United States, including the territorial seas.” Id. § 1362(7). On June 29, 2015, the EPA and the Corps published a final rule entitled “Clean Water Rule: Definition of ‘Waters of the United States'” (“Clean Water Rule”), and on August 28, 2015, the Clean Water Rule became effective. 80 Fed. Reg. 37, 054 (June 29, 2015).

         Plaintiffs seek review of the Clean Water Rule, alleging that the Rule, by changing the definition of “waters of the United States, ” impermissibly expands the regulatory jurisdiction of the EPA and the Corps. (Doc. No. 15 (“Am. Compl.”) ¶¶ 33, 35.) Specifically, Plaintiffs allege that the Clean Water Rule requires them “to seek federal permit approval (at significant cost) to use their property for its intended purpose.” (Id. ¶ 35.) Defendants agree that the definition of “waters of the United States” affects “where regulated parties must obtain permits to discharge pollutants.” (Doc. No. 36 at 2.)

         The Clean Water Act grants jurisdiction to review certain actions by the Administrator of the EPA to the federal courts of appeals. 33 U.S.C. § 1369(b)(1). As relevant to this case, the statute provides:

Review of the Administrator's action . . .
(E) in approving or promulgating any effluent limitation or other limitation under section 1311, 1312, 1316, or 1345 of this title, [or]
(F) in issuing or denying any permit under section 1342 of this title . . .
may be had by any interested person in the Circuit Court of Appeals of the United States for the Federal judicial district in which such person resides or transacts business which is directly affected by such action upon application by such person.

Id. § 1369(b)(1)(E), (F). When review under § 1369(b)(1) is available, “it is the exclusive means of challenging actions covered by the statute.” Decker v. Nw. Envtl. Def. Ctr., 133 S.Ct. 1326, 1334 (2013) (citing 33 U.S.C. § 1369(b)(2)).

         When multiple petitions for review are filed to challenge a single EPA action under 33 U.S.C. § 1369(b)(1), such petitions are consolidated in one federal court of appeals. 28 U.S.C. § 2112(a)(3); see, e.g., Nat'l Pork Producers Council v. EPA, 635 F.3d 738, 741, 747 (5th Cir. 2011); Nat'l Cotton Council of Am. v. EPA, 553 F.3d 927, 932 (6th Cir. 2009). Specifically, § 2112(a)(3) provides that the Judicial Panel on Multidistrict Litigation “shall, by means of random selection, designate one court of appeals” in which review of the agency action “shall” be consolidated, and § 2112(a)(5) provides that all other courts of appeals “shall” transfer petitions for review of the agency action to the designated circuit. 28 U.S.C. § 2112(a)(3), (5).

         On July 15, 2015, Plaintiffs filed their complaint in this Court. (Doc. No. 1.) Numerous other parties similarly sought review of the Clean Water Rule and filed petitions in federal district and circuit courts across the country. See In re Dep't of Def. & EPA Final Rule, 817 F.3d 261, 263-64 (6th Cir. 2016). Pursuant to 28 U.S.C. § 2112(a), the Judicial Panel on Multidistrict Litigation consolidated many of these petitions in a multi-circuit case in the Sixth Circuit. See id.; In re EPA & Dep't of Def. Final Rule, 803 F.3d 804, 805 (6th Cir. 2015). On October 26, 2015, Plaintiffs filed a petition for review of the Clean Water ...


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