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Supreme Court will review WOTUS venueSupreme Court will review WOTUS venue

High court will decide whether "waters of the U.S." appeal should start in court of appeals or district courts.

Jacqui Fatka

January 14, 2017

3 Min Read
Supreme Court will review WOTUS venue

The U.S. Supreme Court released a decision to grant the cert petition for the industry coalition lawsuit challenging the Environmental Protection Agency on its "waters of the U.S." (WOTUS) rule.

A total of 14 organizations, including the American Farm Bureau Federation (AFBF) as well as beef, poultry, egg, pork and corn grower groups, were seeking to vacate the EPA/U.S. Army Corps of Engineers WOTUS rule. In the petition, they asked the U.S. Supreme Court to review whether the Sixth Circuit Court of Appeals is the appropriate court to hear challenges to the rule. The Sixth Circuit earlier dismissed arguments that legal challenges to the rule should be brought first in federal district court and not courts of appeal.

Federal courts of appeals are divided on how to interpret a provision of the Clean Water Act mandating that certain types of legal challenges be filed directly to courts of appeals. When pressed to decide this question, the three-judge panel of the Sixth Circuit issued three separate opinions, with only a single judge concluding that jurisdiction was lawfully in that court, making this question in need of clarification by the Supreme Court, AFBF said in a statement at the time of filing the petition last fall.

“This petition to the Supreme Court is not related to the merits of our case, and we are confident that eventually the Sixth Circuit and the Supreme Court will agree that the rule is unlawful,” AFBF general counsel Ellen Steen said. “The petition was filed because the jurisdiction question is one that repeatedly arises in challenges to Clean Water Act actions. The time is ripe for the Supreme Court to resolve confusion among lower courts as to where jurisdiction lies so that the American Farm Bureau Federation and others can stop wasting time and resources arguing with the federal government over where to file these important legal challenges.”

Scott Yager, environmental counsel for the National Cattlemen’s Beef Assn., explained that the Clean Water Act clearly defines different categories of lawsuits that should begin at the appellate level, and this is not one of them. The Supreme Court should make a decision on the procedural process to ensure that, whatever rulings are made, they can also stand up against future jurisdictional challenges, he added.

Yager warned that if the current case in the Sixth Circuit Court of Appeals brings a win to those opposed to the WOTUS rule, environmental groups could actually get it thrown out on jurisdictional levels if the Supreme Court does not come in and say one way or another whether it should start at the district court level or not.

“The Supreme Court’s decision to hear our appeal is a victory for America’s cattle producers and all private property owners across the country. It shows that the court has a continued interest in private property rights, and we look forward to oral arguments this spring,” Yager said.

Since the Supreme Court decided to grant the petition, it may put a stay on the Sixth Circuit Court of Appeals case and wait until it has made a final decision. If it decides that district courts are the correct venues, it could send all of the cases back down to the district court level.

About the Author(s)

Jacqui Fatka

Policy editor, Farm Futures

Jacqui Fatka grew up on a diversified livestock and grain farm in southwest Iowa and graduated from Iowa State University with a bachelor’s degree in journalism and mass communications, with a minor in agriculture education, in 2003. She’s been writing for agricultural audiences ever since. In college, she interned with Wallaces Farmer and cultivated her love of ag policy during an internship with the Iowa Pork Producers Association, working in Sen. Chuck Grassley’s Capitol Hill press office. In 2003, she started full time for Farm Progress companies’ state and regional publications as the e-content editor, and became Farm Futures’ policy editor in 2004. A few years later, she began covering grain and biofuels markets for the weekly newspaper Feedstuffs. As the current policy editor for Farm Progress, she covers the ongoing developments in ag policy, trade, regulations and court rulings. Fatka also serves as the interim executive secretary-treasurer for the North American Agricultural Journalists. She lives on a small acreage in central Ohio with her husband and three children.

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