United States District Court, D. North Dakota, Southeastern Division
States of North Dakota, Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, South Dakota, and Wyoming; New Mexico Environment Department; and New Mexico State Engineer, Plaintiffs,
U.S. Environmental Protection Agency, Regina McCarthy in her official capacity as Administrator of the U.S. Environmental Protection Agency, U.S. Army Corps of Engineers, Jo Ellen Darcy in her official capacity as Assistant Secretary of the Army (Civil Works), Defendants
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State of North Dakota, Plaintiff: Wayne K. Stenehjem, LEAD
ATTORNEY, Jennifer L. Verleger, Attorney General's
Office, BISMARCK, ND; Margaret I. Olson, ATTORNEY
GENERAL'S OFFICE, CIVIL LITIGATION, BISMARCK, ND; Paul M.
Seby, HOLLAND & HART, LLP, DENVER, CO.
State of Alaska, Plaintiff: Ruth Hamilton Heese, LEAD
ATTORNEY, Alaska Dept. of Law, Juneau, AK.
State of Arizona, Plaintiff: John R. Lopez, IV, LEAD
ATTORNEY, PRO HAC VICE, ARIZONA ATTORNEY GENERAL'S
OFFICE, PHOENIX, AZ.
State of Arkansas, Plaintiff: Jamie L. Ewing, LEAD ATTORNEY,
PRO HAC VICE, ARKANSAS ATTORNEY GENERAL, LITTLE ROCK, AR.
State of Colorado, Plaintiff: Frederick R. Yarger, LEAD
ATTORNEY, COLORADO ATTORNEY GENERAL'S OFFICE, DENVER, CO.
State of Idaho, Plaintiff: Douglas M. Conde, LEAD ATTORNEY,
PRO HAC VICE, OFFICE OF THE IDAHO ATTORNEY GENERAL, NATURAL
RESOURCES DIVISION - ENVIRONMENTAL QUALITY SECTION, BOISE,
State of Missouri, Plaintiff: John A. Hirth, LEAD ATTORNEY,
PRO HAC VICE, MISSOURI ATTORNEY GENERAL'S OFFICE,
JEFFERSON CITY, MO.
State of Montana, Plaintiff: Alan Joscelyn, LEAD ATTORNEY,
PRO HAC VICE, Montana Attorney General, Helena, MT.
State of Nebraska, Plaintiff: Justin D. Lavene, LEAD
ATTORNEY, NEBRASKA ATTORNEY GENERAL'S OFFICE, LINCOLN,
State of Nevada, Plaintiff: Lawrence VanDyke, LEAD ATTORNEY,
NEVADA OFFICE OF THE ATTORNEY GENERAL, CARSON CITY, NV.
State of South Dakota, Plaintiff: Charles D. McGuigan, LEAD
ATTORNEY, SD Attorney General's Office, Pierre, SD.
State of Wyoming, Plaintiff: Peter K. Michael, LEAD ATTORNEY,
David Patrick Ross, James C. Kaste, WYOMING ATTORNEY
GENERAL'S OFFICE, CHEYENNE, WY.
Mexico Environment Department, Plaintiff: Jeffrey Melvin
Kendall, LEAD ATTORNEY, Kay Ramona Bonza, New Mexico
Environment Department, Santa Fe, NM.
Mexico State Engineer, Plaintiff: Gregory Campbell Ridgley,
Matthias L. Sayer, LEAD ATTORNEYS, NEW MEXICO OFFICE OF THE
STATE ENGINEER, SANTA FE, NM.
U.S. Environmental Protection Agency, Regina McCarthy, in her
official capacity as Administrator of the U.S. Environmental
Protection Agency, U.S. Army Corps of Engineers, Jo Ellen
Darcy, in her official capacity as Assistant Secretary of the
Army (Civil Works), Defendants: Daniel R. Dertke, Kristofor
R. Swanson, Martha C. Mann, U.S. Department of Justice,
Environmental & Natural Resources Division, Washington, DC;
Stacey M. Bosshardt, U.S. Department of Justice, Washington,
Montana Association of Counties, Movant: Peter G. Scott, LEAD
ATTORNEY, PRO HAC VICE, GOUGH, SHANAHAN, JOHNSON & WATERMAN
PLLP, BOZEMAN, MT.
Wyoming Farm Bureau Federation, Wyoming Stock Growers
Association, Wyoming Weed and Pest Council, Movants: Franklin
J. Falen, LEAD ATTORNEY, BUDD-FALEN LAW OFFICES, LLC,
Wyoming Association of Conservation Districts, Movant: Anne
K. Wasserburger, Harriet M. Hageman, LEAD ATTORNEYS, PRO HAC
VICE HAGEMAN LAW, P.C., CHEYENNE, WY.
OPINION AND ORDER GRANTING PLAINTIFFS' MOTION FOR
R. Erickson, Chief United States District Judge.
Summary of Decision
jurisdiction is vested in this court and not the court of
appeals because the " Clean Water Rule: Definition of
Waters of the United States," jointly promulgated by the
U.S. Environmental Protection Agency and U.S. Army Corps of
Engineers, has at best only an attenuated connection to any
permitting process. If the exceptionally expansive view
advocated by the government is adopted, it would encompass
virtually all EPA actions under the Clean Water Act,
something precisely contrary to Section 1369(b)(1)(F)'s
grant of jurisdiction.
court finds that under either standard--" substantial
likelihood of success on the merits" or " fair
chance of success" -- the States are likely to succeed
on their claim because (1) it appears likely that the EPA has
violated its Congressional grant of authority in its
promulgation of the Rule at issue, and (2) it appears likely
the EPA failed to comply with APA requirements when
promulgating the Rule. Additionally, the court finds the
other factors relevant to the inquiry weigh in favor of an
April 21, 2014, the United States Army Corps of Engineers and
the Environmental Protection Agency (" EPA" )
(collectively " the Agencies" ) issued a proposed
rule to change the definition of " Waters of the United
States" under the Clean Water Act. Following a period
for comment, the Agencies promulgated a final rule ("
the Rule" ) on June 29, 2015, which defines waters of
the United States. The Rule has an effective date of August
29, 2015, twelve States and the New Mexico Environment
Department and the New Mexico State Engineer (collectively
" the States" ) filed a complaint against the
Agencies, the EPA Administrator
in her official capacity, and the Assistant Secretary of the
Army (Civil Works) in her official capacity. On August 10,
2015, the States filed a motion for a preliminary
injunction. A hearing was held on the motion on
August 21, 2015. The court, having considered the entire
record as now developed including evidence presented at the
hearing and the arguments of counsel, issues this memorandum
opinion and order.
33, of the United States Code, §
1369(b)(1) defines the circumstances under which
the United States Courts of Appeals have exclusive
jurisdiction over an action of the EPA Administrator.
Implicated here are the provisions of subsections (b)(1)(E)
and (b)(1)(F) of § 1369. Section 1369(b)(1)(E) posits
jurisdiction in the courts of appeals where the Administrator
has approved or promulgated " any effluent limitation or
other limitation under section 301, 302, 306, or 405, [33
USCS § 1311, 1312, 1316, or 1345]" . "
Effluent limitations" are defined by the act as "
any restriction established by a state or the [EPA] on
quantities, rates, and concentrations of chemical, physical,
biological, and other constituents which are discharged from
point sources into navigable waters." 
Rule itself imposes no " effluent limitation." It
merely redefines what constitutes " waters of the United
States."  This is made plain by the specific
language of the Rule itself, as it unequivocally states that
it " imposes no enforceable duty on any state, local, or
tribal governments, or the private sector, and does not
contain regulatory requirements that might significantly or
uniquely affect small governments." 
Agencies' claim that the Rule is an " other"
limitation is equally unavailing. " [A]n agency action
is [an 'other] limitation' within the meaning of
section 509(b)(1)(E) if entities subject to the CWA's
permit requirements face new restrictions on their discretion
with respect to discharges or discharge-related
processes."  The Eighth Circuit Court of Appeals
has noted that this phrase " leaves much to the
imagination."  The Fourth Circuit Court of Appeals
has defined an " other limitation" as " a
restriction on the untrammeled discretion of the industry . .
.[as it existed prior to the passage of the [CWA]."
Rule here imposes no " other limitation" upon the
Plaintiff States. At the hearing, the EPA argued that the
Rule places no new burden or requirements on the States, a
position supported by the language of the Rule itself at 80
F.R. 37102. The contention is that the States have exactly
the same discretion to dispose of pollutants into the waters
of the United States after the Rule as before. Rather, the
Rule merely changes what constitutes waters of the United
Section 1369(b)(1)(F) grants the courts of appeals
jurisdiction in cases involving the " issuing or denying
[of] any permit under section 1342 of this title." In
Iowa League of Cities, the Eighth Circuit noted, that the
Supreme Court, in Crown Simpson Pulp Co. v.
Costle, " interpreted broadly the
direct appellate review provision" of §
1369(b)(1)(F). In Crown Simpson, the Supreme Court
interpreted Subsection F " to extend jurisdiction to
those actions that have 'the precise effect' of an
action to issue or deny a permit."  The precise
holding in Crown Simpson is that original jurisdiction rests
in the courts of appeal " when the action of the
Administrator is functionally similar to the denial or
issuance of a permit." 
case at bar is much like that in Friends of the Everglades.
The Rule " neither issues nor denies a permit"
 Indeed, the Rule has at best an
attenuated connection to any permitting process. It simply
defines what waters are within the purview of the "
waters of the United States."  This does not in
itself implicate § 1369(b)(1)(F) because it is simply
not the functional equivalent or similar to an action of the
administrator in denying or issuing a permit.
exceptionally expansive view advocated by the government is
adopted, it would encompass virtually all EPA actions under
the Clean Water Act. It is difficult to imagine any action
the EPA might take in the promulgation of a rule that is not
either definitional or regulatory. This view of §
1369(b)(1)(F)'s grant of jurisdiction would run precisely
contrary to Congress' intent in drafting the court of
appeals jurisdictional provision as recognized in the Supreme
Court in National Cotton Council of America v.
relationship between issuing or denying a permit and the Rule
at issue is tangential to issuance or denial of a permit--a
classic red herring. Under these circumstances, original
jurisdiction lies in this court and not the court of appeals.
Preliminary Injunction Motion.
court applies the well-known four-factor inquiry in
determining whether or not a preliminary injunction should
issue. Commonly referred to as the
Dataphase factors, the court weighs (1) the threat of
irreparable harm to the movant; (2) the balance of harms; (3)
the movant's likelihood of success on the merits; and (4)
the public interest.
Likelihood of Success on the Merits
court initially considers likelihood of success on the merits
because if the movant fails to establish a likelihood of
success, the quest for a preliminary injunction fails and the