DTN writer Todd Neeley reported yesterday that, “Although one federal appeals court already has claimed jurisdiction in the numerous legal challenges to the waters of the United States rule (WOTUS), there appears to be a split at the appellate level on the jurisdiction question.
“A federal appeals court in Atlanta has scheduled oral arguments in an 11-state lawsuit challenging the waters of the United States rule, according to a court order handed down Friday.
“The U.S. Court of Appeals for the 11th Circuit scheduled oral arguments on the case for July 8. In that court the states of Georgia, Kentucky, Kansas, West Virginia, South Carolina, Alabama, Wisconsin, Utah, Indiana, North Carolina and Florida have asked the court to overturn another federal court on the question of jurisdiction.”
Mr. Neeley noted that, “The U.S. Court of Appeals for the Sixth Circuit in Cincinnati stayed the WOTUS rule nationally in October 2015, pending its review. The Sixth Circuit already is moving forward with consolidating numerous cases into a single case likely to play out in 2017.
“The states are asking the 11th Circuit to reverse the Sixth Circuit jurisdictional determination, to allow the states to proceed with their legal challenge in Atlanta.”
The DTN article added that, “Paul Beard, a Clean Water Act attorney at Alston and Bird, LLP in Los Angeles, told DTN such a division among courts isn’t all that unusual.
“‘The circuit courts, which cover mutually exclusive jurisdictions, simultaneously can adjudicate cases concerning the same legal issue,’ he said. ‘That is, after all, how circuit splits develop. So it’s not out of the ordinary and I wouldn’t read too much into it.’
“In their appeal to the 11th Circuit Court the states argue an earlier ruling by the Sixth Circuit that it has jurisdiction shows a three-judge panel on that court is divided on where jurisdiction lies.”
