News & Resources

WOTUS Court Conflict

1 Mar 2016

By Todd Neeley
DTN Staff Reporter

OMAHA (DTN) -- Agriculture and other industry groups remain unconvinced legal challenges to the waters of the United States rule should be heard by the U.S. Court of Appeals for the Sixth Circuit in Cincinnati, although the court has indicated in previous rulings it may be sympathetic to those groups that claim the rule is a flawed federal overreach.

A number of agriculture and other industry groups led by the American Farm Bureau Federation filed what is a fairly unique request with the court Monday. After the court ruled it has jurisdiction to hear numerous legal challenges to the rule, the groups filed a petition for rehearing en banc on motions to dismiss the cases in favor of allowing consideration by district courts.

The request means the groups are essentially asking all 23 judges of the Sixth Circuit court to rehear the arguments on jurisdiction, beyond the three-judge panel that issued the ruling last week.

That ruling indicated a split among three justices about whether it was correct to use National Cotton Council v. EPA as a precedent for determining questions of jurisdiction.

In the petition for en banc review, AFBF and other groups said because the justices did not reach a consensus on the reading of the National Cotton Council case, any consideration of the legal merits filed against the rule -- even if favorable to petitioners -- could be subject to successful appeals.

"It would be an enormous waste of party and judicial resources to litigate these petitions to judgment on the merits, if it later turns out that this court lacked jurisdiction all along," the groups said in the petition filed with the court Monday.

"... The panel's splintered 1-1-1 jurisdictional decision raises more questions than it answers, casting doubt and uncertainty on the future course of all of those cases. This case thus cries out for en banc review: there is a 'circuit split,' the question presented is 'an important federal question,' and a 'number of judges on the court have come to doubt the validity of (its) own precedent.'"

So far in a number of cases filed at both the district and appeals court levels, there has been disagreement about which court has jurisdiction.


Last year, the U.S. District Court for the District of North Dakota, for example, ruled it not only had jurisdiction to hear a case filed by 13 states. It then issued a temporary injunction against the U.S. Environmental Protection Agency to prevent implementation of the rule in those states.

It is this ongoing conflict between the district and appeals courts that has agriculture interest groups concerned that any Sixth Circuit decision on the legal merits at some point could be overturned.

Since 2000, the number of cases heard en banc has been declining, according to the Administrative Office of the U.S. Courts.

In 2000, the circuit courts of appeal (not including the federal circuit) ruled on 73 cases en banc -- or about 0.27% of their overall dispositions. In 2010, just 44 cases were decided on the merits en banc, according to the Administrative Office of the U.S. Courts.

Paul J. Beard, a Clean Water Act attorney with Alston and Bird LLP in Los Angeles, told DTN Tuesday the Sixth Circuit has been tough to sell on granting en banc reviews.

"En banc review generally is difficult to obtain," he said. "The circuits vary in the standards they impose for en banc review, and the Sixth Circuit's standard is particularly high."

In particular, the Sixth Circuit requires petitioners to prove the court has in a ruling committed precedent-setting errors, Beard said.

"That being said, I do believe that the Sixth Circuit panel's decision in this case has a higher-than-average chance of en banc review, in large part because it constitutes a 'precedent-setting error of exceptional public importance,'" he said.

"If the panel's decision stands -- and especially if other circuits are persuaded to adopt its underlying rule -- then conceivably all Clean Water Act challenges will have to originate in the court of appeals as opposed to the district court. Given the amount of Clean Water Act litigation that we've seen in recent years and the national importance of such litigation on landowners everywhere, if any panel decision qualifies for en banc review, it should be this one."

In the 2009 National Cotton Council case, the U.S. Court of Appeals for the Sixth Circuit in Cincinnati vacated an EPA final rule that exempts pesticides sprayed on water from the Clean Water Act when permits are issued to allow such applications.

"The agencies' definition of 'waters of the United States' does not grant or deny a permit," the groups said in their petition for en banc review on the current case.

The groups said "immediate en banc review of the jurisdictional question is imperative and cannot await a decision on the merits.

"...Beyond that, the likelihood that the panel's denial of the motions to dismiss will eventually be overturned is -- judging by the panel's splintered decision -- quite high."

Those groups asking for the review include National Pork Producers Council, American Forest and Paper Association, AFBF, American Petroleum Institute, National Mining Association, National Association of Realtors, National Corn Growers Association, National Association of Home Builders, National Stone Sand and Gravel Association, American Road and Transportation Builders Association, Greater Houston Builders Association, Leading Builders of America, Matagorda County Farm Bureau, National Alliance of Forest Owners, National Cattlemen's Beef Association, Public Lands Council, Texas Farm Bureau and the U.S. Poultry and Egg Association.

Todd Neeley can be reached at

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