FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT January 29, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA; NATIONAL FEDERATION OF INDEPENDENT BUSINESS; TULSA REGIONAL CHAMBER; PORTLAND CEMENT ASSOCIATION; STATE CHAMBER OF OKLAHOMA,

Plaintiffs - Appellants, No. 16-5038 (D.C. No. 4:15-CV-00386-CVE-PJC) v. (N.D. Okla.)

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; E. SCOTT PRUITT, in his official capacity as Administrator of the United States Environmental Protection Agency; UNITED STATES ARMY CORPS OF ENGINEERS; JO-ELLEN DARCY, in her official capacity as Assistant Secretary of the Army (Civil Works),

Defendants - Appellees.

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PACIFIC LEGAL FOUNDATION; CATO INSTITUTE; SOUTHEASTERN LEGAL FOUNDATION; STATE OF ALABAMA; STATE OF ALASKA; STATE OF ARIZONA; STATE OF ARKANSAS; STATE OF COLORADO; STATE OF FLORIDA; STATE OF GEORGIA; STATE OF IDAHO; STATE OF INDIANA; STATE OF KANSAS; STATE OF KENTUCKY; STATE OF LOUISIANA; STATE OF MICHIGAN; STATE OF MISSISSIPPI; STATE OF MISSOURI; STATE OF NEBRASKA; NEW MEXICO STATE ENGINEER; NEW MEXICO ENVIRONMENT DEPARTMENT; STATE OF NEVADA; NORTH CAROLINA DEPARTMENT OF ENVIRONMENTAL QUALITY; STATE OF NORTH DAKOTA; STATE OF OHIO; STATE OF SOUTH CAROLINA; STATE OF SOUTH DAKOTA; STATE OF TENNESSEE; STATE OF TEXAS; STATE OF UTAH; STATE OF WEST VIRGINIA; STATE OF WISCONSIN; STATE OF WYOMING; AMERICAN ROAD AND TRANSPORTATION BUILDERS ASSOCIATION; THE AMERICAN FARM BUREAU FEDERATION; AMERICAN FOREST & PAPER ASSOCIATION; AMERICAN PETROLEUM INSTITUTE; GREATER HOUSTON BUILDERS ASSOCIATION; LEADING BUILDERS OF AMERICA; NATIONAL ALLIANCE OF FOREST OWNERS; NATIONAL ASSOCIATION OF HOME BUILDERS; NATIONAL ASSOCIATION OF MANUFACTURERS; NATIONAL ASSOCIATION OF REALTORS; NATIONAL CATTLEMEN’S BEEF ASSOCIATION; NATIONAL CORN GROWERS ASSOCIATION; NATIONAL MINING ASSOCIATION; NATIONAL PORK PRODUCERS COUNCIL; NATIONAL STONE, SAND & GRAVEL ASSOCIATION; PUBLIC LANDS COUNCIL; TEXAS FARM BUREAU; U.S. POULTRY & EGG ASSOCIATION,

Amici Curiae.

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STATE OF OKLAHOMA EX REL. MIKE HUNTER, in his official capacity as

2 Attorney General of Oklahoma,

Plaintiff - Appellant, No. 16-5039 (D.C. No. 4:15-CV-00381-CVE-FHM) v. (N.D. Okla.)

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; UNITED STATES ARMY CORPS OF ENGINEERS; E. SCOTT PRUITT, in his official capacity as Administrator of the United States Environmental Protection Agency; JO-ELLEN DARCY, in her official capacity as Assistant Secretary of the Army for Civil Works,

Defendants - Appellees.

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PACIFIC LEGAL FOUNDATION; CATO INSTITUTE; SOUTHEASTERN LEGAL FOUNDATION; STATE OF ALABAMA; STATE OF ALASKA; STATE OF ARIZONA; STATE OF ARKANSAS; STATE OF COLORADO; STATE OF FLORIDA; STATE OF GEORGIA; STATE OF IDAHO; STATE OF INDIANA; STATE OF KANSAS; STATE OF KENTUCKY; STATE OF LOUISIANA; STATE OF MICHIGAN; STATE OF MISSISSIPPI; STATE OF MISSOURI; STATE OF NEBRASKA; NEW MEXICO STATE ENGINEER; NEW MEXICO ENVIRONMENT DEPARTMENT; STATE OF NEVADA; NORTH CAROLINA DEPARTMENT OF ENVIRONMENTAL QUALITY; STATE OF NORTH DAKOTA; STATE OF OHIO; STATE OF SOUTH CAROLINA; STATE OF SOUTH DAKOTA; STATE OF TENNESSEE; STATE OF TEXAS; STATE OF UTAH; STATE OF WEST

3 VIRGINIA; STATE OF WISCONSIN; STATE OF WYOMING; AMERICAN ROAD AND TRANSPORTATION BUILDERS ASSOCIATION; THE AMERICAN FARM BUREAU FEDERATION; AMERICAN FOREST & PAPER ASSOCIATION; AMERICAN PETROLEUM INSTITUTE; GREATER HOUSTON BUILDERS ASSOCIATION; LEADING BUILDERS OF AMERICA; NATIONAL ALLIANCE OF FOREST OWNERS; NATIONAL ASSOCIATION OF HOME BUILDERS; NATIONAL ASSOCIATION OF MANUFACTURERS; NATIONAL ASSOCIATION OF REALTORS; NATIONAL CATTLEMEN’S BEEF ASSOCIATION; NATIONAL CORN GROWERS ASSOCIATION; NATIONAL MINING ASSOCIATION; NATIONAL PORK PRODUCERS COUNCIL; NATIONAL STONE, SAND & GRAVEL ASSOCIATION; PUBLIC LANDS COUNCIL; TEXAS FARM BUREAU; U.S. POULTRY & EGG ASSOCIATION,

Amici Curiae. _________________________________

ORDER AND JUDGMENT* _________________________________

Before LUCERO, PHILLIPS, and MORITZ, Circuit Judges. _________________________________

Plaintiffs filed these actions in the United States District Court for the

Northern District of Oklahoma to challenge a regulation issued by the Environmental

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 4 Protection Agency defining the term “waters of the United States” for purposes of the

Clean Water Act. The district court dismissed both cases, concluding that such

challenges must be brought in the United States Circuit Court of Appeals pursuant to

33 U.S.C. § 1369(b)(1). We consolidated the subsequent appeals.

Following oral argument, the Supreme Court granted certiorari in a case

raising the same issue. Nat’l Ass’n of Mfrs. v. Dep’t of Def., 137 S. Ct. 811 (2017).

We abated these appeals pending the Court’s decision in that case. The Supreme

Court has now held that the regulation at issue “falls outside the ambit of

§ 1369(b)(1), and any challenges to the Rule therefore must be filed in federal district

courts.” Nat’l Ass’n of Mfrs. v. Dep’t of Def., ___ U.S. ___, No. 16-299, 2018 WL

491526, at *4 (Jan. 22, 2018).

We accordingly LIFT the abatement, REVERSE, and REMAND to the

district court for further proceedings.

Entered for the Court Per Curiam

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