UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

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CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA;
NATIONAL FEDERATION OF INDEPENDENT BUSINESS; TULSA REGIONAL CHAMBER; PORTLAND
CEMENT ASSOCI ATION; STATE CHAMBER OF OKLAHOMA,

Plaintiffs - Appellants,

v.

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 As sistant Secretary of the Army (Civil Works),

Defendants - Appellees.

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PACIFIC LEGAL FO UNDATION; 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 No. 16-5038 (D.C. No. 4:15-CV -00386-CVE-PJC) (N.D. Okla.) FILED United States Court of Appeals
Tenth Circuit



### January 29, 2018

Elisabeth A. Shumaker
Clerk of Court2 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 & EG G ASSOCIATION,

Amici Curiae.

–––––––––––––––– –––––––––––––––

STATE OF OKLAHOMA EX REL. MIKE HUNTER, in his official capacity as3 Attorney General of Oklahoma,

Plaintiff - Appellant,

v.

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 As sistant Secretary of the Army for Ci vil Works,

Defendants - Appellees.

------------------------------

PACIFIC LEGAL FO UNDATION; 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 No. 16-5039 (D.C. No. 4:15-CV -00381-CVE-FHM) (N.D. Okla.)4 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 & EG G ASSOCIATION,

Amici Curiae.

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ORDER AND JUDGMENT *

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Before LUCERO

, PHILLIPS , and MORITZ , Circuit Judges.

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Plaintiffs filed these ac tions 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 judica ta, and collateral estoppel. It may be cited, however, for its persuasive value consiste nt with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.5 Protection Agency defining the term “waters of the United States” for purposes of the

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

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

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

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

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

We abated these appeals pending the Cour t’s decision in that case. The Supreme

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

§ 1369(b)(1), and any challenges to the Rule th erefore 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 fu rther proceedings.

Entered for the Court
Per Curiam