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 ASSOCIATION; 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 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 

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 Court
2 

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. 

––––––––––––––––––––––––––––––– 

STATE OF OKLAHOMA EX REL. MIKE 

HUNTER, in his official capacity as 
3 

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 Assistant Secretary of 

the Army for Civil Works, 

 Defendants - Appellees. 

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

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 

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 & 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. 
5 

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