Pascua Yaqui Tribe v. U.S. Envtl. Prot. Agency

• Decision Date: 30 August 2021
• Docket Number: CV-20-00266-TUC-RM
• Citation: 557 F.Supp.3d 949
• Parties: PASCUA YAQUI TRIBE, et al., Plaintiffs, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al., Defendants.
• Court: U.S. District Court — District of Arizona

557 F.Supp.3d 949

PASCUA YAQUI TRIBE, et al., Plaintiffs,

v.UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al., Defendants.

No. CV-20-00266-TUC-RM

United States District Court, D. Arizona.

Signed August 30, 2021

Alexandra Schluntz, Pro Hac Vice, Stuart C. Gillespie, Pro Hac Vice, Earthjustice, Denver, CO, Janette K. Brimmer, Pro Hac Vice, Earthjustice, Seattle, WA, for Plaintiffs.

Daniel Wade Pinkston, DOJ - ENRD - EDS, Denver, CO, Hubert Lee, US Dept. of Justice, Washington, DC, for Defendants United States Environmental Protection Agency, United States Army Corps of Engineers, Michael Regan, Taylor N. Ferrell.

ORDER

Rosemary Márquez, United States District Judge

PlaintiffsPascua Yaqui Tribe, Quinault Indian Nation, Fond du Lac Band of Lake Superior Chippewa, Menominee Indian Tribe of Wisconsin, Tohono O'Odham Nation, and Bad River Band of Lake Superior Chippewa ("Plaintiffs") challenge two final rules promulgated by the United States Environmental Protection Agency("EPA") and the United States Army Corps of Engineers ("Corps of Engineers")(collectively, "Agencies").(Doc. 1.)The first, entitled " Definition of ‘Waters of the United States’—Recodification of Pre-Existing Rules,"84 Fed. Reg. 56,626(Oct. 22, 2019)("2019 Repeal Rule"), repealed the 2015"Clean Water Rule."The second, entitled " The Navigable Waters Protection Rule: Definition of ‘Waters of the United States,’ "85 Fed. Reg. 22,250(Apr. 21, 2020)("NWPR"), established a new definition of the phrase "waters of the United States" in the Clean Water Act("CWA").

Plaintiffs moved for summary judgment on May 11, 2021.(Doc. 47.)On July 13, 2021, Defendant-Intervenors Chantell and Michael Sackett("Sacketts") filed a Cross-Motion for Summary Judgment(Doc. 77), as did Defendant-IntervenorsArizona Rock Products Association; National Stone, Sand, and Gravel Association; Arizona Cattle Feeders Association; Home Builders Association of Central Arizona; Arizona Farm and Ranch Group; Arizona Farm Bureau; and Arizona Chapter Associated General Contractors (collectively, "Business Intervenors")(Doc. 79).

In lieu of filing a response to Plaintiffs’ Motion for Summary Judgment, Defendants EPA, EPA Administrator Michael Regan, Corps of Engineers, and Acting Assistant Secretary of the Army Jaime Pinkham(collectively, "Agency Defendants") filed a Motion for Voluntary Remand of the NWPR Without Vacatur and Motion for Abeyance of Briefing on the 2019 Rule Claims.(Doc. 72.)Plaintiffs do not oppose remand of the NWPR but argue that remand should include vacatur.(Doc. 74at 1-12.)¹The Sacketts oppose remand.(Doc. 84.)The Business Intervenors do not oppose remand but oppose Plaintiffs’ position that remand should include vacatur.(Doc. 85.)The Court held a hearing on the Motion for Voluntary Remand on August 4, 2021 and took the matter under advisement.(Doc. 92.)

For the following reasons, the Court will grant the Agency Defendants’ Motion for Voluntary Remand, as well as Plaintiffs’ request that remand include vacatur.

I.Background

The CWA was enacted in 1972"to restore and maintain the chemical, physical, and biological integrity of the Nation's waters."33 U.S.C. § 1251(a).The Act regulates discharges of pollutants from point sources to "navigable waters," with "navigable waters" defined as "waters of the United States, including the territorial seas."33 U.S.C. §§ 1311(a),1362(7),1362(12).The statute does not further define the phrase "waters of the United States."For decades, that phrase was defined by regulation to include tributaries and impoundments of interstate waters and other waters used in or affecting interstate or foreign commerce, as well as wetlands adjacent to such waters, including wetlands separated by man-made dikes or barriers, natural river berms, and beach dunes.See33 C.F.R. § 328.3(a), (c)(1986);see also51 Fed. Reg. 41,206, 41,250(Nov. 13, 1986);53 Fed. Reg. 20,764, 20,774(June 6, 1988).

In Rapanos v. United States , a deeply divided Supreme Court considered whether wetlands connected to distant navigable waters via ditches or artificial drains constitute "waters of the United States" within the meaning of the CWA.547 U.S. 715, 729, 126 S.Ct. 2208, 165 L.Ed.2d 159(2006)(Scalia, J., plurality).Justice Scalia authored a four-justice plurality opinion concluding (1) that "the phrase ‘waters of the United States’ includes only those relatively permanent, standing or continuously flowing bodies of water forming geographic features that are described in ordinary parlance as streams, oceans, rivers, and lakes"; and (2)"only those wetlands with a continuous surface connection to bodies that are ‘waters of the United States’ in their own right, so that there is no clear demarcation between waters and wetlands, are adjacent to such waters and covered by the [CWA]."Id. at 739, 742, 126 S.Ct. 2208(Scalia, J., plurality)(internal quotation, emphasis, and alteration marks omitted).Justice Kennedy concurred in the judgment of the plurality but wrote separately and found that wetlands constitute "navigable waters" within the meaning of the CWA if there is "a significant nexus between the wetlands" and traditionally navigable waters, such that "the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity" of traditionally navigable waters.Id. at 779-80, 126 S.Ct. 2208(Kennedy, J, concurring).Justice Kennedy and the four dissenting justices all rejected Justice Scalia's plurality opinion as "inconsistent with the [CWA]’s text, structure, and purpose."547 U.S. at 776, 126 S.Ct. 2208(Kennedy, J., concurring);seeid. at 800, 126 S.Ct. 2208(Stevens, J., dissenting)(agreeing with Justice Kennedy that the limitations set forth in the plurality opinion "are without support in the language and purposes of the [CWA] or in [the Supreme Court's]cases interpreting it").

The Ninth Circuit subsequently held that Justice Kennedy's Rapanos concurrence is controlling under Supreme Court precedent for interpreting fractured decisions.N. Cal. River Watch v. Cty. of Healdsburg , 496 F.3d 993, 999-1000(9th Cir.2007);see alsoUnited States v. Robertson , 875 F.3d 1281, 1290-1292(9th Cir.2017)(re-affirming Healdsburg ), vacated as moot , ––– U.S. ––––, 139 S. Ct. 1543, 203 L.Ed.2d 708(2019).Other circuit courts likewise either adopted Justice Kennedy's significant nexus test or found that CWA protections applied upon satisfaction of either Justice Kennedy's or Justice Scalia's tests.See, e.g. , United States v. Donovan , 661 F.3d 174, 182(3d Cir.2011);Precon Dev. Corp. v. U.S. Army Corps of Eng'rs , 633 F.3d 278, 288-89(4th Cir.2011);United States v. Bailey , 571 F.3d 791, 799(8th Cir.2009);United States v. Robison , 505 F.3d 1208, 1221-22(11th Cir.2007);United States v. Johnson , 467 F.3d 56, 66(1st Cir.2006);United States v. Gerke Excavating, Inc. , 464 F.3d 723, 724-25(7th Cir.2006).

In 2015, the Agencies adopted the "Clean Water Rule," re-defining the term "navigable waters."33 C.F.R. § 328.3(2016);see also80 Fed. Reg. 37,054(June 29, 2015).As part of the rulemaking process, the Agencies produced a review of scientific literature on the connections between tributaries, wetlands, and downstream waters, titled "Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence"("Connectivity Report").(Doc. 64;Doc. 64-1;Doc. 64-2.)

On February 28, 2017, President Donald Trump issued Executive Order 13,778, directing the Agencies to consider repealing the Clean Water Rule and replacing it with a regulation adopting the reasoning of Justice Scalia's plurality opinion in Rapanos .82 Fed. Reg. 12,497(Feb. 28, 2017).The Agencies repealed the Clean Water Rule in 2019 and re-instated the pre-2015 regulations.84 Fed. Reg. 56,626(Oct. 22, 2019).Then, in the 2020 NWPR, the Agencies re-defined the term "navigable waters" to mean: (1)"[t]he territorial seas" and waters used "in interstate or foreign commerce,"(2)"[t]ributaries,"(3)"[l]akes and ponds, and impoundments of jurisdictional waters," and (4)"[a]djacent wetlands."33 C.F.R. § 328.3(a)(2020);see also85 Fed. Reg. 22,250(Apr. 1, 2020).The NWPR strictly defines "tributaries" and "adjacent wetlands," and it categorically excludes certain features from the definition of "navigable waters," including "ephemeral streams."33 C.F.R. § 328.3(b), (c)(1), (c)(12).Consistent with Executive Order 13,778, the NWPR is based in significant part on the Rapanos plurality opinion.See, e.g. , 85 Fed. Reg.at 22,2259, 22,273, 22,279-80, 22,288-89, 22,291, 22,303-04, 22,308-10, 22,314, 22,319, 22,326.The Agencies published the NWPR notwithstanding feedback from the EPA Science Advisory Board that the NWPR conflicts with established science, disregards key aspects of the 2015 Connectivity Report, and weakens protection of the nation's waters in contravention of the CWA's objectives.(Doc. 63-8at 2-5.)

On January 20, 2021, President Joe Biden issued Executive Order 13,990, expressing the policy of the new administration:

to listen to the science; to improve public health and protect our environment; to ensure access to clean air and water; to limit exposure to dangerous chemicals and pesticides; to hold polluters accountable, including those who disproportionately harm communities of color and low-income communities; to reduce greenhouse gas emissions; to bolster resilience to the impacts of climate change; to restore and expand our national treasures and monuments; and to prioritize both environmental justice and the creation of the well-paying union jobs necessary to deliver on these goals.

86 Fed. Reg. 7,037(Jan. 20, 2021).Executive Order 13,990 directed federal agencies "to immediately review and, as appropriate and consistent with applicable law, take action to address the promulgation of Federal...