NOVEMBER 15, 2015
Sylvester from Land and Water U.S.A.
Bell Sylvester is the founder and volunteer editor of Land and
Water USA and a former 2014 Republican gubernatorial candidate in
the State of Colorado.
She lives in LaSalle, Colorado (Mountain time) northeast of Denver.
She and Chuck live on Chuck's grandfather's farm on the South Platte
River that was flooded out last fall during the Denver flood. They
also have a ranch in Wyoming.
In addition to being a well-known speaker at the Colorado State
Legislature, where she has frequently testified on water and
agricultural issues, she is a mother, a wife, a rancher, and a
self-described “farm girl”. Roni Bell Sylvester is a passionate
champion of private property rights in the United States of America,
including the beneficial use of water as a vested property right.
We have also embarked on an education movement to teach land owners
how to deal with trespass by government agents (forest service, BLM,
USFWS, etc.). Here is a sign she developed and is available.
Sixth Circuit puts
controversial ‘Waters of the United States’ (WOTUS) rule on hold
October 9, 2015
This morning a divided panel of the U.S. Court
of Appeals for the Sixth Circuit
issued a nationwide stay against the enforcement of a regulation
issued by the Environmental Protection Agency (EPA) and the U.S.
Army Corps of Engineers defining the scope of the “waters of the
United States” subject to federal regulatory jurisdiction under the
Clean Water Act (CWA). This rule — the so-called WOTUS rule —
represents the EPA and Army Corps’ effort to clarify the scope of
federal regulatory jurisdiction in light of Supreme Court decisions
in 2001 and 2006 concluding that the agencies had adopted an unduly
broad interpretation of the scope of their authority. Numerous
challenges against the WOTUS rule are pending in courts around the
country, including one in North Dakota I covered
A particularly interesting aspect of the court’s decision is that
there is some question as to whether the court of appeals has
jurisdiction to consider a challenge to the rule under the CWA.
Specifically, there is a question whether, under the terms of the
CWA, challenges to the rule are to be brought in district or circuit
courts. Other courts considering WOTUS rule challenges have split on
this question. Also interesting is that those parties seeking a stay
— those opposing the rule — are also those who are arguing that the
challenges should be heard in district courts, and that Sixth
Circuit lacks jurisdiction to hear the initial challenge.
On the merits, the majority concluded that the opponents of the
WOTUS rule have shown a sufficient likelihood of prevailing in their
challenge to justify the stay. Judge McKeague, joined by Judge
Griffin, wrote for the court:
[W]e conclude that petitioners have demonstrated a substantial
possibility of success on the merits of their claims. Petitioners
first claim that the Rule’s treatment of tributaries, “adjacent
waters,” and waters having a “significant nexus” to navigable waters
is at odds with the Supreme Court’s ruling in Rapanos, where the
Court vacated the Sixth Circuit’s upholding of wetlands regulation
by the Army Corps of Engineers. Even assuming, for present purposes,
as the parties do, that Justice Kennedy’s opinion in Rapanos
represents the best instruction on the permissible parameters of
“waters of the United States” as used in the Clean Water Act,it is
far from clear that the new Rule’s distance limitations are
harmonious with the instruction.
Moreover, the rulemaking process by which the distance limitations
were adopted is facially suspect. Petitioners contend the proposed
rule that was published, on which interested persons were invited to
comment, did not include any proposed distance limitations in its
use of terms like “adjacent waters” and significant nexus.”
Consequently, petitioners contend, the Final Rule cannot be
considered a “logical outgrowth” of the rule proposed, as required
to satisfy the notice-and-comment requirements of the APA, 5 U.S.C.
§ 553. See Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 174
(2007). As a further consequence of this defect, petitioners
contend, the record compiled by respondents is devoid of specific
scientific support for the distance limitations that were included
in the Final Rule. They contend the Rule is therefore not the
product of reasoned decision-making and is vulnerable to attack as
impermissibly “arbitrary or capricious” under the APA, 5 U.S.C. §
The majority also concluded that there were good reasons to maintain
the status quo pending the resolution of challenges to the rule.
What is of greater concern to us, in balancing the harms, is the
burden—potentially visited nationwide on governmental bodies, state
and federal, as well as private parties—and the impact on the public
in general, implicated by the Rule’s effective redrawing of
jurisdictional lines over certain of the nation’s waters. Given that
the definitions of “navigable waters” and “waters of the United
States” have been clouded by uncertainty, in spite of (or
exacerbated by) a series of Supreme Court decisions over the last
thirty years, we appreciate the need for the new Rule. See Rapanos,
547 U.S. 715; Solid Waste Agency of N. Cook Cty. v. U.S. Army Corps
of Engineers, 531 U.S. 159 (2001); United States v. Riverside
Bayview Homes, Inc., 474 U.S. 121 (1985). In one sense, the
clarification that the new Rule strives to achieve is long overdue.
We also accept that respondent agencies have conscientiously
endeavored, within their technical expertise and experience, and
based on reliable peer-reviewed science, to promulgate new standards
to protect water quality that conform to the Supreme Court’s
guidance. Yet, the sheer breadth of the ripple effects caused by the
Rule’s definitional changes counsels strongly in favor of
maintaining the status quo for the time being.
The court also noted that (as discussed
here), the rule has already been stayed in 13 states. A
nationwide stay serves the additional purpose of maintaining
nationwide uniformity while the litigation proceeds.
Judge Keith dissented from the court’s opinion on the grounds that
the court should not issue a stay against the rule until it
determines that it has jurisdiction under the CWA to review the
rule. In response, the majority argued that it has the discretionary
power to issue a stay pending the resolution of the jurisdictional
question, and that briefing on that matter is underway.
Jonathan H. Adler teaches courses in constitutional, administrative,
and environmental law at the Case Western University School of Law,
where he is the inaugural Johan Verheij Memorial Professor of Law
and Director of the Center for Business Law and Regulation.
A federal appeals court has rejected
President Barack Obama's effort to move forward with a series of
executive actions he announced last year seeking to give quasi-legal
status and work permits to millions of illegal immigrants.
The 2-1 ruling from the New Orleans-based 5th Circuit is a defeat
for the Obama Administration, but one that may have come just in the
nick of time to give the Supreme Court the chance to revive Obama's
attempt to make it easier for many immigrants who entered the U.S.
illegally to live and work here.
The timing of the appeals court's decision had become of increasing
concern to the Obama Administration and immigrant rights' groups in
recent weeks. Obama's latest round of executive actions have been on
hold since January and delay in the result of the appeals court's
ruling was raising doubt about whether the Supreme Court would
resolve the case in time to allow Obama to move forward with the
programs before leaving office.
The release of the 5th Circuit decision Monday appears to allow the
Supreme Court enough time to take up the dispute this term, if the
justices choose to wade into the issue. A favorable Supreme Court
ruling would permit the administration to implement the executive
actions next summer.
Marielena Hincapie, executive director of the National Immigration
Law Center, reacted swiftly to the ruling.
"Immigrant families & their US citizen children have been waiting
anxiously for the 5th Circuit to rule. Now, we call on the DOJ to
seek cert before the Supreme Court immediately where we are more
likely to obtain justice for our communities."
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