                                                                              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.

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

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.

–––––––––––––––––––––––––––––––

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.

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

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




                                           5
