Washington Cattlemen's Association v. United States Environmental Protection Agency

Opinion

THE HONORABLE JOHN C. COUGHENOUR 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE 9 WASHINGTON CATTLEMEN’S CASE NO. C19-0569-JCC ASSOCIATION, 10 ORDER 11 Plaintiff, v. 12 UNITED STATES ENVIRONMENTAL 13 PROTECTION AGENCY et al., 14 Defendants. 15

16 This matter comes before the Court on Plaintiff’s motion for a preliminary injunction 17 (Dkt. No. 15). Plaintiff seeks to enjoin the Environmental Protection Agency and the U.S. Army 18 Corps of Engineers (collectively, the “Agencies”) from enforcing, implementing, applying, or 19 otherwise giving effect to a final rule defining “waters of the United States” (the “WOTUS 20 Rule”) for purposes of the Clean Water Act of 1972 (“CWA”), 33 U.S.C. §§ 1251–1388. See 21 Clean Water Rule: Definition of “Waters of the United States,” 80 Fed. Reg. 37,054 (June 29, 22 2015) (codified at 33 C.F.R. pt. 328); (see generally Dkt. No. 15). On October 22, 2019, the 23 Agencies published a final rule (the “Repeal Rule”) “to repeal the [WOTUS Rule] . . . and to 24 restore the regulatory text that existed prior to the [WOTUS Rule].” 84 Fed. Reg. 56,626 (to be 25 codified at 33 C.F.R. pt. 328). The Repeal Rule became effective on December 23, 2019. See id. 26 at 56,626. 1 Federal courts may exercise jurisdiction over only certain “cases” and “controversies.” 2 See Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1138 (9th Cir. 2000) (“Our role 3 is neither to issue advisory opinions nor to declare rights in hypothetical cases, but to adjudicate 4 live cases or controversies consistent with the powers granted the judiciary in Article III of the 5 Constitution.”). As part of the case-or-controversy requirement, a plaintiff must establish that he 6 or she has standing to bring suit in federal court. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 7 561 (1992). To establish standing, a plaintiff must demonstrate that his or her injury is “concrete, 8 particularized, and actual or imminent; fairly traceable to the challenged action; and redressable 9 by a favorable ruling.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013) (citation 10 omitted). “A ‘concrete’ injury must be ‘de facto’; that is, it must actually exist. Spokeo, Inc. v. 11 Robins, 136 S. Ct. 1540, 1548 (2016) (citing Black’s Law Dictionary 479 (9th ed. 2009)). For an 12 injury to be imminent, it must be “certainly impending.” Clapper, 568 U.S. at 409 (citing Defs. 13 of Wildlife, 504 U.S. at 565). “[A] plaintiff must demonstrate standing separately for each form 14 of relief sought.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 15 185 (2000) (citing City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983); Lewis v. Casey, 518 16 U.S. 343, 358 n.6 (1996)). 17 “Article III’s requirements must be continuously met throughout the life of a case.” 18 Robertson v. Allied Sols., LLC, 902 F.3d 690, 698 (7th Cir. 2018). “The doctrine of mootness 19 provides that ‘[t]he requisite personal interest that must exist at the commencement of the 20 litigation (standing) must continue throughout its existence (mootness).’” Tanner Advert. Grp., 21 L.L.C. v. Fayette County, 451 F.3d 777, 785 (11th Cir. 2006) (quoting U.S. Parole Comm’n v. 22 Geraghty, 445 U.S. 388, 397 (1980)). “[I]n determining whether a [claim for relief] is moot, 23 [courts] should presume that the repeal, amendment, or expiration of legislation will render an 24 action challenging the legislation moot, unless there is a reasonable expectation that the 25 legislative body will reenact the challenged provision or one similar to it” based on the record of 26 the given case. Bd. of Trs. of Glazing Health & Welfare Tr. v. Chambers, 941 F.3d 1195, 1198– 1 99 (9th Cir. 2019). 2 In its motion for a preliminary injunction, Plaintiff’s claims of irreparable harm are 3 premised on its allegations that the WOTUS Rule violates constitutional principles and expands 4 the CWA’s jurisdiction such that Plaintiff’s members will have to obtain permits for previously 5 unregulated projects. (See Dkt. Nos. 15 at 19–20, 40 at 19–27.) When the Repeal Rule became 6 effective on December 23, 2019, the WOTUS Rule ceased to have any legal effect. See, e.g., N. 7 Carolina Growers’ Ass’n, Inc. v. United Farm Workers, 702 F.3d 755, 765 (4th Cir. 2012) 8 (“When the 2008 regulations took effect . . . , they superseded the 1987 regulations . . . . As a 9 result, the 1987 regulations ceased to have any legal effect, and their reinstatement would have 10 put in place a set of regulations that were new and different ‘formulations’ from the 2008 11 regulations.”). As the WOTUS Rule no longer has legal effect, Plaintiff’s claimed harms flowing 12 from the rule are neither concrete nor imminent. See Spokeo, 136 S. Ct. at 1548; Clapper, 568 13 U.S. at 409. And because Plaintiff has not demonstrated that there is a reasonable expectation 14 that the Agencies will again promulgate the WOTUS Rule or a rule similar to it, Plaintiff has not 15 overcome the presumption that the Repeal Rule rendered its motion for a preliminary injunction 16 moot. See Bd. of Trs. of Glazing Health & Welfare Tr., 941 F.3d at 1198–99.1 17 Therefore, Plaintiff’s motion for a preliminary injunction enjoining the Agencies from 18 enforcing, implementing, applying, or otherwise giving effect to the WOTUS Rule (Dkt. No. 15) 19

20 1 In its response to the Court’s order to show cause dated October 8, 2019, Plaintiff argued that injunctive relief against the WOTUS Rule would still be necessary after the Repeal 21 Rule took effect because “[t]here also remains the risk that [Plaintiff’s] members may be subject to prosecution for actions taken before the repeal of the [WOTUS Rule] goes into effect.” (Dkt. 22 No. 49 at 4) (citing Jacobus v. Alaska, 338 F.3d 1095 (9th Cir. 2003)). The Ninth Circuit’s decision in Jacobus v. Alaska, 338 F.3d 1095 (9th Cir. 2003), relied on the specific facts of that 23 case and an Alaska state law that rendered individuals liable for past violations of criminal 24 statutes despite their subsequent repeal or amendment. See id. at 1102–05. The Ninth Circuit has since overruled Jacobus and other cases inconsistent with the rule announced in Board of 25 Trustees of Glazing Health & Welfare Trust v. Chambers, 941 F.3d 1195 (9th Cir. 2019). See id. at 1198–99. Therefore, Plaintiff’s citation to Jacobus is insufficient to show that its claim for 26 injunctive relief against the WOTUS Rule is not moot. 1 is DENIED as moot. Plaintiff may refile its motion for a preliminary injunction if the WOTUS 2 Rule becomes effective again in the future. 3 DATED this 30th day of December 2019. A 4 5 6 John C. Coughenour 7 UNITED STATES DISTRICT JUDGE

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