• Mark Ryan

Ninth Circuit Denies EPA's Motion to Dismiss in Sackett

In a surprising move, the Ninth Cir. today denied EPA's motion to dismiss the Sackett's appeal of the wetlands case they've been litigating for many years. For background, see my April 1 blogpost on EPA's motion to dismiss on mootness grounds. In the one-page order denying EPA's motion without prejudice - - and giving no rationale for its ruling - - the court held that EPA could re-raise the motion in its answering brief, which is now due on June 22.

This is a bit of a surprise. I fully expected the Ninth Cir. to gladly take this off its docket given the EPA's willingness to let it go. It is possible that the court will find that the appeal is moot after considering all of the merits briefs, but I think it is now possible that they could reach the merits here. If the court rules on the merits in favor of EPA, it will set the stage of a likely Supreme Court appeal. If EPA loses, this administration would likely not appeal. Would a Biden administration? Who knows. The Sackett merits case was decided under the Bush-era rule, applying the 2008 Rapanos Guidance. The situation on the ground is very confusing given the promulgation of the 2020 WOTUS rule, the pending litigation on the repeal of the 2015 rule and the multiple current and soon-to-come challenges to the 2020 rule, along with the pending motion to stay the 2020 rule nationwide. Stay tuned.

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