Pasqua Yaqui Tribe v. United States EPA

Pasqua Yaqui Tribe v. United States EPA

Opinion

 [*950]  WO

ORDER

Plaintiffs Pascua Yaqui Tribe, Quinault Indian Nation, Fond du Lac Band of Lake  [*951]  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 Reg. 56,626 (Oct. 22, 2019) ("2019 Repeal Rule"), repealed the 2015 "Clean Water Rule."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 [**3]  and Michael Sackett ("Sacketts") filed a Cross-Motion for Summary Judgment (Doc. 77), as did Defendant-Intervenors Arizona 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. 74 at 1-12.)¹ The 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.)

 [**4] For the following reasons, the Court will grant the Agency Defendants' Motion for Voluntary Remand, as well as Plaintiffs' request that remand include vacatur.

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