# Murray Energy Corp. v. United States Department of Defense > Court of Appeals for the Sixth Circuit · February 22, 2016 · 817 F.3d 261 URL: https://www.frixlaw.com/law-library/cases/8413909 ## Case - **Full name:** In re UNITED STATES DEPARTMENT OF DEFENSE and UNITED STATES ENVIRONMENTAL PROTECTION AGENCY FINAL RULE: CLEAN WATER RULE: DEFINITION OF "WATERS OF the UNITED STATES," 80 Fed.Reg. 37,054 (June 29, 2015). Murray Energy Corporation (15-3751) State of Ohio (15-3799) National Wildlife Federation (15-3817) Natural Resources Defense Council, Inc. (15-3820) State Of Oklahoma (15-3822) Chamber Of Commerce of the United States of America (15-3823) State of North Dakota (15-3831) Waterkeeper Alliance Inc. (15-3837) Puget Soundkeeper Alliance (15-3839) American Farm Bureau Federation (15-3850) State of Texas (15-3853) Utility Water Act Group (15-3858) Southeastern Legal Foundation, Inc. (15-3885) State of Georgia (15-3887) One Hundred Miles (15-3948) Southeast Stormwater Association, Inc. (15-4159) Michigan Farm Bureau (15-4162) Washington Cattlemen's Association (15-4188) Association Of American Railroads (15-4211) Texas Alliance For Responsible Growth, Environment, And Transportation (15-4234) American Exploration & Mining Association (15-4305) Arizona Mining Association (15-4404) v. United States Department of Defense, Department of the Army Corps of Engineers And united States Environmental Protection Agency - **Court:** Court of Appeals for the Sixth Circuit - **Decided:** February 22, 2016 - **Citations:** 817 F.3d 261; 2016 FED App. 0045P; 46 Envtl. L. Rep. (Envtl. Law Inst.) 20038; 81 ERC (BNA) 2165; 2016 U.S. App. LEXIS 3031 - **Precedential status:** Published - **Opinion:** Dissent by Keith - **Judges:** Griffin, Keith, McKeague - **Cited by:** 7 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8413909 ## Opinion text KEITH, Circuit Judge, dissenting. I agree with Judge Griffin’s reasoning and conclusion that, under the plain meaning of the statute, neither subsection (E) nor subsection (F) of 33 U.S.C § 1369(b)(1) confers original jurisdiction on the appellate courts. Like Judge Griffin, I disagree with Judge McKeague. Nevertheless, Judge Griffin concludes that original jurisdiction lies in the appellate courts under this court’s opinion in National Cotton Council of Am. v. U.S. EPA, 553 F.3d 927 (6th Cir.2009). I believe Judge Griffin’s reading of that case is wrong. 'In National Cotton, this court concluded that it had original jurisdiction to review a rule that created exemptions.to the permitting procedures of the Clean Water Act (the “Act”).' 553 F.3d at 933 . In holding that jurisdiction was proper, the court reasoned that “[t]he jurisdictional grant of [subsection (F)] authorizes the court of appeals ‘to review the regulations governs ing the issuance of permits ... as well as the issuance or denial of a particular permit.’” Id. at 933 (quoting Am. Mining Cong. v. U.S. E.P.A., 965 F.2d 759 , 763 (9th Cir.1992)). Therefore, the court ex-, pandéd subsection (F) to cover rules that “regulate[] the permitting procedures.” See id.; cl 33 U.S.C. § 1369 (b)(1)(F) (relating to administrative actions ’ that “issu[e] or deny[ ] any permit under section 1342”). I view this limited expansion of subsection (F) as the holding of National Cotton. By contrast, Judge Griffin contends that National Cotton’s holding expanded the scope of subsection (F) to include anything “relating” to permitting ■ procedures. While National Cotton expanded the scope of subsection (F) to cover rules “regulating” or “governing” permitting procedures, 553 F.3d at 933 , it did not expand that subsection to. cover all rules “relating” to those procedures, such as the one at issue here — -a rule that merely defines the scope of the term “waters of the United States.” That a rule “relates” to a permitting procedure does not mean that it “regulates” or “governs” that' procedure. Therein lies the analytical fallacy in the concurrence. Simply put, it cannot be that any rule that merely “relates” to permitting procedures — however tenuous, minimal, or tangential that relation may be— confers original jurisdiction upon this court under subsection (F). This could not have *284 been the intent of the legislators who drafted seven carefully defined bases for original jurisdiction in the appellate courts — and it could not have been the intent of the National Cotton court itself. Admittedly, the National Cotton court could have provided an explanation of what it meant by “regulations governing the issuance of permits.” See 553 F.3d at 933 . By not explaining this phrase, it invited much speculation about the scope of subsection (F). For example, the Eleventh Circuit in Friends of the Everglades v. E.P.A., 699 F.3d 1280, 1288 (11th Cir.2012), declined to extend the rationale and holding of National Cotton because this court failed to provide a better explanation of its reasoning. However, National Cotton’s failure to define this phrase does not mean that this phrase must encompass everything. I am reluctant to read National Cotton in a way that expands the jurisdictional reach of subsection (F) in an all-encompassing, limitless fashion. In sum, National Cotton’s holding is not as elastic as the concurrence suggests. If this court construes that holding to be so broad as to cover the facts of this case, that construction brings subsection (F) to its breaking point: a foreseeable consequence of the concurrence’s reasoning is that this court would exercise original subject-matter jurisdiction over all things related to the Clean Water Act. Accordingly, I respectfully dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8413909. Public record. Not legal advice.