U.S. Circuit Court of Appeals in D.C. allows agencies to continue enforcing the "Tulluch Rule" while the AMC v. Corp of Engineers case is on appeal. Tulloch Ruling in American Mining Congress v. U.S. Corps of Engineers Stayed; Guidance Letter No Longer in Effect. On June 25, 1997, the U.S. Circuit Court of Appeals for the District of Columbia granted a stay of the District Court's decision that the federal regulation of activities involving only "incidental fallback" under the "Tulloch Rule" were beyond the Corps of Engineers' and EPA's (the Agencies') authority. The Agencies had used the rule to regulate activities in wetlands where no foreign materials were introduced into the waters because of the harmful affects of the movement of large amounts of materials within waters and wetlands. The stay allows the Agencies to continue enforcing the rule while the case is on appeal. In response to the stay, John F. Studt, Chief of the Regulatory Branch of The Corps of Engineers issued a "Memorandum for Major Subordinate Commands" which stated that the April 11, 1997 joint guidance (see "How is the Corps of Engineers Reacting . . ." ) is no longer in effect and that the "excavation rule" (i.e. the Tulloch rule) is in full effect. This memorandum went on to say, however, that no enforcement actions should be initiated for activities involving only incidental fallback which occurred between January 23, 1997 and June 25, 1997. When the D.C. Circuit Court issued its stay, it also agreed to hear the appeal on an expedited schedule. Final briefs are due November 19, 1997-so the decision should come out in early 1998.
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