On Monady, Pacific Legal Foundation filed a petition for writ of certiorari in the U.S. Supreme Court in United States v. Gerke. The petition asks the High Court to resolve a conflict in the Circuits on the controlling opinion in Rapanos. In Gerke, the Seventh Circuit Court of Appeals concluded that the Kennedy test was controlling in Rapanos while the First Circuit, in United States v. Johnson, concluded that federal jurisdiction under the Clean Water Act could be established either under the Kennedy test or the plurality test. The question presented for review is:
"May the lower courts prohibit the United States Army Corps of Engineers from relying on the plurality opinion in Rapanos v. United States, 126 S. Ct. 2208 (2006), to determine federal jurisdiction over wetlands under the Clean Water Act."
Read the petition here.