Chris Thomas was quoted in the Law360* article, "High Court Criminal Case Could Make Waves In Water Law," regarding the U.S. Supreme Court's clarification on the rulings made by lower courts. 

Christopher Thomas, said circuit courts have split on which test to use.

"There are two camps now. The Ninth, the Seventh and the Eleventh circuits have ruled that the Kennedy test controls under the Marks rule for interpreting fractured decisions because that's the one that restricts government regulatory power the least," Thomas said. “Then you have the First, Sixth, Eighth and Third that have said either test works."

While it's possible the high court skips a broader review of Marks and finds a way to issue a limited ruling on just the facts of the Hughes case, Thomas said it's likely the justices would not have accepted the case if it wasn't inclined to reach Marks.

"I think there's a reasonably good possibility that the outcome in Hughes will require the courts of appeal and district courts to reconsider whether they properly decided the Kennedy test is the controlling one," Thomas said.

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