The majority opinion is amended as follows:
Judge Collins's dissent remains unchanged.
Judges Siler and Hurwitz voted to deny the petition for rehearing en banc. Judge Collins voted to grant the petition.
The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35.
The petition for rehearing en banc, Dkt. 73, is
HURWITZ, Circuit Judge.
In this Clean Water Act ("CWA") citizen suit, the plaintiffs alleged that Corona Clay Company illegally discharged pollutants into the navigable waters of the United States, failed to monitor that discharge as required by its permit, and violated the conditions of the permit by failing to report violations. After the district court granted partial summary judgment to the plaintiffs, a jury returned a defense verdict on the remaining claims. Both sides appealed.
The resolution of the appeal is impacted heavily by two Supreme Court decisions. In the first, Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, the Court held that the CWA bars citizen suits alleging only "wholly past" violations of permits. 484 U.S. 49, 67, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987). The district court read Gwaltney as requiring proof of ongoing permit discharge violations and so instructed the jury. The second decision, County of Maui v. Hawaii Wildlife Fund, rejected this Court's prior interpretation of the CWA's discharge jurisdictional requirement, 33 U.S.C. §§ 1311(a), 1362(12)(A), and held that an offending discharge must reach the "waters of the United States," id. § 1362(7), either through a direct discharge or a "functional equivalent." ___ U.S. ___, 140 S.Ct. 1462, 1468, 206 L.Ed.2d 640 (2020). Because County of Maui was decided after the final judgment in this case, the jury instructions corresponded to prior Ninth Circuit law.
We disagree with the district court's interpretation of Gwaltney and hold that if the required jurisdictional discharge into United States waters has occurred, a CWA citizen suit can be premised on ongoing or reasonably expected monitoring or reporting violations. We therefore vacate the district court's judgment and remand for further proceedings consistent with this opinion and with the Supreme Court's intervening decision in County of Maui.
Corona Clay Company processes clay products in Corona, California, at an industrial
The plaintiffs are two affiliated nonprofit organizations (collectively, "Coastkeeper"). Coastkeeper's mission is to "protect water quality and aquatic resources" in the watersheds and coastal waters of Orange and Riverside Counties. That area includes the Santa Ana River watershed and Temescal Creek, a tributary of the River. The organizations represent roughly 6,000 individual members.
Coastkeeper filed this action in 2018, alleging that Corona violated the conditions of its General Permit and discharged polluted storm water into Temescal Creek (which then flowed into the Pacific Ocean, via the Santa Ana River). Counts Two, Three, and Four alleged permit violations directly related to discharge of pollutants, and the remaining counts asserted other permit violations, including failures to monitor discharges and report violations.
The district court granted partial summary judgment to Coastkeeper on Claims One and Five of the operative complaint. On Claim One, the district court found that Corona had violated the permit's requirement to develop BMPs through the implementation of BAT and BCT. On Claim Five, the court held that Corona violated the permit's requirement to develop an adequate SWPPP for managing storm water discharges. The district court found no dispute that "Defendant's SWPPPs do not comply" with the permit's performance standards, noting, for example, that Corona failed to "implement required BMPs regarding erosion controls." The court also found that because "Defendant is in violation of at least some requirements of the SWPPP," it necessarily violated the permit. Coastkeeper then voluntarily dismissed Claims Three and Four.
This left Claims Two (alleging discharge violations), Six (alleging monitoring violations), and Seven (alleging reporting violations) for trial. The district court instructed the jury that to prevail on those claims Coastkeeper must prove either a forbidden discharge after the complaint was filed, or a reasonable likelihood that discharge violations would thereafter recur. In issuing this instruction, the district court relied on Gwaltney, which precludes a citizen suit for "wholly past" violations of the CWA. See 484 U.S. at 67, 108 S.Ct. 376; see also Sierra Club v. Union Oil Co., 853 F.2d 667, 670 (9th Cir. 1988) (interpreting Gwaltney to permit citizen suits predicated on "ongoing permit violations or the reasonable likelihood of continuing future violations"). The district court held that Gwaltney required "not just any permit violation (such as violations of monitoring and reporting requirements), but specifically discharge violations" as a predicate to a CWA citizen suit.
The jury answered Question One "No," and did not proceed to the other questions. The district court then entered a final judgment in favor of Corona on Claims Two, Six, and Seven, and in favor of Coastkeeper on Claims One and Five. On Claims One and Five, the district court found Corona had committed 664 daily violations of the SWPPP and 1,688 daily violations of the technology-based effluent limitations of the permit. It ordered Corona to implement structural storm water BMPs "sufficient to retain 85th percentile, 24-hour storm event, including a factor of safety, from areas subject to the [permit] no later than December 1, 2020"; to update its SWPPP to comply with the permit; and to employ professional engineers to design and certify retention basins. The court also imposed $3,700,000 in civil penalties on Corona.
In denying post-trial motions from both parties, the district court candidly admitted that "it is certainly possible to read Gwaltney and Sierra Club to encompass not merely discharge violations, but any permit violation, as an ongoing violation on which a citizen suit can be based." The court nevertheless found any error in its instructions "not prejudicial" to Coastkeeper because it had introduced no evidence of discharge violations at trial. Although noting that Corona had responded to a Rule 36 request by admitting that its storm water discharge flowed "indirectly" into Temescal Creek, the court noted "[t]his evidence ... was not introduced at trial," and "decline[d] at this juncture to admit this evidence post hoc and overrule the jury's verdict." Both parties timely appealed.
We must first consider Corona's argument that Coastkeeper lacks Article III standing to pursue this citizen suit. Article III requires that the plaintiff have a concrete and particularized injury fairly traceable to the challenged conduct that likely can be redressed by a favorable judicial decision. Friends of the Earth, Inc. v. Laidlaw Env't Servs. (TOC), Inc., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). When suing on behalf of its members, an organization must show that its members would have individual standing, the issues are germane to the organization's purpose, and neither the claim nor the requested relief requires individual participation. Hunt v. Washington State Apple Advert. Comm'n, 432 U.S. 333, 342-43, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977).
This case raises two types of claims: claims of discharge violations, which allege Corona harms Coastkeeper's members by releasing storm water with pollutant levels that violate its permit; and claims of "procedural" violations, involving Corona's failure to adhere to other permit requirements, the obligation to monitor and report. "[S]tanding is not dispensed in gross," Lewis v. Casey, 518 U.S. 343, 358
The discharge claims arise in a familiar setting. In an environmental case, the "relevant showing ... is not injury to the environment but injury to the plaintiff. To insist on the former rather than the latter as a part of the standing inquiry ... is to raise the standing hurdle higher than the necessary showing for success on the merits." Laidlaw, 528 U.S. at 181, 120 S.Ct. 693. Coastkeeper presented sworn testimony from several of its members that they lived near the Creek, used it for recreation, and that pollution from the discharged storm water impacted their present and anticipated enjoyment of the waterway.
We have routinely found such evidence sufficient to establish Article III standing. See Ecological Rights Found. v. Pac. Lumber Co., 230 F.3d 1141, 1147 (9th Cir. 2000) (finding "an aesthetic or recreational interest in a particular place ... impaired by a defendant's conduct" sufficient); see also id. at 1151 ("Laidlaw recognized that an increased risk of harm can itself be injury in fact sufficient for standing."); Covington v. Jefferson Cnty., 358 F.3d 626, 639, 641 (9th Cir. 2004) (finding plaintiffs' "reasonable concern of injury" and "fear that [contaminated] liquid will contaminate their property" shows an injury in fact) (cleaned up); Central Delta Water Agency v. United States, 306 F.3d 938, 950 (9th Cir. 2002) ("[A] credible threat of harm is sufficient[.]").
We again so find here. Coastkeeper established the requisite injury in fact and causation through its members' declarations averring to frequent use of the Temescal Creek for recreational or academic purposes, a noticeable decrease in water quality conditions because of Corona's discharges, and a resulting decline in their enjoyment of the waterway. These declarations show a present or imminent harm to the members' "aesthetic or recreational interest" in Temescal Creek. Pac. Lumber Co., 230 F.3d at 1147. The operative complaint seeks an injunction to remediate the alleged harm, which the CWA authorizes a federal court to issue, see 33 U.S.C. § 1365(a), (d), thereby satisfying the redressability requirement. Nat. Res. Def. Council v. SW Marine, Inc., 236 F.3d 985, 995 (9th Cir. 2000) (holding that redressability is established when a CWA citizen suit seeks injunctive relief).
We also reject Corona's argument that Coastkeeper failed to establish Article III standing to pursue its procedural claims.
It is settled that violations of a permit's "requirements for retaining records of discharge sampling and for filing reports" can be the subject of a CWA citizen suit. NW Env't Advocs. v. City of Portland, 56 F.3d 979, 988, 986 (9th Cir. 1995) ("[T]he plain language [of the CWA] authorizes citizens to enforce all permit conditions."). Indeed, a contrary approach "would have us immunize the entire body of qualitative regulations from an important enforcement tool." Id. at 989; see also Pac. Lumber Co., 230 F.3d at 1151 (finding that "the Clean Water Act allows citizen suits based on violations of any conditions
To be sure, Article III standing requires "a concrete injury," but that injury need not be "tangible." Spokeo, Inc. v. Robins, 578 U.S. 330, 136 S.Ct. 1540, 1549, 194 L.Ed.2d 635 (2016). Congress plainly has the power to "elevat[e] to the status of legally cognizable injuries concrete, de facto injuries that were previously inadequate in law." Lujan v. Def. of Wildlife, 504 U.S. 555, 578, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Congress may not create standing by permitting a plaintiff to sue on a "bare procedural violation, divorced from any concrete harm." Spokeo, 136 S. Ct. at 1549. But, the Supreme Court has often recognized that Congress may recognize a plaintiff's interest in information or procedure, the deprivation of which can give rise to an Article III injury. See Fed. Election Comm'n v. Akins, 524 U.S. 11, 20-25, 118 S.Ct. 1777, 141 L.Ed.2d 10 (1998) (holding that a voter's "inability to obtain information" can satisfy Article III); Pub. Citizen v. Dep't of Just., 491 U.S. 440, 449, 109 S.Ct. 2558, 105 L.Ed.2d 377 (1989) (holding that inability to obtain information subject to disclosure laws is sufficient).
We have also repeatedly recognized that failure to provide statutorily required information can give rise to Article III injury on the part of private plaintiffs. When the right to disclosure alone serves merely to "increase public participation in the decision-making process," a violation does not rise to the level of constitutional injury. Wilderness Soc'y Inc. v. Rey, 622 F.3d 1251, 1259-60 (9th Cir. 2010) (cleaned up) (finding that violation of a regulatory provision requiring the Secretary of Agriculture to give notice of proposed actions did not establish standing). But, when a statute provides a right to information, the deprivation of which "result[s] in an informational harm," violation of the statute gives rise to a cognizable "informational" injury. Id. at 1260; Southcentral Found. v. Alaska Native Tribal Health Consortium, 983 F.3d 411, 419-420 (9th Cir. 2020) (finding informational injury when a tribal health foundation challenged amendments to a tribal health consortium's amendment to its code of conduct); Davidson v. Kimberly-Clark Corp., 889 F.3d 956, 971 (9th Cir. 2018) (recognizing informational injury in a suit alleging false product labeling).
The monitoring and reporting requirements in Corona's permits are far from "bare" procedure. Spokeo, 136 S. Ct. at 1549. Rather, they serve the public's substantive interest in clean water and the environment. The CWA elevated that interest by providing a cause of action to affected citizens. Lujan, 504 U.S. at 578, 112 S.Ct. 2130; 33 U.S.C. § 1365(a), (g).
Because it is settled that CWA citizen suits may rest on non-discharge violations of a permit, we turn to whether the "irreducible constitutional minimum" of injury-in-fact has been shown in this case. Spokeo, 136 S. Ct. at 1547. Corona argues that the mere absence of a report that should have been filed or an inspection that should have occurred could not have injured Coastkeeper or its members.
We reject that argument. These permit violations deprive the public both of information about past discharges and likely future ones. If possession of that information would reduce the risk of injury to a plaintiff who wishes to know whether the water is polluted before using the Creek for recreation, this "increased risk of harm can itself be injury." Pac. Lumber Co., 230 F.3d at 1151. The injury is not simply "informational"—rather, Corona's failure to report creates a genuine threat of undetected
The declarations of Coastkeeper's members also document an informational injury suffered because of Corona's failure to abide by the permit's monitoring and reporting requirements. Coastkeeper member Heather Williams, an Associate Professor of Politics at Pomona College who teaches classes on the politics of water and land use, detailed her various studies of the human-environmental interactions in the waterway, including a forthcoming book on the Santa Ana River. Her interest in accurate information about Corona's discharges is obvious. Her declaration also established her aesthetic and recreational interests, expressing her concern that the industrial sediment would create both "visible effects of water pollution" and also "the less visible effects of pollution on wildlife." Williams also fears that continuing violations would render the stream "uninhabitable to wildlife."
The declaration of Coastkeeper Associate Director Megan Brosseau similarly details an academic background in environmental studies and "human-environmental interaction." Her professional and personal mission is to preserve the Santa Ana watershed as a "swimmable, drinkable, and fishable" waterway, and she reasonably fears that that pollution will harm both the water itself and the "educational programs" conducted in Temescal Creek. Former Executive Director and current Coastkeeper member Lee Reeder is a journalist, and he averred that the "turbid, brown and red mud" flowing into Temescal Creek had significantly harmed his enjoyment of the waterway.
These declarations plainly demonstrate individual concern about pollution of the waterway and in Corona's accurate reporting and monitoring. Each declaration expresses the concern that, in the future, Corona's failure to follow the permit requirements will lead the water quality to degrade and impair the declarant's ability to enjoy or study the waterway. Each declaration averred to a specific interest, whether academic, journalistic, or recreational, in the information that was harmed because of the alleged reporting and monitoring violations. This sufficiently establishes an Article III injury arising from the procedural allegations.
Our dissenting colleague asserts that the district court erred by holding that Coastkeeper had standing because there was a triable issue of fact as to whether Corona's alleged discharges reached or imminently threatened to reach Temescal Creek. Dissenting Opinion ("Dissent") at 838-45. But, this approach "confuses the jurisdictional inquiry ... with the merits inquiry." Pac. Lumber Co., 230 F.3d at 1151; see also id. ("[A]n increased risk of harm can itself be injury in fact sufficient for standing."). The dissent would require Coastkeeper to conclusively establish the discharge at the core of the merits question to demonstrate standing. One does not lose standing to sue just because his claims may fail on the merits.
The jury answered that question with a simple "no," leaving us unable to conclude exactly which of the several issues posed by the question were decided.
Relying on the text and structure of the CWA, we conclude that the district court erred in interpreting Gwaltney as requiring an ongoing discharge violation as a prerequisite to a CWA citizen suit asserting ongoing monitoring and reporting violations.
Gwaltney involved an NPDES permit regarding discharge of pollutants from a meatpacking plant. 484 U.S. at 53, 108 S.Ct. 376. In the three years before the citizen suit was filed, the defendant "repeatedly violated the conditions of the permit by exceeding effluent limitations." Id. The Court concluded that the CWA's reference to a defendant found "to be in violation," 33 U.S.C. § 1365(a)(1), premises a citizen suit on the "likelihood that a past polluter will continue to pollute in the future." Id. at 57, 108 S.Ct. 376. So, an entirely past violation not likely to recur, while of concern to regulators, cannot support a citizen suit seeking injunctive relief.
The plaintiffs in Gwaltney, however, only alleged discharge violations. Id. at 53, 108 S.Ct. 376. Gwaltney does not address whether a CWA citizen suit alleging reporting or monitoring violations must be premised on ongoing or reasonably likely discharge violations. But the district court's holding that it must is undercut by the text of the Act. The CWA allows a citizen suit "against any person ... who is alleged to be in violation of  an effluent standard or limitation under this chapter." 33 U.S.C. § 1365(a)(1). Section 1365(f)(7) in turn defines an "effluent standard or limitation" as including "a permit or a condition of a permit issued under section 1342." (emphasis added). The Corona permit has multiple "conditions," some of which relate to storm water discharge, but others that relate only to monitoring and reporting.
Corona contends that reporting and monitoring violations cannot support a citizen suit because 33 U.S.C. § 1318, which provides for reporting and monitoring requirements in a permit, gives the EPA Administrator power to undertake enforcement actions. Noting that reporting and monitoring requirements are not expressly mentioned in the definition of "effluent limitations" in § 1365(f), Corona claims Congress left violations of these permit requirements to the Administrator alone. However, the only statute cross-referenced in the definition of "effluent limitation" in § 1365(f)—a "permit or a condition of a permit"—is "section 1342 of this title." Id. That section lays out the NPDES permitting scheme as a whole. Thus, the most natural reading of the statute is that any
Ninth Circuit cases applying Gwaltney do not support the district court's conclusion that a CWA suit alleging monitoring and reporting violations can only lie if there are also current forbidden discharges. See Nat. Res. Def. Council, 236 F.3d at 998-99 (affirming a district court's finding of ongoing permit violations, including the failure to make and keep records of daily inspections); NW Env't Advocs., 56 F.3d at 986 (holding that "the plain language of [the CWA] authorizes citizens to enforce all permit conditions"); Pac. Lumber, 230 F.3d at 1151 (finding that "the Clean Water Act allows citizen suits based on violations of any conditions of an NPDES permit, even those which are purely procedural").
To be sure, the CWA vests district courts with jurisdiction over a citizen suit only upon proof of discharge into the navigable waters of the United States. See 33 U.S.C. § 1365(a)(1), § 1342(a). But, nothing in the statute requires the jurisdictional discharge be current or likely to occur. Thus, we hold that Gwaltney permits a citizen suit based ongoing or imminent procedural violations. Because the district court's jury instructions required Coastkeeper to prove elements not required by the statute or Gwaltney, we vacate the jury verdict.
The qualifying jurisdictional discharge into navigable waters presents a separate problem. At the time of trial, we required CWA plaintiffs to show only that pollutants in navigable waters were "fairly traceable from the point source." Haw. Wildlife Fund v. Cnty. of Maui, 886 F.3d 737, 749 (9th Cir. 2018). Shortly after final judgment issued in this case, the Supreme Court held that an NPDES permit is required only when discharge from a point source flows directly into navigable waters, or when there is "functional equivalent of a direct discharge." Cnty. of Maui, 140 S. Ct. at 1468. An emission of polluted water is therefore a "discharge" for CWA purposes only "when a point source directly deposits pollutants into navigable waters, or when the discharge reaches the same result through roughly similar means." Id. at 1476. "Time and distance are obviously important," but there are "too many potentially relevant factors" to allow a bright-line test. Id.
The parties in this case reasonably tailored their cases to our Court's then-extant law. In responding to a Rule 36 request for admission, Corona admitted that its storm water discharge flows "indirectly to Temescal Wash." Plaintiffs claimed below that this admission, together with evidence that waters from the Wash flow into the Santa Ana River and then into the Pacific Ocean, sufficed to prove jurisdictional discharge. This may have been true under prior law, but it is not obvious from the record that this flow was "direct," as required by County of Maui. Nor was the jury asked to answer that question.
The change in law affected not only the jury instructions, but also the partial summary judgment, which were premised on the discharge. The parties deserve the ability to address whether the "indirect" discharge admitted by Corona is the "functional equivalent" of a direct discharge into the waters of the United States, or whether that required discharge can otherwise be established. As we did in similar circumstances in County of Maui, we therefore vacate the judgment below and remand for further proceedings in light of the Supreme Court's intervening opinion.
We address one additional matter. Coastkeeper did not present Corona's Rule 36 admission, that "storm water from the industrial area on the property ... flows indirectly to Temescal wash," to the jury. Rather, Coastkeeper asked the district court to deem the discovery response a binding judicial admission and to instruct the jury that the facts were admitted. The court construed this request as an attempt to "admit this evidence post hoc" and denied it. And, in denying a motion for a new trial, the court again faulted Coastkeeper for not itself putting the admitted fact before the jury.
Although the issue is not likely to recur on remand, the district court erred. Federal Rule of Civil Procedure 36 permits a party to "serve on any other party a written request to admit ... the truth of any matters" within the scope of discovery. Fed. R. Civ. P. 36(a). A matter "`admitted under this rule is conclusively established' unless the court grants a motion to waive or amend" under Rule 36(b). Tillamook Country Smoker, Inc. v. Tillamook Cnty. Creamery Ass'n, 465 F.3d 1102, 1111-12 (9th Cir. 2006) (cleaned up). "[T]he rule seeks to serve two important goals: truth-seeking in litigation and efficiency in dispensing justice." Conlon v. United States, 474 F.3d 616, 622 (9th Cir. 2007). For Rule 36 to be effective, "litigants must be able to rely on the fact that matters admitted will not later be subject to challenge." In re Carney, 258 F.3d 415, 419 (5th Cir. 2001).
Rule 36 makes plain that the admitted fact is no longer subject to dispute. In dealing with other facts not subject to "reasonable dispute," Federal Rule of Evidence 201 allows the Court to take judicial notice of adjudicative facts at "any time." Fed. R. Evid. 201(d). "In a civil case, the court must instruct the jury to accept the noticed fact as conclusive." Id. 201(f). Although the better practice might have been for Coastkeeper to ask the district judge to instruct the jury on the admitted fact before the close of evidence, its request that the jury be instructed in the final instructions sufficed, particularly because Corona never filed a Rule 36(b) motion to withdraw or amend the admission. Conlon, 474 F.3d at 621.
The district court's judgment is vacated, and the case is remanded for further proceedings
COLLINS, Circuit Judge.
In my view, the district court erred by holding, at the summary judgment stage, that Plaintiffs Inland Empire Waterkeeper ("Waterkeeper") and Orange County Coastkeeper ("Coastkeeper") satisfied the requirements for Article III standing. Although that would ordinarily mean that the district court must now resolve the standing question on remand, Defendant Corona Clay Company ("Corona") contends that the jury trial that took place on the merits of certain claims produced an express finding that overlaps with, and is dispositive of, the Article III standing issue. Corona therefore asks us to order dismissal of all claims for lack of standing. Plaintiffs, however, disagree with Corona's standing analysis, and they argue that, in any event, the verdict must be set aside due to a number of asserted errors. I do not think that Plaintiffs have established any basis for concluding that the verdict may not be given preclusive effect on the standing issue, but I would leave it to the district court on remand to determine whether to do so. Because the majority's analysis of the case is very different—and is contrary to well-settled authority—I respectfully dissent.
Because Article III standing is jurisdictional, we must address that issue at the outset, before considering any question concerning the merits of Plaintiffs' various claims, all of which were brought under the Clean Water Act ("CWA"), 33 U.S.C. § 1251 et seq. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 101-02, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). On this record, I think it is clear that the district court erred in granting summary judgment in favor of Plaintiffs on the standing issue.
In May 2019, Plaintiffs moved for summary judgment as to liability on five claims, viz., the first, second, fifth, sixth, and seventh causes of action in Plaintiffs' operative First Amended Complaint.
In contending that they had Article III standing to assert these five claims, Plaintiffs
The elements of Article III standing are that "(1) [the plaintiff] has suffered an `injury in fact' that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Friends of the Earth, Inc. v. Laidlaw Env't Servs. (TOC), Inc., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (citation omitted). In arguing that these elements were satisfied by their members, Plaintiffs relied on the declarations of three persons, all of whom are members of Waterkeeper.
The district court granted summary judgment to Plaintiffs on the issue of standing and also granted them partial summary judgment as to liability on the first and fifth causes of action.
In granting summary judgment to Plaintiffs on the issue of standing, the district court seemed to lose sight of the fact that the requirements of Article III standing are "an indispensable part of the plaintiff's case," and that "each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation." Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Thus, to succeed on its motion for summary judgment as to standing, Plaintiffs needed to show, not merely that they had made a sufficient showing to allow the trier of fact to find standing, but that there was "no genuine dispute as to any material fact" as to their standing and that they were therefore "entitled to judgment as a matter of law" in their favor on that issue. FED. R. CIV. P. 56(a). I agree that Plaintiffs' showing was sufficient to survive a defense motion for summary judgment had one been made, but it was not enough to establish that their members' Article III standing had been proved as a matter of law.
As noted earlier, the only theory of standing presented in Plaintiffs' members' declarations was that Corona had contributed, and threatened to contribute, to the pollution of Temescal Creek, thereby affecting the water quality and impairing the members' enjoyment of the creek. See supra at 839. That is likewise the only theory on which the district court predicated its ruling on Article III standing, see supra at 839-40, and it is the only theory of standing that Plaintiffs invoke in their appellate briefs. Plaintiffs' theory that their declarants suffered an injury-in-fact that is fairly traceable to Corona's conduct thus rested dispositively on the assertion that Corona's pollution reached Temescal Creek or threatened to do so. Accordingly, Plaintiffs' claim of standing could be resolved in their favor as a matter of law only if, inter alia, they presented sufficient evidence to show that there was no genuine issue of material fact as to whether Corona's alleged polluted discharges reached the creek or threatened to do so.
Moreover, in addition to showing that the declarants suffered a fairly traceable injury-in-fact, Plaintiffs also had to show that those injuries would be redressed by the particular remedies that are available under the CWA and that were sought in this case. Steel Co., 523 U.S. at 106-07, 118 S.Ct. 1003. The law is clear that the CWA only permits citizen suits when, at the time of filing of the suit, there is an "ongoing" violation or a "reasonable likelihood" of future violations, and that "the harm sought to be addressed by the citizen suit lies in the present or the future, not in the past." Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., 484 U.S. 49, 57, 59, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987). Given that focus, it follows that the declarants' asserted aesthetic and recreational injuries would be redressed by the CWA's forward-looking remedies only if the declarants are "injured or face the threat of future injury due to illegal conduct ongoing at the time of suit" or imminently threatened in the future. Friends of the
Plaintiffs did not carry this burden, as the district court's own summary judgment order elsewhere recognized. In granting summary judgment as to liability on the first cause of action (relating to discharges in violation of "effluent limitations"), the district court placed loadbearing weight on its (arguably erroneous) view that, to prevail on the issue of whether Corona had exceeded the relevant effluent limitations, "Plaintiffs need not show that discharges have reached the body of water in question." By contrast, the district court concluded that Plaintiffs' second cause of action required a showing that the "receiving waters" were discolored or that beneficial uses were adversely affected. Finding triable issues on these latter points, the district court denied summary judgment on the second cause of action. Thereafter, the parties tried, and the district court expressly submitted to the jury, the question of whether Corona's discharges were reaching Temescal Creek "on or after February 27, 2018"—the date of filing of Plaintiffs' suit—or were "reasonabl[y] likel[y]" to "recur," and the jury answered that question "No." That negative answer then provided the basis for the district court's entry of judgment against Plaintiffs on the second, sixth, and seventh causes of action.
Because the record on summary judgment presented a triable issue of fact as to whether, at the time of the filing of the complaint, polluted storm water discharges from Corona's facility were reaching Temescal Creek or imminently threatened to do so, the district court erred in resolving the Article III standing issue in Plaintiffs' favor as a matter of law.
In evaluating the district court's upholding of Plaintiffs' discharge-based theory of Article III standing, the majority commits the very same error that the district court did—it erroneously holds that Plaintiffs made a sufficient showing of standing, but without ever asking whether Plaintiffs had shown that there were no genuine issues of material fact as to standing. See Maj. Opin. at 831-33. The majority nonetheless insists that I am somehow "`confus[ing] the jurisdictional inquiry ... with the merits inquiry.'" Id. at 834 (quoting Ecological Rts. Found. v. Pacific Lumber Co., 230 F.3d 1141, 1151 (9th Cir. 2000)). On the contrary, it is the majority's position that is confused and, indeed, contrary to controlling Supreme Court and Ninth Circuit precedent.
As I have explained, Lujan squarely holds that the elements of Article III standing are "an indispensable part of the plaintiff's case" and that, as a result, "each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation." 504 U.S. at 561, 112 S.Ct. 2130 (emphasis added). That means that, if (as here) Plaintiffs seek summary judgment in their favor, they must establish that their Article III standing "cannot be ... genuinely disputed." See FED. R. CIV. P. 56(c)(1); see also Department of Commerce v. U.S. House of Representatives, 525 U.S. 316, 329, 119 S.Ct. 765, 142 L.Ed.2d 797 (1999). If they fail to make this showing, because there is a triable dispute as to standing, then Plaintiff's standing contentions "must be `supported adequately by the evidence adduced at trial.'" Lujan, 504 U.S. at 561, 112 S.Ct. 2130 (emphasis added) (citation omitted). As the majority concedes, "[i]f there is a triable issue of fact" as to standing, "it follows that the party is entitled to have that issue submitted to the jury." See Maj. Opin. at 834 n.1.
Here, the only theory of Article III standing that Plaintiffs presented at summary judgment—and the only one that they assert on appeal—rested on the premise that pollutants actually reached the creek or threatened to do so, thereby impairing Plaintiffs' enjoyment of that creek. See supra at 838-40. Accordingly, under a straightforward application of Lujan, Plaintiffs' burden at summary judgment was to show that there was no genuine dispute that pollutants from Corona did reach Temescal Creek or imminently threatened to reach it. They inarguably failed to carry that burden; indeed, the majority does not contend otherwise. But despite the majority's concession that Corona was "entitled to have that issue submitted to the jury," see Maj. Opin. at 834 n.1, the majority inexplicably upholds the district court's order declining to submit
The majority instead posits that, because this theory of standing overlapped with the merits of Plaintiffs' claims, Plaintiffs were somehow excused from making the showing that Lujan requires. See Maj. Opin. at 834-35. That is quite wrong. The majority relies on Pacific Lumber's admonition that courts must not confuse a "jurisdictional inquiry" with a "merits inquiry," 230 F.3d at 1151, but that does not mean (as the majority would have it) that, in such a case of overlap, the plaintiff is thereby excused from making the showing of Article III standing that Lujan requires. On the contrary, Pacific Lumber simply reaffirmed what the Supreme Court held in Friends of the Earth, namely, that the Article III standing inquiry is not as demanding as the merits inquiry, because the former can be satisfied without showing actual "environmental harm." 528 U.S. at 180-81, 120 S.Ct. 693. As Pacific Lumber explained, a plaintiff can show actual or imminent harm to its "aesthetic and recreational interests" without showing that there was "actual environmental degradation." 230 F.3d at 1149, 1151 (emphasis added); see also Friends of the Earth, 528 U.S. at 181, 120 S.Ct. 693 ("The relevant showing for purposes of Article III standing ... is not injury to the environment but injury to the plaintiff."). However, given the particular theory of standing Plaintiffs asserted here, there could be neither harm to their aesthetic and recreational interests nor environmental degradation unless pollutants from Corona's facility reached the creek. Nothing in Pacific Lumber excuses Plaintiffs from making the lesser showing that Article III standing requires merely because that inquiry, on these facts, overlaps with the more demanding standards that apply with respect to the merits of the claims.
But even worse than all of this, the majority proceeds to uphold a portion of the district court's grant of summary judgment on the standing issue based on a theory that was neither presented nor substantiated below and that Plaintiffs have not asserted in their appellate briefs. The majority contends that, as to the sixth and seventh causes of action (which rested on Corona's alleged monitoring and reporting deficiencies), Plaintiffs have standing by virtue of their "informational injury suffered because of Corona's failure to abide by the permit's monitoring and reporting requirements." See Maj. Opin. at 834. According to the majority, when an interested party is deprived of a statutory right to obtain specified information, that "gives rise to a cognizable `informational' injury" that itself suffices for Article III standing purposes. See id. at 833 (citing Wilderness Soc'y v. Rey, 622 F.3d 1251, 1260 (9th Cir. 2010)). Noting that one of Plaintiffs' declarants mentioned that she was writing a book about the Santa Ana River (into which Temescal Creek flows), the majority announces that her "interest in accurate
As an initial matter, Plaintiffs' declarations and summary judgment motion never mentioned or relied upon the pure information-deprivation theory of standing that the majority concocts here. See supra at 839-40. Rather, they rested on the alternative theory that, as the majority puts it, "Corona's failure to report creates a genuine threat of undetected past or future polluted discharge, harming [Plaintiffs'] `aesthetic or recreational interest.'" See Maj. Opin. at 833-34 (emphasis added) (citation omitted). But as the italicized language makes clear, that theory would only establish a fairly traceable injury-in-fact that could be redressed by the forward-looking remedies in a citizen suit under the CWA only if there were ongoing or threatened future discharges. See Gwaltney, 484 U.S. at 59, 108 S.Ct. 376 (the particular "harm" that is traceable to the "ongoing violation" sought to be enjoined must "lie in the present or the future, not in the past").
Moreover, there simply is no factual basis in the summary judgment record for concluding that Plaintiffs established a pure information-deprivation standing theory as a matter of law. Although, as the majority notes, one of Plaintiffs' declarants mentions that she is working on a book "that describes the politics of governing the Santa Ana River in Southern California," she mentions that fact only in the "personal background" section of her declaration, and she never links it to her alleged injuries in the way that the majority does. When she turns, in her declaration, to describing the injuries that she asserts are fairly traceable to Corona's challenged conduct, she never contends (as the majority would have it) that Corona has deprived her of information she needs for her book. On the contrary, her only theory of injury is that Corona's actions have affected the waters of Temescal Creek and thereby impaired her "use and enjoyment" of that creek. Far from reading the factual record in the light most favorable to the party opposing summary judgment—viz., Corona—the majority instead aggressively reads it in Plaintiffs' favor in order to uphold granting them summary judgment as a matter of law. All of this is contrary to well-settled law. See, e.g., JL Beverage Co. v. Jim Beam Brands Co., 828 F.3d 1098, 1105 (9th Cir. 2016) (noting that, on a "motion for summary judgment, not only does the movant carry the burden of establishing that no genuine dispute of material fact exists, but the court also views the evidence in the light most favorable to the non-moving party").
Given that the standing issue should not have been resolved in Plaintiffs' favor at summary judgment as to any claim, the next question is what follows from that conclusion. At a minimum, it means that the judgment in Plaintiffs' favor as to the
Corona raised this issue in a post-trial motion that alternatively invoked Federal Rules of Civil Procedure 60(b)(4) and 59(e). In that motion, Corona argued that the jury's finding concerning Corona's lack of polluted discharges into "waters of the United States" was binding on Plaintiffs and was dispositive of the Article III standing issue. Plaintiffs opposed the motion, arguing that, in light of Plaintiffs' already-pending appeal, the district court should summarily deny the motion, leaving it for this court to resolve Corona's arguments on Corona's expected cross-appeal. Alternatively, Plaintiffs argued that the motion lacked merit, because the jury's verdict was flawed and would be set aside on appeal and because, in any event, the jury's verdict was insufficient to establish that Plaintiffs lacked standing. The district court summarily denied Corona's motion, concluding that Corona should present these arguments to this court on appeal. Corona then cross-appealed the judgment and the denial of its post-trial motion.
The resulting remaining issues on appeal can be grouped into two categories. First, we must address whether Plaintiff is correct in contending that the jury's verdict must be set aside. If it must be, then the judgment on all four remaining claims—the first, fifth, sixth, and seventh causes of action—must be reversed, and the case remanded for a retrial that includes the standing issue.
As set forth earlier, the only theory of Article III standing that Plaintiffs put forward at summary judgment required them to establish as a matter of law that, at the time Plaintiffs filed suit, either polluted discharges were reaching Temescal Creek from Corona's facility or there was an imminent threat that future discharges would reach the creek. See supra at 840-41. That issue was improperly removed from the jury, as I have explained. Ironically, however, the district court for different reasons imposed a similar requirement at trial as a statutory matter. See infra at 846-47. The result was that the jury ended up making an express finding that Plaintiffs had failed to prove that:
By its terms, this verdict establishes either that (1) Corona never discharged pollutants into Temescal Creek; or (2) Corona ceased all such discharges before February 27, 2018, with no reasonable likelihood of a recurrence of "such violations."
Plaintiffs also note the verdict's reference to "violations," and they argue that, in light of that word, the jury could theoretically have found that Corona's discharges did reach the creek, that those discharges did contain pollutants, but that the level of pollutants did not amount to a "violation." And because environmental harm is not necessary for Article III standing, see Friends of the Earth, 528 U.S. at 181-82, 120 S.Ct. 693, Plaintiffs suggest that such a jury finding would not necessarily be dispositive of Plaintiffs' sole theory of Article III standing. Concluding that the parties' briefing on this point is insufficient to resolve that narrowly focused issue, I would remand that aspect of Corona's post-trial motion to the district court for it to address in the first instance.
There should be no such remand, however, if Plaintiffs are correct in contending that the jury's verdict must in any event be set aside. Plaintiffs challenge that verdict in this court on four different grounds, but in my view, all of them lack merit.
Over Plaintiffs' objection, the district court instructed the jury that, to prevail on its second, sixth, and seventh causes of action, Plaintiffs were required to show that Corona's discharges reached "waters of the United States" on or after the date on which the complaint was filed or that there was a likelihood of a "recurrence in intermittent or sporadic violations." As already noted, the court's verdict form reflected the same requirement. The district court did not impose this requirement under the theory that it was needed to establish Article III standing; indeed, the court had reiterated at a pretrial conference concerning motions in limine that it had resolved the standing question at summary judgment. Rather, the district court concluded that this showing was required by the citizen-suit provisions of the CWA, as construed in Gwaltney. The court thus imposed the requirement as a matter of "statutory standing," rather than Article III standing. See Friends of the Earth, 528 U.S. at 175, 120 S.Ct. 693 (explaining that Gwaltney held that "citizens lack statutory standing under [the CWA] to sue for violations
In my view, it is unnecessary to resolve this issue. In the current posture of this case, the relevant question is whether Plaintiffs have shown a basis for refusing to give the jury's verdict preclusive effect with respect to the Article III standing issue that was wrongly withheld from the jury. The resolution of the parties' competing positions concerning Gwaltney, however, would have no effect whatsoever on whether the jury verdict may be given such effect. As I have explained earlier, when Plaintiffs successfully sought and obtained summary judgment in their favor on the Article III standing issue, they did so based only on the theory that pollutants from Corona's facility were reaching, or threatened to reach, Temescal Creek, thereby harming their aesthetic and recreational interests. See supra at 838-40, 841 n.4, 844 n.8. Because Plaintiffs' only Article III standing theory has always been a discharge-based theory, the fact that the jury verdict was for other (and possibly erroneous) reasons serendipitously focused on actual or threatened discharges provides no basis for declining to give that verdict preclusive effect vis-à-vis Plaintiffs' discharge-based Article III standing theory. Put another way, the fact that the jury's finding was tailored to discharges as opposed to reporting and monitoring violations—even if erroneous for other purposes—provides no basis for declining to give it binding effect on the issue of Plaintiffs' discharged-based theory of standing.
Plaintiffs further contend that the jury instructions were erroneous because they did not reflect the standards later announced in County of Maui vs. Hawaii Wildlife Fund, ___ U.S. ___, 140 S.Ct. 1462, 1476, 206 L.Ed.2d 640 (2020). This subsequent change in law provides no basis for setting aside the jury's verdict.
Soon after the district court entered a final judgment in this case, the Supreme Court in County of Maui held that the CWA's permit requirements are triggered only when "there is a direct discharge from a point source into navigable waters or when there is the functional equivalent of a direct discharge." 140 S. Ct. at 1476 (simplified). At the time this case was tried, our court had adopted a less demanding standard that required only that the pollutants be "fairly traceable from the point source to a navigable water." Hawaii Wildlife Fund v. County of Maui, 886 F.3d 737, 749 (9th Cir. 2018). The Supreme Court held that our court's "broad interpretation of the statute," which could trigger permitting requirements even when a pollutant "traveled long and far (through groundwater) before it reached navigable waters," was "too extreme." 140 S. Ct. at 1470, 1472, 1476.
Had the jury been instructed under the Supreme Court's new standard, it arguably would have been permitted to conclude that the distance that Corona's discharges had to travel to reach the creek—1100 feet—did not amount, on this record, to the "functional equivalent of a direct
Relatedly, Plaintiffs also assert that the jury verdict must be set aside because the district court erroneously "failed to instruct the jury as to what the law defines as a discharge `into' waters" and therefore did not make clear to the jury that indirect discharges were covered. But, once again, there is no reasonable likelihood, on this record, that the jury would have construed the instructions and verdict form as excluding indirect discharges. See supra at 845-46. Accordingly, even if an instruction on this point should have been given, any error in this case would be harmless.
Finally, Plaintiffs argue that the district court should have instructed the jury that Corona was bound by its response, in an answer to a request for admission under Federal Rule of Civil Procedure 36, that "storm water from the industrial area on the property ... indirectly flows to Temescal wash." Plaintiffs, however, did not present the admission until after the close of evidence, when they asked the district court to treat the statement as a binding judicial admission. Because the purpose of Rule 36 admissions is to frame the issues for trial, see Asea, Inc. v. Southern Pac. Transp. Co., 669 F.2d 1242, 1245 (9th Cir. 1981), a party does not have an automatic right to introduce such an admission for the first time after the trial record is closed. As a general matter, parties should know before resting that the other side plans to use a Rule 36 admission on a particular point, so that they can meet the point with trial evidence.
Because I do not perceive any basis at this point to overturn the jury verdict, I would remand for the district court to address whether the verdict is dispositive of the sole theory of Article III standing that Plaintiffs presented at summary judgment. If the district court answered that question in the affirmative, then it should enter judgment dismissing this action in its entirety. If it answered that question in the negative, then it should proceed with a trial on the then-remaining claims.