No. 04-3000-CV.

436 F.3d 82 (2006)

ALLIANCE FOR ENVIRONMENTAL RENEWAL, INC. and SAVE THE PINE BUSH INC., Plaintiffs-Appellants, v. PYRAMID CROSSGATES COMPANY, also known as Crossgates Mall Company LLP., Crossgates Mall General Company, LLP, Crossgates Mall Holdings, Inc., c/o the Pyramid Companies, and Crossgates Mall Enterprises Company, LLC., Defendants-Appellees.

United States Court of Appeals, Second Circuit.

Decided: January 24, 2006.

Attorney(s) appearing for the Case

Peter Henner, Clarksville, N.Y., for Plaintiffs-Appellants.

Robert L. Sweeney, Albany, N.Y. (Thomas A. Shepardson, Douglas R. Kemp, Shanley, Sweeney, Reilly & Allen, P.C., Albany, N.Y., on the brief), for Defendants-Appellees.

(Eliot Spitzer, N.Y. State Atty. General, Caitlin J. Halligan, Solicitor General, Daniel Smirlock, Deputy Solicitor General, Peter H. Lehner, John J. Sipos, Philip M. Bein, Asst. Attys. General, Office of N.Y. State Atty. General, Albany, N.Y., submitted a brief for amicus curiae State of New York, in support of Plaintiffs-Appellants.)

(Carter H. Strickland, Jr., Timothy Petrin, Law Student, Rutgers Environmental Law Clinic, Newark, N.J.; Nancy K. Stoner, Lawrence M. Levine, Natural Resources Defense Council, Inc., New York, N.Y., submitted a brief for amicus curiae National Resources Defense Council, Inc., in support of Plaintiffs-Appellants.)

Before: NEWMAN, CALABRESI, and STRAUB, Circuit Judges.

JON O. NEWMAN, Circuit Judge.

This appeal of a dismissal of claims under the Clean Water Act, 33 U.S.C. § 1251 et seq. ("CWA"), concerns the proper course for a district court when confronted with a motion to dismiss both on the merits and for lack of subject matter jurisdiction in circumstances where subject matter jurisdiction is adequately pleaded but the underlying jurisdictional facts are in question. Plaintiffs-Appellants Alliance for Environmental...

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