Inland Empire Waterkeeper v. Corona Clay Co.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

INLAND EMPIRE WATERKEEPER, a Nos. 20-55420
project of Orange County 20-55678
Coastkeeper; ORANGE COUNTY
COASTKEEPER, a California non- D.C. No.
profit corporation, 8:18-cv-00333-
Plaintiffs-Appellants/ DOC-DFM
Cross-Appellees,

v. ORDER AND
AMENDED
CORONA CLAY CO., a California OPINION
Corporation,
Defendant-Appellee/
Cross-Appellant.

Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding

Argued and Submitted March 4, 2021
Pasadena, California

Filed September 20, 2021
Amended November 5, 2021
2 INLAND EMPIRE WATERKEEPER V. CORONA CLAY

Before: Eugene E. Siler, * Andrew D. Hurwitz, and
Daniel P. Collins, Circuit Judges.

Order;
Opinion by Judge Hurwitz;
Dissent by Judge Collins

SUMMARY **

Environmental Law

The panel vacated the district court’s partial summary
judgment in favor of plaintiffs and partial judgment after a
jury trial in favor of defendants in a citizen suit under the
Clean Water Act alleging 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 under the National Pollutant Discharge
Elimination System, and violated the conditions of the
permit by failing to report violations.

The district court granted partial summary judgment to
the plaintiffs on Claim One, alleging illegal discharge, and
Claim Five, alleging violation of a permit requirement to
develop an adequate Storm Water Pollution Prevention Plan
for managing storm water discharges. The jury returned a
defense verdict on Claim Two, alleging discharge violations,

*
The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
 INLAND EMPIRE WATERKEEPER V. CORONA CLAY 3

Claim Six, alleging monitoring violations, and Claim Seven,
alleging reporting violations. Other claims were voluntarily
dismissed.

Plaintiffs were two affiliated nonprofit organizations
with a mission to protect water quality and aquatic resources
in the watersheds and coastal waters of Orange and
Riverside Counties, including the Santa Ana River
watershed and Temescal Creek, near Corona’s industrial
facility. The panel held that the plaintiffs had Article III
organizational standing to pursue their discharge and
procedural claims because they established a concrete and
particularized injury fairly traceable to the challenged
conduct that likely could be redressed by a favorable
decision. They also showed that their members would have
individual standing, the issues were germane to their
purpose, and neither their claims nor the requested relief
required individual participation.

The panel held that under Gwaltney of Smithfield, Ltd. v.
Chesapeake Bay Foundation, 484 U.S. 49 (1987), the CWA
bars citizen suits alleging only “wholly past” violations of
permits. In County of Maui v. Hawaii Wildlife Fund, 140
S. Ct. 1462 (2020), the Supreme Court rejected the Ninth
Circuit’s prior interpretation of the CWA’s discharge
jurisdictional requirement and held that an offending
discharge must reach the “waters of the United States,”
either through a direct discharge or a “functional
equivalent.” Because County of Maui was decided after the
district court entered final judgment, the jury instructions
corresponded to prior Ninth Circuit law. The panel
disagreed with the district court’s interpretation of Gwaltney
and held 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
4 INLAND EMPIRE WATERKEEPER V. CORONA CLAY

or reporting violations. The panel wrote that the change in
law in County of Maui affected not only the jury instructions,
but also the partial summary judgment, which were premised
on the discharge, and the parties deserved the ability to
address whether the “indirect” discharge admitted by Corona
was the “functional equivalent” of a direct discharge into the
waters of the United States, or whether that required
discharge could otherwise be established. The panel
therefore vacated the district court’s judgment and remanded
for further proceedings consistent with the panel’s opinion
and with the Supreme Court’s intervening decision in
County of Maui.

Dissenting, Judge Collins wrote that the district court
erred by holding, at summary judgment, that plaintiffs had
constitutional standing because there was a triable issue of
fact as to whether Corona’s alleged discharges reached or
imminently threatened to reach Temescal Creek. Corona
argued that the jury verdict produced an express finding that
overlapped with, and was dispositive of, the sole theory of
Article III standing that plaintiffs presented at summary
judgment, that Corona had contributed, and threatened to
contribute, to the pollution of Temescal Creek, thereby
affecting the water quality and impairing plaintiffs’
members’ enjoyment of the creek. Judge Collins wrote that
he did not think plaintiffs had established any basis for
concluding that the verdict could not be given preclusive
effect on the standing issue, but he would leave it to the
district court on remand to determine whether to do so.
Judge Collins wrote that he would not overturn the verdict
based on jury instruction error, and he therefore would
remand for the district court to address whether the verdict
was dispositive of standing, and, if not, to proceed with a
trial on the then-remaining claims.
 INLAND EMPIRE WATERKEEPER V. CORONA CLAY 5

COUNSEL

Christopher Sproul (argued), Environmental Advocates, San
Francisco, California; Sarah Spinuzzi, Orange County
Coastkeeper, Inland Empire Waterkeeper, Costa Mesa,
California; Jennifer F. Novak, Law Office of Jennifer F.
Novak, Rancho Palos Verdes, California; for Plaintiffs-
Appellants/Cross-Appellees.

Brian Neach (argued), Pacheco & Neach P.C., Irvine,
California, for Defendant-Appellee/Cross-Appellant.

Robert W. Byrne, Senior Assistant Attorney General; Eric
M. Katz, Supervising Deputy Attorney General; Carol A. Z.
Boyd, Deputy Attorney General; Office of the Attorney
General, Los Angeles, California; for Amicus Curiae
California State Water Resources Control Board.

Anthony L. François, Pacific Legal Foundation,
Sacramento, California, for Amici Curiae Chantell and
Michael Sackett, Duarte Nursery Inc., John Duarte, and
Roger J. LaPant Jr.
6 INLAND EMPIRE WATERKEEPER V. CORONA CLAY

ORDER

The majority opinion is amended as follows:

1. At slip opinion page 20, line 16, the word “into” is
replaced by the word “to”.

2. At slip opinion page 20, line 27, the word “admitted”
is now omitted.

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 DENIED.
No additional petitions for rehearing will be entertained.

OPINION

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.
 INLAND EMPIRE WATERKEEPER V. CORONA CLAY 7

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 (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.”
140 S. Ct. 1462, 1468 (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.

I

Corona Clay Company processes clay products in
Corona, California, at an industrial facility overlooking the
Temescal Creek. Those industrial activities create “storm
water discharge,” which Corona may release under a
General Permit from the California State Water Resources
Board. The Board has the authority to issue permits under
the National Pollutant Discharge Elimination System
(“NPDES”). See 33 U.S.C. § 1342(b). The permit requires
8 INLAND EMPIRE WATERKEEPER V. CORONA CLAY

Corona to maintain a Storm Water Pollution Prevention Plan
(“SWPPP”) employing the “Best Available Technology
Economically Achievable” (“BAT”) for toxic pollutants and
the “Best Conventional Pollutant Control Technology”
(“BCT”) for conventional pollutants. Corona’s permit also
requires implementation of “Best Management Practices”
(“BMP”) and monitoring programs that document the
facility’s storm water discharges, analyze runoff samples,
and report results to the State Board. If a discharge exceeds
specified pollutant levels, the permit requires specific
“exceedance response actions.”

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
 INLAND EMPIRE WATERKEEPER V. CORONA CLAY 9

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;
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 special verdict form therefore asked the jury to
answer several questions in order. Question 1 asked whether
Corona had discharged pollutants into the waters of the
United States and whether the discharge occurred after the
complaint was filed or “at any time, with a reasonable
likelihood that such violations will recur in intermittent or
sporadic violations?” The jury was to continue to Question
2 only if it answered Question 1 “Yes.” Question 2 asked
10 INLAND EMPIRE WATERKEEPER V. CORONA CLAY

the jury to determine whether run-off of storm water
adversely affected the beneficial uses of Temescal Creek,
and, if so, to determine the number of violations. Only after
answering these two questions “Yes” would the jury proceed
to questions about whether monitoring or reporting
violations had occurred.

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
 INLAND EMPIRE WATERKEEPER V. CORONA CLAY 11

this evidence post hoc and overrule the jury’s verdict.” Both
parties timely appealed.

II

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 (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 (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 n.6 (1996), so “a plaintiff must
demonstrate standing for each claim he seeks to press and
for each form of relief that is sought,” Davis v. Fed. Election
Comm’n, 554 U.S. 724, 734 (2008) (cleaned up). We
therefore analyze separately whether Coastkeeper
established Article III organizational standing to pursue the
discharge and procedural allegations.
12 INLAND EMPIRE WATERKEEPER V. CORONA CLAY

A

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. 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
 INLAND EMPIRE WATERKEEPER V. CORONA CLAY 13

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).

B

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 of an NPDES permit, even
those which are purely procedural”).

To be sure, Article III standing requires “a concrete
injury,” but that injury need not be “tangible.” Spokeo, Inc.
v. Robins, 136 S. Ct. 1540, 1549 (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 (1992). Congress may not create standing by permitting
a plaintiff to sue on a “bare procedural violation, divorced
14 INLAND EMPIRE WATERKEEPER V. CORONA CLAY

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
(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 (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
 INLAND EMPIRE WATERKEEPER V. CORONA CLAY 15

interest by providing a cause of action to affected citizens.
Lujan, 504 U.S. at 578; 33 U.S.C. § 1365(a), (g).

C

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 past or future
polluted discharge, harming the plaintiff’s “aesthetic or
recreational interest.” Id. at 1147.

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,
16 INLAND EMPIRE WATERKEEPER V. CORONA CLAY

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.

D

Our dissenting colleague asserts that the district court
erred by holding that Coastkeeper had standing because
 INLAND EMPIRE WATERKEEPER V. CORONA CLAY 17

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 24–37. 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. 1

The dissent also would remand for the district court to
determine whether the jury verdict is preclusive on the issue
of standing. Dissent at 24, 38–40. Because we conclude
below that the jury verdict must be vacated, we necessarily
also conclude that it has no preclusive effect. But more
fundamentally, even if given full effect, the jury verdict does
not resolve the standing issue. The only question the jury
answered was phrased as follows:

Did Plaintiffs prove, by a preponderance of
the evidence, that Defendant Corona Clay
Company discharged pollutants from a point
source into streams or waters that qualify as
jurisdictional “waters of the United States”;

1
The dissent concedes that the Plaintiffs’ showing of Article III
standing was “sufficient to survive a defense motion for summary
judgment.” Dissent at 28. If there is a triable issue of fact, it follows
that the party is entitled to have that issue submitted to the jury; it also
follows that our dissenting colleague must believe that the jury verdict
on the merits (which did not separately address standing) defeated
Article III jurisdiction. As noted above, our precedent plainly rejects the
notion that the failure to prevail on the merits defeats standing. See Pac.
Lumber Co., 230 F.3d at 1151.
18 INLAND EMPIRE WATERKEEPER V. CORONA CLAY

and that such discharge was either (1) on or
after February 27, 2018, or (2) at any time,
with a reasonable likelihood that such
violations will recur in intermittent or
sporadic violations?

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.

III

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. 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. 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. 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
 INLAND EMPIRE WATERKEEPER V. CORONA CLAY 19

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 “condition of a
permit” issued under the NPDES system is an “effluent
limitation.”

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
20 INLAND EMPIRE WATERKEEPER V. CORONA CLAY

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.

IV

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.
 INLAND EMPIRE WATERKEEPER V. CORONA CLAY 21

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. See Cnty. of Maui, 807 F.
App’x 695, 696 (9th Cir. 2020) (order). 2

2
The dissent finds no basis for setting aside the verdict due to the
intervening change in law and faults Coastkeeper for not meeting the
new and more demanding standard of County of Maui. Dissent at 42–
43. But, when confronted with a similar situation in County of Maui, we
remanded for further proceedings. See 807 F. App’x at 696. Fairness
requires that we do so here; there was also no need under then-extant law
for Coastkeeper to prove direct discharge and Corona had admitted to
indirect discharge. That admission was sufficient to make Coastkeeper’s
case on discharge under then-applicable law, and for the reasons above,
we conclude that the district court erred by not instructing the jury of this
conceded fact. Although County of Maui now requires more, the record
22 INLAND EMPIRE WATERKEEPER V. CORONA CLAY

V

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).

does not allow us to conclude with any degree of certainty that, if
required to show direct discharge or its functional equivalent,
Coastkeeper would have been unable to do so.
 INLAND EMPIRE WATERKEEPER V. CORONA CLAY 23

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. 3

VI

The district court’s judgment is vacated, and the case is
remanded for further proceedings consistent with this
opinion. Because we vacate the judgment, we do not address
Corona’s objections to the district court’s costs order, the
civil penalty, or the permanent injunction entered pursuant
to the partial summary judgment. Each party shall bear its
own costs.

VACATED AND REMANDED.

3
The dissent argues that the district court did not err in declining to
instruct the jury on the admission because “parties should know before
resting that the other side plans to use a Rule 36 admission on a particular
point.” Dissent at 44–45. But a matter “admitted under this rule is
conclusively established unless the court grants a motion to waive or
amend.” Tillamook Country Smoker, 465 F.3d at 1111–12 (cleaned up).
Corona filed no such motion here.
24 INLAND EMPIRE WATERKEEPER V. CORONA CLAY

COLLINS, Circuit Judge, dissenting:

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.

I

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 (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.
 INLAND EMPIRE WATERKEEPER V. CORONA CLAY 25

A

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. 1 Plaintiffs’ first and second causes of
action were based on alleged discharges of polluted
stormwater from Corona’s facility: the first asserted that
polluted storm water discharges from that facility violated
the “Effluent Limitations” in the applicable “Storm Water
Permit” (“SWP”) and the second alleged that the facility’s
storm water discharges violated the “Discharge
Prohibitions” of that permit. The fifth cause of action
alleged that Corona had failed adequately to develop,
implement, or revise a “Storm Water Pollution Prevention
Plan” (“SWPPP”), in violation of the SWP. The sixth and
seventh causes of action asserted that Corona had failed to
comply with its monitoring and reporting obligations.
Specifically, the sixth cause of action alleged that Corona
had failed adequately to develop, implement, or revise a
“Monitoring and Reporting Plan,” in violation of the SWP,
and the seventh alleged that Corona had failed to comply
with the applicable reporting requirements of the SWP.

In contending that they had Article III standing to assert
these five claims, Plaintiffs did not rely on the theory that the
organizations themselves had suffered an injury-in-fact that
gave rise to standing. Cf. Havens Realty Corp. v. Coleman,
455 U.S. 363, 378–79 (1982). Rather, Plaintiffs relied only
on the doctrine of associational standing recognized in Hunt
v. Washington State Apple Advertising Commission,
432 U.S. 333, 343 (1977). Under that doctrine, an

1
Plaintiffs ultimately dismissed their third and fourth causes of
action with prejudice.
26 INLAND EMPIRE WATERKEEPER V. CORONA CLAY

association may establish standing “‘solely as the
representative of its members,’” by showing that “(a) its
members would otherwise have standing to sue in their own
right; (b) the interests it seeks to protect are germane to the
organization’s purpose; and (c) neither the claim asserted
nor the relief requested requires the participation of
individual members in the lawsuit.” Id. at 342–43 (citation
omitted); see also United Food & Com. Workers Union
Local 751 v. Brown Grp., Inc., 517 U.S. 544, 554–57 (1996)
(noting that the first Hunt requirement is “an Article III
necessity for an association’s representative suit,” but that
the third prong is a prudential requirement that Congress
may abrogate). The second and third prongs are not
contested here. Thus, the only question is whether Plaintiffs
showed that their members would otherwise have Article III
standing to sue in their own right.

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 (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. 2 Each of those declarants explained the ways
in which Corona’s alleged discharges into Temescal Creek

2
Although the declarants all described themselves as members of
“Waterkeeper,” an additional declaration submitted by Plaintiffs
explained that Waterkeeper is a “program” of Coastkeeper and is not a
“separate legal entity” from Coastkeeper.
 INLAND EMPIRE WATERKEEPER V. CORONA CLAY 27

(sometimes called “Temescal Wash”) harmed their “use and
enjoyment” of that creek by degrading, or threatening to
degrade, the quality of the water in it. In explaining how
these declarations established the Article III standing of
these three members, Plaintiffs’ summary judgment motion
likewise asserted that “Defendant’s continued discharges”
impaired these members’ “use and enjoyment” of the creek.
Because all of the alleged violations in the complaint
involved laws that were “legally and technically designed to
reduce the level of pollutants in [Corona’s] discharge,”
Plaintiffs’ motion argued that the members’ injuries were
fairly traceable to the alleged violations.

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. 3 The court, however, denied summary
judgment as to the second, sixth, and seventh causes of
action. As to standing, the court concluded that Plaintiffs’
three members had established injury-in-fact that was fairly
traceable to the challenged conduct because their
declarations stated “that pollution from Defendant’s Facility
has discharged pollution into the Creek, affecting the water
quality of the habitat.” The court held that it did not matter,
for standing purposes, whether that pollution had caused
“actual environmental harm”; it was sufficient that the
“pollution” affected the members’ “enjoyment from
recreation” in the area.

3
Corona is wrong in suggesting that the district court’s order only
addressed the issue of standing as to the first and fifth causes of action.
That is not consistent with how the parties briefed the issue, how the
court’s order described its ruling, or how the court later in the trial
proceedings construed its earlier ruling.
28 INLAND EMPIRE WATERKEEPER V. CORONA CLAY

B

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 (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 26. That is likewise the only theory on which the district
court predicated its ruling on Article III standing, see supra
at 27, 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
 INLAND EMPIRE WATERKEEPER V. CORONA CLAY 29

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.
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 (1988). 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 Earth,
528 U.S. at 185 (emphasis added). Thus, for example, to the
extent that a private plaintiff in a CWA suit can request that
the defendant be ordered to pay civil penalties to the
Government, it has standing to do so only because, and only
if, the deterrent effect of those penalties would redress
ongoing or future injuries by “abating current violations” or
“preventing future ones.” Id. at 187; see also id. at 188
(“private plaintiffs, unlike the Federal Government, may not
sue to assess penalties for wholly past violations”).
Consequently, in order for Plaintiffs to establish at summary
judgment their sole standing theory—i.e., that Corona’s
30 INLAND EMPIRE WATERKEEPER V. CORONA CLAY

various CWA violations led to pollution that reached
Temescal Creek or threatened to do so, thereby causing
ongoing or threatened future injuries—Plaintiffs had to show
that there is no genuine dispute that, at the time of their suit,
Corona’s polluted discharges were reaching the creek or
imminently threatened to reach it. See Lujan, 504 U.S.
at 569 n.4 (standing is evaluated based on the facts “‘as they
exist when the complaint is filed’” (citation omitted)). 4

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

4
This result is true even assuming arguendo (as Plaintiffs contend)
that Gwaltney only requires that a private CWA plaintiff show some
ongoing violation of the CWA and not necessarily a discharge violation.
Cf. Maj. Opin. at 18. Here, Plaintiffs’ only Article III standing theory
was that the alleged violations—including reporting violations—are
fairly traceable to their members’ injuries because those violations led to
actual or threatened polluted discharges and that those discharges led to
the members’ injuries. Thus, even assuming that Gwaltney did not
require a showing of ongoing or futures discharges, the particular theory
of Article III standing on which Plaintiffs chose to rely required them to
make such a showing.
 INLAND EMPIRE WATERKEEPER V. CORONA CLAY 31

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. 5

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. 6

5
In challenging the jury verdict on appeal, Plaintiffs have expressly
not done so vis-à-vis the second cause of action. The adverse judgment
on that cause of action is thus unchallenged.
6
Moreover, even apart from the triable issue concerning whether
polluted discharges reached the creek, the declarations submitted by
Plaintiffs in support of standing also contained potential deficiencies or
ambiguities that could have been resolved, at a trial, against Plaintiffs.
As Corona notes, some of the declarants’ statements or photographs
concerning their use of the creek appear to relate to segments that are
upstream from Corona’s facility and that thus could not plausibly have
been affected by Corona’s alleged discharges. Another declarant
vaguely described looking for a home “in the Temescal Creek area” and
claimed that she was worried about Corona’s actions’ effect on home
prices, but a trier of fact could reasonably conclude that this particular
theory of injury was inadequate to establish standing. See Lujan,
504 U.S. at 564 (“Such ‘some day’ intentions—without any description
of concrete plans, or indeed even any specification of when the some day
will be—do not support a finding of the ‘actual or imminent’ injury that
our cases require”).
32 INLAND EMPIRE WATERKEEPER V. CORONA CLAY

C

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 11–14. The majority
nonetheless insists that I am somehow “‘confus[ing] the
jurisdictional inquiry . . . with the merits inquiry.’” Id. at 17
(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 (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 (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 (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 17 n.1.
 INLAND EMPIRE WATERKEEPER V. CORONA CLAY 33

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 26–27. 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 17 n.1, the majority inexplicably
upholds the district court’s order declining to submit that
issue to the jury. 7

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 17. That is quite

7
Even more baffling is the majority’s assertion that, because I think
that the district court should be reversed on this point, I therefore “must
believe that the jury verdict on the merits (which did not separately
address standing) defeated Article III jurisdiction.” See Maj. Opin. at 17
n.1. I have said nothing of the sort. As I have explained, the district
court’s order granting summary judgment to Plaintiffs on the standing
issue must be reversed because it wrongly resolved a genuinely disputed
issue that should have been submitted for resolution at trial but was not.
This case is really that simple. In the quoted comment, the majority
crosses the wires by referencing the entirely separate question of whether
Corona is correct in contending that the jury’s findings on the merits
issues that were submitted to the jury should now have the effect of
precluding a trial on the standing issue. As I explain below, I take no
position on that issue, but would instead leave it for the district court to
address on remand. See infra at 38–40, 45.
34 INLAND EMPIRE WATERKEEPER V. CORONA CLAY

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. 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 (“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
 INLAND EMPIRE WATERKEEPER V. CORONA CLAY 35

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 15. 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 14 (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 information about Corona’s
discharges is obvious,” and that this interest establishes her
standing to assert the sixth and seventh causes of action. See
Maj. Opin. at 15–16. For several reasons, this analysis is
plainly incorrect.

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 26–27. 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 15 (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 (the
particular “harm” that is traceable to the “ongoing violation”
sought to be enjoined must “lie[] in the present or the future,
36 INLAND EMPIRE WATERKEEPER V. CORONA CLAY

not in the past”). 8 That latter issue concerning discharges
was triable for the reasons explained earlier.

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.

8
Because the “harm sought to be addressed” by a CWA private
citizen suit must lie “in the present or the future,” Gwaltney, 484 U.S.
at 59, the majority is wrong to the extent that it implicitly suggests that
aesthetic or recreational harms associated with past pollution that has
since abated would somehow be redressed by the mere disclosure of
information about that past pollution. See Maj. Opin. at 15. The majority
may be correct that a purely informational harm that is caused by
ongoing reporting violations would be redressed by such a disclosure,
but no such theory has been raised here.
 INLAND EMPIRE WATERKEEPER V. CORONA CLAY 37

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”).

II

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 first and fifth causes of action—
which were partially decided in Plaintiffs’ favor at summary
judgment—should be reversed. But that leaves the question
of whether those claims should now be tried on remand, as
well as the issue of what effect, if any, the district court’s
error has on the jury’s verdict in Corona’s favor on the sixth
and seventh causes of action.

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
38 INLAND EMPIRE WATERKEEPER V. CORONA CLAY

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. 9 But if that verdict survives,
then we must address whether Corona is correct in arguing
that the verdict establishes that Plaintiffs failed to prove
standing, thereby requiring dismissal of all claims. I will
address these questions in reverse order.

A

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 28–30. 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 40–42. The result was that
the jury ended up making an express finding that Plaintiffs
had failed to prove that:

9
As noted earlier, Plaintiffs have expressly stated that they are not
challenging the adverse judgment on the second cause of action, and so
that claim would not be retried. See supra note 5.
 INLAND EMPIRE WATERKEEPER V. CORONA CLAY 39

[Corona] discharged pollutants from a point
source into streams or waters that qualify as
jurisdictional “waters of the United States”;
and that such discharge was either (1) on or
after February 27, 2018, or (2) at any time,
with a reasonable likelihood that such
violations will recur in intermittent or
sporadic violations.

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.” 10 In asserting that this
finding is not dispositive of the Article III standing issue,
Plaintiffs first contend that the jury may have misconstrued
the phrase “discharge . . . into” to exclude the sort of indirect
runoff that was alleged here, but they point to nothing in the
jury instructions or the arguments of the parties at trial that
invited the jury to conclude that, even if Corona’s discharges
reached the creek, that would not count as a “discharge . . .
into” the creek. On the contrary, for example, Corona’s
closing argument to the jury at trial was that polluted
discharges did not reach the creek at all. On this record,
there is no reasonable likelihood that the jury construed the
instructions and verdict form as excluding indirect
discharges. See R.H. Baker & Co. v. Smith-Blair, Inc.,
331 F.2d 506, 509 (9th Cir. 1964) (“‘A special verdict must,
of course, be construed in the light of the surrounding
circumstances.’” (citation omitted)).

10
The district court specifically instructed the jury that “Temescal
Wash is a qualifying water of the United States.”
40 INLAND EMPIRE WATERKEEPER V. CORONA CLAY

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, 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. 11

B

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.

1

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

11
Without even considering how the jury’s verdict should be
understood in light of the instructions and the parties’ arguments and
evidence, the majority simply announces, without analysis, that the
import of the verdict cannot be known. See Maj. Opin. at 18. That is
manifestly not the proper resolution of this question.
 INLAND EMPIRE WATERKEEPER V. CORONA CLAY 41

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 (explaining that Gwaltney held that “citizens lack
statutory standing under [the CWA] to sue for violations that
have ceased by the time the complaint is filed”); see also
Lexmark Int’l, Inc. v. Static Control Components, Inc.,
572 U.S. 118, 128, n.4 (2014) (clarifying that “statutory
standing” does not “implicate subject-matter jurisdiction”).
Plaintiffs contend, and the majority agrees, that the district
court’s instruction rested on a misreading of Gwaltney and
that, so long as “the required jurisdictional discharge into
United States waters has occurred,” a plaintiff in a private
CWA action need only show some ongoing or threatened
violation of the CWA and not necessarily a discharge-
related violation. See Maj. Opin. at 7.

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
42 INLAND EMPIRE WATERKEEPER V. CORONA CLAY

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 26–27,
30 n.4, 36 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.

2

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,
140 S. Ct. 1462, 1476 (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
 INLAND EMPIRE WATERKEEPER V. CORONA CLAY 43

(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
discharge.” 140 S. Ct. at 1476 (emphasis added). I do not
see how Plaintiffs were possibly prejudiced by the fact that
the jury was not permitted to hold them to this stricter
standard. As I have explained, given the context of the trial
and the parties’ arguments, there is no reasonable likelihood
that the jury would have construed the instructions and the
verdict form to exclude the sort of indirect discharge that was
at issue here. See supra at 39. In other words, the jury here
was given the opportunity to hold Corona liable under the
looser standards that we had previously applied, and it
concluded that those standards had not been met. Because
any post-verdict change in the law on this point was thus less
favorable to Plaintiffs, it provides no basis for setting aside
an adverse verdict that was based on more permissive
standards. 12

12
Contrary to what the majority contends, I do not “fault[]”
Plaintiffs “for not meeting the new and more demanding standard of
County of Maui.” See Maj. Opin. at 21 n.2. Rather, my view is that,
given Plaintiffs’ failure to satisfy the more lenient standard, there is no
conceivable reason why they should be given a retrial in order to try to
prove what the majority concedes is a “more demanding standard.” Id.
44 INLAND EMPIRE WATERKEEPER V. CORONA CLAY

3

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 39.
Accordingly, even if an instruction on this point should have
been given, any error in this case would be harmless.

4

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 majority points to our remand in County of Maui, but that does not
support the majority’s remand here. In that case the plaintiffs prevailed
under the more lenient standard, and so they obviously had to be given a
chance to meet the newer and more demanding standard. 140 S. Ct.
at 1469. That reasoning is inapplicable here.
 INLAND EMPIRE WATERKEEPER V. CORONA CLAY 45

the other side plans to use a Rule 36 admission on a
particular point, so that they can meet the point with trial
evidence. 13 Reopening might be warranted in some cases,
but that is plainly a matter within the district court’s “sound
discretion.” See Zenith Radio Corp. v. Hazeltine Research,
Inc., 401 U.S. 321, 331 (1971). Plaintiffs have not shown
that that discretion was abused here. 14

III

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

13
The majority’s reliance upon Tillamook Country Smoker, Inc. v.
Tillamook County Creamery Ass’n, 465 F.3d 1102 (9th Cir. 2006), is
unavailing. Unlike this case, Tillamook did not involve a party’s belated
use of an answer to a request for admission. On the contrary, the answer
was properly submitted in support of a summary judgment motion, and
the opposing party had a full opportunity to respond with argument and
evidence in the ordinary course. Id. at 1111–12. The same cannot be
said here, where a party first sought to submit an answer to a request for
admission after the trial record had already been closed.
14
Because Plaintiffs’ request to rely on the admission was properly
rejected as untimely, the majority is wrong in suggesting that the
admission somehow provides a basis for granting a do-over based on
County of Maui. See Maj. Opin. at 21 n.2. Moreover, contrary to what
the majority insinuates, the admission did not concede that polluted
storm water flowed from Corona’s facility to the creek.
46 INLAND EMPIRE WATERKEEPER V. CORONA CLAY

on the then-remaining claims. 15 Because the majority
instead vacates the judgment on the first, fifth, sixth, and
seventh causes of action, and remands with different
instructions, I respectfully dissent.

15
That would include at least the first and fifth causes of action.
Moreover, if on remand the district court concluded that the standing
issue needs to be tried, then the court would be required to address
whether its prior construction of Gwaltney was correct. If the answer to
that question is no, then the sixth and seventh causes of action might need
to be retried as well.