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. OPINION

CORONA CLAY CO., a California

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

2 INLAND EMPIRE WATERKEEPER V. CORONA CLAY

Before: Eugene E. Siler, * Andrew D. Hurwitz, and

Daniel P. Collins, Circuit Judges.

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,

Claim Six, alleging monitoring violations, and Claim Seven,

*

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

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

or reporting violations. The panel wrote that the change in

4 INLAND EMPIRE WATERKEEPER V. CORONA CLAY

law in County of Maui affected not only the jury instructions,

but also the partial summary judgment, which were premised

on an admitted 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

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.

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

INLAND EMPIRE WATERKEEPER V. CORONA CLAY 7

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

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

8 INLAND EMPIRE WATERKEEPER V. CORONA CLAY

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;

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

INLAND EMPIRE WATERKEEPER V. CORONA CLAY 9

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

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.

10 INLAND EMPIRE WATERKEEPER V. CORONA CLAY

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.

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

INLAND EMPIRE WATERKEEPER V. CORONA CLAY 11

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.

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

12 INLAND EMPIRE WATERKEEPER V. CORONA CLAY

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).

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

INLAND EMPIRE WATERKEEPER V. CORONA CLAY 13

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

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

14 INLAND EMPIRE WATERKEEPER V. CORONA CLAY

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; 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.

INLAND EMPIRE WATERKEEPER V. CORONA CLAY 15

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

16 INLAND EMPIRE WATERKEEPER V. CORONA CLAY

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

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 24–36. 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

1

The dissent concedes that the Plaintiffs’ showing of Article III

standing was “sufficient to survive a defense motion for summary

judgment.” Dissent at 27. 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.

INLAND EMPIRE WATERKEEPER V. CORONA CLAY 17

of standing. Dissent at 23, 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”;

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

18 INLAND EMPIRE WATERKEEPER V. CORONA CLAY

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

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

INLAND EMPIRE WATERKEEPER V. CORONA CLAY 19

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

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

20 INLAND EMPIRE WATERKEEPER V. CORONA CLAY

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 into 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 admitted 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

INLAND EMPIRE WATERKEEPER V. CORONA CLAY 21

of the Supreme Court’s intervening opinion. See Cnty. of

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

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

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

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.

22 INLAND EMPIRE WATERKEEPER V. CORONA CLAY

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. 3

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. 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.

INLAND EMPIRE WATERKEEPER V. CORONA CLAY 23

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.

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

24 INLAND EMPIRE WATERKEEPER V. CORONA CLAY

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.

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

1

Plaintiffs ultimately dismissed their third and fourth causes of

action with prejudice.

INLAND EMPIRE WATERKEEPER V. CORONA CLAY 25

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

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

26 INLAND EMPIRE WATERKEEPER V. CORONA CLAY

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

(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

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.

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.

INLAND EMPIRE WATERKEEPER V. CORONA CLAY 27

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.

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

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

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

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

INLAND EMPIRE WATERKEEPER V. CORONA CLAY 29

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

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

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 17–18. 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

30 INLAND EMPIRE WATERKEEPER V. CORONA CLAY

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. 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

of Article III standing on which Plaintiffs chose to rely required them to

make such a showing.

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.

INLAND EMPIRE WATERKEEPER V. CORONA CLAY 31

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

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 10–13. The majority

nonetheless insists that I am somehow “‘confus[ing] the

jurisdictional inquiry . . . with the merits inquiry.’” Id. at 16

(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.

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

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 16 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 26. 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 16 n.1, the majority inexplicably

INLAND EMPIRE WATERKEEPER V. CORONA CLAY 33

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 16–17. 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. 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.”

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 16

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

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

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 13 (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

INLAND EMPIRE WATERKEEPER V. CORONA CLAY 35

standing to assert the sixth and seventh causes of action. See

Maj. Opin. at 15. 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. 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 14 (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,

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

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 14. 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.

36 INLAND EMPIRE WATERKEEPER V. CORONA CLAY

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”).

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

INLAND EMPIRE WATERKEEPER V. CORONA CLAY 37

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

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,

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.

38 INLAND EMPIRE WATERKEEPER V. CORONA CLAY

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 28–29. 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:

[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

INLAND EMPIRE WATERKEEPER V. CORONA CLAY 39

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)).

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

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

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

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.

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 17. That is

manifestly not the proper resolution of this question.

INLAND EMPIRE WATERKEEPER V. CORONA CLAY 41

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 6.

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 26, 29 n.4,

35 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

42 INLAND EMPIRE WATERKEEPER V. CORONA CLAY

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

(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

INLAND EMPIRE WATERKEEPER V. CORONA CLAY 43

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 38–39. 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

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

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.

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.

44 INLAND EMPIRE WATERKEEPER V. CORONA CLAY

would have construed the instructions and verdict form as

excluding indirect discharges. See supra at 38–39.

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 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,

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.

INLAND EMPIRE WATERKEEPER V. CORONA CLAY 45

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

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.

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.

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.