Petition for Writ of Certiorari — Pollack v. Department of Justice

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oupreme Court, U.S.

FILED

No. 09-8 36 JAN 12 2010

Pye Fir fi —

Wiliam K. Suter, Clerk

Iu The

Supreme Court of the Anited States

STEVEN B. POLLACK AND

BLUE ECO LEGAL COUNCIL,

Petitioners,

Vv.

UNITED STATES DEPARTMENT OF JUSTICE,

COAST GUARD, NAVY, MARINES,

AND DEPARTMENT OF DEFENSE,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Seventh Circuit

PETITION FOR A WRIT OF CERTIORARI

STEVEN B. POLLACK

Attorney

Counsel of Record

BLUE ECO LEGAL COUNCIL

P.O. Box 1370

Highland Park, IL 60035

(847) 436-9566

QUESTIONS PRESENTED

Petitioner, Blue Eco Legal Council, is an

environmental group that brought suit alleging the

systematic and ongoing discharge of lead bullets from

federal facilities into the Great Lakes.

1. Did the circuit court violate Congressional au-

thority by authorizing the district court to substitute

its judgment for that of Congress when holding that

discharges of pollutants that violate the Clean Water

Act and Resource Conservation and Recovery Act but

do not cause drinking water quality to exceed certain

national standards are not concrete for citizen suit

standing?

2. Pursuant to Illinois Central Railroad v. Illinois,

146 U.S. 387 (1892), whether a plaintiff can establish

standing for a nuisance action under the public trust

doctrine by establishing state citizenship?

3. Did the circuit court violate standards for 12(b)(1)

motions by relying on its own understanding of

natural lake processes to deny standing at the motion

to dismiss stage where respondents offered no facts

contradicting petitioners’ jurisdictional allegations in

its complaint, affidavits, and briefs?

PARTIES TO THE PROCEEDING

The petitioners are Steven B. Pollack and Blue

Eco Legal Council. Blue Eco Legal Council is not

incorporated and there is no parent or publicly held

company having an ownership interest in the

organization.

The respondents are the United States Depart-

ment of Justice; United States Coast Guard; United

States Navy; United States Marines; and United

States Department of Defense.

sas

TABLE OF CONTENTS

Page

FW OF I iiveivoiccaccosscsacsansenstasmecaaaean Vv

CPS TIN vv sis iniinstvscccissxicctssconmecaauateatunn 1

FOE ics nksisccistssrtshitisesiseenideeianane 1

Constitutional and statutory provisions in-

Wasik cocaneasisisiacieteccecantnl cadena 1

OE geininesisscoiscinvtiebeisagasniacsesmeesniaasconeundedlaie 5

Reasons for granting certiorari .......................+0++ 10

I. This Court’s Review Is Warranted Be-

cause the Lower Courts’ Reasoning

Leaves No One With Standing.................. 10

A. Leaving No One With Standing When

Congress Has Authorized Citizens

to Sue Leads to Unconstitutional

DI ns cdecnadiiessnnshendcteusstenan auc 11

B. Leaving No One With Standing

Contradicts Relevant Rulings of This

Court and Other Circuits .................... 16

Il. The District and Circuit Courts Erred by

Failing to Address Petitioners’ Standing

as State Citizens With Property Rights to

the Lakebed Pursuant to the Public Trust

EN vicxinstricsncciaviesnun eentnledaiadacanbes 28

Ill. This Court’s Review Is Warranted Be-

cause Lower Courts Are Determining

Jurisdictional Facts on 12(b)(1) Motions

to Dismiss Without Sufficient Safeguards

for Plaintiffs to Develop and Present

POON oisscccisicccssvciniennareinnesaecesaenaaannaee

TABLE OF CONTENTS — Continued

Page

A. The Seventh Circuit Erred by Relying

on its Own Knowledge of Natural

Processes in the Absence of Facts in

the Record Contradicting Petitioners’

Jurisdictional Assertions..................... 32

B. If This Court Does Not Act, the

Respondents Will Benefit from With-

holding Evidence Supporting Peti-

| Ee 38

GN sccactsacochstudsucaetucrcunsakbcstaieepnsiciseusenvanccets 40

Appendix — Court of appeals opinion....................... la

District court opinion ........................++ 25a

Court of appeals denial of

I earings cdetbe ck snsantainincstvsccenmiacnienas 36a

TABLE OF AUTHORITIES

Page

CASES:

Allen v. Wright, 468 U.S. 737 (1984).............. 16, 17, 18

Alliance for Envl Renewal Inc., v. Pyramid

Crossgates Co., 436 F.3d 82 (2d Cir. 2006)............. 31

Am. Petroleum Inst. v. Train, 526 F.2d 1343

I I nisin seicisiadenenioencaaaeoinaneanaanioennioees 13

Babbitt v. United Farm Workers Natl. Union,

ee aii ccs ssnncevaenceanesecsvedgeninnccceunis 27

Bennett v. Spear, 520 U.S. 154 (1997) ..........0..00.2...... 34

Droste v. Kerner, 34 0l.2d 495 (1966) ...........0..2......... 30

E.PA. v. Cal. ex rel. St. Water Resources

Control Bd., 426 U.S. 200 (1976).............ecccccccecceees 13

Flast v. Cohen, 392 U.S. 83 (1968) ..............::.cceeeeeeeees 11

Friends of the Earth, Inc. v. Consol. Rail Corp.,

FE Be OE CR CA, TID) ce ceceiceccsccvccosssscceserenens 25, 26

Friends of the Earth, Inc. v. Gaston Copper

Recycling Corp., 204 F.3d 149 (4th Cir.

UNIT Diicicclainendscbanadgusededcamueonauiicniensen ed 23, 24, 25, 27, 28

Friends of the Earth, Inc. v. Laidlaw Env

Services (TOC), Inc. , 528 U.S. 167 (2000).....15, 17, 18

Gibbs v. Buck, 307 U.S. 66 (1939)...............ccceeeee seen 31

Gladstone Realtors v. Village of Bellwood, 441

CN SII ceo ecoanigigseubaucksencedeasanumanmonsen 26, 32

Gwaltney of Smithfield, Ltd. v. Chesapeake Bay

Premed, Tie. BOG WB. SB CIB 7) ceccccccccsisccasesssvsesesnes 34

TABLE OF AUTHORITIES — Continued

Page

Illinois v. Milwaukee, 599 F.2d 151 (7th Cir.

a aaa ccs emaonenecoeneeie 36

Illinois v. Milwaukee, 451 U.S. 304 (1981)................ 36

Kerns v. U.S., 585 F.3d 187 (4th Cir. 2009) ............... 34

Lafleur v. Whitman, 300 F.3d 256 (2d Cir. 2002) ...... 22

Lujan v. Defenders of Wildlife, 504 U.S. 555

UII cuits ohio sais cae eacinidananebecaseessesentnes 16, 17, 32, 33

Lujan v. Natl. Wildlife Federation, 497 U.S.

a oo upallinniiieisebbanntout 32

Massachusetts v. E.PA., 415 F.3d 50 (D.C. Cir.

a AR en eee 36

Massachusetts v. E.P-A., 127 S. Ct. 1438 (2007)........ 36

Mesarosh v. U.S., 352 U.S. 1 (1956)............ccccccccsccseee 38

Middlesex Co. Sewerage Auth. v. Natl. Sea

Clammers Assn., 453 U.S. 1 (1981)........................ 15

Mortensen v. First Fed. Sav. & Loan Ass’n, 549

BE NE MAE GEES ROPE BD coveccnccovcccccosscecsssconccseens 33, 34

Nat. Resources Def. Council, Inc. v. E.PA., 915

er nen CE II. « sccnsguepuavancevenssoubebonssonos 13

Paepcke v. Pub. Bldg. Commn., 46 I1l.2d 330

a a oe ohainsbeneanassnbial 30

People v. Cornille, 95 Tll.2d 497 (1983) ....................2. 38

People ex rel. Burris v. C.J.R. Processing, Inc.,

269 Ill. App. 3d 1013 (1998)................cccceccssscccesccees 30

People ex rel. Scott v. Chicago Park Dist., 66

RRR IE a aR a A 29

Vil

TABLE OF AUTHORITIES — Continued

Page

Sierra Club v. Cedar Point Oil Co., 73 F.3d 546

SE TE TINIE ccccinstuininccctsideetecntssinteiesutsoninnatienialostdite’ 24, 26, 27

Sierra Club v. Franklin Co. Power of Ill., LLC,

BG ete kee CO Ue Ce BD bcc nccdncscccccccnccccescctcocccs 22

Sierra Club v. Morton, 405 U.S. 727 (1972) ........ 17, 18

Sierra Club v. Simkins Industries, Inc., 847

ee ee IE I BD ictccninvebenctetnetnncosdertcsensncsens 24

St. of Ill. v. Illinois C. R.R. Co., 146 U.S. 387

| ___RRRSRN a Sener mn ee Renee a eee ri 29, 30

U.S. v. Metro. St. Louis Sewer Dist., 883 F.2d

iy a uci caneaaenaueaieas 24, 26

U.S. v. Winchester Mun. Utils., 944 F.2d 301

ey ee i sedatikenansondmeasiadmninonuceoes 14

Valley Forge Christian College v. Ams. United

for Separation of Church and St., Inc., 454

i= A. EN cee a ERR SE ee ee te 16, 26

CONSTITUTION, STATUTES, AND RULE

U.S. CONSTITUTION

BIE, ae, IIIT cs chnasctanscsdeunecsasdenssntosmeuscaeerenespianasieaute 1

I Be II OF orakenstnceuncoucnsccdutcndanennnee 2, 16, 17, 26

STATUTES

I 1

Federal Tort Claims Act,

lee 4

Vill

TABLE OF AUTHORITIES — Continued

Page

Clean Water Act,

A co sari l ceiiminetbdaseiauenieds 13

I Oe en se cnieedanetion 2,6, 11, 12, 13

a aia in las ccncneeeigneasneeneeneeeeed 11

I oS easnappuapnanets 2,6, 14

Be et tt IEEE: sik ncinéatanahsesnsndetaddnusiecrsonessixcnen passim

Resource Conservation & Recovery Act,

42 U.S.C. § 6903(3) ....... aaa ae eta ad eaeenadaesceiesennal 3, 6

42 U.B.C. § GBOB(]7) ........0...c0c00000 seuaamanenskunieasania ..3, 6

ee es canes nnbbpnnnesiasopenssunenes 11

I I nissan cco ndcsacntudedébonsevasnéstons 3, 6, 7, 11

Submerged Lands Act,

Be le Oe ME i evncsnceccncuncsesencosvecsvesssveceves 30

Water Quality Act of 1965,

Pub. L. No. 89-234, 79 Stat. 903............... eaauaniool 13

Illinois Public Nuisance,

720 Ill. Comp. Stat. 5/45-5(1).................ccceceeceeees 4, 29

720 Ill. Comp. Stat. 5/45-5(3)......................2.2e 5D, 3D

RULES

ee ky ener 31, 33, 39

BE Ae ER re SI ces nssccicasoiacsisseossanebecunsunt 33

CODE OF FEDERAL REGULATIONS

er rr re ckumsaphpeiiubacenusononsuenens 5

TABLE OF AUTHORITTES — Continued

Page

FEDERAL REGISTER

Military Munitions Rule 62 Fed.Reg 6622............... 6

MISCELLANEOUS

Sen. Rpt. 92-414 (1971) (reprinted in 1972

eR fekew BR ee ee 13, 14

Sen. Conf. Rpt. 92-1236 (1972) (reprinted in

1972 U.S.C.C.A.N. 3776) .......... ST bctssessesccceese: 15

PETITION FOR A WRIT OF CERTIORARI

Steven B. Pollack, on behalf of himself and Blue

Eco Legal Council, respectfully petitions for a writ of

certiorari to review the judgment of the United States

Court of Appeals for the Seventh Circuit.

o-—- - -———-

OPINIONS BELOW

The opinion of the court of appeals (App. la-24a)

is reported at 577 F.3d 736. The opinion of the district

court (App. 25a-35a) is reported at 2008 U.S. Dist.

LEXIS 85072 (September 12, 2008).

JURISDICTION

The judgment of the court of appeals was entered

on August 13, 2009. A petition for rehearing was

denied on October 14, 2009 (App. 36a-37a). The

jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

CONSTITUTION

Art. I, Section 8 of the United States Constitution

provides, in relevant part:

The Congress shall have power ... To

constitute tribunals inferior to the Supreme

Court; ... To make rules for the government

and regulation of the land and naval forces;

To make all laws which shall be

necessary and proper for carrying into

execution the foregoing powers, and all other

powers vested by this Constitution in the

government of the United States, or in any

department or officer thereof.

Art. II, Section 2, Clause 1 of the United States

Constitution provides, in relevant part:

The judicial power shall extend to all cases,

in law and equity, arising under .. . the laws

of the United States, ... ; to controversies to

which the United States shall be a party;. . . .

CLEAN WATER ACT

The Clean Water Act (“the CWA”), 33 U.S.C.

§ 1311, provides in relevant part: “Effluent limita-

tions (a) Mlegality of pollutant discharges except

in compliance with law. Except as in compliance

with this section and sections 1312, 1316, 1317, 1328,

1342, and 1344 of this title, the discharge of any

pollutant by any person shall be unlawful.”

The citizen suit provision of the CWA, 33 U.S.C.

§ 1365, provides in relevant part: “Authorization;

jurisdiction ... [A]ny citizen may commence a civil

action on his own behalf ... against any person

(including (i) the United States, and (ii) any other

governmental ... agency ... ) who is alleged to be in

violation of ... an effluent standard or limitation

under this chapter. .. .”

RESOURCE CONSERVATION RECOVERY ACT

The Resource Conversation Recovery Act (“the

RCRA”) provides, by definition, 42 U.S.C. § 6903(3) as

follows:

The term ‘disposal’ means the discharge,

deposit, injection, dumping, spilling, leaking,

or placing of any solid waste or hazardous

waste into or on any land or water so that

such solid waste or hazardous waste or any

constituent thereof may ener the environ-

ment or be emitted into the air or discharged

into any waters, including ground waters;

and

42 U.S.C. § 6903(27): (27) “The term ‘solid waste’

means any garbage, refuse, ... and other discarded

material, including solid ... material resulting from

industrial, commercial, ... and from community

activities.”

The citizen suit provision of the RCRA, 42 U.S.C.

§ 6972, provides in relevant part:

In general ... any person may commence a

civil action on his own behalf... against any

person (including (a) the United States, and

(b) any other governmental ... agency ... )

who is alleged to be in violation of any

permit, standard, regulation, condition,

requirement, prohibition, or order which has

become effective pursuant to this chapter; or

... Who has contributed or who is

contributing to the past or present handling

. or disposal of any solid or hazardous

waste which may present an imminent and

substantial endangerment to health or the

environment.

FEDERAL TORT CLAIMS ACT

The Act, 28 U.S.C. § 1346(b) provides, in relevant

part:

[TJhe district courts ... shall have exclusive

jurisdiction of civil actions on claims against

the United States, for money damages, ...

for injury or loss of property, ... caused by

the negligent or wrongful act or omission of

any employee of the Government while

acting within the scope of his office or

employment, under circumstances where the

United States, if a private person, would be

liable to the claimant in accordance with the

law of the place where the act or omission

occurred.

ILLINOIS NUISANCE

Under Ulinois law, 720 Ul. Comp. Stat. 5/45-5(1),

it is a nuisance “[t]o cause or allow . . . any offal, filth,

or noisome substance to be collected, deposited, or to

remain in any place, to the prejudice of others.”

Further, it is a public nuisance “[t]o corrupt or render

unwholesome or impure the water of a spring, river,

stream, pond, or lake to the injury or prejudice of

others.” 720 Ill. Comp. Stat. 5/45-5(3).

STATEMENT

The Navy and Marines began discharging lead

munitions into Lake Michigan (“the Lake”) from the

Great Lakes Naval Station in 1918. (Compl. Ex. G).

The government appropriated 3,000 acres of the Lake

as an impact area for “errant rounds and ricochets.”

See Army Corps Regulation 33 C.F.R. § 204 (1979). In

1986, the Navy transferred the firearms training

range to the FBI. Since then, the FBI has used the

range to discharge lead bullets into the Lake. (Compl.

Ex. G). The range is located in the city of North

Chicago, a low-income minority community whose

water intake pipe sits within the impact area.

(Compl. Ex. J). In addition, other downstream

municipalities to the south, including petitioners’

community, draw their potable water from intake

pipes located in the vicinity of the impact area. (App.

lla).

In 2006, the Coast Guard conducted live fire

training exercise on all five Great Lakes in which it

discharged lead munitions into the water. (Compl. Ex.

A). In 2007, it withdrew its training under that

program but reserved its right to do so by denying it

had violated any applicable law. (Compl. Ex. C).

Petitioners assert that Coast Guard training in

various forms persists and lead bullets continue to be

discharged into the Great Lakes. (Pls.’ Reply Mot.

Prelim. Inj. Exs. 8, 9).

Congress enacted the CWA in 1972 prohibiting

the discharge of pollutants into navigable waters,

including from federal facilities, without a permit. 33

U.S.C. §§ 1311(a), 1342. None of the federal respon-

dents have a permit to discharge lead pollutants into

the nation’s waters. (App. 19a).

In 1986, Congress enacted the RCRA prohibiting

all facilities, including federal facilities, from

discarding waste into the environment. The federal

respondents do not plan to recover their discharges of

lead at issue in this case and have therefore

discarded solid waste pursuant to the statutory

definition. 42 U.S.C. §§ 6903(3), (27); Military Muni-

tions Rule, 62 Fed.Reg. 6622, 6632 (“munitions that

land off range that are not promptly rendered safe (if

necessary) and/or retrieved, are statutory solid

wastes under RCRA section 1004(27), potentially

subject to RCRA corrective action ... [A] failure to

render safe and retrieve a munition that lands off

range would be evidence of an intent to discard the

munition.”).

Both the CWA and RCRA contain citizen suit

provisions purporting to allow any person to file suit

against anyone, including the government, for vio

lating any provision of the acts. 33 U.S.C. § 1365; 42

U.S.C. § 6972.

Petitioners gave respondent Coast Guard and the

State of Illinois 60 days notice of intent to sue on Nov.

9, 2006 pursuant to 33 U.S.C. § 1365(b) of the CWA.

Petitioners gave the remaining respondents and the

State of Illinois 60 days notice of intent to sue

pursuant to 33 U.S.C. § 1365(b) of the CWA and 90

days notice of intent to sue pursuant to 42 US.C.

§ 6972(bX2KA) of the RCRA on Oct. 1, 2007. The

State of Illinois failed to initiate any enforcement

action during or after these notice periods and

respondents failed to come into compliance during or

after thése notice periods. Petitioners thereafter filed

suit on Jan. 14, 2008.

Four days after suit was filed, the FBI closed

down the shotgun range on the edge of the bluff (one

of the firing ranges in the facility) in which lead shot

are discharged toward the Lake, 20 feet away

(although it inexplicably refuses to admit the shot

ever reached the Lake). (Pls.’ Reply, Mot. Prelim. Inj.

Ex. 11). The FBI asserted to the district court orally

on multiple occasions that no bullets leave the facility

because all bullets are captured by a_ berm.

Nevertheless, the FBI shut down the entire range

during litigation after petitioners found 40 FBI

bullets that had ricocheted offsite onto the beach

below and into the park adjacent to the range. (C.A.

App. 10-25). The FBI has since built a taller wall

between the range and the park and has reopened the

facility. According to petitioners’ firearms expert,

however, it will continue to discharge errant rounds

and ricochets into the Lake and the park.

Petitioners supplied affidavits asserting that

they use the Lake shoreline and enjoy local wildlife

dependant on the Lake. (C.A. App. 1-9). The govern-

ment did not depose any Blue Eco member or provide

any evidence challenging facts in their affidavits. The

district court dismissed petitioners’ suit for lack of

standing holding their affidavits were too vague.

(App. 33a). Further, the district court noted that the

measurement for lead at petitioners’ municipal water

supplier 13 miles downstream from the range is

9.2ppb, below federal standards of 15ppb found in

another statute. (App. 30a-31a). Thus, the court held

that petitioners’ suit lacked standing because of lack

of concrete harm. Id.

Petitioners seek this Court’s review because

federal courts have raised the bar for standing higher

than what Congress has embraced in the citizen suit

provisions of two important federal environmental

statutes. The statutes purport to allow suit for any

illegal discharge into the environment without regard

to the effect on the environment. However, the

district court’s holding leaves no one with standing to

bring suit for these violations based on a test of their

effect on the environment. The federal courts thereby

fail to allow claims over conduct that Congress

expects will be prohibited by the courts. The district

and circuit courts have therefore decided an impor-

tant Constitutional question of standing in a way that

conflicts with Congress’ Constitutional authority.

Petitioners additionally argue that leaving no one

with standing contradicts relevant decisions of this

Court.

The Seventh Circuit added to the district court’s

standing hurdle by finding that the Lake does not

flow counterclockwise so as to bring the FBIs pol-

lutants toward petitioners’ water intake to the south

notwithstanding petitioners’ argument that the Lake

does in fact flow to the south. (App. 1la-12a). Since

the respondents presented no evidence contradicting

petitioners’ assertion, the court acted arbitrarily by

finding its own jurisdictional fact on a motion to

dismiss, violated the federal rules of civil procedure,

denied petitioners’ rights granted by Congress, and

was wrong as to the fact. (En Banc Pet. for Reh’g 10).

Subsequently, petitioners obtained a 1986 Navy

environmental study that had been the subject of a

motion to compel and order by the district court to

produce but was withheld despite the order except for

19 of 175 pages. (En Banc Pet. for Reh’g 2-4). One of

the withheld pages showed that the Navy (and the

Department of Justice) was aware that the littoral

drift of the Lake is from north to south (also referred

to as lake rotation). (/d. at 4). Petitioners then filed a

petition for rehearing en banc because the Depart-

ment of Justice (“DOJ”) had been asserting legal

theories based on claims the Lake does not rotate

when it knew such claims to be false. (/d. at 6-7).

Even with petitioners’ evidence of the DOJ’s obstruc-

tion of justice, the Seventh Circuit denied rehearing.

(App. 36a-37a).

Petitioners now seek review because the Seventh

Circuit has so far departed from the accepted and

usual course of judicial proceedings as to call for an

exercise of this Court’s supervisory power.

REASONS FOR GRANTING CERTIORARI

IL This Court’s Review Is Warranted

Because the Lower Courts’ Reasoning

Leaves No One With Standing

The courts are misusing standing to deny

Congress its authority to empower private attorney

general enforcement of public welfare environmental

laws. The Seventh Circuit violated separation of

powers by authorizing the district court to substitute

its judgment for that of Congress when holding that

discharges of pollutants that violate the CWA and

RCRA but do not cause drinking water quality to

exceed certain national standards are not concrete for

citizen suit standing. (App. 30a-31a).

If federal courts are going to interpret standing

in a way that limits the clear language of federal

statute and thereby allow the government to continue

illegally discharging pollutants into public drinking

water sources, it should be based on an explicit

holding by this Court and not a circular interpreta-

tion of the “Supreme Court’s case law on this subject

[that] is both unclear in purpose and extraordinarily

dificult to reconcile.” (App. 15a) (Cudahy, J.,

concurring).

A. Leaving No One With Standing When

Congress Has Authorized Citizens to

Sue Leads to Unconstitutional Results

Congress enacted the RCRA and the CWA

respectively to prevent the discharge of pollutants

offsite from a facility and into navigable waters

without a permit. 42 U.S.C. § 6972; 33 U.S.C. § 1311.

Congress included federal facilities provisions in both

statutes making federal operations comply in the

same manner and to the same degree as private

facilities. 42 U.S.C. §6961; 33 U.S.C. § 1323.

Congress also enacted citizen suit provisions with

clear waivers of sovereign immunity to force compli-

ance against any violation in the absence of federal or

state enforcement. 42 U.S.C. § 6972; 33 U.S.C.

§ 1365.

The district court took up the issue of petitioners’

standing on respondents’ motion to dismiss. (App.

25a). The standing inquiry is supposed to decide who

is the proper party to bring suit. See Flast v. Cohen,

392 U.S. 83, 99-100 (1968) (“when standing is placed

in issue in a case, the question is whether the person

whose standing is challenged is a proper party to

request an adjudication of a particular issue and not

whether the issue itself is justiciable.”). The district

court, however, declared the entire issue non-

justiciable based on an effects test not embraced by

Congress. (App. 30a-3la). It held that there is no

concrete harm to support standing because the

government’s lead bullets discharged into the Lake

have not caused petitioners’ drinking water to exceed

15ppb for lead, even if the government’s discharges

violate federal law. Id.

The district court’s holding not only denies

petitioners standing, it leaves no one with standing to

bring suit for these violations. North Chicago citizens

cannot bring suit even though their drinking water

intake sits inside the impact area because North

Chicago’s drinking water, while containing lead above

zero, is below 15ppb. When the present suit was filed,

the lead level for North Chicago stood at 11 ppb while

its most recent water quality report shows lead at

12.6ppb. The effect of this ruling is to invalidate the

citizen suit provision of important federal statutes for

discharges that are illegal but do not solely and

immediately cause potable water to become

undrinkable.

The Safe Drinking -Water Act level for lead of 15

ppb is not a safe level as the court asserts but rather

a practical regulatory level imposed on water plants.

(App. 22a, n.3). The water quality report that the

district court relied on even states that the maximum

contaminant level goal for lead is zero. (App. 29a).

The zero level goal is defined as the level below which

there are no known health effects. Jd. Since the level

of lead in petitioners’ water supply exceeds zero, there

is a concrete effect on petitioners’ health.

Congress resolved the question of effects tests

by prohibiting discharges without regard to specific

effects on water quality. 33 U.S.C. §1311. It is

therefore an unconstitutional abuse of power for the

courts to substitute its judgment and deny Congress

its authority to make the laws affecting the public

welfare.

Congress enacted the Federal Water Pollution

Control Act Amendments of 1972, also known as the

CWA, “to restore and maintain the chemical, physi-

cal, and biological integrity of the Nation’s waters.”

33 U.S.C. § 1251(a). This legislation constituted “a

major change in the enforcement mechanism of the

Federal water pollution control program.” Am.

Petroleum Inst. v. Train, 526 F.2d 1343, 1344 (10th

Cir. 1975) (internal quotation marks omitted).

Previously, enforcement of water laws entailed

measurement of the quality of receiving waters. See,

e.g., Water Quality Act of 1965, Pub. L. No. 89-234, 79

Stat. 903. However, water quality measurements led

to substantial enforcement problems. See E.PA. v.

Cal. ex rel. St. Water Resources Control Bd., 426 U.S.

200, 202-03 (1976). Using water quality standards to

control water pollution was “inadequate in every vital

respect.” Sen. Rpt. 92-414, at 7 (1971) (reprinted in

1972 U.S.C.C.A.N. 3668, 3674).

The CWA, therefore, shifted the focus of

enforcement efforts from water quality standards to

direct controls on the discharge of pollutants — i.e.,

“effluent limitations.” See 33 U.S.C. § 1311; Nat.

Resources Def. Council, Inc. v. E.PA., 915 F.2d 1314,

1316 (9th Cir. 1990). Previously a plaintiff had to

offer proof of actual damage to a body of water to

establish a violation. Congress now wanted to directly

control illegal pollution discharges. See, e.g., U.S. v.

Winchester Mun. Utils., 944 F.2d 301, 304 (6th Cir.

1991). Enforcement authorities no longer had to

“search for a precise link between pollution and water

quality” to control pollution. Sen. Rpt. 92-414, at 8

(1971) (reprinted in 1972 U.S.C.C.A.N. at 3675).

Rather, they could now prove a violation of the

statute if a facility was discharging restrictec pol-

lutants into water sources.

The CWA centers on section 301(a). This section

provides: “Except as in compliance with this section

and [other sections of the Act], the discharge of any

pollutant by any person shall be unlawful.” 33 U.S.C.

§ 1311(a). In section 402 of the Act, Congress estab-

lished the National Pollutant Discharge Elimination

System (NPDES), which authorizes the issuance of

permits for the discharge of limited amounts of

effluent. Jd. at § 1342.

Critical to the enforcement of the CWA is the

citizen suit provision found in section 505. 33 U.S.C.

§ 1365. Section 505(a) states that “any citizen may

commence a civil action on his own behalf against any

person including (i) the United States ... who is

alleged to be in violation of an effluent standard or

limitation under this chapter.” Jd. at § 1365(a). An

“effluent standard or limitation” is defined to include

any term or condition of an approved permit. See id.

at § 1365(f). Citizens may bring suit against any

NPDES permit holder for violating its permit or as in

this case against the owner of a facility discharging

pollutants without a necessary permit.

Section 505(g) sets forth the statutory standing

requirement for the citizen suit provision of the CWA.

Id. at § 1365(g). Specifically, it defines “citizen” as “a

person or persons having an interest which is or may

be adversely affected.” Id. Congress has indicated

that this provision confers standing to enforce the

CWA to the full extent allowed by the Constitution.

See Middlesex Co. Sewerage Auth. v. Natl. Sea

Clammers Assn., 453 U.S. 1, 16 (1981) (citing Sen.

Conf. Rpt. 92-1236, at 146 (1972) (reprinted in 1972

U.S.C.C.ALN. 3776, 3823).

The CWA prohibits discharges without regard to

the effect on water and sediment quality. In light of

clear Congressional intent on this matter, courts

should not be allowed to import an alternate standard

such as the Safe Drinking Water Act standard to deny

standing to citizen suits. Doing so infringes on

Congressional authority to make the laws.

If the courts have some philosophical aversion to

citizen suit enforcement of what is normally a law

enforcement function of the Executive branch of

government, see Friends of the Earth, Inc. v. Laidlaw

Env’'l Servs. (TOC), Inc., 528 U.S. 167, 209-10 (2000)

(Scalia and Thomas, JJ., dissenting), then it needs to

explicitly state a Constitutional basis for disallowing

such suits. Absent that, it is tyranny for the courts to

find clever ways to frustrate the command of Con-

gress to allow private attorney general enforcement

in the absence of Executive enforcement especially, as

in this case, where the Attorney General is also the

violating party.

Petitioners have asserted a concrete interest in

drinking water it reasonably believes is affected by

respondents’ discharges by showing the types of

contaminants being discharged are in their water and

need not prove impairment sufficient to shut down its

municipal water supplier to support standing.

B. Leaving No One With Standing Con-

tradicts Relevant Rulings of This

Court and Other Circuits

Article [II of the Constitution limits federal

courts to adjudicating only “cases” and “contro-

versies.” Proof of standing ensures that a plaintiff has

a minimum personal stake in the dispute. See Allen v.

Wright, 468 U.S. 737, 750-51 (1984). The standing

requirement also “tends to assure that the legal

questions presented to the court will be resolved, not

in the rarified atmosphere of a debating society, but

in a concrete factual context conducive to a realistic

appreciation of the consequences of judicial action.”

Valley Forge Christian College v. Ams. United for

Separation of Church and St., Inc., 454 U.S. 464, 472

(1982).

To achieve the constitutional minimum for

standing, “la] plaintiff must allege personal injury

fairly traceable to the defendant’s allegedly unlawful

conduct and likely to be redressed by the requested

relief.” Allen, 468 U.S. at 751; Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560-61 (1992). These require-

ments ensure that the judiciary is the appropriate

forum in which to address a plaintiff’s complaint. See

Allen, 468 U.S. at 752.

Standing in environmental cases must be ana-

lyzed in the context in which the suit is brought.

Sometimes, environmental injury can be viewed as a

traditional trespass on property or tortious injury to a

person. In other cases, however, the harm can be to

an individual’s aesthetic or recreational interests.

The Supreme Court has clearly stated that these

latter interests may also be vindicated in the federal

courts. See, e.g., Laidlaw, 528 U.S. at 183 (effect on

“recreational, aesthetic, and economic interests” is

cognizable injury for purposes of standing); Lujan,

504 U.S. at 562-63 (purely aesthetic interest is

cognizable for purposes of standing); Sierra Club v.

Morton, 405 U.S. 727, 734 (1972) (“Aesthetic and

environmental well-being, like economic well-being,

are important ingredients of the quality of life in our

society ... deserving of legal protection through the

judicial process.”). Because these noneconomic inter-

ests are shared by the community at large, this Court

has cautioned that environmental! plaintiffs must

themselves be “among the injured” so that Article III

case or controversy requirements are not reduced to a

formality. Morton, 405 U.S. at 735.

Courts must therefore assess jurisdictional facts

“to ascertain whether the particular plaintiff is

entitled to an adjudication of the particular claims

asserted.” Allen, 468 U.S. at 752. If the plaintiff's

claims are neither abstract nor overly speculative, the

Constitution allows plaintiffs access to federal district

court to adjudicate them. Id.

In Laidlaw, the Court found that several citizen

affidavits attesting to reduced use of a waterway out

of reasonable fear and concern of pollution “ade-

quately documented injury in fact.” 528 U.S. at 181-

83. Each of the citizens alleged that he or she would

make greater recreational use of some part of the

affected waterway were it not for their concern about

the harmful effects of the defendant’s discharges. Jd.

The Court required no evidence of actual harm to the

waterway, noting: “We have held that environmental

plaintiffs adequately allege injury in fact when they

aver that they use the affected area and are persons

‘for whom the aesthetic and recreational values of the

area will be lessened’ by the challenged activity.” Jd.

at 183 (quoting Morton, 405 U.S. at 735).

Petitioners’ complaint and affidavits asserted as

much:

“Blue Eco ... members include Great Lakes

residents whose drinking water supply and

natural environment is harmed by Defen-

dants’ actions in violation of federal environ-

mental law,” Compl. 43.

“members of the public whose potable

(drinking) water supply is drawn from the

Great Lakes,” Compl. 49.

“I drink water drawn from Lake Michigan

and I am concerned that the discharges of

lead munitions by the federal defendants

into Lake Michigan is negatively affecting

the drinking water supply of Highland Park

and other local municipalities I visit that

draw their drinking water from Lake

Michigan” Pollack & Miller Aff’s (C_A. App.

4,7).

“I use and enjoy the public areas along the

Illinois portion of Lake Michigan and I am

concerned that the lead munitions

discharged by federal defendants that is

sitting on open land at Foss Park and the

beach below the FBI Range will harm

visitors to these public areas who may come

into contact with this hazardous material

and therefore makes it less likely I will visit

these public areas myself or with my

children” Pollack & Miller Aff’s (C.A. App. 4,

7}.

“I enjoy watching the wildlife in the Great

Lakes watershed and I am concerned that

the lead munitions discharged by federal

defendants that are sitting on open land and

in shallow water near the FBI Range in

North Chicago will harm local shorebirds

and waterfowl; and lessens the enjoyment

I get observing them migrate between

seasons” Pollack & Miller Aff’s (C.A. App. 4,

7).

“I enjoy eating freshwater and ocean fish and

I am concerned that the lead munitions

discharged by the federal defendants into the

waters of the United States and onto

submerged lands are entering the water

column and bioaccumulating in the tissue

and organs of fish coming into contact with

the contaminated water and is therefore

lessening my desire to consume fish” Pollack

Aff. (C.A. App. 4).

The district court, however, dismissed petitioners’

case citing lack of conclusive evidence of actual

environmental degradation concerning the following:

(1) that “bullets will continue to degrade as long as

they remain in the lake”; (2) “the ability of lead to

bioaccumulate in tissue and organs”; and (3) “reports

or any other evidence that shows lead levels have

been on the rise or connects those increases to bullet

degradation.” (App. 30a-3la). But this Court, as

stated, does not require such proof.

The district court then dismissed petitioners’

beliefs by resorting to logical fallacies of expanding

the area of concern to the ridiculous:

(1) his enjoyment of avian migration “from

the Great Lakes watershed” is lessened by

his fear that the birds in that area — which

encompasses all five of the Great Lakes and

is 750 miles wide, http://epa.gov/greatlakes/

basicinfo.html — are being harmed by bullets

from North Chicago; (2) he is “less likely” to

visit any portion of Illinois’ shoreline, which

is sixty-one miles long, see National Park

Service, Great Lakes Shoreline Recreation

Area Survey, at 1, available at, http://www.

nps.govw/history/history/online_books/rec_area_

survey/great-lakes/il.htm, because he fears

that people who visit that land will be

harmed by contamination from the range;

and (3) he has less desire to eat fish from

U.S. waters, a source that presumably

includes all bodies of water within or

bordering on this country, because he fears

that the fish have been in contact with water

contaminated by bullets from the range.

(Pls.’ Reply Supp. Mot. Prelim. Inj., Exs.,

Pollack Aff. {{ -7.)”

(App. 32a-33a). Moreover, the district court was

barking up the wrong tree because respondents had

already admitted its pollution will have an ecosystem-

wide effect: “Any lead and lead compounds migrating

from the site will most likely impact the aquatic

ecosystem of Lake Michigan adversely.” Navy Assess-

ment (1984) (Pl. Reply, Mot. Prel. Inj. Ex. 4, Dist. Ct.

Docket at 55).

Seventh Circuit Judge Cudahy, in his concur-

rence of petitioners’ dismissal says the relevant cases

on standing “raise more questions than they answer.”

Pollack, 577 F.3d at 744. Judge Cudahy states:

What is the “affected area”? How do we deter-

mine whether someone’s aesthetic or recrea-

tional values will be “lessened” other than by

their say-so? What counts as a “trifle” suffi-

cient to place someone “among the injured”?

This guidance is particularly difficult to

follow where the plaintiff is on the bubble:

Pollack does not live in North Chicago,

where the drinking water is concededly

drawn from the “affected area” of the lake,

but he doesn’t live in East Chicago’ either, or

even as far as Evanston’. Is Highland Park,

thirteen miles away, close enough to be

“among the injured?” (footnotes in original).

Id. (App. 18a).

But just six months prior to the appeal in this

case, the Seventh Circuit held that a plaintiff need

not prove harm to the environment with absolute

certainty to show standing in a Clean Air Act case.

See Sierra Club v. Franklin Co. Power of Iil., LLC,

546 F.3d 918 (7th Cir. 2008). The Clean Air Act citizen

suit provision is nearly identical to the CWA and

RCRA. 42 U.S.C. § 7604. In Franklin, the Seventh

Circuit held that “likely exposure to pollutants is

certainly something more than an ‘identifiable trifle,’

even if the ambient level of air quality does not

exceed [certain national limits].” 546 F.3d at 925

(internal quotations omitted) (citing Lafleur v.

Whitman, 300 F.3d 256, 270-1 (2d Cir. 2002)). It found

standing where “the plant will release some

pollutants and that [plaintiff] believes these

pollutants will ruin her ability to enjoy Rend Lake

and taint the surrounding area. And her belief is not

so irrational that it can simply be discredited.” Jd. at

927.

* “Rast Chicago, Indiana is 60 miles south of the gun range

by car.”

* “Evanston, Illinois is 26 miles south of the gun range.”

Therefore, it appears that the circuit court is

using a different standard for citizen suits against

the government than it uses for suits against private

facilities. Such a double standard is not consistent

with the federal facilities provisions of the CWA and

RCRA, which require federal facilities be held to the

same standards as private facilities. Accordingly,

the Court should review this case because the

government is one of the nation’s largest operators of

facilities, is one of the largest polluters, and must be

held accountable by the courts. The E.P.A. is the

branch of government responsible for enforcing

environmental laws but when it will not take action

to stop pollution, a citizen suit by a private citizen is

the last resort for enforcement.

Moreover, the DOJ acts as counsel-for all federal

defendants in environmental suits. If the DOJ can

violate the law, then there is little chance it will seek

justice in its representational capacity for other

federal defendants. This Court must review this case

to prohibit federal courts from placing its thumb on

the scales of justice on behalf of sympathetic

defendants like the federal government.

No other circuit has required additional scientific

proof where there was a direct nexus between the

claimant and the area of environmental impairment.

In Friends of the Earth, Inc. v. Gaston Copper, 204

F.3d 149 (4th Cir. 1999) the circuit court found

plaintiffs had standing in a case remarkably similar

to this one. Plaintiffs owned property four miles

downstream from a mining company that was dis-

charging pollutants into the river. Gaston Copper, 204

F.3d at 150-1. The pollutants showed up in plaintiff’s

lake and they filed suit along with an environmental

group. Id. at 152-3. The district court dismissed the

suit for lack of standing finding that the pollutants

had not degraded plaintiff’s lake sufficient to show

concrete harm. Jd. Plaintiffs appealed and the circuit

panel upheld the dismissal. Plaintiffs then sought en

banc review. Id.

Ironically, the DOJ filed an amicus brief

supporting the environmental group arguing the case

was of “substantial importance to the United States”

because it “concerns the ability of citizens to establish

standing to sue under the Act.” (C.A. App. 49).

Therefore, “[t]he standard set forth in the panel’s

opinion would significantly restrict citizens’ ability to

enforce the environmental laws.” Jd. DOJ argued that

direct evidence of environmental harm was not

required and a plaintiff could rely on circumstantial

evidence of harm. Id.

The DOJ went on to argue the citizen groups

have standing “on the basis of a member’s claim that

he or she used a body of water in the general area of

the discharge, but without requiring any showing

that the member used the precise spot at which the

discharge occurred.” Jd. (citing Sierra Club v. Simkins

Industries, Inc., 847 F.2d 1109, 1113 (4th Cir. 1988)

(Patapsco River); Sierra Club v. Cedar Point Oil Co.,

73 F.3d 546, 556-8 (5th Cir. 1996) (Galveston Bay);

U.S. v. Metro. St. Louis Sewer Dist., 883 F.2d 54, 56

(8th Cir. 1989) (Mississippi River); Friends of the

Earth, Inc. v. Consol. Rail Corp., 768 F.2d 57, 61 (2d

Cir. 1985) (Hudson River)). (C_.A. App. 52). It also

argued that “[mJany of these cases involve quite large

bodies of water; nevertheless, these courts drew the

reasonable inference that waterborne pollutants

migrate, without demanding scientific proof that they

had done so.” Id.

The en banc court in Gaston Copper agreed to

overturn the dismissal because the Clean Water Act

does not require proof of environmental degradation

to any specific degree for purposes of standing.

Gaston Copper, 204 F.3d at 160-4. Requiring such

proof would be inconsistent with Congressional intent

for creating the Act. Id.

The DOJ has therefore argued opposing positions

of the same issue in the Fourth Circuit and now in

the Seventh Circuit and has created a circuit split

because its positions have been vindicated in both

circuits. In contrast to its position in Gaston Copper,

the DOJ in this case has demanded petitioners prove

1) harm to water quality above 15ppb, 2) migration

of pollutants 13 miles downstream, and 3) proof

petitioners had visited the exact spot where its

facility is discharging. (Def. Mot. Dis., 8-10). Thus,

the DOJ has made inconsistent assertions of law to

two different circuit courts.

Other circuits have been consistent with the

Fourth Circuit and did not require affiants to prove

actual degradation or migration pathways. For

example, in Cedar Point Oil Co., the Fifth Circuit

found injury in fact for citizens’ concern for the water

quality in Galveston Bay where “two of the affiants

live near Galveston Bay and all of them use the bay

for recreational activities.” 73 F.3d at 556. It was

enough that “the affiants expressed fear that the

discharge ... will impair their enjoyment of these

activities because these activities are dependent upon

good water quality.” Id.

In Consol. Rail Corp., the Second Circuit found

that two citizen affidavits “quite adequately satisfy

the standing threshold.” 768 F.2d at 61. A first citizen

stated by affidavit that “he passes the Hudson [River]

regularly and finds the pollution in the river offensive

to [his] aesthetic values.” Jd. (internal quotation

marks omitted). A second citizen, a father, “averred

that his children swim in the river, his son

occasionally fishes in the river and his family has and

will continue to picnic along the river.” Jd.

In Metro. St. Louis Sewer Dist., the Eighth

Circuit found standing where citizen groups’ members

state they “visit, cross, and frequently observe” the

Mississippi River and “from time to time ... use

these waters for recreational purposes.” 883 F.2d at

56.

Even threatened injury to petitioners represents

injury in fact. This Court has held that threatened

injury, not just actual injury, can serve to satisfy

Article III requirements for standing. See, e.g., Valley

Forge, 454 U.S. at 472; Gladstone Realtors v. Village

of Bellwood, 441 U.S. 91, 99 (1979). “One does not

have to await the consummation of threatened injury

to obtain preventive relief. If the injury is certainly

impending that is enough.” Babbitt v. United Farm

Workers Natl. Union, 442 U.S. 289, 298 (1979)

(internal quotation marks omitted). The DOJ argued

in its Gaston Copper amicus brief that “[s]tanding law

does not require that a plaintiff wait until actual

injury occurs in order to sue.” (C.A. App. 51).

Increased risk therefore represents a cognizable

harm. Threatened environmental injury is by nature

based on probabilities. Gaston Copper, 204 F.3d at

160. The Fifth Circuit, in Cedar Point Oil Co., did not

require the plaintiff to provide evidence of actual

harm to the waterway. 73 F.3d at 556 (“this injury is

couched in terms of future impairment rather than

past impairment is of no moment.”).

In this case, the federal agencies’ violations

threaten the waters within the acknowledged range

of their discharge. By producing evidence that the

FBI is polluting Pollack’s upstream water source,

Blue Eco has shown an increased risk to its member’s

downstream uses. (App. 19a). This threatened injury

creates injury in fact. District and circuit courts

cannot demand that plaintiffs wait until their water

supply becomes unproductive and unsanitary or

discolors and smells bad before they can summon the

protections of the CWA, RCRA, and public nuisance.

According to the Fourth Circuit, “[sluch a novel

demand would eliminate the claims of those who are

directly threatened but not yet engulfed by an

unlawful discharge.” Gaston Copper, 204 F.3d at 160.

Pollack’s knowledge that pollution of the type

discharged by federal defendants is in his drinking

water shows that his fears are based on more than

mere speculation.

In sum, the evidence paints a stark picture: the

FBI and Coast Guard have been discharging lead

offsite into a source of drinking water without a

permit in violation of the CWA, RCRA, and public

nuisance. The FBI, Navy, and Marine discharges

affect or have the potential to affect the waterway

south of the facility and North Chicago’s water intake

that sits within the impact area. (App. 19a) The local

water treatment plants have found the type of

chemical discharged by the FBI, namely lead, and

federal studies demonstrate the harmful environ-

mental and health impacts of lead. (App. 19a, 30a).

When this evidence is viewed in light of the legal

threshold for standing, it is clear that the district

court erroneously dismissed petitioners’ suit and the

circuit court erroneously affirmed the dismissal.

II. The District and Circuit Courts Erred by

Failing to Address Petitioners’ Standing

as State Citizens With Property Rights to

the Lakebed Pursuant to the Public Trust

Doctrine

Petitioners should have standing to enforce their

state law nuisance claim, as trust beneficiaries to the

lakebed, based on state citizenship and not their

use and enjoyment of the Lake. The Seventh Circuit

opinion, by ignoring this argument and relying only

on petitioners’ use and enjoyment of the Lake,

extinguishes property rights to the lakebed pursuant

to U.S. and Illinois Supreme Court pronouncements.

See St. of Ill. v. Illinois C. R.R. Co., 146 U.S. 387

(1892); People ex rel. Scott v. Chicago Park Dist., 66

Ill.2d 65 (1976).

In Illinois C. R.R., the Illinois Legislature had

granted a portion of the lakebed adjacent to Chicago

to the Illinois Central Railroad. A subsequent

legislature sought to revoke the grant. Jd. at 439-52.

Illinois claimed the original grant should not have

been permitted in the first place. Jd. This Court held

the state owned the property but held it in trust for

the people of the state under the common law public

trust doctrine. Jd. at 452-56. This public trust

prevented the government from alienating the public

right to the lands under navigable waters. Id.

The State of Dllinois affirmed the public trust

doctrine and applied it to environmental interests

from its original focus on navigation. Chicago Park

Dist., 66 Ill.2d at 78-81 (“It is obvious that Lake

Michigan is a valuable natural resource belonging to

the people of this State in perpetuity.”).

Under public nuisance, it is a violation “[t]o cause

or allow ... any offal, filth, or noisome substance to

be collected, deposited, or to remain in any place, to

the prejudice of others.” 720 Ill. Comp. Stat. 5/45-5(1).

Further, it is a public nuisance “[t]o corrupt or render

unwholesome or impure the water of a spring, river,

stream, pond, or lake to the injury or prejudice of

others.” 720 Ill. Comp. Stat. 5/45-5(3); see also People

ex rel. Burris v. C.J.R. Processing, Inc., 269 Ill. App.

3d 1013, 1019 (1995).

Plaintiffs assert that they are Illinois citizens

with an interest in the lakebed because they are trust

beneficiaries under the public trust doctrine and the

Submerged Lands Act. See 43 U.S.C. § 1311(aX 12).

None of the public trust cases declare that only those

residents along the Lake who use and enjoy it are

beneficiaries. Rather the entire population of the

state is declared beneficiaries. [llinois C. R.R., 146

JUS. at 452-56. This means state residents in

Springfield, Ulinois hundreds of miles away from the

Lake are just as entitled to assert that their property

rights are prejudiced as are petitioners who live

about a mile from the Lake. The courts need look no

further for standing in a public nuisance case than if

the plaintiff is a state citizen.

The Illinois Supreme Court has stated, “[ilf the

public trust doctrine is to have any meaning or

vitality at all, the members of the public . .. who are

the beneficiaries of that trust, must have the nght

and standing to enforce it. To tell them that they

must wait upon governmental action is often an

effectual denial of the right for all time.” Paepcke v.

Pub. Bldg. Commn., 46 [112d 330, 341 (1970)

(overturning Droste v. Kerner, 34 Il.2d 495 (1966) as

to public trust standing requirements). Through the

public trust doctrine, Pollack and other Illinois Blue

Eco members have standing to bring suit against the

federal government for the ongoing discharge and 90-

year accumulation of lead onto the lakebed, the trust

corpus of which they are beneficiaries.

Il. The Court’s Review Is Warranted Because

Lower Courts Are Determining Jurisdic-

tional Facts on 12(b)(1) Motions to Dismiss

Without Sufficient Safeguards for Plaintiffs

to Develop and Present Facts

This Court should grant review because lower

courts need guidance on how to determine

jurisdictional facts on a pretrial motion to dismiss

with sufficient safeguards for plaintiffs. See Gibbs v.

Buck, 307 U.S. 66, 71-72 (1939) (“As there is no

statutory direction for procedure upon an issue of

jurisdiction, the mode of its determination is left to

the trial court.”). District courts follow various

procedures when dealing with a motion to dismiss

attacking the factual basis of jurisdiction. See

Alliance for Env’l Renewal Inc. v. Pyramid Crossgates

Co., 436 F.3d 82, 87-88 (2d Cir. 2006). For example,

district courts have determined jurisdictional facts on

a motion supported by affidavits, after holding an

evidentiary hearing on the jurisdictional facts, or

making preliminary jurisdictional findings subject to

revision, etc. Jd. However, the wide discretion trial

courts have can allow dismissal of a case prematurely,

particularly when the jurisdictional facts are tied to

the merits of the case.

A. The Seventh Circuit Erred by Relying

on its Own Knowledge of Natural

Processes in the Absence of Facts ia

the Record Contrary to Petitioners’

Jurisdictional Assertions

A plaintiff has to meet different standards as to

the manner and degree of evidence at successive

stages of litigation. Lujan, 504 U.S. at 561. In Lujan,

this Court has said that although the plaintiff has the

ultimate burden to establish jurisdiction, there is a

presumption that applies on a motion to dismiss at

the pleading stage. /d.

At the pleading stage, general factual

allegations of injury resulting from the

defendant’s conduct may suffice, for on a

motion to dismiss we “presume that general

allegations embrace those specific facts that

are necessary to support the claim.” National

Wildlife Federation, supra, at 889. In re-

sponse to a summary judgment motion,

however, the plaintiff can no longer rest on

such “mere allegations,” but must “set forth”

by affidavit or other evidence “specific facts,”

Fed. Rule Civ. Proc. 56(e), which for purposes

of the summary judgment motion will be

taken to be true. And at the final stage, those

facts (if controverted) must be “supperted

adequately by the evidence adduced at trial.”

Gladstone, supra, at 115, n. 31.

Id. The scheme of increasing the burden of proof as

the litigation progresses is generally consistent with

the rules of civil procedure.

In contrast, there is a line of court of appeals

cases holding that when there is a factual attack on

jurisdiction on a motion to dismiss on 12(bX1), no

presumption of truthfulness attaches to the plain-

tiff’s jurisdictional allegations. Mortensen v. First

Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3rd Cir.

1977) (“no presumptive truthfulness attaches to

plaintiff’s allegations, and the existence of disputed

material facts will not preclude the trial court from

evaluating for itself the merits of jurisdictional

claims.”). Thus, under the Mortensen line of cases, on

a motion to dismiss even in early stages of litigation,

the plaintiff must establish the jurisdictional facts

without the benefit of the presumption. See id.

In contrast to a 12(bX6) motion or a summary

judgment motion where the plaintiff’s allegations are

viewed in a light most favorable to the plaintiff, a

12(bX1) motion does not have any procedural safe-

guards for the plaintiff. Jd. at 892. Further, when a

motion to dismiss arises early in litigation, there is a

conflict between the presumption of truthfulness

described in Lujan and the weighing test applied in

the Mortensen line of cases. Lujan, 504 U.S. at 561;

Mortensen, 549 F.2d at 891.

Furthermore, when the facts are closely tied to

the merits of the case, this approach to a motion to

dismiss leaves the plaintiff’s case vulnerable to a

premature dismissal. Moriensen, 549 F.2d at 897-8

(vacating dismissal of plaintiff’s Sherman Act case).

In Mortensen, the court found that dismissing the

case at this early stage of litigation was premature

because the jurisdictional facts were in dispute. Id. at

897-8 (“It is a combination of the timing of the factual

jurisdictional attack, the plaintiff’s having the

burden of proof, and the court’s having a free hand in

evaluating jurisdictional evidence that can unfairly

preclude Sherman Act plaintiffs from reaching the

merits of their cases.”); see also Kerns v. U.S., 585

F.3d 187 (4th Cir. 2009) (holding that dismissal of a

non-frivolous FTCA claim was inappropriate because

an issue is common to both jurisdiction and merits of

the claim).

Furthermore, having a liberal approach to stand-

ing in which courts do not prematurely dismiss cases

is consistent with Congress’ purpose for creating the

citizen suit provisions. Cf. Bennett v. Spear, 520 U.S.

154, 165 (1997) (holding that the citizen-suit

provision of the Endangered Species Act must be

liberally construed to allow for private enforcement

actions). In particular, the citizen suit provision of the

CWA was to allow “citizens to abate pollution when

the government cannot or will not command com-

pliance.” Gwaltney of Smithfield, Lid. v. Chesapeake

Bay Found., Inc., 484 U.S. 49, 62 (1987).

In this case, branches of the government are

continuing to violate the CWA by discharging lead

into Lake Michigan without a permit. One argument

put forth by the DOJ is that there are discrete areas

of the Lake and petitioners lacked standing because

their drinking water supply comes from a different

source than the one used by North Chicago where the

lead impact area is in Lake Michigan. (Def. Mot. Dis.

8-9).

In its dismissal, however, the district court

accepted for the purpose of the motion to dismiss that

the Lake is dynamic but determined that the level of

lead in the water is not sufficient to establish “injury

in fact.” (App. 30a). As argued in the first section,

infra at 7, in the guise of determining jurisdictional

facts, the court was evaluating the merits of the CWA

claim. See id.

It was the Seventh Circuit that for the first time

determined that Lake Michigan does not rotate

counterclockwise so as to bring respondents pollut-

ants towards petitioners’ water intake. (App. lla-

12a).

The district court had granted the motion to

dismiss before the plaintiff had any meaningful

opportunity to develop and present facts as to lake

rotation. The government filed its motion to dismiss

on April 30, 2008, which cut off limited discovery

after just four months of litigation. In particular, the

district court did not hold an evidentiary hearing and

dismissed plaintiffs’ case based on the pleadings,

affidavits, and briefs.

The court of appeals erred by finding its own

jurisdictional facts to deny standing on a motion to

dismiss without any evidentiary support in the

record. See Pollack, 577 F.3d at 741-2. (App. 21a).

Even though appellate courts can affirm the

dismissal for lack of jurisdiction on an independent

basis. (App. 6a) (the standard of review for dismissal

is de novo) appellate courts are not equipped with

fact-finding mechanisms. See Massachusetts v. E.P-A.,

415 F.3d 50, 55 (D.C. Cir. 2005), rev’d Massachusetts

v. E.PA., 127 S. Ct. 1438 (2007) (considering whether

to refer the standing issue to a special master for a

factual determination). As a result, this Court’s

guidance on the proper method for determining

jurisdictional facts will be helpful.

The Seventh Circuit held that petitioners failed

to establish that there is a southward littoral drift

that could carry the pollutants. Pollack, 577 F.3d at

741. (App. lla-12a). Furthermore, the Seventh

Circuit asserted the conditions on the Lake are not as

dynamic as air pollution. Jd. However, as the con-

curring judge points out, the majority does not have a

basis for this assertion. (App. 2la) (Cudahy, J., con-

curring). In fact, pollution discharged in Milwaukee

has been shown to travel 25 miles to injure plaintiffs

residing in Illinois. See Illinois v. Milwaukee, 599 F.2d

151, 168-9, 176 (7th Cir. 1979) (finding that testimony

established that southerly currents are strong enough

to carry pathogens from Milwaukee into Illinois in

less than four days), rev’d Illinois v. Milwaukee, 451

U.S. 304, 332 (1981).

Petitioners had alleged that the bullets dis-

charged into Lake Michigan in North Chicago by

defendants would affect their water supply by

implying that the Lake is dynamic. (Pls.’ Reply, Mot.

Prelim. Inj. 8) (“ ... the permanence of bullets in the

underwater environment presents an ongoing and

continuous source of degradation to the general water

supply.”).

The DOJ provided no evidence to support its

discrete lake theory, did not depose any members of

petitioners’ organization to develop facts regarding

the reasonableness of their beliefs, and in fact

withheld evidence showing it knew the littoral drift

in the area is from north to south. (En Banc Pet. for

Reh’g 1-3). The DOJ’s clever argument was that

petitioners failed to prove lake rotation even though

it knew it to be true. See id. at 2.

The district court did not determine if the

pollutants could travel to the plaintiffs’ water supply.

(App. 30a) (assuming arguendo “that the movement

of the lake’s water could cause contaminants found

Near North Chicago [FBI facility] to migrate to

Highland Park [plaintiff’s residence]”).

As a result, this Court should reverse the

decision below and establish that courts’ discretion to

determine jurisdictional facts does not go so far as to

deny standing without support in the record.

B. If This Court Does Not Act, the Respon-

dents Will Benefit from Withholding

Evidence Supporting Petitioners’

Standing

This Court has supervisory jurisdiction over

proceedings in all federal courts to ensure that no

party unfairly profits from perjury or obstruction of

justice. See Mesarosh v. U.S., 352 U.S. 1, 10-14 (1956)

(reversing defendants’ convictions and granting a new

trial where there was evidence that a defense witness

had testified untruthfully in another proceeding). The

Court described its supervisory power:

Mazzei, by his testimony, has poisoned the

water in this reservoir, and the reservoir

cannot be cleansed without first draining it

of all impurity. This is a federal criminal

case, and this Court has_ supervisory

jurisdiction over the proceedings of the

federal courts.” If it has any duty to perform

in this regard, it is to see that the waters of

justice are not polluted. Pollution having

taken place here, the condition should be

remedied at the _ earliest opportunity.

(Footnote omitted in printing.).

Id. at 14. Furthermore, state courts also recognize the

need to take action when perjury threatens truth-

seeking in judicial proceedings. See People v. Cornille,

95 [ll.2d 497, 508, 515 (1983) (holding that defendant

is entitled to a new trial based on false testimony

offered by the prosecution). This Court has a duty to

exercise its supervisory power to remedy a situation

where a party has benefited from obstruction of

justice.

In this case, the respondents withheld evidence

from the court that would establish there is

southward littoral drift in Lake Michigan. (En Banc

Pet. for Reh’g 3). Petitioners had made several

motions to compel in the district court for a 1986

Navy environmental assessment but respondents

refused to turn over the entire 175-page document

except for the 19 pages it deemed relevant. Jd. at 2-3.

After the appellate decision, petitioners were able to

locate a complete version of this document at U.S.

E.P.A. headquarters library. Jd. at 3, n.1. One of the

withheld pages stated the littoral drift in the area is

from north to south. /d.

Despite this knowledge, respondents had denied

at oral argument that they were aware of the

southward drift. Id. at 2. By denying critical facts

that it knows to be true and asserting legal theories

in reliance of the truth being withheld, the DOJ has

obstructed justice and perpetrated a clever fraud on

both petitioners and the courts. If the government

knew petitioners’ jurisdictional assertion was true

that the Lake drifts from the firing range toward

petitioners’ water supply, then there was no challenge

as to that fact under 12(b)(1) for the court to decide.

Even so, petitioners’ petition for rehearing by panel or

en banc was denied. (App. 36a-37a). The Seventh

Circuit was not interested in seeing justice prevail or

even correcting its own error as to lake rotation and

the government was able to retain its win. Id.

There is no precedent for a party to be allowed to

continue discharging pollutants into water because a

plaintiff lacked standing. It is disturbing that the

first instance involves the government and the courts

are looking the other way despite evidence of

obstruction of justice by the government attorneys.

CONCLUSION

This petition for a writ of certiorari should be

granted.

Respectfully submitted,

STEVEN B. POLLACK

Attorney

January 2010

In the

United States Court of Appeals

For the Seventh Circuit

No. 08-3857

STEVEN B. POLLACK AND BLUE Eco LEGAL COUNCIL,

Plaintiffs-Appellants,

UNITED STATES DEPARTMENT OF JUSTICE, et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 08-CV-00320-Ronald A. Guzman, Judge.

ARGUED May 8, 2009 — DECIDED AUGUST 13, 2009

Before CUDAHY, MANION, and TINDER, Circuit

Judges.

MANION, Circuit Judge. The United States

government operates a gun range on the shores of

Lake Michigan. The plaintiffs brought suit against

several governmental agencies, alleging that the

discharge of bullets into the lake violates various

environmental laws. The district court dismissed the

suit for want of jurisdiction after concluding the

plaintiffs lacked constitutional standing. The plain-

tiffs appeal, and we affirm.

In 1918, the United States Navy and Marine

Corps began operating a gun range in North Chicago,

Illinois. Over the years, many discharged lead bullets

from the range landed in an area of Lake Michigan

covering 2,975 acres. The military used the site until

1976 when the Federal Bureau of Investigation

(“FBI”) leased the range. The FBI bought the site in

1987. At some point the range was improved by

adding an earthen berm backstop to prevent bullets

from landing in the lake. Despite the berm, some

bullets escaped into Lake Michigan and nearby Foss

Park.’

In addition to this gun range, the government

also operated a shotgun range on the site. Pellets

from the shotguns landed in Lake Michigan.

However, the government no longer operates a

shotgun range there. Additionally, in 2006 the United

States Coast Guard conducted live-fire exercises from

boats on Lake Michigan using lead bullets and bullets

from those exercises landed in the water. Lead is a

' After the FBI learned of bullets entering Foss Park, it

closed the range in April 2008. The FBI improved the range and

undertook further studies to prevent bullets from entering the

park. According to a May 11, 2009, letter sent to the court, the

FBI intends to reopen the range at the earliest possible date.

toxic substance and, if ingested in sufficient quan-

tities, poses a threat to human health.

Plaintiff Steven Pollack is an attorney who lives

in Highland Park, Illinois, thirteen miles south of the

range. He is the executive director of plaintiff Blue

Eco Legal Council (“Blue Eco”), an environmental

group “with an interest in the environmental safety of

the Great Lakes watershed,” that, among other

things, sues private and governmental polluters to

enforce environmental laws. Pollack and Blue Eco

brought this suit against the United States Depart-

ment of Justice, the United States Coast Guard, the

United States Department of the Navy, the United

States Marine Corps, and the United States Depart-

ment of Defense. The plaintiffs alleged that the

deterioration of the lead bullets in the water harmed

the environment, in violation of the Clean Water Act,

the Resource Conservation and Recovery Act, the

Comprehensive Environmental Response, Compensa-

tion, and Liability Act, and state nuisance law.

Pollack and Blue Eco sought $55.2 million in dam-

ages: $35.2 million to pay a private company to

remove bullets from the lake bottom and $20 million

in tort damages for public nuisance to fund a

“supplemental environmental project” to be admin-

istered by environmental groups chosen by the court.

To establish standing, the plaintiffs relied on

affidavits submitted by Pollack and another Blue Eco

member, Darren Miller, who is also a resident of

Highland Park. Pollack’s affidavit stated that he

enjoyed watching birds in the Great Lakes water-

shed, visited public parks along the Lake Michigan

shoreline, drank water from Lake Michigan at his

home in Highland Park, and ate freshwater and

ocean fish. Miller’s affidavit was nearly identical to

Pollack’s.

The defendants moved for dismissal under

Federal Rule of Civil Procedure 12(bX1), arguing that

the court lacked subject-matter jurisdiction because

Pollack and Blue Eco did not possess constitutional

standing to assert their claims. The district court

granted the motion, concluding first that Pollack and

Miller’s concern over drinking water did not provide

standing because the drinking water in Highland

Park was below the environmental limit on lead

pollution allowed by the city government, thereby

negating any claim of harm by Pollack and Miller.

Moreover, the district court held that their concerns

over birds, fish, and wildlife were too general and did

not allege any particular or specific harm that had

been caused by the bullets. The district court

concluded that because Pollack and Miller did not

possess standing, Blue Eco did not possess standing

on their behalf. Accordingly, the district court

dismissed the suit for lack of subject-matter juris-

diction. The plaintiffs appeal.

Il.

At issue in this case is Pollack’s and Blue Eco’s

constitutional standing to bring this lawsuit. Under

Article III of the Constitution, federal courts are

limited to hearing “Cases” and “Controversies.” This

provision limits the judicial power “to the traditional

role of Anglo-American courts, which is to redress or

prevent actual or imminently threatened injury to

persons caused by private or official violation of law.”

Summers v. Earth Island Inst., __._ U.S. ___, 129

S. Ct. 1142, 1148 (2009). This restriction on the power

of the courts “‘is founded on concern about the proper

~ and properly limited — role of the courts in a

democratic society.’” Id. (quoting Warth v. Seldin, 422

U.S. 490, 498 (1975)). Permitting a court to decide a

case where the plaintiff does not have standing would

“allow| | courts to oversee legislative and executive

action” and thus “significantly alter the allocation of

power ... away from a democratic form of govern-

ment.” Jd. at 1149 (quotation omitted).

In order to show standing,

a plaintiff must show that he is under threat

of suffering “injury in fact” that is concrete

and particularized; the threat must be actual

and imminent, not conjectural or hypo-

thetical; it must be fairly traceable to the

challenged action of the defendant; and it

must be likely that a favorable judicial

decision will prevent or redress the injury.

Id.; accord Sierra Club v. Franklin County Power of

ll, LLC, 546 F.3d 918, 925 (7th Cir. 2008). An

organization has standing when any of its members

has standing, the lawsuit involves interests “germane

to the organization’s purpose,” and neither the claim

asserted nor the relief requested requires an

individual to participate in the lawsuit. Sierra Club,

546 F.3d at 924. At issue here is (a) whether Pollack

has standing; and (b) whether Blue Eco has standing

through Pollack or Miller. The plaintiffs bear the

burden of proving standing. Wisconsin Right to Life,

Inc. v. Schober, 366 F.3d 485, 489 (7th Cir. 2004). We

review a district court’s decision on standing de novo.

Id.

Several Supreme Court decisions guide our

analysis. In Summers, several environmental organ-

izations challenged a decision of the United States

Forest Service to permit a salvage sale of 238 acres of

timber in Sequoia National Forest that had been

damaged in a fire, without providing notice, a period

for public comment, or an appeal process. 129 S. Ct.

at 1147-48. The Forest Service acted according to its

own regulations, which permit it to exempt from

these requirements salvage sales of timber located on

less than 250 acres. Jd. at 1147. The environmental

organizations filed suit to challenge the regulations.

Id. at 1149. The organizations contended they pos-

sessed standing based on their members’ “recreational

interest in the National Forests.” Jd. at 1149. The

government conceded that one member of the

organizations had standing to challenge the sale of

the 238 acres and the parties settled the claim

relating to that particular salvage sale. Id. The

organizations still asserted the facial challenge to the

regulations themselves. The organizations submitted

an affidavit of Jim Bensman, who asserted “that he

has visited many National Forests and plans to visit

several unnamed National Forests in the future.” Jd.

at 1150. Summers held that this affidavit was

insufficient to provide standing, stating that it failed

“to allege that any particular timber sale or other

project claimed to be unlawfully subject to the

regulations will impede a specific and concrete plan of

Bensman’s to enjoy the National Forests.” Id. Al-

though Bensman’s affidavit did reference particular

sales in the Allegheny National Forest, there was no

“firm intention” to visit that area. Id. Summers stated

that “[t]his vague desire to return is insufficient to

satisfy the requirement of imminent injury.” Jd. at

1150-51.

Conversely, the Supreme Court found standing to

sue in Friends of the Earth, Inc. v. Laidlaw Envi-

ronmental Services, 528 U.S. 167 (2000). In Laidlaw,

a wastewater treatment plant obtained a state permit

to discharge treated water containing known pollu-

tants into a river. Id. at 175-76. Three environmental

organizations sued, basing their standing on

members affected by the pollution. For example, one

member stated that she lived two miles from the river

and that she had picnicked, walked, watched birds,

and waded in the river before the pollution and

because of the pollution had since ceased those

activities. Id. at 182. Laidlaw held that this and

similar statements “adequately documented injury in

fact.” Id. at 183. Laidlaw explained that “environ-

mental plaintiffs adequately allege injury in fact

when they aver that they use the affected area and

are persons for whom the aesthetic and recreational

values of the area will be lessened by the challenged

activity.” Id.

On the other hand, the Supreme Court held that

environmental plaintiffs did not have standing in

Lujan v. National Wildlife Federation, 497 U.S. 871

(1990). In Lujan, an environmental organization

challenged a governmental action that allegedly

opened public lands for mining. Jd. at 879. The

affidavit of one member stated:

My recreational use and aesthetic enjoyment

of federal lands, particularly those in the

vicinity of South Pass-Green Mountain,

Wyoming have been and continue to be

adversely affected in fact by the unlawful

actions of the Bureau and the Department.

In particular, the South Pass-Green

Mountain area of Wyoming has been opened

to the staking of mining claims and oil and

gas leasing, an action which threatens the

aesthetic beauty and_ wildlife habitat

potential of these lands.

Id. at 886 (emphasis added). Lujan held that

standing was not established by “averments which

state only that one of respondent’s members uses

unspecified portions of an immense tract of territory,

on some portions of which mining activity has

occurred or probably will occur by virtue of the

governmental action.” Jd. at 889.

In addition to these Supreme Court cases,

Pollack directs our attention to our recent decision in

Sierra Club v. Franklin County Power of Ill., in which

we held that an environmental organization

possessed standing to seek an injunction against a

power company that had obtained a state permit to

build a coal power plant in southern Illinois. 546 F.3d

at 923. The environmental organization claimed

standing based on a member who had vacationed

every two years since 1987 on a lake three miles from

the proposed site. Id. at 925. The member stated that

she fished, kayaked, camped, and enjoyed the beauty

of the lake, and that she would cease her trips if the

power plant was built. Jd. Franklin County held that

the member had established injury-in-fact based on

her “likely exposure” to pollutants from the coal

power plant and the cessation of her vacation trips.

Id. at 925-26. Moreover, the claimed injury was fairly

traceable to the proposed power plant. Although the

extent of pollution was unclear, we stated:

We agree that no one knows the ultimate

magnitude of McKasson’s injury — for

example, we don’t know if the particulate

matter from the plant will blot out the sky or

merely create a thin haze that’s not visible to

the naked eye, or if the airborne mercury will

actually spread 45 miles to poison fish that

McKasson currently consumes from a pond

near her home (which is another harm she

claims she will suffer). We do know, however,

that the plant will release some pollutants

and that McKasson believes these pollutants

will ruin her ability to enjoy Rend Lake and

taint the surrounding area.

10a

Id. at 927. Accordingly, we held that the member and

thus the plaintiff organization had standing to

challenge the building of the power plant.

Pollack also relies heavily on Friends of the

Earth, Inc. v. Gaston Copper Recycling Corp., 204

F.3d 149 (4th Cir. 2000), in which the Fourth Circuit

held that two individuals had standing to sue a

smelting plant that was dumping pollutants

upstream from them. One individual owned a home

on the affected water where he fished, swam, and

boated. Jd. at 152-53. Another individual operated a

canoeing company on the polluted river. Jd. at 153.

Based on these individuals’ standing, Gaston Copper

held that their organizations had standing to

challenge the release of the pollutants. Jd. at 160.

As noted above, in this case Blue Eco bases its

standing on nearly identical affidavits from two of its

members, Pollack and Miller. Pollack essentially

claims four injuries: (1) that he drinks water drawn

from Lake Michigan for Highland Park and “other

local municipalities” and the shooting of lead bullets

pollutes this water; (2) that he enjoys “watching

wildlife in the Great Lakes watershed” and that he “is

concerned” about the effect on birds from the

shooting; (3) that he enjoys “the public areas along

the Illinois portion of Lake Michigan” and he is

concerned that people in Foss Park and the adjoining

beach will be hurt, thereby making it “less likely that

[he] will visit” that park; and (4) that he enjoys

“eating freshwater and ocean fish” and he is

concerned that bullets fired into the water will

lla

“enter| | the water column and bioaccumulatie] in

the tissues and organs of fish,” thereby lessening his

desire to eat fish.

Pollack’s intention to drink water and his fear

that his water has been contaminated by lead from

bullets does not give rise to standing. He relies on

Franklin County and Gaston Copper to argue that his

drinking water taken from Lake Michigan gives him

standing. However, this case is materially distin-

guishable from those because Pollack is not down-

stream from the alleged pollutants and it is unclear

whether their presence affects him. In Gaston Copper,

the individuals were downstream from the entry

point for the pollutants. Here, the ricocheting bullets

from the Foss Park site and the shotgun range enter

Lake Michigan at North Chicago, Illinois. Highland

Park is approximately thirteen miles from North

Chicago and draws its water from a different section

of Lake Michigan than North Chicago. It is unclear if

any pollution from bullets discharged into Lake

Michigan will travel the thirteen miles from Foss

Park to Highland Park. To clarify this point, Pollack

alleges that sediment in the region travels in a

counter-clockwise direction, from Foss Park to High-

land Park, and cites a report of the Environmental

Protection Agency. However, that report does not

suggest that such a pattern of movement exists. See

U.S. Envtl. Prot. Agency & Govt of Canada, The

Great Lakes: An Environmental Atlas and Resource

Book, ch. 2, §4 (3d ed. 1995), available at http://

www.epa.gov/ginpo/atlas/index.html. Hence, Pollack

12a

has not satisfied his burden of showing that decaying

bullets near North Chicago will affect his water

supply in Highland Park. Pollack’s belief that the

bullets affect him is also unlike the air pollution at

issue in Franklin County, because it is commonly

understood that air pollution can travel three miles

through the air and different wind conditions could

easily blow the pollution onto land at that distance.

In contrast, it is not readily apparent that Pollack

would be affected by the shooting at issue here.

Taken to its extreme, Pollack’s argument would

permit any person living on or near Lake Michigan to

assert that he has been harmed by the bullets,

because the lead could potentially have been carried

to every part of the lake. However, Lujan makes clear

that when a vast environmental area is involved and

the pollution affects one discrete area while a plaintiff

intends to visit a different discrete area, that plaintiff

does not have standing. Similarly, Pollack drinks

treated water from one discrete area while the

defendants’ activities affect a different discrete area.

Without some support for the assertion that he will

be affected by the drift of polluted sediment or water,

Pollack has not shown that he has standing to pursue

this lawsuit. Thus, because it is not readily apparent

that Pollack would be affected by the discharge of

bullets, he does not have standing based on Highland

Park’s drinking water taken from Lake Michigan.

Similarly, Pollack has failed to connect his desire

to eat fish with the bullets in the water. For one, his

desire to eat ocean fish is not implicated because

13a

Lake Michigan is not the ocean. Moreover, Pollack

never avers that he will eat fish from Lake Michigan

itself; instead, he refers generally to “freshwater

fish.” Hence, Pollack has not even claimed that he

will eat fish from the affected region. This statement

is unlike Laidlaw and Franklin County, where the

individuals actually used the areas affected by

pollution. Indeed, Pollack’s averment that he eats

freshwater fish from some unnamed source is less

suggestive of standing than the statements in Lujan

and Summers, where the individuals at least visited

the general region affected by pollution. Accordingly,

Pollack’s intention to eat freshwater fish from an

unspecified source does not provide a basis for

standing to sue.

Pollack’s desire to view wildlife and to visit local

parks may both be considered a claim that he will

suffer aesthetic harm from the gun range. While the

Supreme Court clearly recognizes that aesthetic

harms may give rise to standing, Summers, 129 S.Ct.

at 1149, Lujan and Summers demonstrate that a

plaintiff must show that he has actual aesthetic

interest in the area affected by the pollution. When

governmental action affects a discrete natural area,

and a plaintiff merely states that he “uses unspecified

portions of an immense tract of territory,” such

averments are insufficient to establish standing.

Lujan, 497 U.S. at 889. Here, Pollack claims

generally that he enjoys watching birds in the “Great

Lakes watershed” and visiting public parks “along

the Illinois portion of Lake Michigan.” However, he

l4a

never claims that he visits Foss Park or watches

birds in that area.’ Instead, Pollack claims that he

visits parks and watches birds within a vast territory.

This claim is similar to the statements in Lujan and

Summers, where the individuals never claimed to

have a specific interest in the actual area affected by

pollution. Summers, 129 S.Ct. at 1150; Lujan, 497

U.S. at 886. Pollack fails to demonstrate that his

interest in bird-watching along an unspecified portion

of the Great Lakes watershed — a region stretching

from Minnesota to New York — will be affected by the

shooting activities in a confined area of North

Chicago. Similarly, the section of Lake Michigan

bordering Illinois stretches for approximately 70

miles, and Pollack never specifies where along that

shoreline he visits. Accordingly, his generalized

statements that he visits the Illinois shoreline of

Lake Michigan and watches birds in the Great Lakes

watershed do not give rise to standing to challenge

the shooting activities at issue here.

In short, Pollack’s and Miller’s interests are too

generalized to give rise to standing. “At bottom [the

plaintiffs] appear to seek the simple satisfaction of

? Although Pollack visited Foss Park after he commenced

suit, a plaintiff must establish standing at the time suit is filed

and cannot manufacture standing afterwards. Laidlaw, 528 U.S.

at 180 (stating that the court considers whether a plaintiff had

standing “at the outset of the litigation”); Perry v. Village of

Arlington Heights, 186 F.3d 826, 830 (7th Cir. 1999) (stating that

“[t]he requirements of standing must be satisfied from the

outset”).

15a

seeing the [environmental] laws enforced.” Jaramillo

v. FCC, 162 F.3d 675, 677 (D.C. Cir. 1998). However

meritorious their case may be, the plaintiffs lacked a

constitutional basis to bring this lawsuit.

ITI.

Because neither Pollack nor Miller has

demonstrated that they were concretely affected by

the shooting activities they challenge, neither

individual has standing to pursue this case.

Accordingly, neither Pollack nor Blue Eco has

standing. The district court’s dismissal of this suit for

lack of subject-matter jurisdiction is AFFIRMED.

CupDAHY, Circuit Judge, concurring. This is

without question a close case. As the case law laid out

by the majority suggests, “injury in fact” can be an

elusive phenomenon. Although in the present case an

injury is arguably traceable to the deposit of toxic

substances in potable water, such phenomena appear

and disappear from one case to the next depending on

subtle twists in the allegations, turning between the

real and the hypothetical. Compare generally Lujan v.

Defenders of Wildlife, 504 U.S. 555 (1992) (Scalia, J.),

and Summers v. Earth Island Institute, __ U.S. ___,

129 S.Ct. 1142 (2009) (Scalia, J.), with Friends of the

Earth v. Laidlaw, 528 U.S. 167 (2000) (Ginsburg, J.).

I write separately to make the point that the

Supreme Court’s case law on this subject is both

unclear in purpose and extraordinarily difficult to

16a

reconcile. Close cases like this one ought to make that

point clearly. In particular, where a citizen-suit

provision potentially sets the bar for proving the

merits lower than the bar for proving standing, it is

incumbent upon us to carefully examine why the

plaintiff before us either has or has not established

“injury in fact.” Perhaps more important, this

plaintiff’s case has procedural flaws not addressed by

the majority.

The Clean Water Act includes a citizen-suit

provision stating that “any citizen may commence a

civil action on his own behalf against any person ...

who is alleged to be in violation of an effluent

standard or limitation under this chapter.” 33 U.S.C.

§ 1365(aX1). An “effluent standard or limitation” is

defined to include any term or condition of an

approved permit. See id., § 1365(f). Citizens are

therefore authorized to bring suit against any

NPDES permit holder who has allegedly violated its

permit. See Friends of the Earth, Inc. v. Gaston

Copper Recycling Corp., 204 F.3d 149, 152 (4th Cir.

2000). The Act also includes a statutory standing

requirement, which defines “citizen” as “a person or

persons having an interest which is or may be

adversely affected.” 33 U.S.C. § 1365(g). Congress has

explained that this standing requirement confers

standing to its constitutional limits. See Gaston

Copper, 204 F.3d at 152 (citation omitted). Even so,

the broad nature of the citizen-suit provision means

that in many cases, like this one, the real test will be

proof of standing, not of the merits.

17a

To have standing under the “case or controversy”

requirement of Article III of the Constitution, an

individual must show an injury in fact that is both

concrete and particularized and actual or imminent,

not conjectural or hypothetical; that the injury is

traceable to the challenged action; and that it is

redressable. Defenders of Wildlife, 504 U.S. at 560-61;

Sierra Club v. Franklin County Power of Illinois,

LLC, 546 F.3d 918, 925 (7th Cir. 2008) (Franklin

County Power). “Because these elements ‘are not

mere pleading requirements but rather an

indispensable part of the . . . case, each element must

be supported ... with the manner and degree of

evidence required at the successive stages of the

litigation.’” Franklin County Power, 546 F.3d at 925

(quoting Defenders of Wildlife, 504 U.S. at 560-61).

Though the test for showing injury in fact is easy

enough to state, it is almost hopelessly confusing to

apply. We are told that “environmental plaintiffs

adequately allege injury in fact when they aver that

they use the affected area and are persons ‘for whom

the aesthetic and recreational values of the area will

be lessened’ by the challenged activity.” Laidlaw, 528

U.S. at 183 (quoting Sierra Club v. Morton, 405 U.S.

727, 735 (1972)). “Of course, the desire to use or

observe an animal species, even for purely esthetic

purposes, is undeniably a cognizable interest for

purposes of standing.” Defenders of Wildlife, 504 U.S.

at 562-63 (citing Morton, 405 U.S. at 734). But the

injury in fact test requires more than an injury to a

cognizable interest. It requires that the plaintiff be

18a

“among the injured.” Jd. Nevertheless, the “‘injury-in-

fact necessary for standing need not be large, an

identifiable trifle will suffice.” Franklin County

Power, 546 F.3d at 925 (quoting LaFleur v. Whitman,

300 F.3d 256, 270 (2d Cir. 2002)) (further internal

quotation marks and citations omitted). These

statements raise more questions than they answer.

What is the “affected area”? How do we determine

whether someone’s aesthetic or recreational values

will be “lessened” other than by their say-so? What

counts as a “trifle” sufficient to place someone “among

the injured”?

This guidance is particularly difficult to follow

where the plaintiff is on the bubble: Pollack does not

live in North Chicago, where the drinking water is

concededly drawn from the “affected area” of the lake,

but he doesn’t live in East Chicago’ either, or even as

far as Evanston.’ Is Highland Park, thirteen miles

away, close enough to be “among the injured”?

The majority recites the relevant case law

without really engaging with it in a way that gives an

answer to this question. The majority quotes

Franklin County Power at length, for instance,

including the court’s explanation that, although “we

don’t know if the particulate matter from the plant

will blot out the sky or merely create a thin haze

* East Chicago, Indiana is 60 miles south of the gun range

by car

* Evanston, Illinois is 26 miles south of the gun range.

19a

that’s not visible to the naked eye, .... [wje do know

... that the plant will release some pollutants and

that McKasson believes these pollutants will ruin her

ability to enjoy Rend Lake and taint the surrounding

area.” Franklin County Power, 546 F.3d at 927. The

same can be said here — we know that the gun range

has discharged lead in the lake, and we know that

Pollack believes that lead in the lake will ruin his

ability to enjoy drinking his water, eating fish and

watching waterfowl in the Great Lakes watershed. In

fact, this case is arguably an easier case for standing

than Franklin County Power. There, the power plant

in question had yet to be built — the injury was,

almost by definition, hypothetical. Here, not only has

the firing range admitted to discharging lead into the

lake, it has admitted to doing so without a permit

over the course of decades. And whatever else can be

said about Pollack’s injury, it is beyond cavil that lead

is a toxic substance that even in very small amounts

causes harm when ingested by the human body. The

majority appears to depart from Franklin County

Power’s capacious standard, and to settle on a

narrower, more demanding requirement.

This is particularly unfortunate here, where the

plaintiffs’ case is flawed for procedural reasons that

may not require us to revisit Franklin County Power’s

recent pronouncements on standing. The plaintiffs

arguably failed to meet their burden of proof. Pollack

correctly argues that he need not show environmental

degradation to establish standing for a permit

violation under the Clean Water Act. See Gaston

20a

Copper, 204 F.3d at 159. “(T]he Supreme Court does

not require such proof.” Jd. Gaston Copper explained

that, in Laidlaw, the Court found that “several citizen

affidavits attesting to reduced use of a waterway out

of reasonable fear and concern of pollution

‘adequately documented injury in fact.’” Id. (quoting

Laidlaw, 528 U.S. at 183). “The Court required no

evidence of actual harm to the waterway ... ” Id.

Nevertheless, because the defendants here have

challenged the factual basis for the plaintiffs’

standing to sue, Pollack was required to present some

competent proof of his injuries, and his proof is

subject to refutation by the defendants.

On a factual challenge to a plaintiff’s standing,

“‘the district court may properly look beyond the

jurisdictional allegations of the complaint and view

whatever evidence has been submitted on the issue to

determine whether in fact subject matter jurisdiction

exists.’” Apex Digital, Inc. v. Sears, Roebuck & Co.,

572 F.3d 440, AT *3 (7th Cir. 2009) (quoting Evers v.

Astrue, 536 F.3d 651, 656-57 (7th Cir. 2008)) (further

internal quotation marks and citations omitted).

Indeed, “‘the trial court is free to weigh the evidence

and satisfy itself as to the existence of its power to

hear the case.’” Id. (quoting Mortensen v. First Fed.

Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977)).

Again, it is undisputed that the defendants regularly

discharged lead bullets into Lake Michigan without a

permit and that lead is a toxic chemical that can

affect drinking water. The narrow question is

21a

whether Pollack had a “reasonable fear” that his

drinking water was unsafe.

Pollack presented evidence of the “dynamic

nature” of the waters in Lake Michigan, suggesting

that the lead in the water next to North Chicago can

migrate thirteen miles south to Highland Park. The

majority brushes this evidence aside, stating that the

EPA report Pollack offered in support does not say

what he said it says. The majority asserts that “it is

commonly understood that air pollution can travel

three miles through the air... . [but] it is not readily

apparent that Pollack would be affected by the

shooting at issue here.” Supra at 11. The majority

goes outside the record and cites no authority for its

assertion regarding what is commonly understood

about air pollution. Even accepting this assertion, it

is also commonly understood (at least among boaters

in Lake Michigan) that the currents at the foot of the

lake, as distinguished from the larger body of water

generally, do travel counter-clockwise at least part of

the year, and therefore the plaintiffs’ logic does not

implicate the entire lake or every point on its

shoreline. It also misses the mark to take Pollack’s

argument “to its extreme” and to posit whether

someone on the other side of Lake Michigan would

have standing here — Pollack is the plaintiff before us,

and the facts and circumstances of his case, namely

his distance thirteen miles from the source of

pollution, are what we must address. Setting all of

that aside, the district court assumed that Pollack’s

22a

assertions regarding the lake’s currents were true. It

is not for us to find otherwise.*

More to the point is the fact that the defendants

presented their own evidence tending to rebut what

little evidence that Pollack did put forth. The

defendants showed not only that Highland Park

(unlike North Chicago) draws its drinking water from

intakes outside the roughly 3,000-acre area pre-

sumably affected by the firing range, but also that

Highland Park and North Chicago have attributed

the small amount of lead in their drinking water to

corrosive pipes, not to the firing range at issue here.

In this respect, then, our case is unlike Gaston

Copper, where there was competent evidence that the

pollutants in question would travel more than 16

miles downstream, passing through the plaintiff’s

private lake on the way. Here, Pollack’s limited

evidence that lead has traveled or will travel south to

Highland Park and enter the plaintiff’s drinking

water was outweighed in the view of the district court

by the defendants’ evidence of an alternative cause

for lead in — the corrosive pipes just mentioned. The

district court properly exercised its fact-finding role

and concluded that the defendants had rebutted

* The majority also focuses on the fact that the lead level in

Highland Park’s water is not high enough to violate federal

standards. This may be beside the point, given that Pollack was

not required to show any environmental degradation to satisfy

the requirements of standing. See Gaston Copper, 204 F.3d at

160. Lead is toxic in any amount, and the administrative limit

cited by the majority is a practical rather than an ideal ceiling.

23a

Pollack’s evidence of standing. See Apex Digital, Inc.,

572 F.3d 440, at *3. This is what really seems to tip

the balance in Pollack’s case.

Perhaps what we can say here, then, is that the

farther the plaintiff is from the “area of injury,” the

more evidence he generally must put forth to prove

that he is “among the injured.” Perhaps, however,

this case resolves as it does merely because of the

procedural turns it took. If the defendants had made

a facial challenge rather than a factual challenge to

Pollack’s standing, or if Pollack had put forth more

evidence of lead’s likelihood of traveling thirteen

miles south from North Chicago, then the complaint

may have withstood the motion to dismiss. The

caselaw is so unclear, however, that we cannot say

more than that.

Pollack’s claims regarding aesthetic and recre-

ational injuries are less persuasive and the majority

addresses them adequately. Pollack does not allege

that he uses the affected area. See Laidlaw, 528 U.S.

at 183 (quoting Morton, 405 U.S. at 735). Instead, he

says he enjoys watching the wildlife “in the Great

Lakes watershed,” and that he uses public areas

“along the [llinois portion of Lake Michigan,” and

that he enjoys “eating freshwater and ocean fish.”

These interests are far broader than an interest in

the area affected by the firing range, however that

area might be defined. As the district court pointed

out, and the majority reprises, the Illinois shoreline

Pollack claims to use is 61 miles long, and the Great

Lakes watershed encompasses all five of the Great

24a

Lakes and is 750 miles wide. Pollack never alleges

that he used the beach at Foss Park, adjacent to the

range, or any beach near there.

Pollack’s averments are thus barely — but only

barely — insufficient to establish injury in fact, and

unfortunately may impair the salutary significance of

Franklin County Power.

For these reasons, with some reluctance, I

concur.

25a

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

STEVEN B. POLLACK

and BLUE ECO,

LEGAL COUNCIL,

Plaintiffs,

UNITED STATES DE-

PARTMENT OF JUSTICE,

UNITED STATES COAST

GUARD, UNITED STATES

NAVY, UNITED STATES

MARINE CORPS, and

UNITED STATES DE-

PARTMENT OF DEFENSE,

Defendants.

o. 08 C 320

Ronald A. Guzman

a A ae a ae a a _ a 444,444

MEMORANDUM OPINION AND ORDER

(Filed Sep. 12, 2008)

Plaintiffs have sued various departments of the

federal government for their alleged violations of the

Clean Water Act (“CWA”), 33 U.S.C. § 1365, the

Resource Conservation Recovery Act (“RCRA”), 42

U.S.C. § 6972, the Comprehensive Environmental Re-

sponse Compensation and Liability Act (“CERCLA”),

42 U.S.C. § 9659 and for damages under the Federal

Tort Claims Act, 28 U.S.C. § 1346(b). The case is

before the Court on defendants’ motion pursuant to

Federal Rule of Civil Procedure (“Rule”) 12(bX1) to

26a

dismiss the second amended complaint for lack of

subject matter jurisdiction. For the reasons set forth

below, the Court grants the motion.

Facts

Between January 19, and September 12, 2006,

the U.S. Coast Guard discharged 62,584 bullets,

made primarily of lead, into the Great Lakes during

eighteen live-fire training exercises. (Second Am.

Compl. { 5.) Lead is listed as a toxic chemical under

the Emergency Planning and Community Right-to-

Know Act. See 42 U.S.C. § 11002; 40 C.F.R. § 372.65.

The Coast Guard discharged the bullets into the

Great Lakes without a permit under the CWA and

has taken no action to retrieve them. (Second Am.

Compl. 44 7, 13.)

On December 18, 2006, the Coast Guard issued a

press release saying that it had “withdraw[n] the

Notice of Proposed Rulemaking to establish 34 safety

zones for live-fire training on the Great Lakes.” (/d.,

Ex. D, Coast Guard Press Release of 12/1/8/06.) The

release also said that the Coast Guard would “not

conduct live-fire training on the Great Lakes to

satisfy non-emergency training requirements unless

[it] publish[ed] a rule.” (/d.)

On March 10, 2007, plaintiffs submitted a

Freedom of Information Act request to the Justice

Department seeking documents regarding the FBI

firearms training that occurs at the Great Lakes

Naval Base in North Chicago, Illinois. (/d., Ex. F,

27a

Letter from Pollack to FBI of 3/10/07.) In response,

plaintiffs received, among other things, an April 25,

1986 real estate appraisal of the FBI’s North Chicago

facility, which says that the “property has been used

for a firing range since 1918” and uses 2,975 acres of

Lake Michigan as “the impact area for overfiring.”

(Id., Ex. G, Real Estate Appraisal of 4/25/86 at 1-2.)

Consequently, the appraisal states, [hJazardous waste

contamination, primarily from lead, may pose a

threat to ground water and possibly to lake waters.”

(Id. at 1.) Plaintiffs allege that the FBI continues to

use the North Chicago firing range and discharges, or

allows other agencies to discharge, lead bullets into

the lake. Ud. 7 18.)

Plaintiffs also allege that there are two water

intake areas in the range impact area, one of which is

for drinking water used by the city of North Chicago.

(Id. | 21.) The City of North Chicago’s Water Quality

Report for 2006 shows that two of the water sites it

sampled had concentrations of lead in excess of 15

parts per billion (“ppb”), the maximum allowed by

law. ([d., Ex. K, 2006 North Chicago Water Quality

Report.)

Plaintiffs contend that the government’s opera-

tion of the North Chicago firing range violates CWA,

RCRA, CERCLA and constitutes a public nuisance,

and they seek a declaration that defendants have

damaged the water and land surrounding the firing

range, an order requiring them to stop firing lead

bullets into that area and remediate the damage they

have caused, and an award of damages.

28a

Discussion

There are two kinds of Rule 12(bX1) motions:

those that attack the sufficiency of the jurisdictional

allegations and those that attack the factual basis for

jurisdiction. Facial attacks are subject to the same

standard as motions pursuant to Rule 12(bX6) mo-

tions; that is, the Court accepts as true all well-

pleaded factual allegations of the complaint, drawing

all reasonable inferences in plaintiff’s favor. United

Phosphorus, Ltd. v. Angus Chem. Co., 322 F.3d 942,

946 (7th Cir. 2002). However, in factual attacks, like

this one, “the court is not bound to accept the truth of

the allegations in the complaint.” Commodity Trend

Serv., Inc. v. Commodity Futures Trading Comm’n,

149 F.3d 679, 685 (7th Cir. 1998). “Rather, the

plaintiff has the obligation to establish jurisdiction by

competent proof, and the court may properly look to

evidence beyond the pleadings in this inquiry.” Jd.

Defendants argue that the Court lacks jurisdic-

tion over the claims asserted in the second amended

complaint because neither plaintiff has standing to

pursue them. An individual plaintiff has standing to

sue if he suffered a particularized injury, i.e., one that

affects him “in a personal and individual way,” that

is fairly traceable to defendants’ conduct and can

be redressed by a decision in his favor. Lujan uv.

Defenders of Wildlife, 504 U.S. 555, 560-61 & nl

(1992). Defendants say Pollack has not satisfied the

particularized injury element.

29a

With respect to that element, plaintiffs allege

that Pollack “lives several miles south of ... North

Chicago,” which obtains its drinking water from the

firing range impact area and has recently detected

lead in its drinking water. (Second Am. Compl. 44 9,

21-22.) However, the story told by the evidence

plaintiffs submitted is a bit different.

For example, Pollack attests that he lives in

Highland Park, about thirteen miles south of the

North Chicago water intakes. (See Pls.’ Reply Supp.

Mot. Prelim. Inj. at 8; id., Exs., Pollack Aff. { 3.)

Moreover, though Highland Park’s water is drawn

from Lake Michigan, it uses different intake pipes

than those that supply North Chicago. See City of

Highland Park 2008 Drinking Water Quality Report

at 1, available at, http://www.ci.highland-park.il.us/pdf/

pw/waterQualityReport.pdf. Further, Highland Park’s

latest water quality report shows that three of its

sampling sites had lead in excess of the federal limit

of 15 parts per billion (“ppb”), but the overall lead

level in the city’s drinking water is below that level.

Id. at 3.

Plaintiffs do not dispute those facts but point out

that North Chicago’s water has a higher concen-

tration of lead, 11 ppb, than Highland Park’s. (See

Pls.” Reply Supp. Mot. Prelim. Inj., Exs., Ex. K, 2006

North Chicago Water Quality Report.) Given that

fact, and the dynamic nature of the lake’s water, see

U.S. E.PA & Gov't of Canada, Great Lakes: Environ-

mental Atlas and Resource Book, ch. 2, § 4, available

at, http://epa.gov/greatlakes/atlas/index.html, plaintiffs

30a

say the risk that the lead found in North Chicago’s

water will migrate to the intakes for Highland Park

is sufficiently concrete to support the injury com-

ponent of standing.

Assuming, arguendo, that the movement of the

lake’s water could cause contaminants found near

North Chicago to migrate to Highland Park, Pollack

would have standing only if the evidence showed that

the migration has injured him. It does not. On the

contrary, the most recent reports for North Chicago

and Highland Park show that the lead levels in those

cities’ drinking water are 11 ppb and 9.2 ppb,

respectively, well below the 15 ppb limit set by the

government. See City of Highland Park 2008 Drinking

Water Quality Report, available at, http://www.ci.

highland-park.il.us/pdf/pw/waterQualityReport.pdf at

3; (Pls.’ Reply Supp. Mot. Prelim. Inj., Exs., Ex. K,

2006 North Chicago Water Quality Report).

Plaintiffs acknowledge that the reported lead

levels are within governmental limits, but they say

that fact is not dispositive of the injury issue because:

(1) the bullets will continue to degrade as long as they

remain in the lake; and (2) the lead level readings

from North Chicago and Highland Park are “limited

in number and do not account for the ability of lead to

bioaccumulate in tissue and organs.” (Pls.’ Reply

Supp. Mot. Prelim. Inj. at 8.)

Plaintiffs have not, however, offered evidence

that supports those assertions. The 1986 appraisal of

the North Chicago site says that it has been used as a

3la

firing range since 1918, and, as a result, the sur-

rounding land and water are contaminated by lead.

(Second Am. Compl., Ex. G, Real Estate Appraisal of

4/25/86 at 1-2.) If, as plaintiffs assert, lead bullets

continuously degrade when they are in water, then

North Chicago and Highland Park’s historical drink-

ing water quality reports should show a consistent

increase in lead levels. And, perhaps they do. But

plaintiffs have not provided those reports or any

other evidence that shows lead levels have been on

the rise or connects those increases to bullet

degradation. Nor have they shown, through affidavits

or otherwise, that the water tests done by North

Chicago and Highland Park are “limited in number,”

that lead accumulates in human organs and tissue, or

that the 15 ppb lead level established by the

government does not account for that accumulation.

Absent such evidence, plaintiffs have not demon-

strated that Pollack’s drinking water has been or is

likely to be rendered unsafe by defendants’ operation

of the North Chicago range.

Alternatively, Pollack says he has been injured

because: (1) “the enjoyment [he] getis| [from]

observing” the migration of “shorebirds and water

fowl” to and from “the Great Lakes watershed” is

“lessen[ed]” by his “concern [| that the lead muni-

tions . .. will harm (the birds]”; (2) he is “less likely”

to use the “public areas along the Illinois portion of

Lake Michigan” because he fears that “the lead

munitions ... at Foss Park and the beach below the

[range] will harm” visitors to those areas; and (3) his

32a

“desire to consume fish” from “the waters of the

United States” is decreased because he fears the “fish

[are] coming into contact with” water contaminated

by bullets from the North Chicago range. (Pls.’ Reply

Supp. Mot. Prelim. Inj., Exs., Pollack Aff. J] 5-7.)

There is no question that injury to aesthetic

interests, like enjoying wildlife and the natural

environment, can be sufficient to confer standing. See

Sierra Club v. Morton, 405 U.S. 727, 734-35 (1972).

But “injury in fact . . . requires more than an injury to

a cognizable interest. It requires that the party

seeking review be himself among the injured.” Id. at

735 (quotation omitted).

Pollack has not made the requisite showing. He

does not say that he: (1) watches birds that feed at,

nest on or routinely use the land or water near the

range and his pursuit is being tarnished by fear that

the bullets will harm the birds; (2) has stopped using

the land near the range, or uses it less, because of his

fears of contamination; or (3) has stopped consuming,

or decreased his consumption of, Lake Michigan fish

because he fears that the bullets have contaminated

it. Instead, he says that: (1) his enjoyment of avian

migration “from the Great Lakes watershed” is

lessened by his fear that the birds in that area —

which encompasses all five of the Great Lakes and is

750 miles wide, http://epa.gov/greatlakes/basicinfo. html

— are being harmed by bullets from North Chicago;

(2) he is “less likely” to visit any portion of Dlinois’

shoreline, which is sixty-one miles long, see National

Park Service, Great Lakes Shoreline Recreation Area

33a

Survey, at 1, available at, http://www.nps.gov/history/

history/online_books/rec_area_survey/great-lakes/il.htm,

because he fears that people who visit that land will

be harmed by contamination from the range; and (3)

he has less desire to eat fish from U.S. waters, a

source that presumably includes all bodies of water

within or bordering on this country, because he fears

that the fish have been in contact with water

contaminated by bullets from the range. (Pls.’ Reply

Supp. Mot. Prelim. Inj., Exs., Pollack Aff. 7] 5-7.) In

other words, Pollack says he has standing to sue

because defendants have harmed his general interest

in the welfare of the wildlife and environment of the

entire Great Lakes, not because their actions have

harmed him in any personal or individual way as

Article [II requires. See Sierra Club, 405 U.S. at 735

(allegations that land development in a national park

“would destroy or otherwise adversely affect the

scenery, natural and historic objects and wildlife of

the park and would impair the enjoyment of the park

for future generations” did not give the Sierra Club

standing to contest the development because there

was no evidence that its members used the park “in

any way that would be significantly affected by the

proposed” development). Defendants’ motion to

dismiss Pollack’s claims for lack of subject matter

jurisdiction is, therefore, granted.

The result is the same for Blue Eco Legal

Council, “an environmental organization with an

interest in the environmental safety of the Great

Lakes watershed” whose members are “Great Lakes

JAa

residents whose drinking water supply and natural

environment is harmed by Defendants’ actions.”

(Second Am. Compl. { 3.) Blue Eco has standing if:

“(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. Hunt v. Wash. State Apple

Adver. Comm’n, 432 U.S. 333, 343 (1977).

Like Pollack, the other members of Blue Eco

have standing to sue only if defendants’ alleged

actions harm or threaten to harm them in some

concrete way. Pollack, as Executive Director of Blue

Eco, submitted an affidavit that says he and twenty-

seven other people are members of the organization.

(Pls.” Reply Supp. Prelim. Inj., Exs., Blue Eco Aff.

q 7.) As noted above, plaintiffs have not shown that

Pollack has standing, and the record is equally

barren for the other members of the group.’ Because

plaintiffs have not shown that Blue Eco satisfies the

first element of organizational standing, the Court

grants defendants’ motion to dismiss its claims for

lack of subject matter jurisdiction.

’ Plaintiffs submitted the affidavit of only one other Blue

Eco member, Darren Miller, whose injury assertions are

identical to those made by Pollack in paragraphs five and six of

his affidavit. (Compare P\is.’ Reply Supp. Mot. Prelim. Inj., Exs.,

Pollack Aff. 4 5-6, with id., Miller Aff. 44 5-6.)

35a

Conclusion

For the reasons set forth above, the Court grants

defendants’ motion to dismiss the second amended

complaint for lack of subject matter jurisdiction [doc.

no. 47], and strikes as moot plaintiffs’ motions for a

temporary restraining order [doc. no. 27], a pre-

liminary injunction [doc. no. 13] and to expedite the

motion for preliminary injunction [doc. no. 28]. This

case is terminated.

SO ORDERED.

ENTERED: September 12, 2008

/s/ Ronald A. Guzman

HON. RONALD A. GUZMAN

United States District Judge

36a

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

October 14, 2009

Before

RICHARD D. CUDAHY, Circuit Judge

DANIEL A. MANION, Circuit Judge

JOHN DANIEL TINDER, Circuit Judge

No. 08-3857 Appeal from the United

STEVEN B.POLLACK ‘ates District Court for

the Northern District of

and BLUE ECO LEGAL ho Norpro Divison

Plaintiffs-Appellants, No. 08 CV 00320

v Ronald A. Guzman, Judge.

UNITED STATES DEPART-

MENT OF JUSTICE, et al.,

Defendants-Appellees.

ORDER

On consideration of the petition for rehearing en

banc filed by plaintiffs-appellants, no judge in active

service has requested a vote on the petition for

rehearing en banc, and all judges on the original

* Judge Flaum did not participate in the consideration of

this petition for rehearing en banc.

37a

panel have voted to deny rehearing. The petition is

therefore DENIED.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.