326 F.

3d 505

AMERICAN CANOE ASSOCIATION, INCORPORATED;

Professional Paddlesports Association; The Conservation
Council of North Carolina, Incorporated, Plaintiffs-Appellees,
and
United States of America, acting at the request and on behalf of
the Administrator of the United States Environmental
Protection Agency, Plaintiff,
v.
MURPHY FARMS, INCORPORATED, d/b/a Murphy Family
Farms; D.M. Farms of Rose Hill, Defendants-Appellants.
No. 02-1501.

United States Court of Appeals, Fourth Circuit.

Argued: February 28, 2003.
Decided: April 16, 2003.

COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL

OMITTED ARGUED: Richard Edward Schwartz, Crowell & Moring,
L.L.P., Washington, D.C., for Appellants. Carolyn Smith Pravlik, Terris,
Pravlik & Millian, L.L.P., Washington, D.C., for Appellees. ON BRIEF:
Kirsten L. Nathanson, Crowell & Moring, L.L.P., Washington, D.C.;
Jenna F. Butler, Ward & Smith, P.A., Wilmington, North Carolina; Reef
C. Ivey, II, Ward & Smith, P.A., Raleigh, North Carolina, for Appellants.
Bruce J. Terris, Terris, Pravlik & Millian, L.L.P., Washington, D.C., for
Appellees.
Before WIDENER and LUTTIG, Circuit Judges, and BEAM, Senior
Circuit Judge of the United States Court of Appeals for the Eighth Circuit,
sitting by designation.
Affirmed in part and vacated and remanded in part by published opinion.
Judge LUTTIG wrote the opinion, in which Judge WIDENER and Senior
Judge BEAM joined.
OPINION

LUTTIG, Circuit Judge:

The plaintiffs, turned appellees, are several organizations that share the
common goal of maintenance of water quality in North Carolina's streams and
rivers. These organizations brought suit against certain hog farms in North
Carolina, alleging that these farms had violated the Clean Water Act ("CWA"),
33 U.S.C. 1251, et seq., on several occasions by discharging swine waste into
waters of the United States without a National Pollution Discharge Elimination
System ("NPDES") permit. After years of litigation, the parties finally entered
into a consent decree. The plaintiffs' participation in the consent decree was
contingent on their success on two of the defendants' motions that were
pending at that time. The pending motions challenged the district court's Article
III jurisdiction and its jurisdiction under the citizen-suit provision of the CWA.
The district court resolved both motions in favor of the plaintiffs and this
appeal followed. We conclude that, although the district court erred in denying
the defendants' standing motion, the court's decision on the merits of the
standing issue was correct in light of all of the evidence before it, and
accordingly we affirm. The district court failed, however, to make the requisite
findings necessary to establish CWA jurisdiction. We vacate and remand on
that issue to allow the district court to follow the appropriate procedures.

I.
2

The present iteration of this case, much like the parties' prior appeal to this
court, is largely concerned with procedural matters. Before explaining in detail
the procedural posture of this case, we briefly describe the facts and allegations
that form the basis of this lawsuit.

D.M. Farms of Rose Hill, L.L.C. and Murphy Farms, Inc. (collectively the
"Farms" or "defendants") jointly operate sow farms in North Carolina. Five of
the defendants' sow farms are involved in this case, the Magnolia 4, Melville 1
and 2, Dell, and Section 1 site 4 farms (collectively "Mag 4"). All five farms
share a waste management system. The waste management system consists of
lagoons, at least one for each farm, into which hog waste is flushed from the
barns that house the animals. The waste and rainfall that accumulates in the
lagoons is pumped through a piping system and sprayed onto the fields as
fertilizer.

Before the commencement of this suit, the Farms operated under a North
Carolina Department of Environment and Natural Resources ("DENR") Animal
Waste Management Plan, which prohibited animal waste discharges to surface

waters. As the Farms were regulated by DENR, they had not applied for a
NPDES permit for the purpose of making discharges from Mag 4.
5

It is undisputed that on two occasions prior to the commencement of suit, while

operating under the DENR Animal Waste Management Plan, there were
unauthorized discharges of animal waste into waters of the United States from
Mag 4 as a result of runoff from spraying the fields. The first identified
discharge occurred on November 25, 1996. DENR discovered that wastewater
from the Farms' fields was running into a tributary of Six Runs Creek.1 In July
1997, the Farms once again discharged hog waste into a tributary of Six Runs
Creek. Consistent with DENR's philosophy that an entity could correct the
discharge problem in lieu of applying for a permit, at no time did DENR require
the Farms to apply for an NPDES permit.

On January 16, 1998, the American Canoe Association, Incorporated, the

Professional Paddlesports Association, and The Conservation Council of North
Carolina, Incorporated (collectively "ACA" or "plaintiffs")2 filed suit against
the Farms under section 505(a) of the CWA, the citizen-suit provision. See 33
U.S.C. 1365(a) (providing 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"). ACA first alleged that the
Farms continuously violated the CWA by failing to obtain an NPDES permit
after making unauthorized discharges. Second, ACA claimed that the Farms
violated the CWA each time they discharged without such a permit. The
Environmental Protection Agency later intervened as a plaintiff in the action.

On April 13, 1998, ACA moved for a declaratory judgment from the district
court that they had standing to maintain the action. The parties briefed the issue
and on September 2, 1998, the court issued what it styled a "Declaratory
Judgment on Standing," in which it concluded that the plaintiffs had established
standing.

ACA subsequently filed a motion for a preliminary injunction prohibiting the

Farms from operating the MAG 4 facility in violation of the CWA and
requiring the Farms to obtain an NPDES permit. Additionally, ACA filed a
motion for partial summary judgment on their second claim, that the Farms
violated the CWA when they discharged pollutants without an NPDES permit
on at least two occasions. The Farms filed a motion for judgment dismissing
ACA's first claim. The district court granted ACA's motion for a preliminary
injunction on limited grounds, requiring only that the Farms formally apply to
DENR for an NPDES permit for the MAG 4 facility. The district court also
granted ACA's motion for partial summary judgment as to its second claim, and

denied the Farms' motion for a judgment of dismissal on ACA's first claim.
9

The Farms appealed to the Fourth Circuit. Of importance to the instant appeal,
both the Farms and ACA argued on appeal that the partial summary judgment
ruling was appealable at that time. The Farms' theory was that pendent
interlocutory appellate jurisdiction existed because the issues underlying the
district court's grant of preliminary injunctive relief were bound up with the
issues governing the plaintiffs' second claim for relief. See American Canoe
Association, Inc. v. Murphy Farms, Inc., 2000 WL 328027, at *3 (4th Cir.)
(unpublished) [hereinafter "Murphy Farms I"]. As this court described the
Farms' argument, it was

10

that the district court's preliminary injunction must have been based upon a
conclusion that there would be future discharges, because the district court
necessarily found that ACA would be irreparably harmed absent the injunction;
the only irreparable harm possible would be that from future discharges; and
ACA, in order to prevail on its second claim, was required to prove that the
alleged CWA violations were not wholly past violations ... and the district court
held that ACA had sufficiently satisfied this burden to warrant partial summary
judgment.

11

Id.

12

This court unequivocally rejected that argument. Said the court,

13

[t]he failure of this otherwise reasonable syllogism is in its premise, that the
district court actually found a likelihood of future discharges. Nothing in the
district court's order reflects that it made any finding as to the possibility of
future discharge.

14

Id. (emphasis added). The court accordingly declined to review the Farms'
appeal from the district court's grant of partial summary judgment on ACA's
second claim and dismissed that portion of the appeal. As to the preliminary
injunction issue, the court remanded the case for a mootness inquiry by the
district court based on the possibility that changes in North Carolina's policy
might require the Farms to apply for an NPDES permit. Id. at *4. 3

15

On remand, the parties entered into a Consent Decree, which effectively settled
the merits of the action. At that time, however, there were pending certain
outstanding motions in the district court. The parties decided to enter into a
Consent Order and Protocol (the "Consent Order") so that resolution of the

outstanding issues would not delay implementation of the remedies provided

for in the Consent Decree. Of relevance to this appeal, the Consent Order
generally prohibited further litigation of the case. However, the Consent Order
made ACA's participation in the Consent Decree contingent upon its success on
two outstanding motions of the Farms. The first was a March 6, 2001, Motion
for Reconsideration of Declaratory Judgment on Standing (the "Standing
Motion"). In that motion, the Farms sought to convince the district court to
revisit, and overturn, its earlier declaratory judgment on standing based on "new
evidence" that the Farms had adduced.4 The second outstanding motion
described in the Consent Order was a March 5, 2001, Motion for Summary
Judgment against Citizen Plaintiffs under the Gwaltney Test (the "Gwaltney
Motion").5
16

On April 2, 2002, the district court denied both of the Farms' motions. With
respect to the Standing Motion, the district court reasoned first that the Farms
had failed to show that the new evidence they sought to introduce was not
previously available. Alternatively, even considering the new evidence, the
district court concluded that, under Friends of the Earth, Inc. v. Laidlaw
Environmental Services (TOC), Inc., 528 U.S. 167, 120 S.Ct. 693, 145 L.Ed.2d
610 (2000), and this court's decision in Friends of the Earth, Inc. v. Gaston
Copper Recycling Corp., 204 F.3d 149 (4th Cir.2000) (en banc), a failure to
show environmental impact is not dispositive of the question whether there has
been injury to the plaintiff sufficient to support standing. Thus, the Farms' new
evidence, which addressed environmental impact, did not call into question the
court's earlier judgment. The district court apparently treated the defendants'
Gwaltney Motion as, in effect, a motion for reconsideration of its December 22,
1998 order. In that order, which awarded partial summary judgment to the
plaintiffs on their second claim, the district court concluded that "[t]he
defendants' argument[ ]... that the claim is based on past events... [is]
unavailing." J.A. 1255. The district court chided the Farms for attempting to
resurrect an argument that it had already rejected and it denied the Farms'
Gwaltney Motion.

17

After denying both motions, the district court proceeded to enter final judgment
pursuant to the Consent Order. On May 17, 2002, the court directed the clerk to
enter a judgment providing, among other things,

18

[t]hat this court has jurisdiction over the plaintiffs' citizen suit regarding the
defendants' violations of the Clean Water Act....

19

J.A. 1759. On May 31, 2002, the clerk issued the final judgment pursuant to the
district court's instruction. The Farms filed a timely notice of appeal from that

final judgment.
II.
20

Before we may turn to the standing and Gwaltney issues, we must first
determine what is properly before this court on appeal under the terms of the
parties' Consent Order. We engage in this interpretive exercise on a de novo
basis. See Kenny v. Quigg, 820 F.2d 665, 670 (4th Cir.1987) ("[T]he
construction of disputed terms of a consent order is an issue of law that is freely
reviewable on appeal.").

21

The Consent Order entered into by the parties provides that ACA's participation
in the settlement is contingent upon "their ultimate success on the issues
presented by Defendants' Standing and Gwaltney Motions." J.A. 1737
(emphasis added).6 The Consent Order further provides that "[u]pon entry of
this Order and the Consent Decree, there shall be no litigation of issues in this
case other than Defendants' Standing and Gwaltney Motions, litigation costs
and any issues necessary to enforce the terms and conditions of the Consent
Decree." J.A. 1738 (emphasis added). The Consent Order also allows
continuing discovery on the standing and Gwaltney issues and provides for
factual findings and conclusions of law on those issues if necessary. See J.A.
1739 ("Prior to the full adjudication of Defendants' Standing and Gwaltney
Motions, Citizen Plaintiffs shall have the right to obtain discovery and to seek
any finding of fact or conclusion of law for any alleged violation relevant to the
Article III standing and/or Gwaltney issues."). Finally, the Farms agreed that
they would

22

(a) waive all defenses that they might have asserted as to Citizen Plaintiffs' right
to relief set forth in the attached Consent Decree, except for the defenses set
forth in Defendants' Standing and Gwaltney Motions; ... (c) maintain their right
to challenge the proof of any alleged violation, including any violation alleged
in the future, during the adjudication of Defendants' Standing and Gwaltney
Motions; ... (e) shall not reassert standing or Gwaltney as a defense to Citizen
Plaintiffs' claims after final adjudication of Defendants' Standing and Gwaltney
Motions.
J.A. 1739-40.7

23

We think the terms of the Consent Order clearly contemplate the ability of the
parties to engage in litigation that would follow naturally from the district
court's resolution of the specified motions. For example, the provisions cited

above that allow for factual findings by the district court and for the ability of
the Farms to challenge ACA's proof of continuing violations would only be
necessary if the order allowed for a trial on the Gwaltney issue in the event that
the Farms lost their motion for summary judgment on that issue.8
24

The Consent Order is less clear with respect to the possibility of allowing
appeal from decisions that were made prior to the resolution of the Standing
and Gwaltney Motions. We need not resolve this interpretive issue, however, as
it is only relevant with respect to the district court's initial judgment as to
standing. As we explain below, we conclude that the district court erred by
failing to grant the defendants' motion for reconsideration of its standing
judgment, and accordingly we need not determine whether the original
judgment is before us by virtue of the Consent Order since it is clearly before us
pursuant to a successful motion for reconsideration.

III.
25

Having resolved the interpretive dispute surrounding the Consent Order, we

turn next to the standing issue. By the terms of the Consent Order, we are
presented with the district court's denial of the Farms' motion for
reconsideration of the court's standing judgment. ACA argues that the denial of
the motion for reconsideration should be analyzed under the law of the case
doctrine and should only be overturned if the denial constituted an abuse of
discretion. In other words, the district court could deny the motion if, as it
stated, the Farms had not shown "(1) an intervening change in controlling law;
(2) the discovery of new evidence not previously available; and (3) the need to
correct clear or manifest error in law or fact, to prevent manifest injustice." J.A.
1744 (internal quotation marks omitted). The Farms argue that this court is
required to review the standing issue de novo and to take into consideration all
the evidence relevant to the issue, including their new evidence. The parties
also dispute the merits of the standing issue. We consider each of these issues,
the procedural and the substantive, in turn.

A.
26

In order to resolve the dispute regarding the propriety of the district court's
denial of reconsideration, we must first ascertain the nature of the district
court's standing judgment. On September 2, 1998, the district court issued what
it titled a "Declaratory Judgment on Standing." The decision stated simply:

27

For the reasons set forth in the plaintiffs' briefs filed in support of their Motion
for Declaratory Judgment That They Have Standing, that motion is

ALLOWED. Accordingly, this court hereby DECLARES that the plaintiffs

have Article III standing to prosecute this citizen's suit pursuant to 505 of the
[CWA] ... against defendants Murphy Farms, Inc., and D.M. Farms of Rose
Hill, L.L.C., for alleged repeated violations of 301 and 402 of the [CWA]....
28

J.A. 1245.

29

While the district court termed the order a declaratory judgment, we think it
clear that the judgment was in fact simply a grant of partial summary judgment
on an element of ACA's case. ACA filed a complaint alleging jurisdiction
under section 505(a) of the CWA. ACA did not at any time invoke the court's
jurisdiction pursuant to the Declaratory Judgment Act, 28 U.S.C. 2201, when
seeking judgment on the standing issue. Nor could it have with respect to only
the standing issue, for such was not itself an independent claim. Rather, ACA
was simply asking for an early decision on one of the jurisdictional
prerequisites to the consideration of its case on the merits. Attached to its brief
was the typical evidence affidavits from members and expert testimony
that is usually used to establish standing. Thus, though it did not title it as such,
ACA's motion was in content and substance a motion for summary judgment. It
is simply a misnomer to call ACA's motion, or the resulting relief granted for
that matter, "declaratory."

30

With the labeling issue resolved, the proper standard by which to assess the
propriety of the district court's denial of reconsideration becomes clear. True
declaratory judgments, like other final orders, trigger heightened standards for
reconsideration. See Fed.R.Civ.P. 59(e); id. 60(b). This is understandable, as
significant time and resources are often invested in arriving at a final judgment.
Unlike a true declaratory judgment, an order of partial summary judgment is
interlocutory in nature. See, e.g., 11 Moore's Federal Practice 56.40[3]
(Matthew Bender 3d ed.) ("A partial summary judgment order is
interlocutory...."). Motions for reconsideration of interlocutory orders are not
subject to the strict standards applicable to motions for reconsideration of a
final judgment. See 12 Moore's Federal Practice 60.23 ("Rule 60(b) does not
govern relief from interlocutory orders...."). This is because a district court
retains the power to reconsider and modify its interlocutory judgments,
including partial summary judgments, at any time prior to final judgment when
such is warranted. See Fayetteville Investors v. Commercial Builders, Inc., 936
F.2d 1462, 1469 (4th Cir.1991) ("An interlocutory order is subject to
reconsideration at any time prior to the entry of a final judgment."); cf. Fed.
R.Civ.P. 54(b) (providing that interlocutory orders that resolve fewer than all
claims are "subject to revision at any time before the entry of [final]
judgment"). Said power is committed to the discretion of the district court, see

Moses H. Cone Mem. Hosp. v. Mercury Const. Corp., 460 U.S. 1, 12, 103 S.Ct.
927, 74 L.Ed.2d 765 (1983) (noting that "every order short of a final decree is
subject to reopening at the discretion of the district judge"), and doctrines such
as law of the case, which is what the district court apparently relied on in this
case, have evolved as a means of guiding that discretion, see Sejman v. WarnerLambert Co., Inc., 845 F.2d 66, 69 (4th Cir.1988) (noting that earlier decisions
of a court become law of the case and must be followed unless "(1) a
subsequent trial produces substantially different evidence, (2) controlling
authority has since made a contrary decision of law applicable to the issue, or
(3) the prior decision was clearly erroneous and would work manifest
injustice." (internal quotation marks omitted)).
31

Law of the case is just that however, it does not and cannot limit the power of a
court to reconsider an earlier ruling. The ultimate responsibility of the federal
courts, at all levels, is to reach the correct judgment under law. Though that
obligation may be tempered at times by concerns of finality and judicial
economy, nowhere is it greater and more unflagging than in the context of
subject matter jurisdiction issues, which call into question the very legitimacy
of a court's adjudicatory authority. These questions are of such overriding
import that the Supreme Court has, in other contexts, carved out special
exceptions for them to the general rules of procedure. So, for example, a party
can challenge subject matter jurisdiction for the first time on appeal even
though, in most contexts, issues not raised below are considered waived. See,
e.g., Wisconsin Dept. of Corrections v. Schacht, 524 U.S. 381, 389, 118 S.Ct.
2047, 141 L.Ed.2d 364 (1998) ("No party can waive the [subject matter
jurisdiction] defect or consent to jurisdiction."). Thus, the Supreme Court itself
has decided that the value of correctness in the subject matter jurisdiction
context overrides at least some of the procedural bars in place to protect the
values of finality and judicial economy. See 18B Wright, Miller & Cooper,
Federal Practice and Procedure 4478 (2d ed. 2002) ("Even after the first final
judgment, the nature of some issues may encourage reconsideration; the most
obvious illustration is provided by the rule that federal subject-matter
jurisdiction remains open until there is no more opportunity to continue the
proceeding by appeal."). Law of the case, which is itself a malleable doctrine
meant to balance the interests of correctness and finality, can likewise be
calibrated to reflect the increased priority placed on subject matter jurisdictional
issues generally, and Article III standing in particular which represents "perhaps
the most important" of all jurisdictional requirements. FW/PBS, Inc. v. City of
Dallas, 493 U.S. 215, 231, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990).
Accordingly, we hold that a district court's otherwise broad discretion to
reconsider interlocutory orders is narrowed in the context of motions to
reconsider issues going to the court's Article III subject matter jurisdiction. See

18B Wright, Miller & Cooper, Federal Practice and Procedure 4478.5 ("The
force of law-of-the-case doctrine is affected by the nature of the first ruling and
by the nature of the issues involved. If the ruling is avowedly tentative or the
issues especially important, it may be said that law-of-the-case principles do
not apply."); Public Interest Research Group of New Jersey, Inc. v. Magnesium
Elektron, Inc., 123 F.3d 111, 118 (3d Cir.1997) (concluding that law of the case
did not prevent reconsideration of standing decision because "the concerns
implicated by the issue of standing ... trump the prudential goals of preserving
judicial economy and finality"); CNF Constructors, Inc. v. Donohoe Const.
Co., 57 F.3d 395, 397 n. 1 (4th Cir.1995) (concluding that law-of-the-case
doctrine did not prevent an appellate court from revisiting a prior ruling of a
motions panel on the court's jurisdiction because (1) law of the case is
discretionary, not mandatory, (2) motions panels are often not presented with
full briefing and argument, and (3) a court must dismiss an appeal when it lacks
jurisdiction).
32

Applying that principle to this case, we cannot help but conclude that the
district court abused its discretion in denying the Farms' reconsideration
request. ACA's motion for a judgment on standing came a mere three months
after it initiated suit. The district court's decision on the issue was also rendered
early in the litigation, before there had been much factual development,
discovery, or opportunity for the defendants to consult experts. While a ruling
on the standing issue at that time may have served beneficial purposes, such as
isolating the real issues in the case and allowing the plaintiffs to test the
sufficiency of their own evidence, it should not be accorded the preclusive
effect of a decision rendered after full trial, or even a decision rendered after full
discovery. Against whatever finality interest would inure to such a ruling is
stacked the paramount importance of achieving a correct judgment on the issue
of Article III standing. In this case, the defendants presented evidence going to
the standing issue that had not been previously considered by the district court.
Indeed, as we explain more fully below, while ACA has proffered enough
evidence to establish standing, the issue is close and the district court should
have been receptive to evidence that might have tipped the balance of the
analysis against standing. For these reasons, we think it clear that this situation
presents the type of exceptional circumstances justifying reconsideration and
renders the district court's denial of such an abuse of discretion. See Magnesium
Elektron, 123 F.3d at 118. 9

B.
33

While the district court erred in denying reconsideration, we think remand

unnecessary in this instance. This is because, even crediting the Farms' experts'

opinions, the district court's initial judgment with respect to standing was
correct.
34

The basic legal requirements for standing are well established. An association
has standing to sue on behalf of its members when "(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. Washington State Apple Advertising Com'n,
432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977). Here, the plaintiffassociations assert representational standing on behalf of their members who
use waters downstream of the defendants' farms for both recreational and
commercial purposes. The Farms challenge only the first prong of associational
standing, arguing that the plaintiffs' members do not have standing in their own
right to prosecute this action.

35

With respect to individuals' standing, "at an irreducible minimum, Art. III

requires the party who invokes the court's authority to show [1] that he
personally has suffered some actual or threatened injury as a result of the
putatively illegal conduct of the defendant ... and [2] that the injury fairly can
be traced to the challenged action and [3] is likely to be redressed by a
favorable decision." Valley Forge Christian College v. Americans United for
Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 70
L.Ed.2d 700 (1982) (internal quotation marks and citations omitted); see also
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d
351 (1992). These three prongs are most commonly referred to as (1) injury in
fact, (2) traceability, and (3) redressability. The Farms assert that the plaintiffs
have failed to establish the first two prongs of standing injury in fact and
traceability.

36

In the environmental litigation context, the standing requirements are not

onerous. "[E]nvironmental 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, 120 S.Ct. 693 (quoting Sierra Club v. Morton, 405
U.S. 727, 735, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972)). In Friends of the Earth,
Incorporated v. Laidlaw Environmental Services (TOC), Inc., the Supreme
Court considered whether organizational members' affidavits, which stated that
their use and enjoyment of waters downstream from the defendant's facility had
decreased due to fears of the pollutants discharged by the defendant, satisfied
the injury-in-fact requirement. Laidlaw, 528 U.S. at 180-85, 120 S.Ct. 693. The
defendant in Laidlaw engaged in what the Court described as "continuous and

pervasive illegal discharges of pollutants." Id. at 184, 120 S.Ct. 693; see also id.
at 176, 120 S.Ct. 693 ("The District Court later found that Laidlaw had violated
the mercury limits on 489 occasions between 1987 and 1995."). Some of the
affiants used waters within a couple miles from the defendant's facility, while
others used waters as much as forty miles away. Id. at 181-83, 120 S.Ct. 693.
The Court rejected the defendant's argument that the plaintiffs lacked standing
because they had not demonstrated proof of harm to the environment. Id. at
181, 120 S.Ct. 693. Rather, "[t]he relevant showing for purposes of Article III
standing ... is not injury to the environment but injury to the plaintiff." Id. Such
injury had been established by the affiants in Laidlaw because "the affidavits
and testimony presented by FOE [the plaintiff-organization] in th[at] case
assert[ed] that Laidlaw's discharges, and the affiant members' reasonable
concerns about the effects of those discharges, directly affected those affiants'
recreational, aesthetic, and economic interests." Id. at 183-84, 120 S.Ct. 693.
37

We applied Laidlaw in Friends of the Earth, Incorporated v. Gaston Copper

Recycling Corporation. The standing inquiry in Gaston Copper also focused on
members of organizations that were downstream from the defendant's facility.
The district court found that the plaintiffs had not shown that they had suffered
injury because "[n]o evidence was presented concerning the chemical content
of the waterways affected by the defendant's facility. No evidence of any
increase in the salinity of the waterways, or any other negative change in the
ecosystem of the waterway was presented." Gaston Copper, 204 F.3d at 155
(internal quotation marks omitted). We reversed. We noted that one of the
affiants had alleged a concern of health risks that affected his recreational use of
the waterway. We concluded that such fear was reasonable because the
defendant was placing chemicals into the waters that could have adverse health
and environmental effects. Id. at 157; see also id. ("They allege that these
reports show over 500 violations of the company's discharge limits, including
unlawful releases of cadmium, copper, iron, lead, and zinc, as well as pH
violations."). We interpreted Laidlaw as requiring "no evidence of actual harm
to the waterway." Id. at 159. For that reason, "[b]y producing evidence that
Gaston Copper is polluting Shealy's [the affiant's] nearby water source,
CLEAN [the plaintiff-organization] has shown an increased risk to its member's
downstream uses. This threatened injury is sufficient to provide injury in fact."
Id. at 160. Traceability was likewise satisfied because the plaintiff-organization
had "charged that (1) Gaston Copper exceeds its discharge permit limits for
chemicals that cause the types of injuries Shealy alleges and that (2) Shealy's
lake lies within the range of that discharge." Id. at 162. No additional evidence
was required by the court.

38

In their original motion for judgment on the standing issue in the case before

us, each plaintiff-association introduced affidavits from several of its members

as well as expert testimony. We describe below the statements of three affiants,
which are representative of the types of allegations made by all. The American
Canoe Association presented an affidavit by Douglas Little. Little lives on the
banks of Six Runs Creek approximately four miles downstream from Mag 4.
Little testified that his family uses the creek almost daily for swimming,
drinking, and fishing. Over the years, Little has noticed that the waters of Six
Runs Creek have become darker and there is more algae. He has seen fewer
fish swimming in the waters and has noted dead fish floating on the surface. He
also described a foul odor that has developed. Because of these changes, he
testified that his enjoyment of the creek has diminished and that he and his
family have curtailed their use of the creek out of health concerns. He believes
that the pollutants from the defendants' farms are responsible, in part, for his
diminished use of the creek.
39

The Professional Paddlesports Association introduced an affidavit by Joseph

Jacob. Jacob operates a river guide business and is himself an avid paddler and
professional guide. He frequently guides customers on the Black River. During
his trips on the Black River, Jacob has smelled hog waste and noticed foam in
the water, which he believed was an indication of decomposing organic matter.
Jacob's customers have also expressed concerns about water quality and he is
worried that he will lose business when his customers learn about discharges of
animal waste into the river. He is personally concerned about the harmful
impact of the defendants' discharges on fish and plant life in the Black River.

40

The Conservation Council of North Carolina presented the testimony of David

Martin. Martin has canoed both Six Runs Creek and the Black River. His fear
of pollution has kept him from swimming in, bathing in, or drinking the water
from either. Martin, an artist, testified that the uncleanly appearance of Six
Runs Creek and the Black River offends his aesthetic tastes. He has also
noticed a decrease in fish populations. For all those reasons, his enjoyment of
Six Runs Creek and the Black River has been diminished by the pollution he
believes comes from the Mag 4 facility, among others.

41

The plaintiff-associations supported the affidavits of their members with the

expert testimony of Dr. Bruce Bell. Dr. Bell, who holds a Ph.D. in
Environmental Engineering, opined that the "swine waste discharged from the
Mag 4 facility included high levels of oxygen demanding substances, ammonianitrogen, bacteria, viruses and other micro-organisms (measured as fecal
coliform) and solids. When discharged to water bodies, these pollutants may
have severe adverse environmental and human health effects." J.A. 242.10 "
[E]xcess fecal coliform bacteria in a receiving stream indicate contamination

with fecal matter which may contain disease-carrying microbes. Drinking,

swimming in, or eating fish from water containing excessive fecal coliform
bacteria poses a serious health risk." J.A. 243. Dr. Bell also opined that fecal
coliform from the two pre-suit discharges traveled down Six Runs Creek and
well into the Black River. He testified that organic matter and ammonia
contained in swine waste exert an oxygen demand in the water bodies. "Oxygen
depletion can result in fish kills. In addition, methane, amines and sulfides are
produced in anaerobic waters, causing the water to acquire an unpleasant odor,
taste and appearance. Such waters are unsuitable for drinking, fishing and other
recreational uses." J.A. 244. Furthermore, he explained how ammonia from the
swine waste can ultimately contribute to algae blooms and eutrophication of the
receiving waters.
42

With the aid of their own experts, the Farms argue that none of the hog waste
from the two pre-suit discharges adversely impacted the environment in an area
where the plaintiffs' members were. The defendants' experts opine that the
environmental impact from the discharges would have extended no further than
the upper reaches of Six Runs Creek. The experts also conclude that the
discharges would have had no long term effects on either Six Runs Creek or the
Black River. Thus, argue the defendants, any changes to water quality in Six
Runs Creek and the Black River attributable to their discharges were fleeting
and insignificant. With respect to traceability, the Farms argue that other
upstream animal farms were likely responsible for whatever injuries, if any at
all, the plaintiffs' members suffered. The Farms' experts indicated that there
was evidence of animal waste in the waters upstream from where the Mag 4
discharges took place.

43

While the case for injury-in-fact is weaker here than was the case in either
Laidlaw or Gaston Copper due to the relatively minimal number of discharges,
the affiants have still averred the types of fear and concern found sufficient in
those cases. As described above, affiants Little, Jacob, and Martin, all
expressed concerns regarding the quality of water in Six Runs Creek and the
Black River. These concerns affected their aesthetic, recreational, and, in some
cases, economic interests in the waters. Dr. Bell's testimony demonstrates that
these fears were reasonable. Swine waste contains bacteria and chemicals that
can be harmful to humans, and it can cause the algae blooms, fish kills, foul
odors, and murky conditions experienced by the affiants.

44

The reports of the Farms' experts do not undermine this conclusion. They are
focused on potential environmental impact. But, as the Supreme Court
admonished in Laidlaw, the appropriate point of reference is not harm to the
environment, but harm to the plaintiff. In both Laidlaw and Gaston Copper, the

Court explicitly rejected the notion that plaintiffs must prove some adverse
environmental impact. Rather, it was deemed sufficient in each case that the
affiant used an area subject to contamination from the discharge. Dr. Bell
opined that the waste would have reached both Six Runs Creek and the Black
River. Neither of the Farms' experts deny that the waste reached the Black
River and traveled for some distance down that river. Thus, the plaintifforganizations' members, who used either Six Runs Creek or the Black River,
and sometimes both, have clearly established injury in fact because they have
alleged harm to their recreational, aesthetic, and commercial interests and they
were within the area of contamination around the time of the discharges.
45

The case for traceability is also closer here, but, once again, ultimately
sufficient. In order to satisfy the traceability requirement, "[r]ather than
pinpointing the origins of particular molecules, a plaintiff `must merely show
that a defendant discharges a pollutant that causes or contributes to the kinds of
injuries alleged' in the specific geographic area of concern." Gaston Copper,
204 F.3d at 161 (quoting Natural Resources Defense Council, Inc. v. Watkins,
954 F.2d 974, 980 (4th Cir. 1992)). Here, it is uncontroverted that the Farms
discharged large quantities of swine waste into waters of the United States on at
least two occasions. As described above, swine waste, when introduced into
streams and rivers, is capable of causing the kinds of injuries complained of by
the plaintiff-organizations' members. And, as Dr. Bell's uncontroverted
testimony demonstrates, the affiants were in the geographic area of concern. It
is a closer question here than was the case in either Laidlaw or Gaston Copper
because third parties could also have contributed to the alleged injuries. There
were other upstream farms, which could have independently discharged waste
into the waters. The fact that other farms may have contributed to the pollution
problems complained of by the affiants in this case does not negate the fact that
the defendants' discharges still potentially harmed them. It would be strange
indeed if polluters were protected from suit simply by virtue of the fact that
others were also engaging in the illegal activity.

46

As the defendants' new evidence does not call into question the district court's
grant of partial summary judgment to ACA, we affirm that ruling.

IV.
47

ACA's jurisdictional troubles are not over with the conclusion that it is has
standing to bring suit, for it must still demonstrate that it meets the
requirements of section 505(a) of the CWA, as interpreted by the Supreme
Court and this Circuit in Gwaltney I and Gwaltney II, respectively. The parties
seek to litigate the merits of the Farms' Gwaltney Motion on appeal. As they did

in Murphy Farms I, however, the parties misconceive the procedural posture of

this case. Their misunderstanding is understandable if for no other reason than
that it apparently flows from the district court's own misconception of what it
had actually decided. In identifying the current posture of this case we must
untangle the procedural knot that led to the confusion below.
48

As noted above, a citizen-plaintiff seeking to sue under section 505(a) of the

CWA must show that the defendant's violations of the CWA are ongoing at the
time of suit. As the Supreme Court held in Gwaltney I, this means that a
plaintiff must allege either continuous or intermittent violations. Gwaltney I,
484 U.S. at 64, 108 S.Ct. 376. As with other jurisdictional matters, the
plaintiff's burden to establish an ongoing violation evolves over the course of
the litigation. At the motion to dismiss stage, a plaintiff need only have pled
facts sufficient to support such a finding. A plaintiff will survive summary
judgment on the Gwaltney requirement if he can show either that there is no
genuine dispute as to material fact on the issue and that the plaintiff is entitled
to judgment as a matter of law or that there is a genuine factual dispute and a
reasonable jury could find for the plaintiff on the issue. Finally, at trial, a
plaintiff may satisfy his burden "either (1) by proving violations that continue
on or after the date the complaint is filed, or (2) by adducing evidence from
which a reasonable trier of fact could find a continuing likelihood of a
recurrence in intermittent or sporadic violations." Gwaltney II, 844 F.2d at 17172.

49

It is that final step actual proof at trial that is missing from this case. In
order to understand why this is so, we trace the procedural history of this issue.
In its December 22, 1998 decision, the district court ruled upon cross motions
for summary judgment by the parties. One of the arguments made by the Farms
at that time was that ACA's case should be dismissed because it had failed to
demonstrate ongoing violations as required by Gwaltney II. The court explicitly
rejected that argument, see J.A. 1255 ("[t]he defendants' argument[] ... that the
claim is based on past events ... [is] unavailing"), denied the Farms' motion for
summary judgment, and granted ACA's partial motion for summary judgment.
It appears, as best we can understand, that the district court thought it had made
an affirmative finding as to the presence of ongoing violations at that point. It
later described its December 22, 1998 order as "allowing summary judgment in
the plaintiffs' favor on the defendants' Gwaltney motion." J.A. 1758.

50

We made clear on appeal, however, that the district court had in fact not made
any finding as to continuing violations. As we said in Murphy Farms I, "
[n]othing in the district court's [December 22, 1998] order reflects that it made
any finding as to the possibility of future discharge." Murphy Farms I, 2000

WL 328027, at *3.11 By law, the conclusions reached in Murphy Farms I are

binding on the district court, and they are binding on this panel as well;
whatever the district court might have intended in its December 22, 1998 order,
as a legal matter there can be no doubt that it did not make a factual finding as
to the possibility of future discharges.
51

The next point we come to on the time line of the Gwaltney issue is the Farms'
March 5, 2001, motion for summary judgment on that issue. As noted above,
that motion the district court denied, but it did not then, nor thereafter, grant
summary judgment on the Gwaltney issue to the plaintiffs. The next, and final,
chronological point is the district court's entry of final judgment. In its final
judgment order, the district court simply stated that CWA jurisdiction existed,
apparently implicitly determining that the plaintiffs had satisfied their burden
under Gwaltney II. It does not appear that the district court ever held a trial on
that issue and its assertion of jurisdiction in its final judgment is not
accompanied by any findings of fact as required by Federal Rule of Civil
Procedure 52(a). See Fed.R.Civ.P. 52(a).

52

Such a judgment, rendered without a trial and based on no discernable factual

findings, was erroneous. While the Farms may not ultimately prevail on their
Gwaltney challenge, they are entitled to present their case on that issue at
trial,12 at which point ACA will have to come forward with evidence, rather
than mere allegations, in order to prevail on the issue. Given the absence of a
trial or factual findings below, we think it clear that the proper resolution of the
current appeal is for this court to vacate the district court's final judgment with
respect to section 505 jurisdiction and remand for a trial and factual findings in
compliance with Rule 52(a) on the Gwaltney issue, at which point an appeal on
the merits of that issue will lie.

CONCLUSION
53

The judgment of the district court is affirmed in part and vacated in part and the
case is remanded for further proceedings consistent with this opinion.
AFFIRMED IN PART; VACATED AND REMANDED IN PART

Notes:
1

The runoff occurred at about two miles from the confluence of the tributary and
Six Runs Creek. Six Runs Creek flows for approximately fourteen to fifteen

miles before it feeds into the Black River. The Black River flows into the Cape
Fear River about fourteen miles above Wilmington, North Carolina
2

The American Canoe Association is a membership organization dedicated to

the preservation and protection of America's waterways. The Professional
Paddlesports Association is a membership trade association of paddlesport
businesses dedicated to providing the public with safe, enjoyable commercial
on-water recreational experiences and to protecting America's waterways. The
Conservation Council of North Carolina is a membership organization
committed to protecting the environmental resources of North Carolina through
participation in legislative, judicial, and regulatory processes

On June 21, 2000, North Carolina issued an NPDES permit covering Mag 4

The "new evidence" proffered by the Farms consisted of reports of their own
expert witnesses. The experts opined that the two pre-suit discharges would not
have impacted the environment in the areas where the plaintiff-organizations'
members were

The test referenced is that created byGwaltney of Smithfield, Ltd. v. Chesapeake

Bay Foundation, Inc., 484 U.S. 49, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987)
[hereinafter Gwaltney I]. Gwaltney I held that in order for a citizen-plaintiff to
sue under section 505(a) of the CWA, the plaintiff must allege ongoing CWA
violations of a continuous or intermittent nature. In other words, the complaint
cannot be based wholly on past violations. Our court has interpreted Gwaltney I
as requiring that plaintiffs, at the appropriate stage in the litigation, actually
prove ongoing violations. See Chesapeake Bay Foundation, Inc. v. Gwaltney of
Smithfield, Ltd., 844 F.2d 170, 171 n. 1 (4th Cir.1988) [hereinafter Gwaltney
II].

Earlier in the Consent Order, the Farms' Standing andGwaltney Motions were
defined as their March 6 motion for reconsideration of the district court's
declaratory judgment on standing, and their March 5 motion for summary
judgment on Gwaltney.

The Consent Order also provides that "[f]or purposes of this Order, the term full
or final adjudication shall mean adjudication through all levels of judicial
review." J.A. 1740

The Farms' agreement that it "shall not reassert standing orGwaltney as a

defense to Citizen Plaintiffs' claims after final adjudication of Defendants'
Standing and Gwaltney Motions" might be read as precluding the Farms from
seeking a trial on the Gwaltney issue in the event that they lost on their
summary judgment motion. However, we think the better interpretation, given

the district court's characterization of both motions as motions for

reconsideration, is simply that the Farms agreed not to file additional motions
for reconsideration after final adjudication on the merits.
9

We are mindful of the Supreme Court's dicta inChristianson v. Colt Industries

Operating Corp., 486 U.S. 800, 108 S.Ct. 2166, 100 L.Ed.2d 811 (1988), that
law of the case has purchase even with respect to jurisdictional questions.
Considering the application of law of the case to circuit court decisions to
transfer cases, the Court stated that "[t]here is no reason to apply law-of-thecase principles less rigorously to transfer decisions that implicate the
transferee's jurisdiction. Perpetual litigation of any issue jurisdictional or
nonjurisdictional delays, and therefore threatens to deny, justice." Id. at 816
n. 5, 108 S.Ct. 2166. It does not follow from this statement, referring as it did to
law of the case as it applies to jurisdictional transfer decisions, that lower courts
cannot apply less rigorous law-of-the-case principles to interlocutory orders
that implicate Article III subject matter jurisdiction. See Magnesium Elektron,
Inc., 123 F.3d at 118.
Nor should our decision today be read as opening the door to perpetual
litigation of subject matter jurisdiction issues. Law-of-the-case principles are
weakened but still present. And a court still retains the ability to impose
sanctions on an attorney who it concludes is filing motions for reconsideration
in bad faith or simply in an attempt to prolong the litigation.

10

Fecal coliform is a type of bacteria associated with animal waste. It is used as

an indicator of such

11

As we noted, discovery had not even commenced on theGwaltney issue at that

time. Id.

12

As we described above, we do not interpret the Consent Order as precluding a

trial on theGwaltney issue.