Administrator of the United States Environmental Protection Agency v. MURPHY FARMS, INCORPORATED, d/b/a Murphy Family Farms; D.M. FARMS OF ROSE HILL

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 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 No. 02-1501 
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. 
Appeal from the United States District Court
for the Eastern District of North Carolina, at Wilmington.
James C. Fox, Senior District Judge.
(CA-98-4-F(1), CA-98-19-F(1), CA-98-209-F(1))
Argued: February 28, 2003
Decided: April 16, 2003
Before WIDENER and LUTTIG, Circuit Judges, and
C. Arlen BEAM, Senior Circuit Judge of the
United States Court of Appeals for the Eighth Circuit,
sitting by designation.

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Affirmed in part and vacated and remanded in part by published opin-
ion. Judge Luttig wrote the opinion, in which Judge Widener and
Senior Judge Beam joined.
COUNSEL
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 & MOR-
ING, 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. Ter-
ris, TERRIS, PRAVLIK & MILLIAN, L.L.P., Washington, D.C., for
Appellees.
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 chal-
lenged 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 fol-
lowed. 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,
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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.
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. (collec-
tively 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 manage-
ment 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.
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
1The runoff occurred at about two miles from the confluence of the
tributary and Six Runs Creek. Six Runs Creek flows for approximately
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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, Incorpo-
rated, the Professional Paddlesports Association, and The Conserva-
tion 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 con-
cluded that the plaintiffs had established standing.
ACA subsequently filed a motion for a preliminary injunction pro-
fourteen to fifteen miles before it feeds into the Black River. The Black
River flows into the Cape Fear River about fourteen miles above Wil-
mington, North Carolina.
2The American Canoe Association is a membership organization dedi-
cated 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 protect-
ing 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.
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hibiting the Farms from operating the MAG 4 facility in violation of
the CWA and requiring the Farms to obtain an NPDES permit. Addi-
tionally, 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 dis-
missal on ACA’s first claim.
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 pre-
liminary 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
that the district court’s preliminary injunction must have
been based upon a conclusion that there would be future dis-
charges, 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 viola-
tions were not wholly past violations . . . and the district
court held that ACA had sufficiently satisfied this burden to
warrant partial summary judgment.
Id.
This court unequivocally rejected that argument. Said the court,
[t]he failure of this otherwise reasonable syllogism is in its
premise, that the district court actually found a likelihood of
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future discharges. Nothing in the district court’s order
reflects that it made any finding as to the possibility of
future discharge.
Id. (emphasis added). The court accordingly declined to review the
Farms’ appeal from the district court’s grant of partial summary judg-
ment 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 possibil-
ity that changes in North Carolina’s policy might require the Farms
to apply for an NPDES permit. Id. at *4.3
On remand, the parties entered into a Consent Decree, which effec-
tively 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 "Con-
sent 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 pro-
hibited 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
3On June 21, 2000, North Carolina issued an NPDES permit covering
Mag 4.
4The "new evidence" proffered by the Farms consisted of reports of
their own expert witnesses. The experts opined that the two pre-suit dis-
charges would not have impacted the environment in the areas where the
plaintiff-organizations’ members were.
5The test referenced is that created by Gwaltney of Smithfield, Ltd. v.
Chesapeake Bay Foundation, Inc., 484 U.S. 49 (1987) [hereinafter
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On April 2, 2002, the district court denied both of the Farms’
motions. With respect to the Standing Motion, the district court rea-
soned 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 (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 evi-
dence, which addressed environmental impact, did not call into ques-
tion the court’s earlier judgment. The district court apparently treated
the defendants’ Gwaltney Motion as, in effect, a motion for reconsid-
eration 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.
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,
[t]hat this court has jurisdiction over the plaintiffs’ citizen
suit regarding the defendants’ violations of the Clean Water
Act . . . .
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].
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J.A. 1759. On May 31, 2002, the clerk issued the final judgment pur-
suant to the district court’s instruction. The Farms filed a timely
notice of appeal from that final judgment.
II.
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.").
The Consent Order entered into by the parties provides that ACA’s
participation in the settlement is contingent upon "their ultimate suc-
cess 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 Defen-
dants’ 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 continu-
ing 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
(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 Defen-
dants’ Standing and Gwaltney Motions; . . . (c) maintain
their right to challenge the proof of any alleged violation,
6Earlier in the Consent Order, the Farms’ Standing and Gwaltney
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.
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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 adjudica-
tion of Defendants’ Standing and Gwaltney Motions.
J.A. 1739-40.7
We think the terms of the Consent Order clearly contemplate the
ability of the parties to engage in litigation that would follow natu-
rally 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
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 defen-
dants’ 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.
7The 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.
8The Farms’ agreement that it "shall not reassert standing or Gwaltney
as a defense to Citizen Plaintiffs’ claims after final adjudication of
Defendants’ Standing and Gwaltney Motions" might be read as preclud-
ing 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 bet-
ter 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.
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III.
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 ana-
lyzed under the law of the case doctrine and should only be over-
turned 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 dis-
covery 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.
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 dis-
trict court issued what it titled a "Declaratory Judgment on Standing."
The decision stated simply:
For the reasons set forth in the plaintiffs’ briefs filed in sup-
port of their Motion for Declaratory Judgment That They
Have Standing, that motion is ALLOWED. Accordingly,
this court hereby DECLARES that the plaintiffs have Arti-
cle 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] . . . .
J.A. 1245.
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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 com-
plaint 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 stand-
ing 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."
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 interlocu-
tory orders are not subject to the strict standards applicable to motions
for reconsideration of a final judgment. See 12 Moore’s Federal Prac-
tice § 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 sub-
ject to reconsideration at any time prior to the entry of a final judg-
ment."); 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.
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Mercury Const. Corp., 460 U.S. 1, 12 (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. Warner-Lambert 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) control-
ling 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)).
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 spe-
cial 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 (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 pro-
cedural 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 con-
tinue 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"
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of all jurisdictional requirements. FW/PBS, Inc. v. City of Dallas, 493
U.S. 215, 231 (1990). Accordingly, we hold that a district court’s oth-
erwise 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 & Coo-
per, 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 econ-
omy 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 rul-
ing 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).
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 isolat-
ing the real issues in the case and allowing the plaintiffs to test the
sufficiency of their own evidence, it should not be accorded the pre-
clusive 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 achiev-
ing 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
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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 circum-
stances 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.
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.
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 pur-
pose; 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
9We are mindful of the Supreme Court’s dicta in Christianson v. Colt
Industries Operating Corp., 486 U.S. 800 (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-the-case princi-
ples less rigorously to transfer decisions that implicate the transferee’s
jurisdiction. Perpetual litigation of any issue — jurisdictional or nonjuris-
dictional — delays, and therefore threatens to deny, justice." Id. at 816
n.5. 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 Magne-
sium 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 litiga-
tion.
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(1977). Here, the plaintiff-associations assert representational stand-
ing 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, argu-
ing that the plaintiffs’ members do not have standing in their own
right to prosecute this action.
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 Chris-
tian College v. Americans United for Separation of Church and State,
Inc., 454 U.S. 464, 472 (1982) (internal quotation marks and citations
omitted); see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 560
(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 stand-
ing — injury in fact and traceability.
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 (quot-
ing Sierra Club v. Morton, 405 U.S. 727, 735 (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 down-
stream 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. The defendant in Laidlaw
engaged in what the Court described as "continuous and pervasive
illegal discharges of pollutants." Id. at 184; see also id. at 176 ("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. The
Court rejected the defendant’s argument that the plaintiffs lacked
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standing because they had not demonstrated proof of harm to the
environment. Id. at 181. 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 dis-
charges, and the affiant members’ reasonable concerns about the
effects of those discharges, directly affected those affiants’ recre-
ational, aesthetic, and economic interests." Id. at 183-84.
We applied Laidlaw in Friends of the Earth, Incorporated v. Gas-
ton Copper Recycling Corporation. The standing inquiry in Gaston
Copper also focused on members of organizations that were down-
stream 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 water-
ways 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 viola-
tions."). 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 chemi-
cals that cause the types of injuries Shealy alleges and that (2) Shea-
ly’s lake lies within the range of that discharge." Id. at 162. No
additional evidence was required by the court.
In their original motion for judgment on the standing issue in the
case before us, each plaintiff-association introduced affidavits from
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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 swim-
ming, 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 enjoy-
ment of the creek has diminished and that he and his family have cur-
tailed 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.
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 custom-
ers 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.
The Conservation Council of North Carolina presented the testi-
mony 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, tes-
tified 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.
The plaintiff-associations supported the affidavits of their members
with the expert testimony of Dr. Bruce Bell. Dr. Bell, who holds a
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Ph.D. in Environmental Engineering, opined that the "swine waste
discharged from the Mag 4 facility included high levels of oxygen
demanding substances, ammonia-nitrogen, bacteria, viruses and other
micro-organisms (measured as fecal coliform) and solids. When dis-
charged 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 oxy-
gen demand in the water bodies. "Oxygen depletion can result in fish
kills. In addition, methane, amines and sulfides are produced in anaer-
obic 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.
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 dis-
charges 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.
10Fecal coliform is a type of bacteria associated with animal waste. It
is used as an indicator of such.
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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, affi-
ants Little, Jacob, and Martin, all expressed concerns regarding the
quality of water in Six Runs Creek and the Black River. These con-
cerns affected their aesthetic, recreational, and, in some cases, eco-
nomic interests in the waters. Dr. Bell’s testimony demonstrates that
these fears were reasonable. Swine waste contains bacteria and chem-
icals that can be harmful to humans, and it can cause the algae
blooms, fish kills, foul odors, and murky conditions experienced by
the affiants.
The reports of the Farms’ experts do not undermine this conclu-
sion. They are focused on potential environmental impact. But, as the
Supreme Court admonished in Laidlaw, the appropriate point of refer-
ence 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 sub-
ject 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
plaintiff-organizations’ 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 contamina-
tion around the time of the discharges.
The case for traceability is also closer here, but, once again, ulti-
mately sufficient. In order to satisfy the traceability requirement,
"[r]ather than pinpointing the origins of particular molecules, a plain-
tiff ‘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 (quot-
ing 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,
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when introduced into streams and rivers, is capable of causing the
kinds of injuries complained of by the plaintiff-organizations’ mem-
bers. 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 dis-
charged 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.
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.
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, how-
ever, 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 confu-
sion below.
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. 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
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dismiss stage, a plaintiff need only have pled facts sufficient to sup-
port 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 dis-
pute and a reasonable jury could find for the plaintiff on the issue.
Finally, at trial, a plaintiff may satisfy his burden "either (1) by prov-
ing 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 171-72.
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 proce-
dural history of this issue. In its December 22, 1998 decision, the dis-
trict 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.
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
11As we noted, discovery had not even commenced on the Gwaltney
issue at that time. Id.
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a legal matter there can be no doubt that it did not make a factual
finding as to the possibility of future discharges.
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 judg-
ment is not accompanied by any findings of fact as required by Fed-
eral Rule of Civil Procedure 52(a). See Fed. R. Civ. P. 52(a).
Such a judgment, rendered without a trial and based on no discern-
able factual findings, was erroneous. While the Farms may not ulti-
mately 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 fac-
tual 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
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
12As we described above, we do not interpret the Consent Order as pre-
cluding a trial on the Gwaltney issue.
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