Waste Action Project v. Fruhling Sand & Topsoil Inc.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WASTE ACTION PROJECT,
Plaintiff-Appellant,
v.
FRUHLING SAND & TOPSOIL INC.,
Defendant-Appellee.
No. 17-35686
D.C. No. 2:17-cv-00498-RSM
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Ricardo S. Martinez, Chief Judge, Presiding
Submitted August 28, 2018**
Seattle, Washington
Before: McKEOWN, W. FLETCHER, and GOULD, Circuit Judges.
Waste Action Project appeals the district court’s order dismissing its Clean
Water Act citizen suit against Fruhling Sand & Topsoil Inc. as moot. We reverse
and remand for further proceedings.
1. The district court erred in dismissing Waste Action Project’s claim on
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
SEP 11 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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jurisdictional grounds based on its assessment of evidence going to the merits of
the claim. “In resolving a factual attack on jurisdiction, the district court may
review evidence beyond the complaint without converting the motion to dismiss
into a motion for summary judgment.” Safe Air for Everyone v. Meyer, 373 F.3d
1035, 1039 (9th Cir. 2004). But a jurisdictional finding resolving genuinely
disputed facts “is inappropriate when the jurisdictional issue and substantive issues
are so intertwined that the question of jurisdiction is dependent on the resolution of
factual issues going to the merits of an action.” Id. (quoting Sun Valley Gasoline,
Inc. v. Ernst Enters., Inc., 711 F.2d 138, 139 (9th Cir. 1983)) (alteration omitted).
“The question of jurisdiction and the merits of an action are intertwined where ‘a
statute provides the basis for both the subject matter jurisdiction of the federal
court and the plaintiff’s substantive claim for relief.’” Id. (quoting Sun Valley, 711
F.2d at 139). The only exceptions to this rule are where a claim (1) is “immaterial
and made solely for the purpose of obtaining federal jurisdiction,” or (2) “is wholly
insubstantial and frivolous.” Id. (quoting Bell v. Hood, 327 U.S. 678, 682–83
(1946)).
We conclude that jurisdictional findings are inappropriate here because
Clean Water Act section 505(a), 33 U.S.C. § 1365(a), provides both federal subject
matter jurisdiction and a claim for relief where a person is “alleged to be in
violation” of its National Pollutant Discharge Elimination System permit. And we

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cannot say that Waste Action Project’s claim is so immaterial, insubstantial, or
frivolous on its face as to defeat subject matter jurisdiction.
We thus construe the district court’s order not as a Rule 12(b)(1) dismissal
for lack of subject matter jurisdiction, but as a Rule 56 dismissal on summary
judgment. See id. at 1040. We review the ruling de novo to determine whether a
genuine dispute of material fact exists. Id. at 1040 n.4.
On the available record, we conclude that there is a genuine dispute of
material fact for trial. A reasonable fact-finder could conclude that
notwithstanding Fruhling’s updates to its Site Management Plan, there remains “a
reasonable likelihood that [it] will continue to pollute in the future.” Gwaltney of
Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 57 (1987). As a
result, the district court erred in weighing the evidence to resolve this dispute by
making a Rule 12(b)(1) jurisdictional finding.
2. The district court also erred in concluding that Waste Action Project did
not allege ongoing violations of the Clean Water Act in good faith. In Gwaltney,
“the Supreme Court explained that an allegation is sufficient to confer jurisdiction
and that Fed. R. Civ. P. 11 provides the proper remedy for bad-faith claims.”
Waterkeepers N. Cal. v. AG Indus. Mfg., Inc., 375 F.3d 913, 921 (9th Cir. 2004)
(emphasis omitted). Under Rule 11, we consider “(1) whether the complaint is
legally or factually baseless from an objective perspective, and (2) if the attorney

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has conducted a reasonable and competent inquiry before signing and filing it.”
Holgate v. Baldwin, 425 F.3d 671, 676 (9th Cir. 2005) (quoting Christian v.
Mattel, Inc., 286 F.3d 1118, 1127 (9th Cir. 2002)). Here, the complaint is not
baseless, and it was not filed without a reasonable and competent inquiry. See id.
The district court incorrectly concluded that Waste Action Project’s plan to
conduct discovery to prove ongoing Clean Water Act violations meant that Waste
Action Project lacked a good faith basis to plead those alleged violations.
REVERSED AND REMANDED.

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