                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        SEP 11 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

WASTE ACTION PROJECT,                           No.    17-35686

                Plaintiff-Appellant,            D.C. No. 2:17-cv-00498-RSM

 v.
                                                MEMORANDUM*
FRUHLING SAND & TOPSOIL INC.,

                Defendant-Appellee.

                   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).
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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