                   United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT
                                ___________

                                No. 01-2905
                                ___________

American Canoe Association, Inc.;      *
Sierra Club, Ozark Chapter;            *
                                       *
             Plaintiffs,               *
                                       *
Missouri Soybean Association,          *
                                       *
             Plaintiff-Appellant,      *
                                       *
       v.                              *
                                       *
United States Environmental Protection *
Agency; Christine Todd Whitman,        *
Administrator;                         *
                                       *
             Defendants-Appellees,     *
                                       *
American Canoe Association, Inc.;      *   Appeal from the United States
Sierra Club, Ozark Chapter,            *   District Court for the Western
                                       *   District of Missouri.
             Intervenors on Appeal.    *
______________________                 *       [PUBLISHED]
                                       *
Missouri Soybean Association,          *
                                       *
             Plaintiff-Appellant,      *
                                       *
       v.                              *
                                       *
United States Environmental            *
Protection Agency; Christine Todd      *
Whitman, Administrator;               *
                                      *
             Defendants-Appellees,    *
                                      *
American Canoe Association, Inc.;     *
Sierra Club, Ozark Chapter,           *
                                      *
             Intervenors on Appeal.   *
                                 ___________

                             Submitted: April 15, 2002

                                  Filed: May 6, 2002
                                   ___________

Before HANSEN, Chief Judge, McMILLIAN and FAGG, Circuit Judges.
                             ___________

PER CURIAM.

       The Missouri Soybean Association (MSA), a nonprofit corporation comprised
of Missouri soybean farmers and persons in soybean farming-related activities, sued
the United States Environmental Protection Agency (EPA) under the Clean Water Act
(CWA), 33 U.S.C. § 1365(a)(2) (1994), and the Administrative Procedures Act, 5
U.S.C. §§ 551-559, 701-706 (2000). MSA contends the EPA should have
disapproved Missouri’s 1998 list of pollution-impaired waters because some of the
listed waters lacked documentation of pollution. MSA’s suit was consolidated with
the Sierra Club, Ozark Chapter’s and the American Canoe Association, Inc.’s
(environmental plaintiffs) earlier lawsuit also challenging the EPA’s approval of
Missouri’s 1998 list. The environmental plaintiffs, however, claimed that Missouri’s
list was underinclusive.

      The Clean Water Act requires states to identify and prioritize those waters
within the state’s boundaries that despite the use of technical controls for pollution

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do not meet the state’s water quality standards. See 33 U.S.C. § 1313(d) (1994).
States are to “assemble and consider all existing and readily available water quality-
related data and information” when preparing the list of impaired waters within the
state. 40 C.F.R. § 130.22 (2001). The list of impaired waters, known as the § 303(d)
list, is then submitted to the EPA for approval. Once the EPA approves the list, the
impaired waters undergo scientific study to establish the total maximum daily load
(TMDL) of specifically identified pollutants that may be released without violating
state water quality standards. See also Sierra Club, North Star Chapter v. Browner,
843 F. Supp. 1304, 1306-07 (D. Minn. 1993) (describing TMDL process). States may
then use a variety of regulatory techniques to implement the TMDL standards.

       In preparing its 1998 list, Missouri divided waters into three categories.
Category one waters were found to be impaired and scheduled for full TMDL
development. Category two waters were scheduled for further monitoring because
the water quality data was “older or of lesser quality.” If additional monitoring
confirmed the water’s impairment, full TMDL development would proceed. Category
three waters were recognized as impaired, but no practical remedy was available
because the polluting conditions resulted from naturally occurring minerals, nutrients,
or sediment. Missouri’s list excluded the Missouri and the Mississippi rivers (the big
rivers) because “there are no water quality contaminant violations.” The EPA added
several waters to Missouri’s list and found the waters in all three categories impaired,
requiring TMDL development. The Missouri Clean Water Commission then added
the big rivers to Missouri’s § 303(d) list, claiming the pollutant was “habitat loss”
occurring because of “channelization.” The EPA approved Missouri’s revised list.

       MSA claims the EPA should have disapproved Missouri’s § 303(d) list because
the category two waters and the big rivers lacked the required documentation of
pollution to be listed as impaired. In its complaint, MSA claims the premature listing
of the challenged waters injures its members through potential changes in land
management practices, limitations on crop growth and rotation, limitations on sale

                                          -3-
and use of fertilizers, pesticides and herbicides, decreases in property values,
increases in farming costs, and the inability to plan for and rely on the use of certain
waters and land caused by Clean Water Act requirements. The EPA and the
environmental plaintiffs settled their dispute through a consent decree approved by
the district court.* The consent decree does not declare the category two waters or the
big rivers impaired, but describes the EPA’s plans to develop TMDLs for all waters
regardless of the initial category. MSA moved for partial summary judgment on the
merits of the challenged water classification dispute. The EPA filed a motion to
dismiss, claiming MSA lacked standing and MSA’s suit was not ripe, and, in the
alternative, moving for summary judgment on the merits of the challenged water
classification dispute. The district court assumed MSA had standing, but found
MSA’s suit was not ripe for adjudication. The district court denied MSA’s motion
for partial summary judgment and granted partial summary judgment in favor of the
EPA. MSA then moved for reconsideration of the summary judgment rulings and
challenged the district court’s approval of the consent decree between the EPA and
the environmental plaintiffs. The district court denied MSA’s motion and dismissed
MSA’s suit with prejudice. MSA now appeals the adverse rulings by the district
court.

       We reject MSA’s contention that its suit is ripe for adjudication. “The ripeness
doctrine flows both from the Article III ‘cases’ and ‘controversies’ limitation and also
from prudential considerations for refusing to exercise jurisdiction.” Nebraska Pub.
Power Dist. v. MidAmerican Energy Co., 234 F.3d 1032, 1037 (8th Cir. 2000). The
ripeness doctrine seeks “‘to prevent the courts, through avoidance of premature
adjudication, from entangling themselves in abstract disagreements over
administrative policies, and also to protect the agencies from judicial interference
until an administrative decision has been formalized and its effects felt in a concrete


      *
      The Honorable Scott O. Wright, District Judge for the Western District of
Missouri.

                                          -4-
way by the challenging parties.’” Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S.
726, 732-33 (1998) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 148-49 (1967)).
To be ripe for decision a case must be fit for judicial resolution and the parties must
experience hardship if the court withheld consideration of the case’s merits. Ohio
Forestry, 523 U.S. at 733.

       The district court concluded that MSA’s challenge was not ripe because MSA
did not show that EPA’s approval of Missouri’s 1998 list affected MSA’s members
in any concrete way. After carefully reviewing the record, we agree. MSA contends,
and the EPA concedes, that because the EPA challenged jurisdiction in a motion to
dismiss, not a motion for summary judgment, MSA should be held to a “relatively
modest” standard of asserting jurisdiction in its pleadings. Bennet v. Spear, 520 U.S.
154, 171 (1997). We agree. At the pleading stage, “we ‘presum[e] that general
allegations embrace those specific facts that are necessary to support the claim.’” Id.
at 168 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)). MSA’s
complaint focuses on potential harm to its members resulting from stricter controls
of the use of the challenged waters. More stringent controls on water use, however,
will not occur until after TMDLs are developed and implemented. Even then, it
remains uncertain whether TMDL development or regulatory implementation will
adversely impact MSA’s members.

       MSA contends that under the liberal pleading standard its assertion of potential
decreases in property values states a current harm sufficient to present a ripe claim.
A fair reading of MSA’s complaint, however, does not support this contention. The
complaint actually describes a “potential . . . decrease in property values and/or
property rights as a result of Clean Water Act requirements.” See Complaint, para.
12(e). In context, the “as a result of Clean Water Act requirements” clause is
consistent with MSA’s other claims of harm that may occur after TMDLs are
implemented. MSA’s contention that even if harm has not occurred, it is certainly
impending similarly fails. The “potential” diminution of property values is not a

                                         -5-
sufficiently immediate or sizeable threatened harm to warrant judicial intervention at
this time. Neb. Public, 234 F.3d at 1038. Indeed, MSA’s claim that it is injured by
its inability to plan for future TMDL development highlights the speculative nature
of any future regulation. We agree with the district court that until objectionable
TMDLs are developed and implemented, “MSA’s claims of harm are too remote to
be anything other than speculative” and are not ripe for judicial resolution. Because
MSA’s suit is not ripe for adjudication, we must dismiss this suit for lack of
jurisdiction. Ohio Forestry, 523 U.S. at 739. We, then, may not reach the merits of
the challenged water classification dispute or MSA’s challenge to the consent decree.

      Dismissal for lack of jurisdiction is not an adjudication of the merits, thus the
case must be dismissed without prejudice. In re Hall, Bayoutree Assoc., Ltd., 939
F.2d 802, 804 (9th Cir. 1991); Martinez v. Richardson, 472 F.2d 1121, 1126 (10th
Cir. 1973); see also Fed. R. Civ. P. 41(b). Because the dismissal is without
prejudice, the dismissal is not a bar to a later suit. McCarney v. Ford Motor Co., 657
F.2d 230, 233-34 (8th Cir. 1981).

       Like the district court, we conclude that MSA’s suit is not ripe thus we lack
jurisdiction. Because dismissal for lack of jurisdiction must be without prejudice, we
vacate the judgment entered by the district court and remand the case with directions
to enter judgment consistent with this opinion, dismissing the case without prejudice
for lack of jurisdiction.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                         -6-
