UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

AMERICAN CANOE ASSOCIATION,
INCORPORATED; PROFESSIONAL
PADDLESPORTS ASSOCIATION; THE
CONSERVATION COUNCILOF NORTH
CAROLINA, INCORPORATED,
Plaintiffs-Appellees,

UNITED STATESOF AMERICA, acting
at the request and on behalf of the
Administrator of the United States
Environmental Protection Agency,
Intervenor-Appellee,

v.

MURPHY FARMS, INCORPORATED, d/b/a
                                                       No. 99-1115
Murphy Family Farms; D.M.
FARMSOF ROSE HILL,
Defendants-Appellants.

ALLIANCE FORA RESPONSIBLE SWINE
INDUSTRY; THE CONCERNED
CITIZENSOF TILLERY; THE NEUSE
RIVER FOUNDATION; RICK DOVE, a/k/a
The Neuse Riverkeeper; THE NORTH
CAROLINA ENVIRONMENTAL DEFENSE
FUND; NORTH CAROLINA COASTAL
FEDERATION; THE PAMLICO-TAR RIVER
FOUNDATION,
Amici Curiae.

Appeal from the United States District Court for the
Eastern District of North Carolina, at Wilmington.
James C. Fox, District Judge.
(CA-98-4-7-F(1), CA-98-19-7-F(1), CA-98-209-5-F(1))
Argued: December 1, 1999

Decided: March 29, 2000

Before WIDENER and LUTTIG, Circuit Judges, and
Margaret B. SEYMOUR, United States District Judge
for the District of South Carolina, sitting by designation.

_________________________________________________________________

Dismissed in part and remanded in part by unpublished per curiam
opinion.

_________________________________________________________________

COUNSEL

ARGUED: Richard Edward Schwartz, CROWELL & MORING,
Washington, D.C., for Appellants. Carolyn Smith Pravlik, TERRIS,
PRAVLIK & MILLIAN, L.L.P., Washington, D.C.; Jared A. Gold-
stein, Environment & Natural Resources Division, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees. ON
BRIEF: Sarah L. Seager, CROWELL & MORING, L.L.P., Washing-
ton, D.C.; Daniel G. Cahill, Mark A. Finkelstein, Laurie B. Gengo,
Reef C. Ivey, II, THE SANFORD HOLSHOUSER LAW FIRM,
Raleigh, North Carolina, for Appellants. Bruce J. Terris, TERRIS,
PRAVLIK & MILLIAN, L.L.P., Washington, D.C.; Lois J. Schiffer,
Assistant Attorney General, Paul G. Wolfteich, E. Ann Peterson,
Environment & Natural Resources Division, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C.; Gary S. Guzy,
Acting General Counsel, Robert G. Dreher, Deputy General Counsel,
Adam Sowatzka, Paul Bangser, Ciannat Howett, UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY, Washington, D.C.,
for Appellees. Donnell Van Noppen, III, Michelle B. Nowlin, Lyman
J. Gregory, III, SOUTHERN ENVIRONMENTAL LAW CENTER,
Chapel Hill, North Carolina, for Amici Curiae.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Appellants sow farms ("D.M. Farms") appeal from the district
court's grant of a preliminary injunction requiring them to apply for
a Clean Water Act permit because they made unauthorized discharges
of pollutants into the waters of the United States. The sow farms also
appeal from the district court's grant of appellees citizen groups'
motion for partial summary judgment on their claim that the sow
farms violated the Clean Water Act when they discharged without a
permit.

For the reasons that follow, we decline to review the district court's
grant of partial summary judgment and dismiss that part of the appeal.
Additionally, we remand to the district court to determine whether
D.M. Farms' claim opposing the preliminary injunction as invalid is
moot.

I.

D.M. Farms has operated the Magnolia 4 Sow Farm ("MAG 4") in
Sampson County, North Carolina, since 1995. The MAG 4 is home
to 4,400 confined sows. Waste from the sows is released into a
lagoon, where it undergoes anaerobic treatment, before being sprayed
onto fields as fertilizer.

The MAG 4 is operated under a North Carolina Department of
Environment and Natural Resources ("North Carolina DENR") Ani-
mal Waste Management Plan, which prohibits animal waste dis-
charges to surface waters. J.A. 253f. Consequently, at no time prior
to this litigation did D.M. Farms apply for a Clean Water Act
("CWA") National Pollution Discharge Elimination System
("NPDES") permit for the purpose of making discharges from the
MAG 4.

It is undisputed that on two occasions, while operating under the
North Carolina DENR Animal Waste Management Plan, MAG 4
made unauthorized discharges of animal waste into waters of the

                    3
United States as a result of runoff from spraying the fields. The first
known discharge occurred on November 25, 1996. The North Caro-
lina DENR discovered that wastewater from D.M. Farms' fields was
running into a tributary of Six Runs Creek, and it recommended
changes that D.M. Farms should make to its spray operation to correct
the problem and fined the Farms. D.M. Farms alleges that the Farms
paid the fines and modified their operation.

Another discharge occurred in July 1997, and the North Carolina
DENR charged D.M. Farms a higher fine, in addition to recommend-
ing that the spray site that was the source of the discharge be removed
from service. The Farms allege that they paid the fines and removed
that site from service. Consistent with the North Carolina DENR's
philosophy that an entity could correct the discharge problem in lieu
of applying for a permit, at no time did DENR require D.M. Farms
to apply for an NPDES permit.

On February 10, 1998, the American Canoe Association and other
citizen groups (collectively "ACA") filed suit against D.M. Farms
under the citizen suit provision of the CWA alleging violations of the
CWA.1 First, ACA alleged that D.M. Farms continuously violated the
CWA by failing to obtain an NPDES permit after making unautho-
rized discharges, and second that the Farms violated the CWA each
time it discharged without such a permit.2

The district court permitted the Environmental Protection Agency
("EPA") and the North Carolina DENR to participate in this case as
intervenors or as amici curiae. EPA intervened against D.M. Farms,
_________________________________________________________________
1 The CWA citizen suit provision reads:

          any citizen may commence a civil action on his own behalf
          against any person . . . who is alleged to be in violation of (A)
          an effluent standard or limitation under this chapter or (B) an
          order issued by the Administrator or a State with respect to such
          a standard or limitation.

33 U.S.C. § 1365(a)(1) (emphasis added).
2 ACA made a third claim but withdrew it "on the understanding that
the DENR had agreed with EPA to issue NPDES permits for [concen-
trated animal feeding operations]." J.A. 658.

                    4
and the DENR submitted an amicus curiae brief. In its brief, the
DENR explained that, at the time ACA filed suit against D.M. Farms,
it did not require facilities such as the MAG 4 facility to obtain
NPDES permits after single discharge events if the facilities corrected
the problem that caused the discharge. J.A. 530-31, 536, 539 (Amicus
Curiae Br. of DENR). Instead, such facilities were required to have
"no-discharge" permits issued by the State. However, as of June 11,
1998, after the commencement of this litigation, the DENR has
changed its policy regarding issuance of NPDES permits to include
issuance of permits to operations like the MAG 4 facility. J.A. 543.

ACA filed a motion for 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 D.M. Farms violated the CWA when it discharged pollu-
tants without an NPDES permit on at least two occasions. The Farms
filed a motion for judgment dismissing ACA's first claim because the
Farms argued that it was not required to obtain a permit for non-
discharge operations.

The district court granted ACA's motion for a preliminary injunc-
tion on limited grounds, requiring only that D.M. Farms formally
apply to DENR for an NPDES permit for the MAG 4 facility. J.A.
656. The district court denied D.M. Farms' motion for a judgment of
dismissal on ACA's first claim. J.A. 657-58. The district court also
granted ACA's motion for partial summary judgment 3 as to their sec-
ond claim that D.M. Farms violated the CWA by discharging pollu-
tants without an NPDES permit. J.A. 658. Pursuant to the preliminary
injunction, on June 7, 1999, D.M. Farms did apply to the North Caro-
lina DENR for an NPDES permit. The DENR has now issued a draft
permit to D.M. Farms.
_________________________________________________________________
3 The district court refers to ACA's motion as a "Motion for Judg-
ment," but ACA's motion was for "partial summary judgment." J.A. 497
(ACA's Reply Br. in Support of Their Cross-Motion for Summary Judg-
ment). The district court's grant of ACA's motion on the second claim,
despite the ambiguous label used by the district court, does appear to be
for partial summary judgment.

                    5
D.M. Farms now appeals the district court's grant of a preliminary
injunction on the first claim and grant of partial summary judgment
on the second claim.

II.

D.M. Farms' appeal is interlocutory, and therefore our review is
limited to the district court's order granting ACA's preliminary
injunction. See 28 U.S.C. § 1292(a) (allowing interlocutory review of
orders issuing injunctions). Both D.M. Farms and ACA contend that
we also have jurisdiction to review the district court's grant of partial
summary judgment on ACA's second claim -- that D.M. Farms vio-
lated the CWA when it discharged without a permit. See Appellants'
Br. at 1, 11-12; Appellees' Br. at 1. But see Br. of United States at
16-23 (arguing that the partial summary judgment on the second
claim is not reviewable on interlocutory appeal). It is clear even from
the district court's very brief order, however, that the preliminary
injunction was premised only on the first claim-- that D.M. Farms
violated the CWA by not obtaining a permit -- not on the second
claim. J.A. 655-57 (district court opinion). In fact, the court specifi-
cally rejected ACA's request that the preliminary injunction not only
require D.M. Farms to apply for a permit, but also require D.M.
Farms to operate the MAG 4 facility in compliance with the CWA
(i.e. not to discharge in the future absent a permit). J.A. 656 ("[T]he
court deems that the relief appropriate at this stage of the litigation is
somewhat less broad than that requested by plaintiffs. . . . [T]he court
perceives that [ACA is] entitled to an injunction requiring [D.M.
Farms] to make formal application to the State of North Carolina for
an NPDES permit . . . .").

D.M. Farms appears to argue that the issues underlying plaintiffs'
first claim, as to which the district court granted the preliminary
injunction, are "intimately bound up with" the issues underlying the
second claim, as to which the district court granted partial summary
judgment, and therefore that an assertion of pendent interlocutory
jurisdiction over the district court's partial summary judgment is war-
ranted. See Appellants' Br. at 12 ("If the summary judgment on the
Second Claim should be reversed because there is no ongoing contin-
uous or intermittent discharge, then there also is no threat of immedi-
ate irreparable injury that would justify the preliminary injunction.");

                     6
id. at 11 (citing Fran Welch Real Estate Sales v. Seabrook Island Co.,
809 F.2d 1030, 1032 (4th Cir. 1987), in which this court reviewed
otherwise unappealable partial dispositions of some of the claims on
the merits because they were "intimately bound up with" the denial
of the injunction). As best we are able to discern, D.M. Farms' con-
tention in this regard is 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 irrepara-
ble 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, see Gwalt-
ney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc. (Gwaltney
I), 484 U.S. 49, 66 (1987); Chesapeake Bay Foundation, Inc. v.
Gwaltney of Smithfield, Ltd. (Gwaltney II), 890 F.2d 690, 693 (4th
Cir. 1989), and the district court held that ACA had sufficiently satis-
fied this burden to warrant partial summary judgment. The 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 possi-
bility of future discharge. In fact, the district court did not provide any
reasons for its determination that "all four Blackwelder [Furniture
Co. of Statesville, Inc. v. Seilig Manufacturing Co., 550 F.2d 189
(1977),] factors weigh strongly in favor of the plaintiffs." J.A. 656
(district court opinion). And, even ACA admits that it has not yet con-
ducted discovery on the risk of possible discharges in the future. See
Appellees' Br. at 11 ("Plaintiffs have not yet had the opportunity to
conduct the discovery and expert evaluation that is necessary before
they take a position on this issue."). Therefore, to the extent the dis-
trict court did find irreparable harm to justify the preliminary injunc-
tion, we are left to infer that the irreparable harm to ACA from D.M.
Farms' failure to obtain a permit was merely that ACA would suffer
from the absence of any monitoring that would ensue upon a permit
application and not that it would likely be exposed to future dis-
charge. Accordingly, we decline to review at this time the district
court's partial summary judgment on ACA's second claim that D.M.
Farms violated the CWA when it discharged without a permit.

III.

The district court's preliminary injunction ordered D.M. Farms to
apply to the North Carolina DENR for an NPDES permit. D.M.

                     7
Farms appeals from the grant of this preliminary injunction on the
grounds that the federally approved state program pursuant to which
it operates does not require it to apply for a permit, and neither does
the text of the Clean Water Act or its accompanying regulations.
Thus, D.M. Farms' claim on appeal presents the narrow question
whether the CWA requires a facility that has discharged in the past
to apply for a permit even if the federally approved state program pur-
suant to which it operates does not require such a permit application.

According to both the EPA and the North Carolina DENR how-
ever, it appears that D.M. Farms may now be required under the
State's program to obtain an NPDES permit irrespective of our reso-
lution of this dispute, due to modifications of the State's program that
occurred after this litigation was initiated. See Br. of United States,
at 39-40; J.A. 543 (Amicus Curiae Br. of DENR). The DENR now
proposes "to require NPDES permits for facilities with 2,500 or more
swine . . . with a wet waste treatment system that: 1) experience a
documented discharge to the surface waters of the state; and 2) are
found to be in violation of the facility's Certified Animal Waste Man-
agement Plan." J.A. 543 (Amicus Curiae Br. of DENR). D.M. Farms
contains 4,400 swine and has discharged in violation of its Certified
Animal Waste Management Plan, and thus would appear subject
immediately to permit, a possibility further confirmed by the DENR's
statement that "[t]he same types of facilities which experienced dis-
charges in the past, which would include MAG4 , will be issued per-
mits on a case-by-case basis . . . ." Id.

Because there appears to be a reasonable, if not distinct, likelihood
of mootness, we believe that the prudent course is to have that ques-
tion resolved by the district court before proceeding to consider the
complex issues presented by this appeal. The district court is in a bet-
ter position than we to take testimony, if necessary, as to the current
status of North Carolina's revised policy and as to the requirements
under that policy that would apply to D.M. Farms. Additionally, the
district court can evaluate ACA's claims that D.M. Farms has dis-
charged twice during the pendency of this appeal, which for reasons
quite obvious would affect not only D.M. Farms' central argument
that there has been permanent cure of the source of D.M. Farms' dis-
charge, but also any argument that it may not be required to apply for
a permit under the State's new policy.

                    8
For the reasons stated, we decline to review D.M. Farms' appeal
from the district court's grant of partial summary judgment on ACA's
second claim, and accordingly, that portion of D.M. Farms' appeal is
dismissed. That portion of the district court's judgment relating to the
preliminary injunction is remanded to the district court for further
proceedings on the question of mootness.

DISMISSED IN PART; REMANDED IN PART

                     9
