In the
United States Court of Appeals
For the Seventh Circuit

No. 00-2748

Sarah E. Frey, Kevin Enright,
and Protect Our Woods, Inc.,

Plaintiffs-Appellants,

v.

Environmental Protection Agency,
Christie Whitman, Administrator,
and Viacom, Inc.,

Defendants-Appellees.

Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. IP-00-0660-C-D/F--S. Hugh Dillin, Judge.

Argued January 12, 2001--Decided November 6, 2001



  Before Easterbrook, Diane P. Wood, and
Williams, Circuit Judges.

  Diane P. Wood, Circuit Judge. This case
involves efforts to clean up three old
dumps in the Bloomington, Indiana, area,
that became contaminated with
polychlorinated biphenyls (PCBs), dioxin,
and other toxic chemicals over the years.
The federal Environmental Protection
Agency (EPA) and CBS Corporation
(formerly Westinghouse, and now Viacom--
but we will call it CBS as the parties
have done) reached agreement on a
remediation plan. The task of cleaning
and restoring toxic waste sites is a
complex one, and it is subject to
numerous federal and state laws. Some
Bloomington area residents, however,
including plaintiffs Sarah Frey, Kevin
Enright, and Protect Our Woods, Inc.
(POW), believe that the current plan does
not comply with federal or state law.
They sued under a number of those
statutes and Indiana common law, seeking
declaratory and injunctive relief, and
sought a temporary restraining order
(TRO) to prevent CBS from initiating
remediation work at one of the sites.
After briefing and a hearing on the TRO,
the district court issued an order
dismissing the plaintiffs’ complaint in
its entirety for lack of subject matter
jurisdiction. Plaintiffs appeal. For the
reasons stated below, we reverse in part
and affirm in part.

I

  In 1983, the United States brought an
enforcement action against CBS’s
predecessor, Westinghouse, under the Com
prehensive Environmental Response
Compensation and Liability Act (CERCLA),
42 U.S.C. sec. 9604 et seq., to force CBS
to clean up two dump sites contaminated
with PCBs. The State of Indiana
intervened as a plaintiff. Two years
earlier, the City of Bloomington,
Indiana, had filed a separate suit in
federal court against Westinghouse
seeking cleanup of two other sites. The
suits were consolidated, and the parties
ultimately negotiated a consent decree
that called for excavation and
incineration of the toxic materials from
the four named sites plus two more that
were added later. Years later, in 1988,
Frey sued in an effort to attack the
earlier consent decree on a variety of
procedural grounds, but with the ultimate
goal (among others) of overturning the
EPA’s decision to use an incinerator to
dispose of the waste. The district court
dismissed the case for lack of subject
matter jurisdiction and this court
affirmed in Schalk v. Reilly, 900 F.2d
1091 (7th Cir. 1989).

  In 1991, the Indiana State Legislature
passed a law aimed at blocking the
proposed incinerator. This obstacle
pushed the formal parties--the EPA, the
State of Indiana and its Department of
Environmental Management, the City of
Bloomington, the Bloomington Utilities
Service Board, Monroe County, Indiana,
and CBS--back to the negotiating table,
where they began discussions to modify
the consent decree. Under the direction
of a special master appointed by the
district court, and after a period of
public comment, the EPA issued Record of
Decision Amendments for the three dump
sites that are now before us: Bennett’s
Dump, Neal’s Landfill, and Lemon Lane
Landfill. (The appellants discussed a
fourth site, Neal’s Dump, in their
opening appellate brief, but that site
was nowhere mentioned in their complaint
and we thus agree with the appellees that
any disputes with respect to Neal’s Dump
are not properly before us.) Unlike the
earlier consent decree, the new cleanup
plans called for digging up only areas of
highly contaminated soil--so-called "hot
spots"--and then centralizing the
contaminated soil and capping it. The
plans also called for a variety of
measures designed to prevent seepage and
groundwater contamination at the sites.
Notably, the new plans did not require
the construction of an incinerator at any
site.

  The Frey group filed suit on April 20,
2000, challenging the modified remedies
at all three sites under both federal and
state law. They asserted federal
jurisdiction under the citizen suit
provisions of CERCLA, the Resource
Conservation and Recovery Act, 42 U.S.C.
sec. 6972(a), the Toxic Substances
Control Act, 15 U.S.C. sec. 2619(a), the
Clean Water Act, 33 U.S.C. sec. 1365(a),
the Administrative Procedure Act, 5
U.S.C. sec.sec. 701-706, as well as under
28 U.S.C. sec. 1331, and, with respect to
their Indiana public nuisance and air
pollution claims, diversity (28 U.S.C.
sec. 1332) and supplemental jurisdiction
(sec. 1367).

  Shortly after filing suit, the Frey
parties moved for a temporary restraining
order that would forbid initiation of
cleanup activities at Lemon Lane
Landfill. They asserted that the
safeguards in place were inadequate to
prevent large quantities of PCBs from
being "volatilized" during the excavation
process and deposited in surrounding
residential areas, at great risk to the
health of local citizens. The parties
filed memoranda in support of and in
opposition to the TRO, and the district
court heard arguments that touched on the
court’s "subject matter jurisdiction" to
hear the plaintiffs’ Lemon Lane claims,
among other subjects. No other site was
included in the motion, and no other site
was formally before the court. Two days
after the hearing, on May 18, 2000, the
district court issued its order denying
the TRO and, without further briefing or
argument, it dismissed plaintiffs’
complaint in its entirety.

  It is clear from the court’s order that
it entered a final judgment in the case
for purposes of 28 U.S.C. sec. 1291. The
judgment of dismissal talks only about
Lemon Lane, however, even though it
discusses other procedural flaws without
specifying to which sites they apply. The
order concludes with the statement "[i]n
sum, the Court dismisses this cause for
lack of subject matter jurisdiction."

II

  We review de novo the district court’s
dismissal for lack of subject matter
jurisdiction. Sapperstein v. Hager, 188
F.3d 852, 855 (7th Cir. 1999). The first
problem we encounter is a consequence of
the manner in which the court addressed
this issue. Not only did it raise the
point on its own (perfectly permissible,
in itself, for a true jurisdictional
problem, see Wellness Community-Nat’l v.
Wellness House, 70 F.3d 46, 51 (7th Cir.
1995)), but it also went forward with its
ruling and dismissal without giving any
notice to the plaintiffs that it was
considering doing so. We have warned that
"sua sponte dismissals without prior
notice or opportunity to be heard are
hazardous" and that "unless the defect is
clearly incurable a district court should
grant the plaintiff leave to amend, allow
the parties to argue the jurisdictional
issue, or provide the plaintiff with the
opportunity to discover the facts
necessary to establish jurisdiction."
Joyce v. Joyce, 975 F.2d 379, 386 (7th
Cir. 1992); see also Shockley v. Jones,
823 F.2d 1068 (7th Cir. 1987). Unless our
review of the plaintiffs’ complaint
reveals incurable defects, we therefore
must remand to the district court for
further proceedings.


  A.   Federal Claims

  Although the Frey group relied on a
number of federal statutes for their
federal claims, they concede that
plaintiffs challenging activities covered
by CERCLA’s removal or remedial action
provisions, see 42 U.S.C. sec. 9601(25),
must satisfy the requirements of CERCLA
sec. 113(h), 42 U.S.C. sec. 9613(h),
before a court can entertain the case.
Schalk, 900 F.2d at 1097. This is not,
strictly speaking, a problem of "subject
matter jurisdiction" in the sense of the
federal court’s competence under Article
III. See United States v. Tarkowski, 248
F.3d 596 (7th Cir. 2001). It is instead a
question about the prerequisites that the
plaintiffs must satisfy to obtain relief.
A person who does not comply with sec.
113(h) will not prevail, but the court’s
power to adjudicate the case is clear,
and a dismissal should be predicated on
Federal Rule of Civil Procedure 12(b)(6),
not on 12(b)(1). "A standard rule in
considering jurisdictional challenges is
that when the court’s jurisdiction and
the claim for relief are predicated on
the same federal statute but the basis
for relief is subsequently found to be
inapplicable, the district court should
not dismiss the case under Rule 12(b)(1),
but rather proceed as if jurisdiction
exists and determine the merits of the
claim under Rule 12(b)(6)." Central
States, Southeast and Southwest Areas
Health and Welfare Fund v.
Neurobehavioral Associates, 53 F.3d 172,
174 (7th Cir. 1995). This distinction
matters not only because a dismissal for
want of jurisdiction does not preclude a
suit from being refiled in a proper
court, but also because the district
court finds jurisdictional facts in
connection with a proper motion under
Rule 12(b)(1), while disputed facts are
treated quite differently for purposes of
Rule 12(b)(6), for which the court
indulges every reasonable presumption in
favor of the complainant.

  In our view, what we have here is the
same kind of problem as the one the
Supreme Court considered in Steel Co. v.
Citizens for a Better Environment, 523
U.S. 83 (1998), where the Court observed
that jurisdiction is "a word of many, too
many meanings," id. at 90 (citation
omitted), and concluded that the elements
of the cause of action in the statute
before it went to the merits of the
claim, not to jurisdiction. We note as
well that sec. 113(h) itself does not
speak of "subject matter" jurisdiction;
it merely uses the term "jurisdiction" in
one of the more limited senses to which
the Supreme Court was alluding in Steel
Co. See also Hughes Aircraft Co. v.
United States ex rel. Schumer, 520 U.S.
939, 950-51 (1997) (amendment to qui tam
statute essentially creates a new cause
of action; even though amendment was
phrased in "jurisdictional" terms, the
new claim is subject to normal
retroactivity rules). Following the guid
ance of Steel Co., which was handed down
well after Schalk, we will avoid the
inaccurate term "subject matter jurisdic
tion" in the remainder of this opinion
and speak instead of the plaintiffs’
ability to state a claim.

  The relevant portion of CERCLA sec.
113(h) states:

No Federal court shall have jurisdiction
under Federal law . . . to review any
challenges to removal or remedial action
selected under section 9604 of this title
. . . in any action except one of the
following . . . .

. . .

(4) An action under section 9659 of this
title (relating to citizen suits)
alleging that the removal or remedial
action taken under section 9604 of this
title or secured under section 9606 of
this title was in violation of any
requirement of this chapter. Such an
action may not be brought with regard to
removal where remedial action is to be
undertaken at the site.

  We have interpreted this language to
mean that a federal court may not hear a
citizen suit challenging a CERCLA removal
or remedial action until that action has
been "taken" or "secured." In other
words, the removal or remedial action
must be complete. Schalk, 900 F.2d at
1095.

  In dismissing the plaintiffs’ suit, the
district court found that removal and
remediation activities at Lemon Lane
Landfill were planned but not yet
complete. At the time of the TRO hearing,
this was so. (According to the
plaintiffs, planned removal and
remediation activities have since been
completed at the site.) The court made no
factual findings, however, regarding what
kind of removal and remedial actions were
planned for and had been taken at Neal’s
Landfill and Bennett’s Dump. This
presents a problem. If the district court
had been correct that this was a problem
of subject matter jurisdiction, then it
would have erred because the record is
missing crucial findings of
"jurisdictional" fact. In the absence of
such findings, we would be unable to
assess whether plaintiffs are correct
when in their complaint they assert that,
for purposes of sec. 113(h), removal and
remediation are in fact "complete" at
those sites. See Tarpley v. Jeffers, 96
F.3d 921 (7th Cir. 1996) (remanding for
findings of jurisdictional fact on
whether factual requirements for claim
were met to establish jurisdiction).
Because the real problem is instead a
potential failure to state a claim, two
questions are pertinent: first, we must
construe the legal meaning of the word
"complete" in the statute, and second, we
must decide whether any set of facts
consistent with the complaint would allow
plaintiffs to recover. The plaintiffs’
right to proceed to the summary judgment
stage and possibly beyond depends on the
outcome of those inquiries.

  Conceptualizing the issue as one of
subject matter jurisdiction, the Frey
group has urged us to remand the case to
the district court for proper
jurisdictional findings. Presumably, a
remand for further proceedings on any
other ground would suit them just as
well. The appellees would naturally
prefer a straightforward affirmance. A
broad reading of the appellees’ argument
is that it is clear from the record that
something related to the PCB removal and
remediation plan remains to be done at
each of the sites. This is enough, they
argue, to preclude a suit over any aspect
of the EPA’s chosen remediation plan,
regardless of how speculative that
"something" may be or how remote from the
challenged completed actions. In fact,
the appellees are presenting an argument
over the meaning of the term "complete"
in the statute. "Complete" could mean not
only that the planned cleanup procedures
have been carried out but also that all
subsequent monitoring has ceased. On the
other hand, it might mean, more modestly,
that the remediation measures are
finished, but that occasional visits of
environmental authorities in the future
could occur to ensure their
effectiveness, or even that particular
stages of the remedial plan have reached
completion.

  If it means the first of these, the
appellees may well be correct; but if it
means the second or third, then the need
for further proceedings to clarify the
record is apparent. In our view, the
middle ground is most consistent with the
statute. It is important that the statute
itself speaks of "removal where remedial
action is to be undertaken at the site."
The remedial action to which it refers is
logically different from a later effort
to ensure that the action was effective.
The Frey group goes further and argues
for the third possibility, namely, that
the reference to "remedial action" means
only a stage of a broader remediation
plan. They have some support for this
interpretation in both the legislative
history of the statute and earlier
decisions. See H.R. Conf. Rep. No. 99-
962, at 224 (1986) ("[T]he phrase
’removal or remedial action taken’ [in
sec. 113(h)(4)] is not intended to
preclude judicial review until the total
response action is finished if the
response action proceeds in distinct and
separate stages."); Clinton County
Commissioners v. EPA, 116 F.3d 1018, 1023
(3d Cir. 1997) (citing "separate stages"
legislative history with approval);
Neighborhood Toxic Cleanup Emergency v.
Reilly, 716 F.Supp. 828, 834 (D.N.J.
1989) (applying separate stages
analysis); but see Hanford Downwinders
Coalition, Inc. v. Dowdle, 71 F.3d 1469
(9th Cir. 1995) (recognizing possibility
that sec. 113(h) might forever preclude
judicial review). But we are concerned
that this reading ignores the lack of a
qualifier on the phrase "remedial
action." The statute does not say "a
remedial action," or "a stage of a
remedial plan." Instead, it calls flatly
for restraint from suit when "remedial
action" (period) remains to be done. We
thus reject the "staged" approach
plaintiffs have suggested.

  Because we also see a distinction
between the active steps designed to
clean up a site and later measures
designed to monitor success, we do not
believe that this reading would have the
undesirable consequence of converting
sec. 113(h) into a silent prohibition on
judicial review. See North Shore Gas Co.
v. EPA, 930 F.2d 1239, 1245 (7th Cir.
1991) (suggesting sec. 113(h) limitation
on the timing of judicial review ought
not extinguish judicial review). Nor does
our reading suggest that sec. 113(h)
precludes a lawsuit merely because there
is a hypothetical possibility that later
monitoring might lead the EPA or the
state authorities to devise a follow-up
remediation plan. The key word there is
"hypothetical." One can always imagine
some future action, especially in the
area of environmental regulation, but the
time limits in sec. 113(h) are geared to
concrete, existing, remedial measures;
not measures that might be devised at
some future date.

  The defendants have also invited us to
comb the available record and take
judicial notice of documents which, they
argue, establish the scope of the planned
removal and remediation activities at the
sites, what has thus far been completed,
and the fact that more remains to be
done. We decline this invitation to make
factual determinations that are properly
the province of the district court.

  The Frey group has raised certain
constitutional claims for the first time
on appeal. They contend that if sec.
113(h) indefinitely precludes judicial
review of arbitrary and capricious agency
actions that result in injuries to their
health and property then the statute
effectuates an unconstitutional
deprivation of liberty and property
without due process. We rejected similar
arguments in Schalk, 900 F.2d at 1098,
and we find no reason to address them
further here either. First, of course,
the lack of any such constitutional
arguments in the complaint is an obvious
problem. Perhaps plaintiffs can be
forgiven for that omission, however,
because of the unexpected way in which
the district court’s ruling arose and
their lack of any opportunity to amend
the complaint. In light of our
interpretation of the statute, however,
we think it unnecessary to speculate
about this constitutional issue. Perhaps
there is no claim to be made any more;
perhaps plaintiffs will try to renew some
modified claim before the district court.
Either way, there is nothing for this
court to discuss.

  For these reasons, and because we do not
find any incurable defects in the
plaintiffs’ federal law claims with
respect to Bennett’s Dump and Neal’s
Landfill, we reverse the district court’s
dismissal of those claims and remand for
further proceedings. The district court
should also revisit its conclusions about
Lemon Lane Landfill, both in light of our
decision on the scope of sec. 113(h) and
in light of any actions that have been
taken at the site since the court’s
earlier judgment.
  B.   State Law Claims

  The district court also dismissed
plaintiffs’ state law air pollution and
public nuisance claims for lack of
subject matter jurisdiction, and it added
that plaintiffs’ complaint in any event
failed to state a claim for a public
nuisance under Indiana law. The court
concluded that because it lacked federal
question jurisdiction over all the
federal claims of the plaintiffs, it
could not exercise supplemental jurisdic
tion. It further interpreted sec. 113(h)
to preclude the exercise of diversity
jurisdiction over state law claims prior
to the completion of removal and
remediation activities at each site. The
court went on to say that even if it had
subject matter jurisdiction over the
state law claims, plaintiffs’ claims
would be dismissed because they failed to
exhaust administrative remedies before
suing the EPA in tort and failed to
allege a unique injury as required by
Indiana’s public nuisance statute.

  Even if we agree with the Frey group
that the district court was premature in
dismissing their federal law claims under
CERCLA sec. 113(h) (an action that caused
the dismissal of the state claims as
well), we can affirm the court’s
dismissal of the state law claims to the
extent that they suffer from other
incurable defects.

  We consider first the state law claims
brought against the federal defendants,
the EPA and its Administrator (which we
treat as claims against the agency
alone). The Federal Tort Claims Act
(FTCA), 28 U.S.C. sec. 2671 et seq.,
requires the exhaustion of administrative
remedies prior to suing the federal
government in tort. 28 U.S.C. sec.
2675(a). A number of decisions treat a
failure to exhaust administrative
remedies as something that deprives the
district court of subject matter
jurisdiction over the claim. Garcia v.
Meza, 235 F.3d 287, 290 (7th Cir. 2000);
Brady v. United States, 211 F.3d 499, 502
(9th Cir. 2000); Burchfield v. United
States, 168 F.3d 1252 (11th Cir. 1999).
We are not so sure that this is
technically correct, although for this
part of the case the distinction has no
practical effects. At bottom, the
rationale for insisting on strict
compliance with the FTCA stems from the
fact that the statute creates a limited
waiver from the sovereign immunity from
suit that the United States would
otherwise enjoy. In other contexts, the
Supreme Court has held that a failure to
comply with statutory limits on a waiver
of sovereign immunity is not
jurisdictional in nature. See Irwin v.
Dept. of Veterans Affairs, 498 U.S. 89,
93-95 (1990). Following that lead, this
court has held that sovereign immunity is
an aspect of the statutory right to
relief, rather than of the court’s
jurisdiction. See United States v. Cook
County, 167 F.3d 381, 388-89 (7th Cir.
1999). Given this line of cases, it might
be appropriate to revisit the
jurisdictional language in decisions such
as Garcia at some point in the future.
For the reasons we now explain, however,
we have no need to do so here.

  In the present appeal, the plaintiffs
have not disputed the district court’s
finding that they did not comply with the
requirements of 28 U.S.C. sec. 2675 prior
to filing their state law claims against
the EPA. Either way we look at it--
jurisdictionally or in terms of the
statement of a claim--the failure to
exhaust under 28 U.S.C. sec. 2675
constitutes an inherent defect in the
plaintiffs’ state law claims against the
EPA and those claims were thus properly
dismissed. It is also worth observing
that the FTCA’s exception for the
exercise of discretionary functions or
duties, 28 U.S.C. sec. 2680(a), would
pose a formidable obstacle to any such
claim. If the plaintiffs were thinking
instead of a takings claim, the first
problem is that such a claim arises under
the federal constitution, not state law;
the second is that a federal takings
claim where the amount exceeds $10,000
(as this one might) belongs in the Court
of Federal Claims, not the district
court. See 28 U.S.C. sec.sec. 1346(a)(2),
1491. For all these reasons, therefore,
the end result ofdismissal of the
plaintiffs’ state law claims against the
federal defendants was correct.

  There is another independent reason why
plaintiffs cannot assert a state-law
based claim against the EPA. They did not
satisfy the prerequisites for such a
claim as a matter of state law. Under
Indiana law, enforcement of air pollution
control statutes is generally the
province of the Department of
Environmental Management and the Air
Pollution Control Board. See Ind. Code
Ann. sec. 13-17-1-1. Indiana permits
individuals and organizations to file
suit on behalf of the state to enforce
its environmental laws, provided certain
statutory prerequisites are satisfied.
Ind. Code Ann. sec. 13-30-1-1 et seq.
(formerly codified as sec. 13-6-1-1 et
seq.). Where a party bringing suit under
sec. 13-30-1-1 fails to satisfy the
statutory prerequisites, Indiana courts
hold that there is no subject matter
jurisdiction over the claim. Sekerez v.
Youngstown Sheet & Tube Co., 337 N.E.2d
521, 526 (Ind. App. 1975). The only
requirement relevant to this case is that
a suit under sec. 13-30-1-1 may not be
brought if the state is "diligently
pursuing" a civil action against the
alleged polluter. Ind. Code Ann. sec. 13-
30-1-3(a)(2). Drawing on federal court
interpretations of the Resource
Conservation and Recovery Act, the
Indiana courts have interpreted "diligent
pursuit" as "participation" by the state
in the cleanup activity at issue. State
ex rel. Prosser v. Indiana Waste Sys.,
Inc., 603 N.E.2d 181 (Ind. App. 1992).

  The State of Indiana is a plaintiff
party to the consent decree that the
plaintiffs challenge in this case. The
state is thus diligently pursuing the
cleanup of the three sites, which means
that the plaintiffs are precluded from
bringing an air pollution enforcement
action under sec. 13-30-1-1.
Independently of whether the district
court could, as a matter of federal law,
exercise jurisdiction over plaintiffs’
state law air pollution claim, the fact
that the plaintiffs cannot satisfy the
state statutory requirements leads to the
conclusion that the claim must be
dismissed. See Ragsdale v. Turnock, 941
F.2d 501, 509 (7th Cir. 1991) (both
Article III and statutory standing
requirements must be satisfied).

  The only claim remaining is the
plaintiffs’ allegation that CBS violated
Indiana’s public nuisance statute. We
agree with the defendants that because
plaintiffs named both the EPA and CBS as
defendants to their public nuisance
claim, the parties were not completely
diverse and the district court could not
exercise diversity jurisdiction over the
claim. The EPA, which is part of the
federal government, is not a "citizen of
a state," and thus its presence destroys
complete diversity. See General Ry.
Signal Co. v. Corcoran, 921 F.2d 700 (7th
Cir. 1991) (federal agency cannot be sued
in diversity). Because there is no
diversity jurisdiction in any event, we
have no occasion here to reach the
question whether CERCLA sec. 113(h)
precludes federal courts from exercising
subject matter jurisdiction over state
law diversity claims that attack the
adequacy of removal and remedial actions.
If, on remand, the district court finds
that the case may proceed under any of
the various federal theories, it should
revisit the question of the
appropriateness of retaining supplemental
jurisdiction over the public nuisance
claim. See 28 U.S.C. sec. 1367(c).

  Defendants have one last argument: they
assert that even if the court could
exercise supplemental jurisdiction over
the claim, the Frey plaintiffs lack
standing as a matter of Indiana law to
pursue the public nuisance charge. To
have standing to bring a public nuisance
claim in Indiana, a plaintiff must suffer
an injury "different in kind and not
merely in degree" from the one suffered
by the general public. Blair v. Anderson,
570 N.E.2d 1337, 1340 (Ind. App. 1991).
Moreover, they contend, Indiana courts
would not consider an organization like
POW a "person entitled to sue" under the
public nuisance statute unless it has
itself suffered a distinct injury. See
Union Township Residents Ass’n v. Whitley
County Redevelopment Comm’n, 536 N.E.2d
1044 (Ind. App. 1989); Robertson v. Board
of Zoning Appeals, 699 N.E.2d 310, 316
(Ind. App. 1998). An organization like
POW cannot rely on the injury of one of
its members. Medical Licensing Board of
Indiana v. Indiana State Chiropractic
Assoc., 373 N.E.2d 1114, 1116 (Ind. App.
1978). To the extent this argument really
goes to the merits of their right to
recover under Indiana law, the district
court will be able to consider whether
these plaintiffs have a proper claim for
relief on remand. To the extent it
reflects more prudential limitations on
the Indiana courts, it does not apply to
a federal court exercising supplemental
jurisdiction. The federal court operates
under its own rules of standing, both for
Article III purposes and for prudential
purposes. See Illinois ex rel. Ryan v.
Brown, 227 F.3d 1042, 1045 (7th Cir.
2000). The district court should give
further consideration to this issue on
remand, again as warranted by its
decision on the principal federal claims.

III

  In summary, we Reverse the district
court’s dismissal of the plaintiffs’
federal law claims with respect to
Bennett’s Dump and Neal’s Landfill and
remand for further proceedings. We Affirm
the district court’s dismissal of the
plaintiffs’ state law claims with the
exception of the public nuisance claim
against CBS, which is also remanded for
further proceedings consistent with this
opinion.
