Prairie Rivers Network v. Dynegy Midwest Generation, LLC ( 2021 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-3644
PRAIRIE RIVERS NETWORK,
Plaintiff-Appellant,
v.
DYNEGY MIDWEST GENERATION, LLC,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 2:18-cv-02148 — Colin S. Bruce, Judge.
____________________
ARGUED NOVEMBER 13, 2020 — DECIDED JUNE 28, 2021
____________________
Before FLAUM, ROVNER, and BRENNAN, Circuit Judges.
BRENNAN, Circuit Judge. Prairie Rivers Network is an Illi-
nois non-profit organization that advocates for clean water
and healthy rivers. Under the Clean Water Act’s citizen-suit
provision, PRN sued Dynegy Midwest Generation, LLC, al-
leging that Dynegy illegally discharged coal ash pollutants
into groundwater, which in turn entered the Middle Fork of
the Vermilion River. The district court held that the Clean Wa-
ter Act did not cover these groundwater discharges, so it
2 No. 18-3644
dismissed PRN’s suit for lack of jurisdiction. We then stayed
PRN’s appeal pending the Supreme Court’s decision in
County of Maui v. Hawaii Wildlife Fund, 140 S. Ct. 1462 (2020).
In that case, the Court established a multi-factor test to deter-
mine whether groundwater discharges fall under the Clean
Water Act’s ambit. Id. at 1476–77.
We need not assess County of Maui’s reach, however, be-
cause PRN lacks standing. PRN has more than 1000 members
yet fails to show that at least one of those individual members
has standing. Associational standing, which PRN asserts, re-
quires more specificity. Without at least one individual mem-
ber who can sue in their own right, PRN cannot sue on their
behalf. Because PRN cannot cure that defect via declarations
on appeal, we affirm the district court’s dismissal for lack of
jurisdiction.
I
A
Located five miles north of Oakwood, Illinois, the Vermil-
ion Power Station is a retired coal-fired power plant that op-
erated from the mid-1950s until 2011. While in operation, the
station burned coal and, as a result, generated coal ash.
Dynegy, which currently owns the station, and its predeces-
sors mixed this coal ash with water, depositing it into three
unlined pits: the Old East Ash Pond, the North Ash Pond Sys-
tem, and the New East Ash Pond. Owned and maintained by
Dynegy, these pits remain inactive but currently contain 3.33
million cubic yards of coal ash. The station and the coal ash
pits sit close to the Middle Fork of the Vermilion River, a nav-
igable water protected by the Clean Water Act.
No. 18-3644 3
Dynegy has a National Pollutant Discharge Elimination
System permit to discharge wastewater from the station’s op-
erations into the Middle Fork. Under the Act, Congress dele-
gated permit-issuing authority to the states through 33 U.S.C.
§ 1342(b). Dynegy’s permit, granted by the Illinois Environ-
mental Protection Agency, sets effluent limitations as well as
monitoring and reporting conditions under Illinois state law. 1
It also allows for direct discharges into the Middle Fork
through nine external outfalls from the station. These nine
outfalls, however, are not at issue in this case.
Instead, PRN sued Dynegy over indirect discharges from
the coal ash pits. According to PRN, Dynegy’s permit does not
authorize the coal ash seepage from the North Ash Pond and
Old East Pond into the groundwater, which then enters the
Middle Fork. These groundwater discharges, PRN contends,
contain pollutants—“including, but not limited to, arsenic,
barium, boron, chromium, iron, lead, manganese, molyb-
denum, nickel, sulfate, and total dissolved solids”—and have
been occurring since at least May 2013. 2 Because its individual
members “live near, study, work, and recreate in and around,
the Middle Fork, including in the vicinity of the Vermilion
Power Station,” PRN maintains it has an interest in stopping
and remedying these alleged discharges, which degrade not
only the Middle Fork’s water quality, but also its “aesthetic
1 Under 33 U.S.C. § 1362(11), “[t]he term ‘effluent limitation’ means any
restriction established by a State or the Administrator on quantities, rates,
and concentrations of chemical, physical, biological, and other constitu-
ents which are discharged from point sources into navigable waters, the
waters of the contiguous zone, or the ocean, including schedules of com-
pliance.”
2 Plaintiff’s Complaint, D.Ct. ECF No. 1, p. 11, ¶ 48.
4 No. 18-3644
beauty and ecological vitality.” 3 By PRN’s account, its indi-
vidual members’ “use and enjoyment of the Middle Fork,”
has been, and will continue to be, harmed by the groundwater
seepage into the Middle Fork. 4
B
In its citizen-suit under the Clean Water Act, PRN alleged
Dynegy committed two violations of 33 U.S.C. § 1311(a),
which prohibits “the discharge of any pollutant” except as
otherwise permitted. For Count I, Dynegy’s groundwater
seepage from the coal ash pits allegedly constituted an unper-
mitted discharge of pollutants into the Middle Fork. For
Count II, this same seepage also allegedly violated two state-
law conditions of Dynegy’s permit. Dynegy then moved to
dismiss both counts under Federal Rules of Civil Procedure
12(b)(1) and 12(b)(6). Relying on Village of Oconomowoc Lake v.
Dayton Hudson Corp., 24 F.3d 962 (7th Cir. 1994), Dynegy as-
serted that the Clean Water Act does not regulate groundwa-
ter discharges, even when that groundwater connects to sur-
face waters regulated under the Act.
The district court agreed. Based on Oconomowoc, the dis-
trict court dismissed PRN’s suit under Rule 12(b)(1) for lack
of subject-matter jurisdiction. This court held in Oconomowoc
that the Clean Water Act did not govern discharges from “ar-
tificial ponds.” 24 F.3d at 966. Although “[t]he possibility of a
hydrological connection” between artificial ponds and
ground waters “cannot be denied,” this court concluded that
“neither the statute nor the regulations makes [sic] such a
3 Id. at p. 4, ¶ 13.
4 Id.
No. 18-3644 5
possibility a sufficient ground of regulation” under the Clean
Water Act. Id. Applying Oconomowoc, the district court
dismissed Count I and held that the Clean Water Act did not
govern the groundwater seepage from the coal ash into the
Middle Fork. Because Count I and Count II contained identi-
cal factual allegations, the district court also dismissed Count
II, holding that the Clean Water Act could not provide federal
jurisdiction for Dynegy’s alleged violations of state-law con-
ditions within its permit.
PRN timely appealed. After the Supreme Court granted
certiorari in County of Maui, we granted PRN’s unopposed
motion to stay appellate proceedings pending that decision.
In County of Maui, the Court held that the Clean Water Act
“require[s] a permit if the addition of the pollutants through
groundwater is the functional equivalent of a direct discharge
from the point source into navigable waters.” 140 S. Ct. at
1468. PRN and Dynegy then filed position statements based
on that decision, with PRN also moving for summary rever-
sal. We denied PRN’s motion and set a briefing schedule.
When it filed its opening brief, PRN also moved for leave to
file supplemental documents, attaching declarations from
several of its individual members and staff to support stand-
ing. Dynegy opposed that motion, which we took with the
case for resolution.
II
Although Dynegy moved to dismiss PRN’s suit under
Federal Rule of Civil Procedure 12(b)(1) for lack of subject-
matter jurisdiction, that motion concerned coverage under the
Clean Water Act, not standing. On appeal, Dynegy challenges
PRN’s standing for the first time. A standing challenge under
Rule 12(b)(1) typically “can take the form of a facial or a
6 No. 18-3644
factual attack on the plaintiff’s allegations.” Bazile v. Fin. Sys.
of Green Bay, Inc., 983 F.3d 274, 279 (7th Cir. 2020). A facial at-
tack “tests whether the allegations, taken as true, support an
inference that the elements of standing exist,” and a factual
attack “test[s] the existence of jurisdictional facts underlying
the allegations.” Id. We construe Dynegy’s standing challenge
on appeal as a facial attack, which “require[s] only that the
court look to the complaint and see if the plaintiff has suffi-
ciently alleged a basis of subject matter jurisdiction.” Apex
Digit., Inc. v. Sears, Roebuck & Co., 572 F.3d 440, 443 (7th Cir.
2009) (emphasis omitted). We thus accept all well-pleaded fac-
tual allegations as true and draw all reasonable inferences in
favor of the plaintiff, PRN. Silha v. ACT, Inc., 807 F.3d 169, 173
(7th Cir. 2015). Our review is de novo. Bazile, 983 F.3d at 278.
A
Article III of the Constitution limits the federal judicial
power to deciding “Cases” and “Controversies.” As an essen-
tial part of a federal court’s authority under Article III, stand-
ing doctrine ensures respect for these jurisdictional bounds,
“confin[ing] the federal courts to a properly judicial role” and
“limit[ing] the category of litigants empowered to maintain a
lawsuit in federal court to seek redress for a legal wrong.”
Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). For standing
under Article III, a plaintiff must have: (1) suffered an injury
in fact; (2) that is fairly traceable to the challenged conduct of
the defendant; and (3) that is likely to be redressed by a favor-
able judicial decision. Id. When a plaintiff lacks standing, a
federal court lacks jurisdiction. See Steel Co. v. Citizens for a
Better Env’t, 523 U.S. 83, 101–02 (1998).
Establishing standing is the plaintiff’s burden and “must
be secured at each stage of the litigation.” Bazile, 983 F.3d at
No. 18-3644 7
278. This is because the elements of standing are “not mere
pleading requirements but rather an indispensable part of the
plaintiff’s case.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 561
(1992). But “[a]s the litigation progresses, the way in which
the plaintiff demonstrates standing changes.” Spuhler v. State
Collection Serv., Inc., 983 F.3d 282, 285 (7th Cir. 2020). So “each
element [of standing] must be supported in the same way as
any other matter on which the plaintiff bears the burden of
proof, i.e., with the manner and degree of evidence required
at the successive stages of the litigation.” Lujan, 504 U.S. at
561. “At the pleading stage, general factual allegations of in-
jury resulting from the defendant’s conduct may suffice, for
on a motion to dismiss we ‘presum[e] that general allegations
embrace those specific facts that are necessary to support the
claim.’” Id. (alteration in original) (quoting Lujan v. Nat’l
Wildlife Fed’n, 497 U.S. 871, 889 (1990)). For facial standing
challenges, as here, we employ the familiar “plausibility” re-
quirement—the same standard used to evaluate challenges to
claims under Rule 12(b)(6). Silha, 807 F.3d at 174.
Associational standing allows an organization to sue on
behalf of its members “even without a showing of injury to
the association itself.” United Food & Commercial Workers
Union Local 751 v. Brown Grp., Inc., 517 U.S. 544, 552 (1996); but
cf. Havens Realty Corp. v. Coleman, 455 U.S. 363, 378–79 (1982)
(concluding that an organization had standing to sue in its
own right based on institutional interests). To sue on behalf
of its members, an association must show that: (1) at least one
of its members would “have standing to sue in their own
right”; (2) “the interests it seeks to protect are germane to the
organization’s purpose”; and (3) “neither the claim asserted
nor the relief requested requires the participation of individ-
ual members.” Hunt v. Wash. State Apple Advert. Com'n, 432
8 No. 18-3644
U.S. 333, 343 (1977); see Speech First, Inc. v. Killeen, 968 F.3d 628,
638 (7th Cir.), as amended on denial of reh’g and reh'g en banc
(Sept. 4, 2020). This three-part test for associational standing
“guarantees the satisfaction” of Article III “by requiring an or-
ganization suing as representative to include at least one
member with standing to present, in his or her own right, the
claim (or the type of claim) pleaded by the association.”
United Food, 517 U.S. at 555. Associational standing, then, is
derivative of—and not independent from—individual stand-
ing. See id. (“As Hunt’s most direct address to Article III stand-
ing, this first prong [of individual member standing] can only
be seen as itself an Article III necessity for an association’s rep-
resentative suit.”).
Two seminal environmental standing cases show the lim-
its of associational standing. In Summers v. Earth Island
Institute, the Supreme Court addressed, on an appeal from
summary judgment, whether several environmental organi-
zations had associational standing for an injunctive challenge
to land management regulations promulgated under the For-
est Service Decisionmaking and Appeals Reform Act, 16
U.S.C. § 1612 et seq. 555 U.S. 488, 490–92 (2009). The Court held
that they did not, concluding that the affidavits offered by in-
dividual members were insufficient. Id. at 494–97 (noting that
one affiant had mooted his interest in the case by settling, and
another failed to tie his injury to the challenged regulations,
identify a particular site, or allege a future injury that could
be remedied by enjoinment). In rejecting the dissent’s “statis-
tical probability” approach to standing for the environmental
organizations, the Court stated that this “novel approach to
the law of organizational standing would make a mockery of
our prior cases, which have required plaintiff-organizations
to make specific allegations establishing that at least one
No. 18-3644 9
identified member had suffered or would suffer harm.” Id. at
497, 498. “In part because of the difficulty of verifying the facts
upon which such probabilistic standing depends,” the Court
explained, it “has required plaintiffs claiming an organiza-
tional standing to identify members who have suffered the
requisite harm.” Id. at 499. And “when so many thousands are
alleged to have been harmed,” that is “surely not a difficult
task.” Id. As the Court concluded, “naming the affected mem-
bers” is a requirement for associational standing that “has
never been dispensed with in light of statistical probabilities.”
Id. at 498–99 (citing NAACP v. Alabama ex rel. Patterson, 357
U.S. 449, 459 (1958) as a counterexample).
Lujan is also instructive. In that case, the Court considered
whether several environmental organizations had associa-
tional standing to challenge a rule concerning foreign wildlife
funding promulgated under the Endangered Species Act of
1973, 16 U.S.C. § 1536 et seq. Lujan, 504 U.S. at 557–59. To show
associational standing at summary judgment, the environ-
mental organizations “had to submit affidavits or other
evidence showing, through specific facts, not only that listed
species were in fact being threatened by” the alleged activity,
“but also that one or more of [their] members would thereby
be directly affected apart from their special interest in th[e]
subject.” Id. at 563 (second alteration in original) (internal
quotation marks omitted); see Summers, 555 U.S. at 498 (de-
scribing Lujan’s holding on this point). Because the affidavits
submitted by several individual members failed to demon-
strate injury in fact or redressability, the environmental or-
ganizations, in turn, lacked associational standing. See Lujan,
504 U.S. at 562–71.
10 No. 18-3644
To be sure, Summers and Lujan, as appeals from summary
judgment, involved different stages of litigation than this
case. PRN appeals here from the district court’s grant of
Dynegy’s motion to dismiss under Rule 12(b)(1) for lack of
subject-matter jurisdiction. As we have said, how standing is
shown changes as the litigation progresses. Lujan, 504 U.S. at
561; Spuhler, 983 F.3d at 285. Recall also that at the pleading
stage, we presume general allegations include the specific
facts supporting the claim. Lujan, 504 U.S. at 561. From all this,
PRN insists it has associational standing, contending that it
need not provide names of any individual members at the
pleading stage.
We still hold that PRN lacks associational standing. In its
complaint, PRN maintains it has more than 1000 members yet
fails to show at least one who has individual standing. Alt-
hough “[i]ndividual members of PRN live near, study, work,
and recreate in and around the Middle Fork, including in the
vicinity of the Vermilion Power Station,” we do not know—
based on the face of the complaint—who these members are
or how exactly the alleged discharges will harm them individ-
ually. PRN speaks of its individual members only as a collec-
tive, claiming that Dynegy’s alleged discharges have harmed,
and will continue to harm, “[t]he individuals’ use and enjoy-
ment of the Middle Fork.” But presuming that at least one of
these individual members has standing to sue on their own,
as PRN invites us to do under Lujan, trends too closely to the
statistical probability theory of associational standing rejected
in Summers. See Summers, 555 U.S. at 498–99.
On the face of PRN’s complaint, we cannot assure our-
selves that at least one individual member—and not those in-
dividual members as a group—has standing to sue. Under the
No. 18-3644 11
“plausibility” framework for facial standing challenges,
PRN’s associational standing allegations are akin to imper-
missible speculation rather than permissible presumption,
thus “stop[ping] short of the line between possibility and
plausibility.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)). Just as
“generalized harm to the forest or the environment will not
alone support standing,” generalized harm to a group of in-
dividual members will not do so for associational standing.
Summers, 555 U.S. at 494. By failing to allege facts sufficient to
show that at least one of its members could sue in their own
right, PRN has failed to show that it could sue on their behalf.
See Spokeo, 136 S. Ct. at 1547 (“Where … a case is at the plead-
ing stage, the plaintiff must clearly … allege facts demonstrat-
ing each element.” (footnote and internal quotation marks
omitted)).
PRN’s position is also in tension with the Federal Rules of
Civil Procedure. Allowing an association to avoid showing an
individual member’s standing at the pleading stage would ef-
fectively shift a defendant’s Rule 12(b)(1) motion into sum-
mary judgment, permitting associational plaintiffs to proceed
to discovery in nearly every case. Even though courts have
“an independent obligation to assure that standing exists” at
each stage, Summers, 555 U.S. at 499, a defendant should be
able to make its own standing challenge as soon as the Federal
Rules of Civil Procedure permit it to do so—at the pleadings,
not summary judgment. See FED. R. CIV. P. 12(b) (noting that,
among other motions, a motion to dismiss for lack of subject-
matter jurisdiction “must be made before pleading if a
responsive pleading is allowed”). Other facts relevant to asso-
ciational standing could be discernible only after discovery
begins, to be sure. Yet standing for at least one individual
12 No. 18-3644
member of an association is not one of them. See Draper v.
Healey, 827 F.3d 1, 3 (1st Cir. 2016) (Souter, J., sitting by desig-
nation) (“[W]hy the advocacy group would have needed for-
mal discovery to identify which of its own members may have
been injured by the regulation is a mystery the group leaves
unsolved.”). At the pleading stage, PRN need not establish as-
sociational standing at a level sufficient for summary judg-
ment; it must, however, provide some way of showing that at
least one individual member has standing to sue on their own.
Like the Supreme Court, “[w]e have always insisted on strict
compliance with this jurisdictional standing requirement.”
Raines v. Byrd, 521 U.S. 811, 819 (1997). Associational standing
is no exception.
This court came to a similar conclusion in Disability Rights
Wisconsin, Inc. v. Walworth County Board of Supervisors, 522
F.3d 796, 804 (7th Cir. 2008). After dismissal of its suit against
the Walworth County Board of Supervisors for alleged une-
qual treatment of disabled children, Disability Rights Wiscon-
sin—“a non-profit corporation created under Wisconsin law
in order to ‘[p]ursue legal, administrative and other appropri-
ate remedies to ensure the protection of the rights of persons
with developmental disabilities or mental illness’”—appealed
the district court’s determination that it lacked associational
standing. Id. at 798, 799 (quoting WIS. STAT. § 51.62(3)(a)(1)).
This court affirmed. Disability Rights Wis., Inc., 522 F.3d at 804.
Because that organization failed to “identify any Walworth
County disabled student with standing to bring suit based on
the Board of Supervisors’ conduct” in its first amended com-
plaint, it did not “satisfy the first requirement of Hunt, and
therefore [did] not establish[] associational standing.” Id.“[A]dvocacy,” this court explained, “is only appropriately—
No. 18-3644 13
and constitutionally—undertaken on behalf of another when
that other has suffered an injury.” Id. So too here.
A comparison to our recent decision in Shakman v. Clerk of
Cook County, where associational standing was satisfied, also
shows what PRN is missing. 994 F.3d 832, 840–41 (7th Cir.
2021). That case concerned a pair of decades-old consent de-
crees monitoring political patronage practices in Chicago. Id.at 835–37. In analyzing the associational standing of a voters
organization to enforce the consent decrees, we first examined
the individual standing for one of its members, George Tsero-
tas. Id. at 840–41. Because Tserotas “ha[d] an interest in a
workplace free of patronage and has sustained or faced the
threat of injury-in-fact,” the voters organization met associa-
tional standing’s first requirement that one of its members
have individual standing. Id. at 841. Although Shakman had a
different procedural posture, that decision underscores the
importance of an individual member’s standing to associa-
tional standing.
All told, standing for at least one individual member re-
mains an essential component of associational standing at
each stage of litigation. See United Food, 517 U.S. at 555; Hunt,
432 U.S. at 343. True, in Disability Rights Wisconsin, Inc., this
court noted that the requirement for an individual member to
have standing “still allows for the member on whose behalf
the suit is filed to remain unnamed by the organization.” 522
F.3d at 802 (citing Doe v. Stincer, 175 F.3d 879, 882 (11th Cir.
1999)). We reserve for another day whether that statement
survives Summers, which followed Disability Rights Wisconsin,
Inc. and Stincer. Indeed, other courts have read Summers to ex-
pressly require names for associational standing on the plead-
ings. See, e.g., Draper, 827 F.3d at 3 (noting, on an appeal from
14 No. 18-3644
a motion to dismiss, that for associational standing, “the asso-
ciation must, at the very least, ‘identify [a] member[] who
ha[s] suffered the requisite harm.’” (alterations in original)
(quoting Summers, 555 U.S. at 499)); S. Walk at Broadlands
Homeowner's Ass'n, Inc. v. OpenBand at Broadlands, LLC, 713
F.3d 175, 184 (4th Cir. 2013) (explaining, on an appeal from a
motion to dismiss, that a homeowners association had “failed
to identify a single specific member” and that “[t]his failure to
follow the requirement articulated in Summers would seem to
doom its representational standing claim” while rejecting at-
tempts to evade Summers). But even without names, PRN has
failed to show associational standing on the face of its com-
plaint.
B
When PRN filed its opening brief, it moved for leave to file
documents and attached supplemental declarations from sev-
eral of its individual members and staff. In a footnote in
Summers, the Supreme Court declined to consider the same
type of documents submitted here. 555 U.S. at 495 n.* (“After
the District Court had entered judgment, and after the Gov-
ernment had filed its notice of appeal, respondents submitted
additional affidavits to the District Court. We do not consider
these.”). As the Court explained, “[i]f [the environmental or-
ganizations] had not met the challenge to their standing at the
time of judgment, they could not remedy the defect retroac-
tively.” Id. Unlike in Summers, though, PRN’s standing had
not been challenged before this appeal. If Dynegy challenged
standing in the district court, then PRN would have filed sup-
plemental declarations like it asks to now, or so PRN asserts.
But PRN misapprehends its standing burden. Even
though PRN faults Dynegy for not challenging standing in the
No. 18-3644 15
district court, the plaintiff, not the defendant, must establish
standing “at each stage of the litigation.” Bazile, 983 F.3d at
278; see Warth v. Seldin, 422 U.S. 490, 518 (1975) (“It is the re-
sponsibility of the complainant clearly to allege facts demon-
strating that he is a proper party to invoke judicial resolution
of the dispute and the exercise of the court’s remedial pow-
ers.”). And like any other plaintiff, PRN “is the master of [its]
own complaint.” Mordi v. Zeigler, 870 F.3d 703, 707 (7th Cir.
2017). So we take PRN at its word: If it could have filed similar
supplemental declarations (or even made similar allegations
in the complaint) at the pleading stage, then it should have
done so. See Summers, 555 U.S. at 500 (noting that Federal Rule
of Civil Procedure 15(d) does not “permit[] the supplementa-
tion of the record, in the circumstances here: after the trial is
over, judgment has been entered, and a notice of appeal has
been filed” (emphasis omitted)).
In other words, Dynegy’s failure to challenge standing in
the district court does not excuse PRN’s lack of standing on
the face of its complaint and does not permit PRN to supple-
ment that complaint on appeal. Cf. Am. Bottom Conservancy v.
U.S. Army Corps of Eng’rs, 650 F.3d 652, 656 (7th Cir. 2011)
(“[A] plaintiff, to establish Article III standing to sue, must al-
lege, and if the allegation is contested must present evidence,
that the relief he seeks will if granted avert or mitigate or com-
pensate him for an injury—though not necessarily a great
injury—caused or likely to be caused by the defendant.” (em-
phasis omitted)). As discussed, even without contest in the
district court, PRN’s complaint is facially deficient as to asso-
ciational standing. In its motion for leave to file declarations,
which came at the same time as its opening brief, PRN even
recognized the standing defect in its complaint: “To meet its
burden to demonstrate Article III standing before this Court,
16 No. 18-3644
Prairie Rivers Network seeks leave to file the attached decla-
rations as a supplement to the appellate record.”5 Like the
Court in Summers, we will not let PRN “remedy the defect ret-
roactively” after the district court entered final judgment. 555
U.S. at 495 n.*
Our conclusion is also in harmony with the plain text of
Federal Rule of Appellate Procedure 10(e)(2), which provides:
If anything material to either party is omitted
from or misstated in the record by error or acci-
dent, the omission or misstatement may be cor-
rected and a supplemental record may be certi-
fied and forwarded:
(A) on stipulation of the parties;
(B) by the district court before or after the
record has been forwarded; or
(C) by the court of appeals.
FED. R. APP. P. 10(e)(2). PRN’s declarations were not “omitted
from or misstated in the record by error or accident” but ra-
ther absent from the district court record entirely. Id.; see
United States v. Acox, 595 F.3d 729, 731 (7th Cir. 2010) (“A court
of appeals is limited to the record built in the district court, so
arguments that depend on extra-record information have no
prospect of success.”). Rule 10(e) is permissive, but as a gen-
eral rule we will not consider evidence on appeal that was not
before the district court. See Midwest Fence Corp. v. United
States Dep't of Transp., 840 F.3d 932, 946 (7th Cir. 2016). We
thus decline to consider PRN’s supplemental declarations
5 Dynegy’s Motion for Leave to File Documents, CA7 ECF No. 20, p. 3, ¶
6.
No. 18-3644 17
filed after entry of the judgment appealed. See, e.g., Swanson
Grp. Mfg. LLC v. Jewell, 790 F.3d 235, 240 (D.C. Cir. 2015) (not-
ing, on an appeal from summary judgment, that “[i]n deter-
mining whether the [plaintiffs] have standing, the court may
not consider on appeal supplemental declarations filed after
entry of the judgment appealed”); see also 16A CHARLES ALAN
WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE &
PROCEDURE § 3956.1 (5th ed.). 6
III
For these reasons, we DENY Prairie River Network’s mo-
tion for leave to file documents and AFFIRM on different
grounds the district court’s dismissal for lack of jurisdiction.
A jurisdictional dismissal is without prejudice, Lewert v. P.F.
Chang’s China Bistro, Inc., 819 F.3d 963, 969 (7th Cir. 2016), so
PRN may file a new complaint.
6 We acknowledge the significance of County of Maui for Clean Water Act
claims and appreciate the amici curiae who have weighed in on that topic.
Because we decide this case on standing, how to apply that decision’s
multi-factor test for functional discharges is a question for another day.
See Cnty. of Maui, 140 S. Ct. at 1476–77.