ELR Citation: ELR 20660
No(s). 89-1991 (5th Cir. Feb 8, 1991)

The court holds that plaintiffs in a Federal Water Pollution Control Act citizen suit have standing to sue the owner of a cattle feedlot, but have failed to prove ongoing violations on the merits. The court first holds that plaintiffs have standing under the standard established by the Supreme Court in Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation,Inc., 18 ELR 20142. Plaintiffs alleged that there was a continuing or intermittent violation, and defendant did not successfully refute this allegation until trial. However, the court holds that plaintiffs cannot prevail on the merits because they have not shown that defendant's violations were ongoing. There have been no discharges from defendant's feedlot since the complaint was filed and there is no reasonable likelihood of future discharges.

Counsel for Appellant
Stuart N. Henry
Henry, Kelly & Bunch
2103 Rio Grande, Austin TX 78705
(512) 479-8125

Counsel for Appellant
Roger James George Jr.
Graves, Dougherty, Hearon & Moody
515 Congress Ave., P.O. Box 98, Austin TX 78767
(512) 480-5617

Before CLARK, Chief Judge, and REAVLEY and KING, Circuit Judges.