In the

United States Court of Appeals

For the Seventh Circuit

No. 08-3857

STEVEN B. POLLACK AND BLUE ECO LEGAL COUNCIL,

Plaintiffs-Appellants,

v.

UNITED STATES DEPARTMENT OF JUSTICE, et al.,

Defendants-Appellees.

Appeal from the United States District Court 

for the Northern District of Illinois, Eastern Division.

No. 08-CV-00320—Ronald A. Guzmán, Judge.

ARGUED MAY 8, 2009—DECIDED AUGUST 13, 2009

Before CUDAHY, MANION, and TINDER, Circuit Judges.

MANION, Circuit Judge. The United States government operates a gun range on the shores of Lake Michigan. The plaintiffs brought suit against several governmental agencies, alleging that the discharge of bullets

into the lake violates various environmental laws. The

district court dismissed the suit for want of jurisdiction

after concluding the plaintiffs lacked constitutional standing. The plaintiffs appeal, and we affirm.
2 No. 08-3857

After the FBI learned of bullets entering Foss Park, it closed 1

the range in April 2008. The FBI improved the range and

undertook further studies to prevent bullets from entering the

park. According to a May 11, 2009, letter sent to the court, the

FBI intends to reopen the range at the earliest possible date.

I.

In 1918, the United States Navy and Marine Corps

began operating a gun range in North Chicago, Illinois.

Over the years, many discharged lead bullets from the

range landed in an area of Lake Michigan covering 2,975

acres. The military used the site until 1976 when the

Federal Bureau of Investigation (“FBI”) leased the range.

The FBI bought the site in 1987. At some point the

range was improved by adding an earthen berm

backstop to prevent bullets from landing in the lake.

Despite the berm, some bullets escaped into Lake

Michigan and nearby Foss Park.1

In addition to this gun range, the government also

operated a shotgun range on the site. Pellets from the

shotguns landed in Lake Michigan. However, the government no longer operates a shotgun range there. Additionally, in 2006 the United States Coast Guard conducted live-fire exercises from boats on Lake Michigan

using lead bullets and bullets from those exercises

landed in the water. Lead is a toxic substance and, if

ingested in sufficient quantities, poses a threat to human

health.

Plaintiff Steven Pollack is an attorney who lives in

Highland Park, Illinois, thirteen miles south of the range.
No. 08-3857 3

He is the executive director of plaintiff Blue Eco Legal

Council (“Blue Eco”), an environmental group “with an

interest in the environmental safety of the Great Lakes

watershed,” that, among other things, sues private and

governmental polluters to enforce environmental laws.

Pollack and Blue Eco brought this suit against the United

States Department of Justice, the United States

Coast Guard, the United States Department of the Navy,

the United States Marine Corps, and the United States

Department of Defense. The plaintiffs alleged that the

deterioration of the lead bullets in the water harmed the

environment, in violation of the Clean Water Act, the

Resource Conservation and Recovery Act, the Comprehensive Environmental Response, Compensation, and

Liability Act, and state nuisance law. Pollack and Blue Eco

sought $55.2 million in damages: $35.2 million to pay a

private company to remove bullets from the lake bottom

and $20 million in tort damages for public nuisance to

fund a “supplemental environmental project” to be administered by environmental groups chosen by the court.

To establish standing, the plaintiffs relied on affidavits

submitted by Pollack and another Blue Eco member,

Darren Miller, who is also a resident of Highland Park.

Pollack’s affidavit stated that he enjoyed watching birds

in the Great Lakes watershed, visited public parks along

the Lake Michigan shoreline, drank water from Lake

Michigan at his home in Highland Park, and ate freshwater and ocean fish. Miller’s affidavit was nearly

identical to Pollack’s.

The defendants moved for dismissal under Federal Rule

of Civil Procedure 12(b)(1), arguing that the court lacked
4 No. 08-3857

subject-matter jurisdiction because Pollack and Blue Eco

did not possess constitutional standing to assert their

claims. The district court granted the motion, concluding

first that Pollack and Miller’s concern over drinking

water did not provide standing because the drinking

water in Highland Park was below the environmental

limit on lead pollution allowed by the city government,

thereby negating any claim of harm by Pollack and Miller.

Moreover, the district court held that their concerns

over birds, fish, and wildlife were too general and did not

allege any particular or specific harm that had been

caused by the bullets. The district court concluded that

because Pollack and Miller did not possess standing, Blue

Eco did not possess standing on their behalf. Accordingly,

the district court dismissed the suit for lack of subjectmatter jurisdiction. The plaintiffs appeal.

II.

At issue in this case is Pollack’s and Blue Eco’s constitutional standing to bring this lawsuit. Under Article III

of the Constitution, federal courts are limited to hearing

“Cases” and “Controversies.” This provision limits the

judicial power “to the traditional role of Anglo-American

courts, which is to redress or prevent actual or imminently

threatened injury to persons caused by private or official

violation of law.” Summers v. Earth Island Inst., 129 S. Ct.

1142, 1148 (2009). This restriction on the power of the

courts “ ‘is founded on concern about the proper—and

properly limited—role of the courts in a democratic society.’ ” Id. (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)).
No. 08-3857 5

Permitting a court to decide a case where the plaintiff

does not have standing would “allow[] courts to oversee

legislative and executive action” and thus “significantly

alter the allocation of power . . . away from a democratic

form of government.” Id. at 1149 (quotation omitted). 

In order to show standing, 

a plaintiff must show that he is under threat of suffering “injury in fact” that is concrete and particularized;

the threat must be actual and imminent, not conjectural or hypothetical; it must be fairly traceable to

the challenged action of the defendant; and it must

be likely that a favorable judicial decision will

prevent or redress the injury. 

Id.; accord Sierra Club v. Franklin County Power of Ill., LLC,

546 F.3d 918, 925 (7th Cir. 2008). An organization has

standing when any of its members has standing, the

lawsuit involves interests “germane to the organization’s

purpose,” and neither the claim asserted nor the relief

requested requires an individual to participate in the

lawsuit. Sierra Club, 546 F.3d at 924. At issue here is (a)

whether Pollack has standing; and (b) whether Blue

Eco has standing through Pollack or Miller. The plaintiffs bear the burden of proving standing. Wisconsin

Right to Life, Inc. v. Schober, 366 F.3d 485, 489 (7th Cir.

2004). We review a district court’s decision on standing

de novo. Id.

Several Supreme Court decisions guide our analysis. In

Summers, several environmental organizations challenged

a decision of the United States Forest Service to permit

a salvage sale of 238 acres of timber in Sequoia National
6 No. 08-3857

Forest that had been damaged in a fire, without providing notice, a period for public comment, or an appeal

process. 129 S. Ct. at 1147-48. The Forest Service acted

according to its own regulations, which permit it to

exempt from these requirements salvage sales of timber

located on less than 250 acres. Id. at 1147. The environmental organizations filed suit to challenge the regulations. Id. at 1149. The organizations contended they

possessed standing based on their members’ “recreational

interest in the National Forests.” Id. at 1149. The government conceded that one member of the organizations

had standing to challenge the sale of the 238 acres and

the parties settled the claim relating to that particular

salvage sale. Id. The organizations still asserted the facial

challenge to the regulations themselves. The organizations submitted an affidavit of Jim Bensman, who

asserted “that he has visited many National Forests and

plans to visit several unnamed National Forests in the

future.” Id. at 1150. Summers held that this affidavit was

insufficient to provide standing, stating that it failed “to

allege that any particular timber sale or other project

claimed to be unlawfully subject to the regulations will

impede a specific and concrete plan of Bensman’s to

enjoy the National Forests.” Id. Although Bensman’s

affidavit did reference particular sales in the Allegheny

National Forest, there was no “firm intention” to visit that

area. Id. Summers stated that “[t]his vague desire to

return is insufficient to satisfy the requirement of

imminent injury.” Id. at 1150-51.

Conversely, the Supreme Court found standing to sue

in Friends of the Earth, Inc. v. Laidlaw Environmental Services,
No. 08-3857 7

528 U.S. 167 (2000). In Laidlaw, a wastewater treatment

plant obtained a state permit to discharge treated water

containing known pollutants into a river. Id. at 175-76.

Three environmental organizations sued, basing their

standing on members affected by the pollution. For

example, one member stated that she lived two miles from

the river and that she had picnicked, walked, watched

birds, and waded in the river before the pollution and

because of the pollution had since ceased those activities.

Id. at 182. Laidlaw held that this and similar statements

“adequately documented injury in fact.” Id. at 183. Laidlaw

explained that “environmental plaintiffs adequately allege

injury in fact when they aver that they use the affected area

and are persons for whom the aesthetic and recreational

values of the area will be lessened by the challenged

activity.” Id.

On the other hand, the Supreme Court held that environmental plaintiffs did not have standing in Lujan v.

National Wildlife Federation, 497 U.S. 871 (1990). In Lujan,

an environmental organization challenged a governmental action that allegedly opened public lands for

mining. Id. at 879. The affidavit of one member stated: 

My recreational use and aesthetic enjoyment of federal

lands, particularly those in the vicinity of South

Pass-Green Mountain, Wyoming have been and

continue to be adversely affected in fact by the unlawful actions of the Bureau and the Department. In

particular, the South Pass-Green Mountain area of

Wyoming has been opened to the staking of mining

claims and oil and gas leasing, an action which threat-
8 No. 08-3857

ens the aesthetic beauty and wildlife habitat potential of these lands.

Id. at 886 (emphasis added). Lujan held that standing was

not established by “averments which state only that one

of respondent’s members uses unspecified portions of

an immense tract of territory, on some portions of

which mining activity has occurred or probably will

occur by virtue of the governmental action.” Id. at 889.

In addition to these Supreme Court cases, Pollack

directs our attention to our recent decision in Sierra Club

v. Franklin County Power of Ill., in which we held that

an environmental organization possessed standing to

seek an injunction against a power company that had

obtained a state permit to build a coal power plant in

southern Illinois. 546 F.3d at 923. The environmental

organization claimed standing based on a member who

had vacationed every two years since 1987 on a lake

three miles from the proposed site. Id. at 925. The

member stated that she fished, kayaked, camped, and

enjoyed the beauty of the lake, and that she would cease

her trips if the power plant was built. Id. Franklin County

held that the member had established injury-in-fact

based on her “likely exposure” to pollutants from the

coal power plant and the cessation of her vacation trips.

Id. at 925-26. Moreover, the claimed injury was fairly

traceable to the proposed power plant. Although the

extent of pollution was unclear, we stated:

We agree that no one knows the ultimate magnitude of

McKasson’s injury—for example, we don’t know if

the particulate matter from the plant will blot out the
No. 08-3857 9

sky or merely create a thin haze that’s not visible to

the naked eye, or if the airborne mercury will

actually spread 45 miles to poison fish that McKasson

currently consumes from a pond near her home

(which is another harm she claims she will suffer). We

do know, however, that the plant will release some

pollutants and that McKasson believes these

pollutants will ruin her ability to enjoy Rend Lake

and taint the surrounding area. 

Id. at 927. Accordingly, we held that the member and thus

the plaintiff organization had standing to challenge the

building of the power plant.

Pollack also relies heavily on Friends of the Earth, Inc. v.

Gaston Copper Recycling Corp., 204 F.3d 149 (4th Cir. 2000),

in which the Fourth Circuit held that two individuals

had standing to sue a smelting plant that was dumping

pollutants upstream from them. One individual owned

a home on the affected water where he fished, swam,

and boated. Id. at 152-53. Another individual operated a

canoeing company on the polluted river. Id. at 153. Based

on these individuals’ standing, Gaston Copper held that

their organizations had standing to challenge the release

of the pollutants. Id. at 160.

As noted above, in this case Blue Eco bases its standing

on nearly identical affidavits from two of its members,

Pollack and Miller. Pollack essentially claims four

injuries: (1) that he drinks water drawn from Lake Michigan for Highland Park and “other local municipalities” and

the shooting of lead bullets pollutes this water; (2) that

he enjoys “watching wildlife in the Great Lakes water-
10 No. 08-3857

shed” and that he “is concerned” about the effect on birds

from the shooting; (3) that he enjoys “the public areas

along the Illinois portion of Lake Michigan” and he is

concerned that people in Foss Park and the adjoining

beach will be hurt, thereby making it “less likely that [he]

will visit” that park; and (4) that he enjoys “eating freshwater and ocean fish” and he is concerned that bullets fired

into the water will “enter[] the water column and bioaccumulat[e] in the tissues and organs of fish,” thereby

lessening his desire to eat fish.

Pollack’s intention to drink water and his fear that his

water has been contaminated by lead from bullets does not

give rise to standing. He relies on Franklin County and

Gaston Copper to argue that his drinking water taken from

Lake Michigan gives him standing. However, this case

is materially distinguishable from those because Pollack

is not downstream from the alleged pollutants and it is

unclear whether their presence affects him. In Gaston

Copper, the individuals were downstream from the entry

point for the pollutants. Here, the ricocheting bullets

from the Foss Park site and the shotgun range enter Lake

Michigan at North Chicago, Illinois. Highland Park is

approximately thirteen miles from North Chicago and

draws its water from a different section of Lake Michigan

than North Chicago. It is unclear if any pollution from

bullets discharged into Lake Michigan will travel the

thirteen miles from Foss Park to Highland Park. To clarify

this point, Pollack alleges that sediment in the region

travels in a counter-clockwise direction, from Foss Park

to Highland Park, and cites a report of the Environmental Protection Agency. However, that report does not
No. 08-3857 11

suggest that such a pattern of movement exists. See U.S.

Envtl. Prot. Agency & Gov’t of Canada, The Great Lakes:

An Environmental Atlas and Resource Book, ch. 2, § 4

(3d ed. 1995), available at http://www.epa.gov/glnpo/atlas/

index.html. Hence, Pollack has not satisfied his burden

of showing that decaying bullets near North Chicago

will affect his water supply in Highland Park. Pollack’s

belief that the bullets affect him is also unlike the air

pollution at issue in Franklin County, because it is commonly understood that air pollution can travel three

miles through the air and different wind conditions

could easily blow the pollution onto land at that distance.

In contrast, it is not readily apparent that Pollack would

be affected by the shooting at issue here.

Taken to its extreme, Pollack’s argument would permit

any person living on or near Lake Michigan to assert that

he has been harmed by the bullets, because the lead

could potentially have been carried to every part of the

lake. However, Lujan makes clear that when a vast environmental area is involved and the pollution affects

one discrete area while a plaintiff intends to visit a different discrete area, that plaintiff does not have standing.

Similarly, Pollack drinks treated water from one discrete

area while the defendants’ activities affect a different

discrete area. Without some support for the assertion

that he will be affected by the drift of polluted sediment

or water, Pollack has not shown that he has standing to

pursue this lawsuit. Thus, because it is not readily apparent that Pollack would be affected by the discharge

of bullets, he does not have standing based on Highland

Park’s drinking water taken from Lake Michigan.
12 No. 08-3857

Similarly, Pollack has failed to connect his desire to eat

fish with the bullets in the water. For one, his desire to

eat ocean fish is not implicated because Lake Michigan

is not the ocean. Moreover, Pollack never avers that he

will eat fish from Lake Michigan itself; instead, he refers

generally to “freshwater fish.” Hence, Pollack has not

even claimed that he will eat fish from the affected

region. This statement is unlike Laidlaw and Franklin

County, where the individuals actually used the areas

affected by pollution. Indeed, Pollack’s averment that he

eats freshwater fish from some unnamed source is less

suggestive of standing than the statements in Lujan and

Summers, where the individuals at least visited the

general region affected by pollution. Accordingly,

Pollack’s intention to eat freshwater fish from an unspecified source does not provide a basis for standing to sue.

Pollack’s desire to view wildlife and to visit local parks

may both be considered a claim that he will suffer

aesthetic harm from the gun range. While the Supreme

Court clearly recognizes that aesthetic harms may give

rise to standing, Summers, 129 S. Ct. at 1149, Lujan and

Summers demonstrate that a plaintiff must show that he

has actual aesthetic interest in the area affected by the

pollution. When governmental action affects a discrete

natural area, and a plaintiff merely states that he “uses

unspecified portions of an immense tract of territory,” such

averments are insufficient to establish standing. Lujan, 497

U.S. at 889. Here, Pollack claims generally that he

enjoys watching birds in the “Great Lakes watershed” and

visiting public parks “along the Illinois portion of Lake

Michigan.” However, he never claims that he visits Foss
No. 08-3857 13

Although Pollack visited Foss Park after he commenced suit, 2

a plaintiff must establish standing at the time suit is filed and

cannot manufacture standing afterwards. Laidlaw, 528 U.S. at 180

(stating that the court considers whether a plaintiff had

standing “at the outset of the litigation”); Perry v. Village of

Arlington Heights, 186 F.3d 826, 830 (7th Cir. 1999) (stating that

“[t]he requirements of standing must be satisfied from the

outset”).

Park or watches birds in that area. Instead, Pollack claims 2

that he visits parks and watches birds within a vast

territory. This claim is similar to the statements in Lujan

and Summers, where the individuals never claimed to

have a specific interest in the actual area affected by

pollution. Summers, 129 S. Ct. at 1150; Lujan, 497 U.S. at 886.

Pollack fails to demonstrate that his interest in birdwatching along an unspecified portion of the Great

Lakes watershed—a region stretching from Minnesota to

New York—will be affected by the shooting activities in

a confined area of North Chicago. Similarly, the section

of Lake Michigan bordering Illinois stretches for approximately 70 miles, and Pollack never specifies where

along that shoreline he visits. Accordingly, his generalized statements that he visits the Illinois shoreline

of Lake Michigan and watches birds in the Great Lakes

watershed do not give rise to standing to challenge the

shooting activities at issue here.

In short, Pollack’s and Miller’s interests are too generalized to give rise to standing. “At bottom [the plaintiffs]

appear to seek the simple satisfaction of seeing the [environmental] laws enforced.” Jaramillo v. FCC, 162 F.3d 675,
14 No. 08-3857

677 (D.C. Cir. 1998). However meritorious their case

may be, the plaintiffs lacked a constitutional basis to

bring this lawsuit.

III. 

Because neither Pollack nor Miller has demonstrated

that they were concretely affected by the shooting

activities they challenge, neither individual has standing

to pursue this case. Accordingly, neither Pollack nor

Blue Eco has standing. The district court’s dismissal of

this suit for lack of subject-matter jurisdiction is AFFIRMED.

CUDAHY, Circuit Judge, concurring. This is without

question a close case. As the case law laid out by the

majority suggests, “injury in fact” can be an elusive

phenomenon. Although in the present case an injury is

arguably traceable to the deposit of toxic substances in

potable water, such phenomena appear and disappear

from one case to the next depending on subtle twists in the

allegations, turning between the real and the hypothetical.

Compare generally Lujan v. Defenders of Wildlife, 504 U.S. 555

(1992) (Scalia, J.), and Summers v. Earth Island Institute, 129

S.Ct. 1142 (2009) (Scalia, J.), with Friends of the Earth v.

Laidlaw, 528 U.S. 167 (2000) (Ginsburg, J.). I write separately
No. 08-3857 15

to make the point that the Supreme Court’s case law on

this subject is both unclear in purpose and extraordinarily difficult to reconcile. Close cases like this one

ought to make that point clearly. In particular, where a

citizen-suit provision potentially sets the bar for

proving the merits lower than the bar for proving

standing, it is incumbent upon us to carefully examine

why the plaintiff before us either has or has not established “injury in fact.” Perhaps more important, this

plaintiff’s case has procedural flaws not addressed by

the majority.

The Clean Water Act includes a citizen-suit provision

stating that “any citizen may commence a civil action on

his own behalf against any person . . . who is alleged to

be in violation of an effluent standard or limitation

under this chapter.” 33 U.S.C. § 1365(a)(1). An “effluent

standard or limitation” is defined to include any term or

condition of an approved permit. See id., § 1365(f). Citizens

are therefore authorized to bring suit against any NPDES

permit holder who has allegedly violated its permit. See

Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204

F.3d 149, 152 (4th Cir. 2000). The Act also includes a

statutory standing requirement, which defines “citizen” as

“a person or persons having an interest which is or may

be adversely affected.” 33 U.S.C. § 1365(g). Congress has

explained that this standing requirement confers

standing to its constitutional limits. See Gaston Copper,

204 F.3d at 152 (citation omitted). Even so, the broad

nature of the citizen-suit provision means that in many

cases, like this one, the real test will be proof of standing,

not of the merits.
16 No. 08-3857

To have standing under the “case or controversy”

requirement of Article III of the Constitution, an

individual must show an injury in fact that is both

concrete and particularized and actual or imminent, not

conjectural or hypothetical; that the injury is traceable to

the challenged action; and that it is redressable. Defenders

of Wildlife, 504 U.S. at 560–61; Sierra Club v. Franklin County

Power of Illinois, LLC, 546 F.3d 918, 925 (7th Cir. 2008)

(Franklin County Power). “Because these elements ‘are not

mere pleading requirements but rather an indispensable

part of the . . . case, each element must be supported . . .

with the manner and degree of evidence required at the

successive stages of the litigation.’ ” Franklin County

Power, 546 F.3d at 925 (quoting Defenders of Wildlife, 504

U.S. at 561).

Though the test for showing injury in fact is easy enough

to state, it is almost hopelessly confusing to apply. We are

told that “environmental plaintiffs adequately allege

injury in fact when they aver that they use the affected area

and are persons ‘for whom the aesthetic and recreational

values of the area will be lessened’ by the challenged

activity.” Laidlaw, 528 U.S. at 183 (quoting Sierra Club v.

Morton, 405 U.S. 727, 735 (1972)). “Of course, the desire

to use or observe an animal species, even for purely

esthetic purposes, is undeniably a cognizable interest

for purposes of standing.” Defenders of Wildlife, 504 U.S.

at 562–63 (citing Morton, 405 U.S. at 734). But the injury

in fact test requires more than an injury to a cognizable

interest. It requires that the plaintiff be “among the injured.” Id. Nevertheless, the “ ‘injury-in-fact necessary for

standing need not be large, an identifiable trifle will
No. 08-3857 17

East Chicago, Indiana is 60 miles south of the gun range by 1

car.

Evanston, Illinois is 26 miles south of the gun range. 2

suffice.’ ” Franklin County Power, 546 F.3d at 925 (quoting

LaFleur v. Whitman, 300 F.3d 256, 270 (2d Cir. 2002))

(further internal quotation marks and citations omitted).

These statements raise more questions than they answer.

What is the “affected area”? How do we determine

whether someone’s aesthetic or recreational values will

be “lessened” other than by their say-so? What counts as

a “trifle” sufficient to place someone “among the injured”?

This guidance is particularly difficult to follow where

the plaintiff is on the bubble: Pollack does not live in

North Chicago, where the drinking water is concededly

drawn from the “affected area” of the lake, but he doesn’t

live in East Chicago either, or even as far as Evanston. Is 1 2

Highland Park, thirteen miles away, close enough to be

“among the injured”?

The majority recites the relevant case law without really

engaging with it in a way that gives an answer to this

question. The majority quotes Franklin County Power at

length, for instance, including the court’s explanation

that, although “we don’t know if the particulate matter

from the plant will blot out the sky or merely create a

thin haze that’s not visible to the naked eye, . . . . [w]e do

know . . . that the plant will release some pollutants and

that McKasson believes these pollutants will ruin her

ability to enjoy Rend Lake and taint the surrounding area.”

Franklin County Power, 546 F.3d at 927. The same can be
18 No. 08-3857

said here—we know that the gun range has discharged

lead in the lake, and we know that Pollack believes that

lead in the lake will ruin his ability to enjoy drinking his

water, eating fish and watching waterfowl in the Great

Lakes watershed. In fact, this case is arguably an easier

case for standing than Franklin County Power. There, the

power plant in question had yet to be built—the injury

was, almost by definition, hypothetical. Here, not only

has the firing range admitted to discharging lead into the

lake, it has admitted to doing so without a permit over

the course of decades. And whatever else can be said

about Pollack’s injury, it is beyond cavil that lead is a

toxic substance that even in very small amounts causes

harm when ingested by the human body. The majority

appears to depart from Franklin County Power’s capacious

standard, and to settle on a narrower, more demanding

requirement.

This is particularly unfortunate here, where the plaintiffs’ case is flawed for procedural reasons that may not

require us to revisit Franklin County Power’s recent pronouncements on standing. The plaintiffs arguably failed to

meet their burden of proof. Pollack correctly argues that he

need not show environmental degradation to establish

standing for a permit violation under the Clean Water Act.

See Gaston Copper, 204 F.3d at 159. “[T]he Supreme Court

does not require such proof.” Id. Gaston Copper explained

that in Laidlaw, the Court found that “several citizen

affidavits attesting to reduced use of a waterway out of

reasonable fear and concern of pollution ‘adequately

documented injury in fact.’ ” Id. (quoting Laidlaw, 528 U.S.
No. 08-3857 19

at 183). “The Court required no evidence of actual harm to

the waterway . . .” Id. Nevertheless, because the defendants

here have challenged the factual basis for the plaintiffs’

standing to sue, Pollack was required to present some

competent proof of his injuries, and his proof is subject to

refutation by the defendants.

On a factual challenge to a plaintiff’s standing, “ ‘the

district court may properly look beyond the jurisdictional

allegations of the complaint and view whatever evidence

has been submitted on the issue to determine whether

in fact subject matter jurisdiction exists.’ ” Apex Digital, Inc.

v. Sears, Roebuck & Co., 572 F.3d 440, at *3 (7th Cir. 2009)

(quoting Evers v. Astrue, 536 F.3d 651, 656–57 (7th Cir.

2008)) (further internal quotation marks and citations

omitted). Indeed, “ ‘the trial court is free to weigh the

evidence and satisfy itself as to the existence of its power

to hear the case.’ ” Id. (quoting Mortenson v. First Fed. Sav.

& Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977)). Again, it is

undisputed that the defendants regularly discharged

lead bullets into Lake Michigan without a permit and

that lead is a toxic chemical that can affect drinking water.

The narrow question is whether Pollack had a “reasonable

fear” that his drinking water was unsafe.

Pollack presented evidence of the “dynamic nature” of

the waters in Lake Michigan, suggesting that the lead in

the water next to North Chicago can migrate thirteen

miles south to Highland Park. The majority brushes this

evidence aside, stating that the EPA report Pollack offered

in support does not say what he said it says. The

majority asserts that “it is commonly understood that air
20 No. 08-3857

The majority also focuses on the fact that the lead level in 3

Highland Park’s water is not high enough to violate federal

standards. This may be beside the point, given that Pollack

was not required to show any environmental degradation to

satisfy the requirements of standing. See Gaston Copper, 204

F.3d at 160. Lead is toxic in any amount, and the administrative

limit cited by the majority is a practical rather than an

ideal ceiling.

pollution can travel three miles through the air . . . . [but]

it is not readily apparent that Pollack would be affected

by the shooting at issue here.” Supra at 11. The majority

goes outside the record and cites no authority for its

assertion regarding what is commonly understood about

air pollution. Even accepting this assertion, it is also

commonly understood (at least among boaters in Lake

Michigan) that the currents at the foot of the lake, as

distinguished from the larger body of water generally, do

travel counter-clockwise at least part of the year, and

therefore the plaintiffs’ logic does not implicate the

entire lake or every point on its shoreline. It also misses

the mark to take Pollack’s argument “to its extreme” and

to posit whether someone on the other side of Lake Michigan would have standing here—Pollack is the plaintiff

before us, and the facts and circumstances of his case,

namely his distance thirteen miles from the source of

pollution, are what we must address. Setting all of that

aside, the district court assumed that Pollack’s assertions

regarding the lake’s currents were true. It is not for us

to find otherwise.3

More to the point is the fact that the defendants presented their own evidence tending to rebut what little
No. 08-3857 21

evidence that Pollack did put forth. The defendants

showed not only that Highland Park (unlike North Chicago) draws its drinking water from intakes outside

the roughly 3,000-acre area presumably affected by the

firing range, but also that Highland Park and North

Chicago have attributed the small amount of lead in

their drinking water to corrosive pipes, not to the firing

range at issue here. In this respect, then, our case is

unlike Gaston Copper, where there was competent evidence that the pollutants in question would travel more

than 16 miles downstream, passing through the plaintiff’s private lake on the way. Here, Pollack’s limited

evidence that lead has traveled or will travel south to

Highland Park and enter the plaintiff’s drinking water

was outweighed in the view of the district court by the

defendants’ evidence of an alternative cause for lead in

the water—the corrosive pipes just mentioned. The

district court properly exercised its fact-finding role and

concluded that the defendants had rebutted Pollack’s

evidence of standing. See Apex Digital, Inc., 572 F.3d 440,

at *3. This is what really seems to tip the balance in Pollack’s case.

Perhaps what we can say here, then, is that the farther

the plaintiff is from the “area of injury,” the more

evidence he generally must put forth to prove that he is

“among the injured.” Perhaps, however, this case

resolves as it does merely because of the procedural

turns it took. If the defendants had made a facial

challenge rather than a factual challenge to Pollack’s

standing, or if Pollack had put forth more evidence of

lead’s likelihood of traveling thirteen miles south from

North Chicago, then the complaint may have withstood
22 No. 08-3857

the motion to dismiss. The caselaw is so unclear, however, that we cannot say more than that.

Pollack’s claims regarding aesthetic and recreational

injuries are less persuasive and the majority addresses

them adequately. Pollack does not allege that he uses the

affected area. See Laidlaw, 528 U.S. at 183 (quoting Morton,

405 U.S. at 735). Instead, he says he enjoys watching the

wildlife “in the Great Lakes watershed,” and that he uses

public areas “along the Illinois portion of Lake Michigan,”

and that he enjoys “eating freshwater and ocean fish.”

These interests are far broader than an interest in the area

affected by the firing range, however that area might be

defined. As the district court pointed out, and the

majority reprises, the Illinois shoreline Pollack claims to

use is 61 miles long, and the Great Lakes watershed

encompasses all five of the Great Lakes and is 750 miles

wide. Pollack never alleges that he used the beach at Foss

Park, adjacent to the range, or any beach near there.

Pollack’s averments are thus barely—but only barely—

insufficient to establish injury in fact, and unfortunately

may impair the salutary significance of Franklin County

Power.

For these reasons, with some reluctance, I concur.

8-13-09