‘Dirt broker’ gets year of probation for Clean Water Act violation

OAKLAND, Calif. (CN) — A “dirt broker” whose prison sentence for illegally dumping pollutants into protected wetlands was overturned by a federal appeals court last year pleaded guilty to one count of violating the Clean Water Act and agreed to serve one year of probation, prosecutors confirmed Thursday.

For a fee, James Lucero provided trucking companies and contractors with an open space to dump dirt and construction debris.

Lucero’s dumping sites were separated from Mowry Slough by a levee made of packed dirt. At trial, the government presented evidence that the first area was connected to a tributary flowing underneath the slough, and that water flowed through the second site via tributaries that connected to the slough.

In 2018, a jury convicted Lucero of three felony counts of illegal dumping pollutants into the slough — part of the Don Edwards San Francisco Bay National Wildlife Refuge in Newark, California. He was sentenced to two and half years in prison.

A three judge panel of the Ninth Circuit overturned his sentence and ordered a new trial last year, finding the federal judge had not adequately conveyed to the jury that to convict Lucero, it had to find he knowingly discharged the pollutants into water. The panel's opinion described the case as an "oddity" because Lucero had dumped the debris on dry land.

Because of the complexities of this legal framework and shifting interpretations of what constitutes "navigable water" under the Clean Water Act, the parties negotiated a plea deal that would avoid prolonging the case and keep Lucero out of prison.

U.S. District Judge Haywood Gilliam sentenced Lucero to one year of probation and six months of home confinement at a hearing Wednesday.

A sentencing memo filed by his public defender Geoffrey Hansen said the new sentence was appropriate as "proceeding to trial in 2022 on a third superseding indictment would only result in more years of stress for Mr. Lucero while the parties continued to litigate the complexities of the CWA."

Lucero has spent the last five years on pretrial supervision.

Hanson added that Lucero's environmental transgression was relatively benign. "Certainly, some CWA offenses that are prosecuted as criminal felonies are serious and dangerous. But Mr. Lucero did not reroute discharge from a hazardous-waste treatment plant into obvious waters such as the ocean. He dumped nontoxic fill and dirt on private property that the landowners had planned to fill and develop, and during the litigation the wetlands grew back over the fill material because the landowners temporarily ceased its mowing and disking."

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