SAN FRANCISCO (CN) — A self-described “dirt broker” will be getting a new trial after the Ninth Circuit overturned his 2018 conviction for illegally dumping pollutants into nearly 12 acres of protected wetlands.
James Lucero charges trucking companies and contractors a fee in exchange for providing an open space to dump dirt and construction debris.
He was sentenced to 30 months in prison after a federal jury found him guilty on three counts of violating the Clean Water Act by knowingly discharging pollutants into the Mowry Slough — part of the Don Edwards San Francisco Bay National Wildlife Refuge in Newark, California.
Lucero’s dumping sites were separated from the 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. Lucero was also convicted of a third count for dumping into a tributary of the Mowry Slough.
But a three judge panel of the Ninth Circuit found that the federal judge had not adequately conveyed to the jury that to convict Lucero, it had to find that he knowingly discharged the pollutants into the water.
The Clean Water Act defines pollutant as “dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water.”
The appellate court found Lucero’s conviction must be reversed, given this statutory definition of pollutant, since the jury instructions did not make clear that he had to know his discharge was “into water.”
"On this record, we cannot say that a properly instructed jury clearly would have found Lucero guilty,” Circuit Judge Patrick Bumatay, a Trump appointee wrote for the panel. “We therefore reverse Lucero’s conviction and remand for a new trial with jury instructions that make clear the government’s burden to prove that Lucero knowingly discharged fill material “'into water.'”
Bumatay was joined by U.S. District Judge Rose Marquez, an Obama appointee, and U.S. Circuit Judge Bridget Bade, a Trump appointee.
While Bade agreed that Lucero should get a new trial, she also diverged from her colleagues in her reading of the Clean Water Act.
While the majority interpreted the Clean Water Act’s discharge prohibition to mean the government only had to prove that Lucero knew he discharged a pollutant “into water,” Bade said it was important to note the distinction between dumping into water and "waters of the United States.”
The term “waters of the United States,” she wrote, is more than just a jurisdictional term, and should be included as part of the knowledge required to commit a crime.
"Under the majority’s interpretation, the discharge prohibition could cover all sorts of innocent acts: heating a tea kettle, using the restroom, skipping a rock across a pond, and even diving into a lake,” Bade wrote.
While Bumatay said the statute is “not a model of clarity,” he didn’t find it “absurdly overbroad,” as Bade characterized it. When read in context, Bumatay said, the statute “leads to no absurdity whatsoever” since the Clean Water Act requires that the discharge be made from a point source, like a pipe or a ditch.
“Construing ‘water’ in context with the Act’s other elements, especially the requirement that any discharge be from a ‘point source,’ ensures that the CWA criminalizes only those activities falling within ‘reasonable notion[s] of water pollution,’” Bumatay wrote.
“Reading these two phrases together therefore eliminates the possibility that heating tea kettles, skipping rocks, using the restroom, and the other parade of horribles imagined by the dissent would come within the CWA’s ambit,” he wrote.
Attorney Anthony François with the Pacific Legal Foundation, who filed an amicus brief on behalf of trade groups interested in the validity of government regulations, said the debate boils down to what the judges believe the government must prove.
“The majority is saying they just have to prove the defendant knew the fill (pollutant) would go into water. The dissent says the prosecution should also have to prove the defendant knew that water was also subject to Clean Water Act protection,” François said by phone on Thursday.
He said the examples Bade gave in her dissent were not outlandish, considering the complexity of the statute and the criminal consequences at stake.
“In this context, if it is or isn’t navigable waters makes a difference because you can drop a truckload of fill in one place and it’s not navigable waters, but ten yards away might be within a vernal pool or a wetland,” François said. "It really is that it’s in federally protected waters that makes it criminal. It’s kind of an esoteric question, but the significance of it is huge.”
Bade recognized this in her dissent, writing, "We avoid these problems if we acknowledge that the statute’s reference to ‘waters of the United States’ does not merely delineate the government’s jurisdiction to enforce the discharge prohibition, but that it also plays a role in defining the prohibition itself.”
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