U.S. v. Moses, 06-30379.

• Citation: 496 F.3d 984
• Decision Date: 03 August 2007
• Docket Number: No. 06-30379.,06-30379.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. C. Lynn MOSES, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

496 F.3d 984

UNITED STATES of America, Plaintiff-Appellee, v. C. Lynn MOSES, Defendant-Appellant.

No. 06-30379.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 10, 2007.

Filed August 3, 2007.

Blake S. Atkin, Atkin Law Offices, P.C., Salt Lake City, UT, for the defendant-appellant.

Matthew J. McKeown, Acting Assistant Attorney General, and Katherine W. Hazard, United States Department of Justice, Washington, DC, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Idaho; B. Lynn Winmill, District Judge, Presiding. D.C. No. CR-05-00061-BLW.

Before: FERDINAND F. FERNANDEZ and KIM McLANE WARDLAW, Circuit Judges, and LOUIS H. POLLAK,^* District Judge.

FERNANDEZ, Circuit Judge:

Despite numerous warnings over the years, Charles Lynn Moses continued to do work in the channel of Teton Creek in Idaho for the purpose of rerouting, reshaping and otherwise controlling the flow of the waters of the Creek. The government finally prosecuted him for violating the Clean Water Act (CWA). See 33 U.S.C. §§ 1251-1387. He was convicted and sentenced, and now appeals. He claims that there was no discharge of pollutants into the waters of the United States. We disagree and affirm.

BACKGROUND

Moses is a real estate broker and developer in Driggs, Idaho. Beginning in the late 1970s, he worked on a development known as the Aspens Subdivision, an approximately 50 acre parcel of land in Teton County, Idaho, which is located on a flood plain next to Teton Creek. Because of an irrigation diversion structure installed in Alta, Wyoming, upstream of the subdivision, water actually flows in the portion of Teton Creek adjacent to the subdivision only during the spring run-off, which lasts about two months per year. During that time, water is released from the diversion. When it does flow, the volume and power of the flow are high, even torrential. Teton Creek is a tributary of the Teton River, which flows into the Snake River. Water continues to flow year-round in Teton Creek above the diversion, and also from a point below the subdivision until it reaches the Teton River. There is no claim that the Snake River, the Teton River, and Teton Creek, apart from the segment that flows only during the spring runoff, fail to qualify as waters of the United States.

Beginning in the 1980s, and continuing for more than 20 years, Moses has worked to reroute and reshape Teton Creek, in an attempt to convert the original three channels of the Creek into one broader and deeper channel, which would carry all of the seasonal flow of water. Over that period, including during more recent work in 2002, 2003 and 2004, Moses hired heavy equipment operators to recontour and redeposit material within the Creek using bulldozers, and to erect log and gravel structures in the Creek using other heavy equipment.

Beginning in 1982 and on several occasions thereafter, the Army Corps of Engineers (the Corps) warned Moses that his stream alteration work required a CWA permit. During a hearing on the Aspens Subdivision in 1982, the Corps informed Moses that it did have jurisdiction over the stream, even though the flow of the stream was intermittent. In 1995, the Corps issued a cease and desist order that directed Moses to immediately stop all dredge and fill operations in Teton Creek. In 1996 and 1997, the Corps once again wrote to Moses, seeking his cooperation and explaining its regulations. Moses essentially ignored all of that.

On two separate occasions in 2002,¹ Moses hired the owner of Tupco, Inc., an excavation business to rebuild and repair log structures, to perform dredging and filling work, to build a temporary ramp, and to remove gravel bars in Teton Creek. An environmental resources specialist with the Corps saw the work going on within the Creek bed in September 2002, informed Moses that he needed a permit to conduct the work, and advised him that the activities could result in civil or criminal penalties. Moses treated that warning with his usual disdain. In December 2002, the Corps issued a notice of violation to Moses, which again informed him of the need for a permit and of the potential for criminal penalties.

Undeterred, in Spring 2003,² Moses contacted the excavation business operator for a third time and asked him to work in Teton Creek. The operator again "repaired" log structures within the Creek bed, and moved gravel out of and within the Creek bed. Several months later, the Environmental Protection Agency (EPA) issued an administrative compliance order pursuant to 33 U.S.C. § 1319(a), which directed Moses to immediately "cease any unauthorized discharges of dredged material, fill material, and other pollutants to any stream bed and banks on the [s]ite," and to submit a work plan for restoring Teton Creek. Moses did not respond to the EPA's order, and less than two months later he hired the owner of Nord Excavating and Paving, Inc., to do more bulldozing work in Teton Creek. That consisted of the removal of gravel bars and contouring of the Creek bed.

Overall, the work on the Creek bed was substantial. Thousands of cubic yards of gravel and other materials were moved, and the channel was deepened, widened, and greatly disturbed. The disturbance reached both upstream and downstream of the work perpetrated by Moses and his minions. Of the hundreds of projects surveyed by Dale Miller, a government expert, Teton Creek was "probably one of the more impacted streams" he had observed, "both in terms of change [at the part in question here] and also the upstream and downstream effects that have resulted from that change." The Creek was unstable into the bargain.

Finally, in March 2005, a federal grand jury returned a three-count indictment charging Moses with felonious violations of the CWA for knowingly discharging, and causing to be discharged, pollutants (including dredged and fill material) from a point source or point sources into waters of the United States without a permit. See 33 U.S.C. §§ 1311(a), 1319(c)(2)(A); 18 U.S.C. § 2. The counts covered discharges by Moses into Teton Creek in the Aspens Subdivision area from 2002 to 2004.

A four-day jury trial was held in September of 2005. On September 14, 2005, after the close of the government's case, Moses timely moved for a judgment of acquittal under Rule 29 of the Federal Rules of Criminal Procedure, which the court denied. Ultimately, the jury returned a verdict finding Moses guilty on all counts. In February of 2006, Moses moved for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure and attempted to introduce new evidence to support an estoppel argument. Moses claimed he had been misled by the government into believing that his conduct was lawful. The district court denied the motion. One month later, Moses filed a second motion for a new trial. The district court denied that motion also.

On June 30, 2006, the district court sentenced Moses to 18 months imprisonment on each count, to be served concurrently, and imposed a $9,000 fine, a $300 special assessment, and one year of supervised release. This appeal followed. Moses asserts that the evidence was not sufficient to support the verdict, and that he should have been granted a new trial.

JURISDICTION AND STANDARDS OF REVIEW

The district court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have jurisdiction pursuant to 28 U.S.C. § 1291.

Because Moses "preserved his sufficiency claim by moving for a judgment of acquittal, we review his claim de novo." United States v. Lyons, 454 F.3d 968, 971 (9th Cir.2006). Evidence is sufficient to support a conviction, if "`viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Id. (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)).

We review for abuse of discretion a district court's denial of a motion for a new trial. See United States v. Mack, 362 F.3d 597, 600 (9th Cir.2004); United States v. Sarno, 73 F.3d 1470, 1507 (9th Cir.1995). A new trial may be granted by the district court when the "interest of justice so requires." Fed.R.Crim.P. 33(a); Mack, 362 F.3d at 600.

DISCUSSION

Moses primarily attacks his conviction on the ground that the evidence does not support a determination that the portion of Teton Creek that he manipulated constitutes a water of the United States,³ and even if it does, the evidence will not support a determination that he made a discharge⁴ into that United States water. We will take those issues up first. We will then address his secondary issues, which rely on a notion that he did not need a permit anyway. As already indicated, and as we will explain further, we do not agree with any of his theories.

A. Sufficiency of the Evidence

Moses' sufficiency arguments turn on his claims about the reach of the CWA. That law was enacted by Congress in order to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). In order to achieve its objectives, Congress outlawed the unauthorized "discharge of any pollutant by any person." Id. § 1311(a). That, in turn, means that Moses could not add "any pollutant to navigable waters,"⁵ which means "the waters of the United States."⁶ As used in the CWA, pollutant means "dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sledge, 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." Id. § 1362(6). Those facially simple provisions have generated a good deal of regulatory and judicial attention. Suffice it to say that while they are designed to bring clarity to the Nation's waters, they, themselves, are not hyaline. Moses was not much...