United States v. Robertson

• Citation: 875 F.3d 1281
• Decision Date: 27 November 2017
• Docket Number: No. 16-30178,16-30178
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Joseph David ROBERTSON, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

875 F.3d 1281

UNITED STATES of America, Plaintiff–Appellee,

v.Joseph David ROBERTSON, Defendant–Appellant.

No. 16-30178

United States Court of Appeals, Ninth Circuit.

Argued and Submitted August 29, 2017 Seattle, Washington

Filed November 27, 2017

Michael Donahoe (argued), Deputy Federal Public Defender; Anthony R. Gallagher, Federal Defender; Federal Defenders of Montana, Helena, Montana; for Defendant-Appellant.

John David Gunter II (argued) and Robert Stockman, Attorneys; John C. Cruden, Assistant Attorney General; Environment & Natural Resources Division, United States Department of Justice, Washington, D.C.; Bryan R. Whittaker and Eric E. Nelson, Office of the United States Attorney, Helena, Montana; for Plaintiff-Appellee.

Roger I. Roots, Livingston, Montana, for Amici Curiae The Constitution Society and Founder and President Jon Roland.

Anthony L. François, Pacific Legal Foundation, Sacramento, California, for Amici Curiae Chantell and Michael Sackett, John Duarte, and Duarte Nursery Inc.

Before: M. Margaret McKeown and Ronald M. Gould, Circuit Judges, and Barbara Jacobs Rothstein,^* District Judge.

GOULD, Circuit Judge:

Between October 2013 and October 2014, Joseph David Robertson excavated and constructed a series of ponds on National Forest System Lands and on the privately owned Manhattan Lode mining claim. In the process of creating these ponds, Robertson discharged dredged and fill material into the surrounding wetlands and an adjacent tributary, which flows to Cataract Creek. Cataract Creek is a tributary of the Boulder River, which in turn is a tributary of the Jefferson River—a traditionally navigable water of the United States. Robertson was warned by an EPA Special Agent that his activities "very likely" required permits. Yet, he did not get permits to build the ponds or to discharge dredged or fill material into waters of the United States.

The Forest Service soon learned of Robertson's activities. And on May 22, 2015, a grand jury charged Robertson with three criminal counts. Count I charged Robertson with knowingly discharging dredged or fill material from a point source into a water of the United States without a permit in violation of the Clean Water Act (CWA), 33 U.S.C. § 1251 – 1388. Count II charged Robertson with willfully injuring and committing depredation of property of the United States, namely National Forest Service Land, causing more than $1,000 worth of damage to the property, in violation of 18 U.S.C. § 1361. Count III charged Robertson with another CWA violation for knowingly discharging dredged or fill material from a point source into a water of the United States on private property without a permit.

Robertson's initial jury trial was held from October 5 to October 8, 2015. At the close of the Government's case and at the close of the presentation of evidence, Robertson unsuccessfully moved for a judgment of acquittal under Federal Rule of Criminal Procedure 29. That first jury trial ended with a hung jury, and the judge declared a mistrial. Robertson again moved for acquittal on all three counts, arguing that the Government's evidence was insufficient to sustain a conviction. The district court denied this motion.

Robertson's second jury trial was held from April 4 to April 7, 2016. Robertson again moved for acquittal on all three counts after the close of the Government's case and at the close of evidence. And the district court again denied both motions. On April 7, 2016, the jury returned guilty verdicts on all three counts. On April 21, 2016, Robertson renewed his motions for acquittal and moved for a new trial. The district court denied those motions, concluding that the verdict was supported by sufficient evidence.

Robertson timely filed this appeal, over which we have jurisdiction pursuant to 28 U.S.C. § 1291.

I

Robertson argues (1) that the Government did not establish that there was CWA jurisdiction, and (2) that he lacked fair warning of the scope of CWA jurisdiction. He also (3) challenges the sufficiency of evidence at an earlier trial that ended in a mistrial; (4) appeals some evidence rulings; and (5) contests the calculation of restitution.¹

We review the district court's interpretation of the jurisdictional bounds of the CWA de novo . See United States v. Lewis , 67 F.3d 225, 228 (9th Cir. 1995). We also review whether a statute is unconstitutionally vague de novo . See United States v. Cooper , 173 F.3d 1192, 1202 (9th Cir. 1999). We review the challenged evidence rulings and a challenge to the district court permitting an expert to testify for abuse of discretion. See United States v. W.R. Grace , 504 F.3d 745, 759 (9th Cir. 2007) ; United States v. Layton , 767 F.2d 549, 553 (9th Cir. 1985).

II

We look first at the CWA jurisdiction issue. To assess Robertson's arguments on these points, some background on the CWA and the cases that have interpreted it is necessary. Congress enacted the CWA "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). To meet this goal, the CWA prohibits the discharge of dredge or fill material into "navigable waters" unless authorized by a permit from the Secretary of the Army through the Army Corps of Engineers ("the Corps"). Id. §§ 1311(a), 1311(d), 1344(a). Any person who knowingly violates § 1311 by discharging a pollutant without a permit "shall be punished" by a fine, imprisonment, or both. Id. § 1319(c)(2).

At issue on jurisdiction is the meaning of "navigable waters," and the reach of the CWA. "Navigable waters" is defined as "the waters of the United States, including the territorial seas." Id. § 1362(7). For there to be CWA jurisdiction here then, the creek and wetlands that Robertson polluted had to be "waters of the United States."

The reach of the Corps' jurisdiction over "navigable waters" is controversial and has been the subject of many Supreme Court cases. See, e.g. , United States v. Riverside Bayview Homes, Inc. , 474 U.S. 121, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985) (upholding a Corps' regulation that extended the Corps' authority under § 1344 to wetlands "adjacent to navigable or interstate waters and their tributaries"); Solid Waste Agency of N. Cook Cty. v. U.S. Army Corps of Eng'rs , 531 U.S. 159, 121 S.Ct. 675, 148 L.Ed.2d 576 (2001) (invalidating the Corps' "Migratory Bird Rule" because the Corps does not have CWA jurisdiction over non-navigable, isolated, intrastate waters that are not adjacent to open water).

Central to this appeal is the Supreme Court's fractured 4-1-4 decision, Rapanos v. United States , 547 U.S. 715, 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006). In that case, the Court confronted the issue of whether wetlands, which did not contain or directly abut traditionally navigable waterways, were "waters of the United States" subject to the Corps' jurisdiction under the CWA. See id. at 729–30, 126 S.Ct. 2208 (plurality); id. at 759, 126 S.Ct. 2208 (Kennedy, J., concurring in the judgment). In answering this question, the Court had to address whether the Corps' regulations were a permissible interpretation of the CWA. The regulations had interpreted "waters of the United States" very broadly, including not just traditionally navigable interstate waters, but also

"[a]ll interstate waters including interstate wetlands," [ 33 C.F.R.] § 328.3(a)(2) ; "[a]ll other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce," [ id. ] § 328.3(a)(3) ; "[t]ributaries of [such] waters," [ id. ] § 328.3(a)(5) ; and "[w]etlands adjacent to [such] waters [and tributaries] (other than waters that are themselves wetlands)," [ id. ] § 328.3(a)(7). The regulation defines "adjacent" wetlands as those "bordering, contiguous [to], or neighboring" waters of the United States. [ Id. ] § 328.3(c). It specifically provides that "[w]etlands separated from other waters of the United States by man-made dikes or barriers, natural river berms, beach dunes and the like are ‘adjacent wetlands.’ " [ Id. ]

Rapanos , 547 U.S. at 724, 126 S.Ct. 2208 (plurality).

The plurality opinion, authored by Justice Scalia, and joined by Chief Justice Roberts, and Justices Thomas and Alito, concluded that the Corps' regulations were not "based on a permissible construction of the statute." Id. at 739, 126 S.Ct. 2208 (quoting Chevron U.S.A., Inc. v. Nat. Res. Def. Council , 467 U.S. 837, 843, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) ). The plurality held that "the phrase ‘the waters of the United States' includes only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic features' that are described in ordinary parlance as ‘streams[,] ... oceans, rivers, [and] lakes.’ " Id. (quoting Webster's Second 2882) (alterations in original). The term, according to Justice Scalia's opinion, "does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall." Id. The plurality went on to conclude that wetlands are covered by the CWA only if two conditions are met: first, "the adjacent channel contains a ‘wate[r] of the United States,’ (i.e., a relatively permanent body of water connected to traditional interstate navigable waters);" and second, "the wetland has a continuous surface connection with that water, making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins." Id. at 742, 126 S.Ct. 2208 (alteration in original). The plurality ultimately remanded the case to the lower court so that it could determine, in the first instance, whether the wetlands at issue were subject to the CWA under the new standard.

Justice Kennedy, providing the fifth vote supporting the judgment concurred in the judgment but rejected the plurality's test and outlined his own test to...