U.S. v. Hubenka

Decision Date21 February 2006
Docket NumberNo. 05-8006.,05-8006.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. John HUBENKA, Defendant-Appellant. Northern Arapahoe Tribe, Eastern Shoshone Tribe, and National Wildlife Federation, Amici Curiae.
CourtU.S. Court of Appeals — Tenth Circuit

Robert R. Rogers, Assistant Federal Public Defender (Raymond P. Moore, Federal Public Defender, with him on the briefs), Cheyenne, WY, for Defendant-Appellant.

Linda S. Kato, Special Assistant United States Attorney (Matthew H. Mead, United States Attorney, John R. Green, Assistant United States Attorney, David A. Kubichek, Assistant United States Attorney, with her on the brief), for Plaintiff-Appellee.

Thomas D. Lustig, Jim Murphy and Michael A. Saul, National Wildlife Federation, Boulder, CO, filed an amici curiae brief on behalf of Northern Arapahoe Tribe, Eastern Shoshone Tribe and National Wildlife Federation.

Before EBEL, McWILLIAMS and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

I. INTRODUCTION

A second superceding indictment charged John Edward Hubenka with three counts of discharging pollutants into the Wind River in violation of the Clean Water Act, 33 U.S.C. §§ 1311(a) and 1319(c)(2)(A). A jury found Hubenka guilty on all three counts. Hubenka appeals his convictions. He argues his activities on the Wind River lie beyond the reach of the Clean Water Act. Hubenka also contends the district court violated Rule 404(b) of the Federal Rules of Evidence when it admitted into evidence certain testimony about Hubenka's past activities on the Wind River. This court exercises jurisdiction pursuant to 28 U.S.C. § 1291 and affirms.

II. BACKGROUND

The Wind River originates in Wyoming's Wind River Range, on the east slope of the continental divide near Togwotee Pass. From there, it flows southeast through the Wind River Indian Reservation. Near Riverton, Wyoming, the Wind River is joined by the Little Wind River and the Popo Agie River. Downstream from this confluence, the river is called the Big Horn River. Water in the Big Horn River flows north, joins the Yellowstone River in Montana, and eventually flows east into the Missouri River. The Wind River flows year-round, with higher volume in the late spring and early summer, and lower volume in the fall and winter.1

Appellant John Hubenka works as a manager for the LeClair Irrigation District ("LID") and lives on a ranch near the Wind River approximately eighteen miles west of Riverton. Although the river is not a property boundary, it roughly separates Hubenka's land on the north from the Wind River Indian Reservation to the south. LID maintains a diversion gate on the river to the northwest of Hubenka's property. The diversion gate allows water from the river to flow into an irrigation canal which parallels the north side of the river for some distance.

In the vicinity of Hubenka's property, the Wind River is a braided stream which flows through multiple channels within a broad flood plain. Historically, the river's main flow was contained in a "north channel" which was closer to the LID irrigation canal and further from the Indian Reservation.

Over the years, Hubenka and LID have attempted to divert the flow of the river away from the north channel so that the bank of the river does not erode and threaten the irrigation canal. In 1979, LID obtained a permit from the United States Army Corps of Engineers ("Corps")2 to stabilize the north bank of the river at and downstream from the diversion gate. At the same time, LID dredged the river bottom, effectively moving the main channel of the river away from the north bank. LID's original permit did not authorize this recontouring of the river bottom, but in 1983 the Corps granted LID a permit which retroactively allowed the dredging. Hubenka signed as the permitee on behalf of LID.

In 1994, under Hubenka's supervision, LID constructed a dike in the north channel of the Wind River, slightly downstream of its diversion gate. The 1994 dike was constructed using river cobbles as well as scrap metal, cottonwood trees, car bodies, and a washing machine. Similarly, downstream from the dike on Hubenka's property, the north bank of the river was reinforced with scrap metal and construction debris. The Corps sent LID, via Hubenka, a notice of violation. The notice advised LID that its actions constituted unauthorized discharges and instructed LID to refrain from adding material to the dike and to remove the debris. The Corps sent a similar notice of violation directly to Hubenka.

In October of 1994, Tom Johnson, a representative of the Corps, conducted a site visit to assess whether the prohibited materials had been removed. During the site visit, Johnson observed a truck dumping more material on the dike. After discussions with Hubenka and other representatives of LID, the Corps took action to require LID to remove the dike in its entirety and to require Hubenka to remove all debris except for clean concrete from the river bank on his property. After LID and Hubenka complied with the Corps' directive, the agency worked with them to develop and issue a permit to stabilize the north bank of the river downstream from the diversion gate using more acceptable techniques and materials.3 The stabilization project was constructed in 1995 and successfully protected the north bank from erosion even during periods of high water.

At some point in the late 1990s or early in 2000, the river's primary course shifted from the north channel to a new "south channel." Relative to the north channel, the south channel is closer to the Indian Reservation and further from the LID irrigation canal. The cause of the river's change in course is unclear. Several witnesses living nearby testified that the Wind River shifted to the south channel naturally. The Corps' Johnson, however, felt the change was not natural. Johnson, an expert in hydrology, testified that "something else happened to cause that sudden and dramatic change."

In March of 2000, Hubenka hired heavy equipment operator Curtis Neal to construct a series of dikes or berms in the north channel of the Wind River. Using a bulldozer, Neal pushed river cobble from the north channel to form an initial dike at the point where the north and south channels diverge, just downstream of the LID diversion gate. "Dike one" blocked the north channel by directing high flows along the face of the dike and into the south channel. Downstream from dike one, Hubenka had Neal construct a second dike parallel to the south channel. "Dike two" prevented water from the south channel from returning to the north channel. Further downstream, Neal constructed a third dike—"dike three"—which again blocked water from reentering the north channel.4 All of the dikes were below the ordinary high water mark of the Wind River. None of the dikes was authorized by a permit from the Corps.

Early in 2004, Hubenka was charged with three violations of the Clean Water Act. Specifically, the government alleged that each of the three dikes constructed in 2000 constituted a knowing discharge of pollutants into the Wind River, a "`water of the United States' within the jurisdiction of the Clean Water Act." Hubenka was convicted on all three counts.

III. ANALYSIS
A. Application of the Clean Water Act to the Wind River

Hubenka argues the Corps' authority to regulate dredge and fill activities under the Clean Water Act does not extend to his activities on the Wind River. He contends the Corps is without jurisdiction because the dikes were built in a river that is neither navigable-in-fact nor adjacent to other navigable-in-fact waters, and because the dikes have no effect on navigable waters downstream. We must decide whether the district court erred in concluding that the Clean Water Act gives the Corps authority to regulate Hubenka's construction activities in the north channel of the Wind River. The construction and applicability of the Clean Water Act is an issue of law which this court reviews de novo. See United States v. Telluride Co., 146 F.3d 1241, 1244 (10th Cir.1998).

Under the Clean Water Act, the Corps has jurisdiction over dredge and fill activities in "navigable waters." 33 U.S.C. § 1344(a). The statute itself defines "navigable waters" as "waters of the United States." Id. § 1362(7). As the Supreme Court has recognized, "Congress chose to define the waters covered by the Act broadly." United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 133, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985).

At first, Corps regulations interpreted the Clean Water Act so as to apply only to navigable-in-fact waters. See id. at 123. In 1975, however, the Corps issued new regulations which redefined "waters of the United States." Id. Under the revised regulations, the Clean Water Act applied not just to navigable-in-fact waters, but inter alia, to tributaries of navigable waters and interstate waters. Id. Substantially identical regulations remain in place today. See 33 C.F.R. § 328.3(a)(5) ("tributary rule"). Hubenka argues the Corps' "tributary rule" inappropriately expands the agency's jurisdiction under the Clean Water Act and exceeds the agency's statutory authority to regulate discharges of dredged and fill material.

(1) Analysis of the Tributary Rule under the Chevron Framework

When a case involves an agency's interpretation of a statute it administers, this court uses the two-step approach announced in Chevron, U.S.A., Inc. v. Natural Res. Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). See S. Utah Wilderness Alliance v. Dabney, 222 F.3d 819, 824 (10th Cir. 2000). Under this approach, when Congress has addressed the precise question at issue, we give effect to the express intent of Congress. Id. (citing Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778). "If the statute is silent or ambiguous, however, we defer to the agency's interpretation," so long as it is permissible. Id....

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