U.S. v. Interstate General Co., No. Civ. AW-96-1112.

• Decision Date: 12 June 2001
• Docket Number: No. Cr. AW-95-0390.,No. Civ. AW-96-1112.
• Citation: 152 F.Supp.2d 843
• Parties: UNITED STATES of America, Plaintiff, v. INTERSTATE GENERAL COMPANY, et. al., Defendant.
• Court: U.S. District Court — District of Maryland

152 F.Supp.2d 843

UNITED STATES of America, Plaintiff, v. INTERSTATE GENERAL COMPANY, et. al., Defendant.

No. Civ. AW-96-1112.

No. Cr. AW-95-0390.

United States District Court, D. Maryland.

June 12, 2001.

Stephen M. Schenning, United States Attorney, W. Warren Hamel, Assistant United States Attorney, Baltimore, Maryland, for plaintiff.

Alfred H. Moses, Covington & Burling, Washington, D.C., for defendant.

MEMORANDUM OPINION

WILLIAMS, District Judge.

Presently before this Court are Interstate General Company, et. al.'s ("Defendants") Motion to Stay Time Limits in the Consent Decree, Motion to Vacate Order, and Motion for a Writ of Coram Nobis. On May 11, 2001, this Court held a hearing on the pending motions in the above captioned case. After hearing arguments from both parties and reviewing all pleadings in the matter, this Court will hold in abeyance the Defendants Motion to Stay Time Limits in the Consent Decree and deny the Defendants' Motion to Vacate Order, and the Motion for a Writ of Coram Nobis.

BACKGROUND

In 1995, the Government charged Defendants Interstate Government, Co. ("IGC"), St. Charles Associates and their chief executive officer, James J. Wilson, with placing fill on four parcels of land having the characteristics of wetlands under the Clean Water Act (CWA). The Government asserted jurisdiction to the parcels in questions because they are "adjacent to the headwaters" of two non-navigable creeks. The headwaters are intermittent streams and drainage ditches that average two feet in width and approximately two feet in depth depending on the time of the year. The parcels of land are more than ten miles from the Chesapeake Bay, and more than six miles from the Potomac River. At trial, the Government argued that the headwaters, through a series of culverts and creeks, ultimately flows into the Potomac River. At the end of trial, the jury was instructed that "navigable waters," was defined by the CWA as "the waters of the United States," including all intrastate waters, intermittent streams and all wetlands adjacent to such waters. The Defendants were convicted of four felony counts of "unlawfully attempting to drain" and fill the wetlands parcels. Mr. Wilson was sentenced to 21 months imprisonment and one year supervised release and ordered to pay a $1 million fine. IGC and St. Charles Associates were jointly fined $3 million, placed on probation for five years, and ordered to implement a wetlands restoration and migration plan proposed by the Government.

Defendants appealed their convictions to the U.S. Court of Appeals for the Fourth Circuit. In United States v. Wilson, 133 F.3d 251 (4th Cir.1997), the Fourth Circuit reversed the convictions finding that the Court erred in its instructions to the jury on the definition of "waters of the United States." The Fourth Circuit believed that including intrastate waters that have nothing to do with interstate commerce is beyond the definitional limit of "waters of the United States." As a result of the Fourth Circuit's decision, the Defendants' conviction was reversed and remanded to this Court for a new trial. The Government continued to pursue their case against the Defendants. As a result of negotiations, Defendants agreed to a plea. IGC pled guilty to a single felony count and paid a fine of $1.5 million. All charges against Defendants St. Charles Associates and Mr. Wilson were dismissed. Additionally, IGC paid a fine of $400,000 and agreed to implement a wetland remediation plan.

I. Petition for Writ of Error Coram Nobis

A. Standard

28 U.S.C. § 1651(a) states that, "The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." Coram nobis, Latin for in our presence, is a criminal procedural tool whose purpose is to correct errors of fact only.¹ Black's Law Dictionary 337 (6th ed.1990). A writ of coram nobis is to be used in circumstances that compel a course of action that would achieve justice. See United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (1954). A four prong analysis is used to determine when coram nobis relief is appropriate: (1) a more usual remedy is not available; (2) valid reasons exist for not attacking the conviction earlier; (3) adverse consequences exist from the conviction sufficient to satisfy the case or controversy requirement of Article III; and (4) the error is of the most fundamental character. Hirabayashi v. United States, 828 F.2d 591, 604 (9th Cir.1987).

B. The SWANCC Case

The Defendants allege that the Writ of Coram Nobis should be granted in the above captioned case because there has been a subsequent change in the decisional law that makes it clear that the Defendants acts are not within the reach of the CWA, under which they were convicted. The alleged change in the decisional law is contained in the recent Supreme Court case of Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, 531 U.S. 159, 121 S.Ct. 675, 148 L.Ed.2d 576 (2001). ("SWANCC"). Briefly, SWANCC held that Title 33 CFR § 328.3(a)(3), as clarified and applied, pursuant to the Migratory Bird Rule, exceeds the authority granted to the U.S. Government under § 404(a) of the CWA. Defendants believe that the SWANCC decision makes their convicted conduct outside the scope of the CWA. Therefore, the conviction must be vacated because the Defendant was "convicted for conduct we now know is not within the reach of" the CWA. United States v. Mandel, 862 F.2d 1067, 1072 (4th Cir.1988). It is the opinion of this Court, however, that the Defendants' reading of the SWANCC case is overly broad and misplaced.

In SWANCC, a consortium of suburban Chicago municipalities, selected as a solid waste disposal site, an abandoned sand and gravel pit with excavation trenches that had developed into permanent and seasonal ponds. Petitioners contacted the U.S. Army corps of Engineers ("Corps") to determine whether they needed a landfill permit to dump fill into the area. The Corps denied the request based on their Migratory Bird Rule. The Migratory Bird Rule was an attempt by the Corps to clarify 33 CFR § 328.3(a)(3). In summation, the Migratory Bird Rule stated that the Corps had jurisdiction pursuant to the CWA over waters that provide habitat for migratory birds. The Corps found that approximately 121 bird species had been observed at the gravel pit site, including several species that were known to depend upon aquatic environments for a significant portion of their life requirements. The lower court had held that the aggregate effect of the habitat of migratory birds on interstate commerce was substantial because each year millions of Americans cross state lines and spend over a billion dollars to hunt and observe migratory birds. Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, 191 F.3d 845, 850 (7th Cir.1999). The Supreme Court held that the Migratory Bird Rule is not fairly supported by the CWA. SWANCC, at 680. The court believed that permitting the Corps to claim federal jurisdiction over ponds and mudflats would result in "a significant impingement of the States' traditional and primary power over land and water use." Id. at 684. See Hess v. Port Authority Trans-Hudson Corporation, 513 U.S. 30, 44, 115 S.Ct. 394, 130 L.Ed.2d 245 (1994).

SWANCC did deal with the same statute which was used to convict the Defendants. 33 CFR § 328 defines "waters of the United States" under the CWA. The SWANCC holding essentially invalidated 33 CFR § 328.3(a)(3) which defines "waters of the United States" in part as,

"All 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."

The Supreme Court opined that this definition was in contrast to the CWA's original definition of "waters of the United States." Originally, "waters of the United States" referred to navigable waters. Navigable waters was defined in 1974 as, "those waters of the United States which are subject to the ebb and flow of the tide, and/or presently, or have been in the past, or may be susceptible for use for purposes of interstate or foreign commerce". 33 CFR § 209.120(d)(1). The Army Corps was unable to convince the court that the Corps expansion of the definition of "waters of the United States," codified as 33 CFR § 328.3(a)(3) was approved by Congress. Because the Supreme Court found there was no congressional approval to the expansion of the definition, the court relied on the original 1974 definition of the CWA. This decision led the Supreme Court to hold that the Corps' Migratory Bird Rule, along with 33 CFR § 328.3(a)(3), were invalid.

C. SWANCC as Applied to the Present Case

The Defendants wish to have SWANCC read as having drawn a new jurisdiction line under the CWA. The Defendants believe that the Government's jurisdiction should now be limited to (1) navigable waters, as traditionally defined by the 1974 act, and (2) wetlands and other waters that are immediately adjacent to navigable waters. Based on this new jurisdictional definition, the Defendants posit that the parcels of land in question located in Charles County, Maryland are not within the Government's jurisdiction as provided for by the CWA. The Defendants rely primarily on language in the SWANCC decision that addresses the states' rights in regulating its own land. Furthermore, the Defendants latch on to language by the court expressing a concern that the expanded definition of "waters of the United States" is rendering the definition of "navigable" meaningless. The Court rejects this interpretation of SWANCC.

The Government in their continued pursuit of the Defendants for prosecution,...