U.S. v. Rapanos

• Citation: 339 F.3d 447
• Decision Date: 05 August 2003
• Docket Number: No. 02-1377.,02-1377.
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. John A. RAPANOS, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

339 F.3d 447

UNITED STATES of America, Plaintiff-Appellant, v. John A. RAPANOS, Defendant-Appellee.

No. 02-1377.

United States Court of Appeals, Sixth Circuit.

Argued: June 18, 2003.

Decided and Filed: August 5, 2003.

Petition for Rehearing Denied En Banc: September 29, 2003. Pursuant to Sixth Circuit Rule 206

ARGUED: Jennifer J. Peregord, UNITED STATES ATTORNEY, Detroit, Michigan, for Appellant.

Thomas V. Wilhelm, Waterford, Michigan, for Appellee.

ON BRIEF: Jennifer J. Peregord, UNITED STATES ATTORNEY, Detroit, Michigan, for Appellant.

Thomas V. Wilhelm, Waterford, Michigan, David E. Dearing, Indianapolis, Indiana, for Appellee.

Virginia S. Albrecht, Stephen M. Nickelsburg, HUNTON & WILLIAMS, Washington, D.C., for Amici Curiae.

Before: MARTIN, Chief Circuit Judge; NORRIS and ROGERS, Circuit Judges.

OPINION

BOYCE F. MARTIN, JR., Chief Circuit Judge.

This case arises from the criminal conviction of John Rapanos for unlawfully filling wetlands in Michigan in violation of the Clean Water Act, 33 U.S.C. § 1311(a). After the conviction, an appeal, a denial of certiorari, a second appeal, and a grant of certiorari, the Supreme Court remanded the case back to us to review in light of Solid Waste Agency of Northern Cook County v. Army Corps of Engineers, 531 U.S. 159, 121 S.Ct. 675, 148 L.Ed.2d 576 (2001). We remanded the case to the district court. The district court found that, in light of Solid Waste, Rapanos's land was outside the jurisdiction of the Clean Water Act and the charges were dismissed. The United States now appeals this decision. For the reasons below, we REVERSE the judgment of the district court and REINSTATE the convictions.

John Rapanos owns a one hundred and seventy-five-acre plot of land in Williams Township, Bay County, Michigan. This plot once contained forested wetlands and cleared meadow areas. During the course of this proceeding, the wetlands in question have been described as between eleven and twenty miles from the nearest navigable-in-fact water. The government argues that there is a significant and direct link between the wetlands on Rapanos's land and this navigable waterway, rendering the wetlands covered by the Clean Water Act. The wetlands are connected to the Labozinski Drain (a one hundred year-old man-made drain) which flows into Hoppler Creek which, in turn, flows into the Kawkawlin River, which is navigable. The Kawkawlin eventually flows into Saginaw Bay and Lake Huron.

At some unstated time, Rapanos decided to sell this plot of land to developers, but in order to make the land more attractive, Rapanos made plans beginning in 1988 to clear the trees from the land and to eradicate the wetlands that were on the property. In December of 1988, Rapanos's attorney approached the Michigan Department of Natural Resources with the development plan. The Department informed him that the land contained wetlands and a permit would be necessary for development to begin on the area, advising that a wetlands consultant be hired to help Rapanos get the permit. Rapanos hired a consultant, who found at least forty-nine and at most fifty-nine acres of wetlands. After receiving the report, Rapanos asked the consultant to destroy any paper evidence of the wetlands on his property and then threatened to fire him and sue if he did not comply. Despite warnings from the Michigan Department of Natural Resources and the United States Environmental Protection Agency, Rapanos began destroying the wetlands on his property by filling them with earth and sand.

On November 7, 1989, a search warrant was issued, and the executing officers found twenty-nine acres of wetlands on Rapanos's property. In April of 1991, the Michigan Department of Natural Resources asked the United States Environmental Protection Agency to intervene and force compliance from Rapanos. The facts established at trial that Rapanos and his attorney lied in response to the compliance order. Subsequently, Rapanos was charged with knowingly discharging pollutants into the waters of the United States without a permit, a violation of the Clean Water Act. While acknowledging that the wetlands were destroyed, Rapanos argues that the area is not subject to the Clean Water Act because of a lack of federal jurisdiction. He argues the wetlands on his property are not part of the "waters of the United States" as required by the Act. The Act defines "navigable waters" as "waters of the United States." 33 U.S.C. § 1362(7).

Rapanos's first trial ended in a mistrial, and the second trial concluded with a guilty verdict. United States v. Rapanos, 895 F.Supp. 165, 166 (E.D.Mich.1995). Rapanos then filed a motion for judgment of acquittal and a new trial. The district court denied the motion for judgment of acquittal but granted a new trial. Id. at 170. The district court found that, although defense counsel did not object to certain questioning by the prosecution, the court committed plain error by permitting the questioning to proceed. Id. at 168. On appeal to this court, we held that the line of questioning was not improper and, therefore, the district court did not commit plain error. We reversed the court's grant of a new trial and remanded for sentencing. United States v. Rapanos, 115 F.3d 367, 374 (6th Cir.1997).

The district court sentenced Rapanos to three years of probation and ordered him to pay $185,000. He appealed his conviction, and the United States cross-appealed his sentence. This court affirmed Rapanos's conviction on direct appeal but remanded to the district court for resentencing. United States v. Rapanos, 235 F.3d 256, 261 (6th Cir.2000). Rapanos filed a petition for writ of certiorari, which the Supreme Court granted. The order granting the writ vacated this court's judgment and remanded the case to us for further consideration in light of Solid Waste, 531 U.S. 159, 121 S.Ct. 675, 148 L.Ed.2d 576. Rapanos v. United States, 533 U.S. 913, 121 S.Ct. 2518, 150 L.Ed.2d 691 (2001). We remanded the case to the district court for consideration in light of Solid Waste. United States v. Rapanos, 16 Fed.Appx. 345 (6th Cir.2001). On remand, the district court set aside Rapanos's convictions and dismissed the case, finding that Solid Waste had changed the scope of federal jurisdiction under the Clean Water Act. The district court found that because the wetlands on Rapanos's property were not "directly adjacent to navigable waters," the government could not regulate them. United States v. Rapanos, 190 F.Supp.2d 1011, 1015-16 (E.D.Mich.2002). The United States appealed this order, which brings this case before us now.

We review the district court's statutory and legal interpretations de novo. United States v. Markwood, 48 F.3d 969, 975 (6th Cir.1995). The two questions at issue are whether the district court correctly interpreted the holding of Solid Waste and applied it to the facts of this case and whether the original jury instructions were correct in light of Solid Waste.

The controversy in Solid Waste arose from a group of Chicago suburbs' efforts to find new landfill areas. 531 U.S. at 162-63, 121 S.Ct. 675. They targeted land that had been a sand and gravel mining area from the late 1920's until 1960. Id. at 163, 121 S.Ct. 675. Once the mining operation was abandoned, a forest began to take over, and some of the excavation areas collected enough water to become permanent and seasonal ponds. Id. When the suburbs wanted to use the land for landfill, the United States Army Corps of Engineers objected to this destruction of "waters of the United States." Id. at 164, 121 S.Ct. 675. The non-navigable and isolated ponds were given this designation because the ponds had become the home of migratory birds; the Corps had recently promulgated the "Migratory Bird Rule," which brought waters that were home to migratory birds under federal jurisdiction, based on the principle that "millions of Americans cross state lines and spend over a billion dollars to hunt and observe migratory birds." Id. at 166, 121 S.Ct. 675. In Solid Waste, however, the Supreme Court rejected that basis for Clean Water Act jurisdiction and ruled that the Migratory Bird Rule exceeded the limitations of the Clean Water Act. Id. at 174, 121 S.Ct. 675. The ponds were, therefore, not "waters of the United States," and the group of suburbs was allowed to develop the land without federal interference. Id.

The primary question in the case before us is one of jurisdiction. Rapanos claims that Solid Waste has redefined the jurisdiction of the Clean Water Act to such a degree that his land is no longer under the Act's protection. We must first turn to the Act itself. The Clean Water Act prohibits the "discharge of any pollutant by any person" except for certain situations enumerated in the Act itself. 33 U.S.C. § 1311(a). One of the exceptions is that a permit must be issued by the Corps of Engineers "for the discharge of dredged or fill material into the navigable waters at specified disposal sites." 33 U.S.C. § 1344(a). "Navigable waters" is in turn defined as "waters of the United States, including territorial seas," 33 U.S.C. § 1362(7), and the Supreme Court has noted that "Congress chose to define waters covered by the Act broadly" in that definition. United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 133, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985). Although simple in theory, the application of "waters of the United States" has been anything but straightforward.

As common sense makes clear, the Clean Water Act cannot purport to police only the navigable-in-fact waters in the United States in order to keep those waters clean from pollutants. A pollutant can contaminate non-navigable water and pollute the navigable-in-fact waters downstream. Congress acknowledged this reality when it created the Clean Water Act, stating, "Water moves in hydrological cycles and it is essential that discharge of pollutants be controlled at the source." S.Rep. No. 92-414, at 77...