United States v. Lucero

• Decision Date: 04 March 2021
• Docket Number: No. 19-10074,19-10074
• Citation: 989 F.3d 1088
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Philip LUCERO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

989 F.3d 1088

UNITED STATES of America, Plaintiff-Appellee,

v.James Philip LUCERO, Defendant-Appellant.

No. 19-10074

United States Court of Appeals, Ninth Circuit.

Argued and Submitted September 14, 2020 San Francisco, California

Filed March 4, 2021

BUMATAY, Circuit Judge:

Most Americans would be surprised to learn that dry land might be treated as "navigable waters" under the Clean Water Act. Yet that's just the oddity we face here. James Lucero orchestrated a scheme charging construction companies to dump dirt and debris on lands near the San Francisco Bay. As it turns out, these sites actually included "wetlands" and a "tributary" subject to the Act. Accordingly, Lucero was charged with three counts of knowingly discharging a pollutant in violation of the Act. See 33 U.S.C. §§ 1319(c)(2)(A) ; 1311(a). A jury found him guilty on all counts.

Lucero brings this appeal, raising a number of arguments for why his conviction should be reversed. Although we reject most of his contentions, we agree that reversal and remand is nevertheless required. The Act requires the government to prove a defendant knew he was discharging material "into water." Id. § 1362(6). Because the jury instructions failed to make this knowledge element clear, and the error was not harmless, we reverse Lucero's conviction and remand for a new trial.

I.

A.

Some regulatory background is in order first. In 1972, Congress passed the Clean Water Act, which, among other things, criminalizes the discharge of pollutants into "navigable waters" without an appropriate permit. See 33 U.S.C. §§ 1311(a), 1362(12), 1344. Lucero doesn't dispute that he engaged in the discharge of dirt and debris, that such material constitutes a "pollutant" under the Act, and that he did not have the requisite permit. Instead, his appeal centers on the "navigable waters" element of the statute.

That phrase, though it might seem straightforward on its face, is complicated by its statutory definition: "The term ‘navigable waters’ means the waters of the United States, including the territorial seas." 33 U.S.C. § 1362(7). Responsibility for deciding what constitutes "waters of the United States"—also referred to as jurisdictional waters—rests with two federal agencies: the Environmental Protection Agency ("EPA") and the Army Corps of Engineers. See 33 C.F.R. § 328.3 (2014). They define the contours of this phrase by promulgating regulations listing the types of water features that qualify as waters of the United States. At the time of Lucero's conduct in 2014, the regulation included two types of jurisdictional waters at issue here: (1) "[t]ributaries" of certain other waters of the United States; and (2) wetlands adjacent to other waters of the United States (that are not themselves wetlands). See id. § 328.3(a)(5), (7) (2014).¹

The expansive regulatory definition of "waters of the United States" was reined in somewhat after the Supreme Court's fractured decision in Rapanos v. United States , 547 U.S. 715, 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006). Justice Scalia's plurality opinion held that water 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," and "wetlands with a continuous surface connection to bodies that are waters of the United States in their own right." Id. at 739, 742, 126 S.Ct. 2208 (plurality) (quotation marks and citation omitted). Justice Kennedy wrote a concurrence in which he set out a much broader interpretation: wetlands adjacent to navigable-in-fact waters and even wetlands adjacent only to nonnavigable tributaries could be considered jurisdictional waters if there is a "significant nexus" between the wetlands and traditionally navigable waters. Id. at 779–82, 126 S.Ct. 2208 (Kennedy, J., concurring). We later adopted Justice Kennedy's test as our own. N. Cal. River Watch v. City of Healdsburg ("Healdsburg "), 496 F.3d 993, 999–1000 (9th Cir. 2007).

Since Lucero's offense in 2014, the agencies have gone through several different iterations of the "waters of the United States" regulation. The current regulation was promulgated in April 2020. See 33 C.F.R. § 328.3 (2020).

B.

Lucero executed his dumping scheme near the San Francisco Bay during the summer months of July and August 2014, which is the "hot and dry" season even in a normal year. And 2014 was not a normal year—the area was suffering from a long-term drought. Although there was evidence that Lucero had "walked the land" with a business associate at the end of May 2014, the record is bereft of evidence about the condition of the land at that time or evidence about whether Lucero would have known that the sites were inundated with water, rather than dry land.

Needless to say, these areas did not consist of waters that are actually navigable-in-fact. Rather, application of the Clean Water Act—and thus, whether the statute was violated—depended on whether the sites met the regulatory definition of "waters of the United States." The government based its theory for the three areas on their connection to the Mowry Slough, which is undisputedly a navigable "water of the United States" near the San Francisco Bay.

The government charged Lucero with two counts based on discharges into "wetlands" adjacent to the Mowry Slough. Both of these sites were separated from the slough by a levee made of packed dirt "to keep water in or out." The government also presented evidence that there was a direct hydrological connection between these two wetlands and the Mowry Slough. For the first wetland site, the government presented evidence that the area was connected to a tributary ("Tributary 1"), which flowed underneath the levee into the slough. For the second wetland site, the government's experts showed that water flowed from the site through a series of tributaries, which ultimately converged into the slough.

The government's third charge was based on dirt and debris dumped into Tributary 1, which was itself a separate "water of the United States" as a "[t]ributary" of the Mowry Slough. See 33 C.F.R. § 328.3(a)(5) (2014). Tributary 1 was not navigable, and government experts testified that its flow was "seasonal."

A jury convicted Lucero on all three counts, and this appeal followed. We review each of his legal claims de novo. See United States v. Weitzenhoff , 35 F.3d 1275, 1283 (9th Cir. 1993).²

II.

Lucero first argues that the jury instructions used to convict him erroneously omitted the Clean Water Act's knowledge element. Second, he argues that the definition of "waters of the United States" is unconstitutionally vague. Finally, Lucero argues that the 2020 regulatory definition of "waters of the United States" should apply retroactively to his case. While we reject the latter two claims, we agree with Lucero that the Act requires a knowledge element not submitted to the jury and that he is entitled to a new trial.

A.

We first address the knowledge requirement of 33 U.S.C. § 1319(c)(2)(A), whether it was adequately conveyed by the jury instructions, and whether any error was harmless.

1.

Section 1319(c) creates criminal penalties for violation of the Clean Water Act. 33 U.S.C. § 1319(c). In particular, § 1319(c)(2)(A) makes it a felony for anyone to "knowingly violate[ ] section 1311" of the Act. Id. § 1319(c)(2)(A). Section 1311, in turn, provides that "the discharge of any pollutant by any person shall be unlawful" without a permit. Id. § 1311(a). When the word "knowingly" precedes the verb "violate," it applies to the verb's direct object, which in this case is § 1311. See Rehaif v. United States , ––– U.S. ––––, 139 S. Ct. 2191, 2195, 204 L.Ed.2d 594 (2019). So if we stopped here, this statutory structure indicates that a person simply needs to "knowingly" "discharge ... any pollutant" without a permit to be found guilty of the crime.

But like Russian nesting dolls, the statutory definitions keep going:

• The phrase "discharge of a pollutant" is defined as "any addition of any pollutant to navigable waters from any point source." 33 U.S.C. § 1362(12).

• The word "pollutant" is defined as one of multiple enumerated substances, such as dredged spoil or solid waste, "discharged into water." Id. § 1362(6).³

• The term "navigable waters" is defined as "waters of the United States." Id. § 1362(7).

• "Point source" means "any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, ... from which pollutants are or may be discharged." Id. § 1362(14).

Stringing together these definitions gives us a statute that prohibits any person from "knowingly" engaging in the "addition of any" listed substance "discharged into water" "to waters of the United States" "from any point source." 33 U.S.C. §§ 1319(c)(2)(A), 1311(a), 1362(6), (7), (12). Notably, as the Third Circuit recognized, the Act creates an "apparent redundancy" because "into water" and "to waters of the United States" appear together back-to-back. United States v. Pozsgai , 999 F.2d 719, 726 (3d Cir. 1993). The question then becomes how the phrases "into water" and "to waters of the United States" "co-exist in this definition." Id.⁴

The parties offer competing views on how the court should resolve this tension. Lucero essentially asks us to read out the phrase "discharged into water" from the statutory definition of pollutant. In his view, "knowingly" must then reach the phrase "to waters of the United States" as the prepositional phrase modifying "addition of any pollutant," and the government must prove his knowledge of that element. The government urges us to give effect to both phrases—"into water" and "to waters of the United States"—by treating the former as the prepositional phrase modifying "addition of any pollutant" and the latter as a jurisdictional element. Under the government's view, the knowledge requirement only extends to "into...