Wetlands Dumping Case Overturned

SAN FRANCISCO, CA — The U.S. Court of Appeals for the 9th Circuit on Thursday reversed the conviction of James Philip Lucero for engineering a scheme to dispose of dirt and debris on lands adjoining the Mowry Slough in Newark, near the Don Edwards San Francisco Bay National Wildlife Refuge.

Lucero was a "self-described 'dirt-broker' who provided contractors and trucking companies with open space to dump fill material, or dirt, taken from construction sites for a fee," according to the court.

He was indicted in 2016 for "knowingly discharging a pollutant" into "navigable waters" in violation of the federal Clean Water Act.

The heart of the dispute was what the trial judge should have told the jury about the meaning of the word "knowingly."

There was no dispute that Lucero had discharged soil and debris at two sites near the slough and that the fill constituted a "pollutant" as the term is used in the act.

There was also no dispute that Mowry Slough was "navigable waters," within the meaning of the statute.

However, according to the indictment, Lucero dumped the soil and dirt at two areas near - but not in - the slough.

The dumping occurred in July and August of 2014. That time of year is normally "hot and dry," and 2014 was a drought year.

Moreover, the areas of disposal "were separated from the slough by a levee made of packed dirt to keep water in or out."

At the time of the dumping, the site was dry land. And while there was evidence that Lucero had visited the area in May of that year, there was no 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."

The government showed that the sites included "wetlands and a tributary subject to the Act," and there was a "hydrological connection" between the wetlands and tributary and the slough.

It all came down to what Lucero knew at the time of the discharge.

In order for Lucero to be convicted, the prosecutors had to prove that he acted "knowingly." The question for the appeals court was what it was that Lucero needed to know.

There were three main possibilities.

The first was the one used by the trial court when he instructed the jury that to convict they needed to find that Lucero had knowingly discharged a pollutant.

The problem with that instruction was that the crime for which Lucero was charged was knowingly discharging pollution into "waters of the United States," a phrase that means "navigable waters."

The court had little trouble concluding that merely knowing that a pollutant was discharged was not sufficient.

The harder issue--and the one the court explored at length--was whether it was sufficient if the defendant knew that the pollutant was discharged "into water," or did he have to know that the discharge was into "navigable waters."

The distinction - though dry and technical - was important because, as the court observed, "most Americans would be surprised to learn that dry land might be treated as 'navigable waters' under the Clean Water Act."

On this fine point, the three-judge panel split.

Two judges found that knowledge that the pollutant was discharged "into water" was sufficient.

The other believed that the defendant had to have knowledge that the waters were in fact "navigable waters."

Despite their differing views on that point, all the judges agreed that the trial judge's instruction to the jury was incorrect. They also agreed the error was not harmless. Therefore, they sent the case back for a new trial with instructions that the government must prove that Lucero knowingly discharged pollutants "into water."

By Joe Dworetzky, Bay City News Foundation