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United States v. Moses



Charles Lynn Moses (Moses) was charged with three counts of felonious criminal violations under the Clean Water Act (CWA)[1]for knowingly discharging and causing to be discharged pollutants from a point source into the waters of the United States without a permit.[2]The charges concerned activities in Teton Creek, in Idaho. A jury found Moses guilty on all counts. Moses twice motioned for a new trial, attempting in the first motion to introduce new evidence to support an estoppel argument. The United States District Court for the District of Idaho denied both motions. The court sentenced Moses to eighteen months imprisonment with one year of supervised release, and fined him $9,000 in addition to a $300 special assessment.

On appeal to the Ninth Circuit, Moses argued the evidence was insufficient to show that Teton Creek is a “water of the United States” to trigger CWA jurisdiction, and was insufficient to show his activities constituted a “discharge.”[3]He also claimed that his activities required no permit, and therefore the district court should have granted a new trial. The Ninth Circuit reviewed the sufficiency claim de novo,[4]and reviewed the district court’s denial of a motion for a new trial for abuse of discretion.[5]The court rejected Moses’s arguments, affirming the district court’s decisions.

Moses is a developer who worked on a 50-acre development adjacent to Teton Creek, a tributary of the Teton River. Because of a diversion upstream, water only flows in the portion of the stream next to the development for two months each year during the spring runoff. Moses hired bulldozer operators to reshape the stream and build log and gravel structures to convert its three channels into one broad channel that would hold all the spring runoff. Since the early 1980s, the disturbances moved thousands of cubic yards of gravel and caused substantial impacts both upstream and downstream of the excavation site.[6]

Moses’s prosecution followed repeated warnings by the United States Army Corps of Engineers (Corps) and the United States Environmental Protection Agency (EPA) that his activities required a CWA permit. These warnings included notice by the Corps that it had jurisdiction over the creek during a 1982 hearing; a cease and desist order to stop all dredge and fill activities issued by the Corps in 1995; and letters from the Corps in 1996 and 1997 seeking his cooperation. When Moses hired an excavation business to do extensive work in the creek[7]in 2002, a Corps environmental resources specialist who observed the work warned him of potential civil and criminal penalties. The Corps issued a notice of violation that repeated these warnings. Following similar work in 2003,[8]the EPA issued an administrative compliance order requiring Moses to cease and desist unauthorized discharges and to submit a restoration plan for the stream. Moses did not respond, but hired another contractor who completed additional gravel removal and contouring of the streambed. A three-count indictment by a federal grand jury followed in March 2005.

Before turning to Moses’s claim that his stream disturbance required no permit, the Ninth Circuit considered his claims that the evidence was insufficient to show 1) that Teton Creek is a water of the United States, and
2) that Moses’s activities constituted a discharge. To restore the integrity of the nation’s waters, the CWA prohibits unauthorized discharges of any pollutants into waters of the United States.[9]A criminal conviction for a CWA violation is supported by sufficient evidence if “viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”[10]Under this test, the court found sufficient evidence to affirm the conviction.

Moses argued that because no water flows in Teton Creek for ten months of the year due to an upstream man-made diversion, the stream is not a “water of the United States.” In considering the sufficiency of the evidence to show otherwise, the court gave deference to the Corps’s and EPA’s broad interpretation of the term “waters of the United States.”[11]Both agencies’ CWA regulations include nonnavigable bodies of water such as intermittent streams, wetlands, and tributaries of waters of the United States.[12]Prior to the installation of the water diversion, Teton Creek was at least a tributary.[13]The court noted that a water of the United States would not lose that status by the installation of a mere man-made diversion that left the stream with intermittent flow,[14]citing to the United States Supreme Court for the proposition that “navigability is not . . . appraised on . . . natural conditions only. . . [w]hen once found to be navigable, a waterway remains so.”[15]

The Ninth Circuit offered a second rationale for its determination that Teton Creek is a water of the United States-that regardless of its condition prior to the installation of the man-made diversion,[16]“a seasonally intermittent stream which empties into a river that is a water of the United States can, itself, be a water of the United States.”[17]In Headwaters, Inc. v. Talent Irrigation District(Headwaters),[18]the Ninth Circuit followed the Eleventh Circuit’s approach in holding that intermittently flowing tributaries are “waters of the United States.”[19]The court there reasoned that such water bodies can carry pollutants to navigable waters during wet periods and thereby cause environmental damage.

Citing to Headwaters for support in the present case, the Ninth Circuit noted that although the U.S. Supreme Court recently addressed the interpretation of what qualifies as a tributary in the wetlands context,[20]it had not undercut the Ninth Circuit’s prior analysis. A four-justice plurality in Rapanos v. United States stated that the phrase “waters of the United States” does not include “channels through which water flows intermittently or ephemerally . . . but does not necessarily exclude seasonal rivers . . .which contain continuous flow during some months . . . but no flow during dry months.” [21]Four dissenting Justices countered that “common sense and common usage demonstrate that intermittent streams, like perennial streams, are still streams.”[22]And Justice Kennedy, in his concurrence, stated that the test instead requires a “significant nexus” between wetlands and navigable waters, as established on a case-by-case basis. Finally, if federal jurisdiction does exist over an intermittent stream, the Ninth Circuit observed that Rapanos made no contention that it evaporates and reappears with the seasonal flow.

The Ninth Circuit interpreted Rapanos to indicate unanimous agreement that seasonal, intermittent streams can be “waters of the United States.” Because the segment of Teton Creek that Moses disturbed is a seasonal, intermittent stream that for two months each year rages to join the lower Teton Creek and flow out to lower tributaries, the Ninth Circuit held that it constitutes a “water of the United States” and rejected Moses’s argument.

The court then turned to Moses’s claim that the evidence was insufficient to support the “discharge of a pollutant” element of the crime. Moses asserted that because the activities occurred during periods of no flow, there was no discharge. The Ninth Circuit rejected this reasoning on two grounds. First, following the Eleventh Circuit’s rationale relied on in Headwaters, the court noted that it is irrational to think that pollutants deposited while a stream is dry will not eventually wind up in navigable waters during the next period of flow. Second, Moses left redeposited gravel[23]and log structures in the streambed while the water rose, which could become dislodged and carried downstream. In affirming that the evidence was sufficient to find a discharge of pollutants, the court rejected Moses’s claim that his activities fell under the limited “incidental fallback” exception of the Corps’s CWA regulations because the massive movement of thousands of cubic yards of material stood in stark contrast to the small

volume of dirt, such as that falling off the back of a shovel or bucket, contemplated by the regulations.[24]

Lastly, the Ninth Circuit turned to Moses’s claim that the district court erred in denying his motion for a new trial because no CWA permit was required for his activities. He argued his stream disturbance fell under an exception for discharges aimed at maintaining currently serviceable structures.[25]The Ninth Circuit rejected this argument, too, noting that exceptions from the CWA must be construed narrowly and analyzed in light of the Act’s purposes.[26]Under such a narrow construction, the court found that the district court did not abuse its discretion in denying a new trial. Even if some of the logs placed in the creek were repairable structures, none were constructed pursuant to a permit.[27]The changes Moses caused in the streambed went far beyond mere maintenance, and the evidence suggested Moses did not meet the exception’s requirement that such activities not further impair the waterbody.[28]Thus, the Ninth Circuit concluded that the district court did not abuse its discretion when it denied Moses’s motion for a new trial.

Having rejected Moses’s claims regarding sufficiency of the evidence, and having determined that the district court did not abuse its discretion in denying the motion for a new trial, the Ninth Circuit affirmed.

[1] Federal Water Pollution Control Act, 33 U.S.C. §§ 1251-1387 (2000).

[2]Id. §§ 1311(a), 1319(c)(2)(A); 18 U.S.C. § 2 (2000).

[3]Id. §§ 1362(7), 1362(16).

[4] United States v. Lyons, 454 F.3d 968, 971 (9th Cir. 2006). Moses preserved this claim by moving for a judgment of acquittal.

[5]See United States v. Mack, 362 F.3d 597, 600 (9th Cir. 2004).

[6] A government expert described the stream as “probably one of the more impacted streams” he had observed, in terms of localized, upstream, and downstream effects. United States v. Moses, 496 F.3d 984, 986-87 (9th Cir. 2007).

[7] In 2002, Moses hired Tupco, Inc., an excavation business, to rebuild log structures, perform dredge and fill work, build a ramp into the stream, and remove gravel bars. This work was completed both before and after spring runoff.

[8] In 2003, Moses’s excavator repaired log structures in the stream bed and moved gravel out of and within the stream bed.

[9]See Federal Water Pollution Control Act, 33 U.S.C. §§ 1251(a), 1311(a), 1362(7), 1362(12), 1362(16) (2000).

[10]Lyons, 454 F.3d 968, 971 (9th Cir. 2006)(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

[11]See San Francisco Baykeeper v. Cargill Salt Div., 481 F.3d 700, 705 (9th Cir. 2007)(requiring deference to agency interpretations).

[12]See 33 C.F.R. § 328.3(a) (2007) (defining waters of the United States under the Corps’s regulations); 40 C.F.R. § 122.2 (2007) (defining waters of the United States under EPA’s regulations); see also United States v. Phillips, 367 F.3d 846, 855-56 (9th Cir. 2004) (supporting the proposition that a tributary of waters of the United States is also a “water of the United States”).

[13] Teton Creek flows into the Teton River, which flows into the Snake River. Moses did not claim these larger bodies of water or any portions of Teton Creek that flow year round failed to qualify as waters of the United States.

[14]Cf. George v. Beavark, Inc., 402 F.2d 977, 978 (8th Cir. 1968)(addressing a claim that a boat on a man-made lake, created by damming the White River, was floating on navigable waters).

[15] United States v. Appalachian Elec. Power Co., 311 U.S. 377, 407-08 (1940).

[16] The Ninth Circuit acknowledged that the diversion was constructed prior to the passage of the CWA, but stated that this did not affect its analysis.

[17]Moses, 496 F.3d 984, 989 (9th Cir. 2007).

[18] 243 F.3d 526 (9th Cir. 2001).

[19]Id. at 534; United States v. Eidson, 108 F.3d 1336, 1342 (11th Cir. 1997).

[20] Rapanos v. United States, 126 S. Ct. 2208 (2006).

[21]Id. at 2225.

[22]Id. at 2260(Stevens, J., dissenting).

[23] Dredging and redepositing material can violate the CWA. See Borden Ranch P’ship v. U.S. Army Corps of Eng’rs, 261 F.3d 810, 814 (9th Cir. 2001).

[24]See 33 C.F.R. § 323.2(d)(2)(i) (2007) (providing that “incidental fallback is the redeposit of small volumes of dredged material . . . examples include soil that is disturbed when dirt is shoveled . . . when such small volume of soil or dirt falls into substantially the same place from which it was removed”).

[25] Federal Water Pollution Control Act, 33 U.S.C. § 1344(f)(1)(B) (2000).

[26] United States v. Akers, 785 F.2d 814, 819 (9th Cir. 1986).

[27] The Ninth Circuit summarily rejected Moses’s claim that he didn’t need a permit because his activities were covered by Nationwide Permit Number Three, 67 Fed. Reg. 2078 (Jan. 15, 2002). The court stated that this permit was issued pursuant to the Rivers and Harbors Appropriations Act of 1899, 33 U.S.C. §§ 401-467n (2000), and does not apply to activities covered by the CWA. Even if the permit did apply, new evidence submitted with Moses’s motion for a new trial related only to his 1980 activity, leaving him in violation from the period the Corps asserted jurisdiction in 1982.

[28] 33 U.S.C. § 1344(f)(2) (2000); see also 33 C.F.R. § 323.4(a)(2) (2007).

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