Home » Case Summaries » 2017 » United States v. Robertson, 875 F.3d 1281 (9th Cir. 2017).


United States v. Robertson, 875 F.3d 1281 (9th Cir. 2017).


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This action came as an appeal from a criminal conviction related to the extent of the government’s jurisdiction to police United States waters under the Clean Water Act (CWA).[1] Joseph David Robertson (Defendant) appealed both an evidentiary finding in his first trial, which had resulted in a hung jury and mistrial, and his conviction in his second trial on several grounds. Defendant appealed after his second trial and conviction. Affirming in whole, the court reviewed de novo the challenged jurisdictional bounds of the CWA, the challenged evidentiary rulings, and the district court’s decision to allow specific expert testimony for abuse of discretion.

Between October 2013 and October 2014, Defendant excavated and constructed a series of ponds, which resulted in the discharge of dredged and fill material into the surrounding wetlands, as well as an adjacent tributary that flows into Cataract Creek, a tributary of the Boulder River (which is itself a tributary of the Jefferson River). The excavation and construction took place on National Forest System Lands and on a privately owned mining claim called Manhattan Lode. During that time, a United States Environmental Protection Agency (EPA) Special Agent warned Defendant that he likely needed permits for his activities, but Defendant never got them. After the Forest Service learned of his activities, a grand jury charged Defendant with three criminal counts.[2] Following the mistrial, Defendant was ultimately convicted on all three counts.

The first of Defendant’s five arguments on appeal was that the Government failed to establish proper CWA jurisdiction. The court started their examination with an extensive background on the statute and its congressionally stated purpose.[3] The court noted that the law in question was the CWA’s prohibition on the discharge of dredge or fill material into “navigable waters” unless authorized by a permit from the Secretary of the Army through the United States Army Corps of Engineers (the Corps).[4] Violations carry possible penalties of fine, imprisonment, or both.[5] The main issue under examination by the court was the definition of “navigable waters” and the reach of the CWA. The CWA defines “navigable waters” as “the waters of the United States, including the territorial seas.”[6] For there to be CWA jurisdiction in Defendant’s case, the areas that Defendant polluted had to be “waters of the United States.”

The court examined the controversial history of the relevant case law, indicating that Rapanos v. United States[7] was the central case. Rapanos was decided in a difficult 4-1-4 split. The plurality opinion settled on a definition that included 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.’”[8] The plurality opinion excluded “channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall.”[9] Most importantly, the plurality only included wetlands in CWA jurisdiction if two specific conditions were met: “the adjacent channels contains a ‘wate[r] of the United States,’” and “the wetland has continuous surface connection with that water, making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.”[10]

Justice Kennedy penned the concurrence that gave the plurality its weight, and his test was the one that would go on to be used by the lower courts and applied by the court here. Kennedy’s test was simpler and narrower (thus giving more deference to the Corps’ own determination); it stated that CWA jurisdiction existed over wetlands when there was “a significant nexus between the wetlands in question and navigable waters in the traditional sense.”[11] The court went on to note that in Northern California River Watch v. City of Healdsburg,[12] it likewise held Justice Kennedy’s opinion controlled.[13]

Defendant’s main argument regarding the CWA jurisdiction issue was that Kennedy’s test was not the controlling standard, and the trial court erred by basing the jury instructions on it. Defendant’s argument was based on a recent Ninth Circuit decision, United States v. Davis,[14] which he claimed made the court’s adoption of the Kennedy standard invalid.[15] The court disagreed with Defendant’s argument, stating that the Supreme Court instructed the lower courts that when “a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.’”[16] The court also noted that they are allowed to consider dissenting opinions when conducting their analysis.

The court went on to conclude that the Davis case cited by Defendant did not preclude them from adopting the Kennedy standard. First, the court analyzed whether their adoption of the Kennedy standard in City of Healdsburg was “clearly irreconcilable” with Davis and found that it was not.[17] Second, the court considered whether Kennedy’s standard was actually the narrowest grounds. The court concluded that, while the plurality and the concurrence were likely subsets of the dissent’s opinion, Kennedy’s was narrower because it restricted federal authority less.[18] Based on these determinations, the court concluded that the district court’s finding of CWA jurisdiction was not in error.

The court then addressed Defendant’s second argument that the statutory term “waters of the United States” was too vague to be enforced under due process because Defendant could not have had “fair warning” of the meaning of the term. Defendant asserted he had not had fair warning because City of Healdsburg was no longer good law in light of Davis. The court found that Defendant did have fair warning that his conduct was criminal, because his conduct occurred at a time after City of Healdsburg but before Davis, and because Defendant failed to challenge the underlying validity of the criminal portions of the CWA. The court explained that Defendant was on notice at the time of his excavation activities by City of Healdsburg, and the language of that case is what the jury was instructed on.

Defendant’s third argument was that the district court should have granted his Federal Rule of Criminal Procedure 29(c)[19] motion to acquit after the hung jury at his first trial. Citing Richardson v. United States,[20] the court found that once the second trial occurred, any arguments about the insufficiency of the evidence in the first trial were foreclosed.[21] The court affirmatively held that a criminal defendant cannot challenge the sufficiency of the evidence presented at a previous trial following a conviction at a subsequent trial.

Defendant’s fourth argument pointed at three reasons the district court erred in allowing the Montana State Program Manager for the Corps, and Supervisory Civil Engineer, Todd Tillinger, to testify as an expert witness. Defendant asserted that: 1) CWA jurisdictional law was unclear and so the subject of the witness’s testimony was not suitable for expert witness consideration; 2) the witness’s testimony was based on guidance documents which do not have the force of law; and 3) the witness’s jurisdictional determination relied on criteria that was rejected by Kennedy as determinative. The court disagreed with Defendant, noting first that it is the district court, not the witness, who instructs the jury on the law. Second, the court stated that, according to the record, Tillinger based his evaluation on regulations, Rapanos, and the guidance documents, not just the guidance documents. Third, the court said that the jury, instead of the witness, made the final determination about jurisdiction, regardless of what criteria the witness discussed.

Defendant’s final argument was that the district court erred in excluding two pieces of evidence: the U.S. Army Corps of Engineers Jurisdictional Determination Form Instruction Guidebook and the Crystal Mine Study. Defendant claimed that these documents should have been admitted to help show that the Corps was making its jurisdictional determination on a factor expressly forbidden by Kennedy’s standard. The court dispensed with Defendant’s argument by stating that the district court “has wide latitude” when considering the admissibility of evidence; at the trial, the district court found that the Guidance manual might confuse the jury and that the Mine Study had little probative value and was potentially prejudicial.

In sum, the court affirmed the lower court on all issues, finding that there was CWA jurisdiction over the case, Defendant’s challenges to his prior trial was without merit, Defendant had fair warning, it did not matter that the expert used regulation that lacked the force of law, the expert testimony properly considered criteria in his evaluation, and the district court did not abuse its discretion in excluding evidence.


Footnotes    (↵ returns to text)

  1. Federal Water Pollution Control Act, 33 U.S.C. §§ 1251–1387 (2012).
  2. The three counts were: 1) knowingly discharging dredged or fill material from a point source into a water of the United States without a permit in violation of the CWA, 2) willfully injuring and committing depredation of property of the United States, namely National Forest Service land, causing more than $1,000 worth of damage to the property in violation of 18 U.S.C. § 1361, and 3) knowingly discharging dredged or fill material from a point source into water of the United States on private property without a permit in violation of the CWA.
  3. “[T]o restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a).
  4. Id. §§ 1311(a), 1344(a).
  5. Id. § 1319(c)(2).
  6. Id. § 1362(7).
  7. 547 U.S. 715 (2006).
  8. Id. at 739 (quoting Waters, Webster’s New Int’l Dictionary (2d ed. 1954)).
  9. Id.
  10. Id. at 742.
  11. Id. at 779.
  12. 496 F.3d 993 (9th Cir. 2007).
  13. Id. at 995.
  14. 825 F.3d 1014 (9th Cir. 2016).
  15. Id. at 1021–22 (holding that the narrowest concurring opinion in a plurality decision should only be followed if the concurrence and plurality share common reasoning).
  16. Marks v. United States, 430 U.S. 188, 193 (1977) (citing Gregg v. Georgia, 428 U.S. 153 (1976)).
  17. Rodriguez v. AT & T Mobility Servs. LLC, 728 F.3d 975, 979 (9th Cir. 2013).
  18. Rapanos, 547 U.S. at 810 n.14.
  19. Fed. R. Crim. P. 29(c) (allowing a defendant to move for an acquittal within fourteen days of his guilty verdict after the jury has been discharged).
  20. 468 U.S. 317 (1984).
  21. Id. at 32.
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