United States v. James Philip Lucero (9th Cir. March 2021)

The Federal Docket

Clean Water Act – Court committed reversible error when it failed to clearly charge jury on the fact that defendant’s knowledge that pollutants were discharged “into water” was an element of the offense and where it was factually unclear if Defendant knew that the area in question was inundated.

Clean Water Act – That the waters in question are “of the United States” is a jurisdictional element that need not be proven by the Government.

Clean Water Act – Definition of “waters of the United States” is not unconstitutionally vague and new regulatory definition of the phrase is not retroactive.

A jury convicted James Lucero of three counts of violating the Clean Water Act (CWA) for charging construction companies to dump on lands that the Act considered to be “navigable waters.” On appeal, Lucero argued three grounds for the reversal of his convictions: First, that the jury was not properly instructed as to the knowledge element of the CWA violations; second, that the definition of “waters of the United States” was unconstitutionally vague; and third, that a new regulatory definition of that phrase should be retroactively applied.

Reviewing each claim de novo, the Ninth Circuit rejected Lucero’s second and third arguments but found merit to the first, reversing his convictions and remanding for a new trial. The Court also simultaneously filed an unpublished memorandum disposition rejecting a handful of other, smaller enumerations of error by Lucero.

After an extensive and grammatically-focused analysis of the relevant statutory definitions, the Court first agreed with the Government that the phrase “waters of the United States” is a jurisdictional element connecting the CWA to the Federal Government’s powers under the Commerce Clause and thus is not a substantive element.

That the pollutants in question were discharged “into water,” however, is a substantive element of the offense, so the Government was required to prove Lucero’s knowledge of it. The trial court erred when it did not specifically instruct the jury that, to be convicted, Lucero needed not only to have knowingly discharged a pollutant but also to have knowingly released it into water. The area in question was not “navigable in-fact,” but rather was covered by the Act because it was classified as a wetland. The record showed that Lucero had only dumped on the site during the dry season and following a drought, so it was unclear from the record whether it would have been visibly apparent to Lucero that the area was not simple dry land but was inundated with water. As a result, evidence of Lucero’s knowledge that he was delivering pollutants into water was not “overwhelming or uncontested,” so the error was not harmless.

The Court’s further analysis of the statutes found that the definition of “waters of the United States” was complex but still provided an ascertainable standard and was therefore not unconstitutionally vague. Additionally, Lucero’s relevant conduct occurred in 2014, and he was convicted under the regulation that was operative at that time, but that regulation was revised several times between that date and the appeal. Lucero argued that the narrower definition of “waters of the United States” adopted in an April 2020 revision should apply to his case. No language in the new regulation suggests it should be applied retroactively, however, and so the general presumption against retroactivity is not overcome in this case.

Judge Bade concurred in the judgement and in the reasoning as to all issues except the question of whether the CWA’s reference to “waters of the United States” was not subject to the “knowing” mens rea of the offense by reason of being a jurisdictional element. Dissenting as to that point, Judge Bade argued that the majority’s reading of the statute caused it to be both absurdly overbroad and underinclusive, as it captured a wide-range of innocent and commonplace conduct while excluding some conduct that was clearly intended to be covered.

Appeal from the Northern District of California
Opinion by Bumatay, joined by Marquez
Partial Concurrence and Partial Dissent by Bade

Click here to read the opinion

Tom Church - Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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