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

OPINION

GOULD, Circuit Judge:

Between October 2013 and October 2014, Joseph David Robertson excavated and constructed a series of ponds on Na- ■ tional Forest System Lands and on the-privately owned Manhattan Lode mining claim. In the process of creating these ponds, Robertson discharged dredged and fill material into the surrounding wetlands and an adjacent tributary, which flows to Cataract Creek. Cataract Creek is a jxibu-tary of the Boulder River, which in turn is a tributary of the Jefferson River—a traditionally navigable water of the United States. Robertson was warned by an EPA. Special Agent .that his activities “very likely” required permits. Yet, he did not get permits to build the ponds or to discharge dredged or fill material into waters of the United States.

The Forest Service soon learned of Robertson’s'activities. And on May 22, 2015, a grand jury charged Robertson with three criminal counts. Count I charged Robertson with knowingly discharging dredged or fill material from á point source into a water of the United States without a permit in violation of the Clean Water Act (CWA), 33 U.S.C. § 1251-1388. Count II charged Robertson with 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. Count III charged Robertson with another CWA violation for knowingly- discharging dredged or fill material from a point source into a water of the United States on private property without a permit.

Robertson’s initial jury trial was held from October 5 to October 8, 2015. At the close of the Government’s case and at the close of the presentation of evidence, Robertson unsuccessfully moved for a judgment of acquittal under Federal Rule of Criminal Procedure 29. That first jury trial ended with a hung jury, and the judge declared a mistrial. Robertson again moved for acquittal on all three counts, arguing that - the Government’s evidence was insufficient to sustain a 'conviction. The district court denied this motion, ■

Robertson’s second jury trial was held from April 4 to April 7, 2016. Robertson again moved for acquittal on all three counts after the close of the Government’s case and at the close of evidence. And the district court’ again denied both motions. On April 7, 2016, the jury returned guilty verdicts on all three counts. On April 21, 2016, Robertson renewed his motions for acquittal and moved for a new trial. The district court denied those motions, concluding that the verdict was supported by sufficient evidence.

Robertson timely filed this appeal, over which we have jurisdiction pursuant to 28 U.S.C. § 1291.

I

Robertson argues (1) that the Government did not establish that there was CWA jurisdiction, and -(2) that he lacked fair warning of the scope of CWA jurisdiction. He also (3) challenges the sufficiency of evidence at an earlier trial that ended in a mistrial; (4) appeals some evidence rulings; and (5) contests the calculation of restitution..

We review the district court’s interpretation of the jurisdictional bounds of" the CWA de novo. See United States v. Lewis, 67 F.3d 225, 228 (9th Cir. 1995). We also review whether a statute is unconstitutionally vague de novo. See United States v. Cooper, 173 F.3d 1192, 1202 (9th Cir. 1999). We review the challenged evidence rulings and a challenge to the district court permitting an expert to testify for abuse' of discretion. See United States v. W.R. Grace, 504 F.3d 745, 759 (9th Cir. 2007); United States v. Layton, 767 F.2d 549, 553 (9th Cir. 1985).

II

We look first at the CWA jurisdiction issue. To assess Robertson’s arguments on these points, some background on the CWA and the cases that have interpreted it is necessary. Congress enacted the CWA “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). To meet this goal, the CWA prohibits the discharge of dredge, or fill material into “navigable waters” unless, authorized by a permit from the Secretary of the Army through the Army Corps of Engineers (“the Corps”). Id. §§ 1311(a),’ 1311(d), 1344(a). Any person who knowingly violates § 1311 by discharging a pollutant without a permit “shall be punished” by a fine, imprisonment, or both. Id. § 1319(c)(2). ‘ "

At issue on jurisdiction is the meaning qf “navigable waters,” and the reach of the CWA. “Navigable waters” is.defined as “the waters of the United.States, including the territorial seas.” Id §1362(7). For there to be CWA jurisdiction here then, the creek' and wetlands that Robertson polluted had to be “waters of the United States.”

The .reach of the. Corps’ jurisdiction over “navigable waters” is controversial and has been the subject of many Supreme Court cases. See, e.g., United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985) (upholding a Corps’ regulation that extended the Corps’ authority-under § 1344 to wetlands “adjacent to navigable or interstate waters- and their tributaries”); Solid Waste Agency of N. Cook Cty. v. U.S. Army Corps of Eng’rs, 531 U.S. 159, 121 S.Ct. 675, 148 L.Ed.2d 576 (2001) (invalidating the Corps’ “Migratory Bird' Rule” because the Corps does not have CWA jurisdiction over non-navigable, isolated, intrastate waters that are not adjacent to open water).

Central to this appeal is the Supreme Court's fractured 4-1-4 decision, Rapanos v. United States, 547 U.S. 715, 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006). In that case, the Court confronted the issue of whether wetlands, which did not contain or directly abut traditionally navigable waterways, were “waters of the United States” subject to the Corps’ jurisdiction under the CWA. See id. at 729-30, 126 S.Ct. 2208 (plurality); id. at 759,126 S.Ct. 2208 (Kennedy, J., concurring in the judgment). In answering this question, the Court had to address whether the Corps’ -regulations were a permissible interpretation of the CWA. The regulations had interpreted- “waters of the United-States’’ very broadly, including not just traditionally navigable interstate waters, but also

“[a]ll interstate waters including interstate wetlands,” [33 ' C.F.R.] ■ § 328.3(a)(2); “[a]ll other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or de-struction of. which could affect- interstate • or foreign commerce,” [id.] § 328.3(a)(3); •“tributaries' of [such] waters,” [id.] § 328.3(a)(5); and “[wjetlands adjacent to [such] waters [and tributaries] (other than waters that are themselves wetlands),” • [id] § 328.3(a)(7). The regulation defines “adjacent”- wetlands as those - “bordering, contiguous [to], or neighboring” waters - of the United States. [Id] § 328.3(c). It specifically •provides ' that “[w]etlands separated from other waters of the United States by man-made dikes or barriers, natural river berms, beach dunes and the- like are ‘adjacent wetlands.’ ” [Id.]

Rapanos, 547 U.S. at 724, 126 S.Ct. 2208 (plurality).

.The plurality opinion, authored by Justice Scalia, and joined by Chief Justice Roberts, and Justices Thomas and Alito, concluded that the Corps’ regulations were not “based on a permissible construction of the statute.” Id. at 739, 126 S.Ct. 2208 (quoting Chevron U.S.A., Inc. v. Nat. Res. Def. Council, 467 U.S. 837, 843, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)). The plurality held that “the phrase‘the waters 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.’ ” Id. (quoting Webster’s Second 2882) (alterations in original). The term, according to Justice Scalia’s opinion, “does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall.” Id. The plurality went on to conclude that wetlands are covered by the CWA only if two conditions are met: first, “the adjacent channel contains a