James Lucero dumped dirt and debris onto land near the San Francisco Bay. The federal government brought criminal charges under the Clean Water Act, alleging Lucero knowingly discharged pollution into wetlands, which constitute “waters of the United States.” In US v Lucero, the US Court of Appeals for the 9th Circuit reversed the conviction and granted Lucero a new trial.
Government Must Prove Discharges Were into Water
Lucero admitted he had no discharge permit but claimed he did not know the lands were wetlands; indeed, he claimed the lands were dry when he dumped. Nonetheless, the jury convicted him of knowingly discharging pollution into the waters of the United States and he appealed.
The 9th Circuit reversed the conviction, because the instructions to the jury did not require the government to prove Lucero knew the discharges were to “water.” The 9th Circuit held the government did not need to prove Lucero knew the lands met the legal definition of “waters of the United States,” an issue with which courts and practitioners have long struggled, but only that Lucero knew the discharges were to “water.”
According to the 9th Circuit, in a wetlands criminal case, while the government must prove discharges were to “waters of the United States,” the government does not need to prove the defendant knew the discharges were to jurisdictional wetlands, only that the defendant knew the discharges were to “water,” to convict for unpermitted discharge to wetlands.
Dissent Would Require Government to Prove Defendant Knew It Was Wetlands
One judge dissented. Noting the complexity of wetlands cases, including the concept that jurisdictional wetlands can appear dry, at times, the dissent argued the government should be required to prove a defendant knew the discharges were to “waters of the United States” to obtain a conviction.
To read the majority opinion and the dissent https://cdn.ca9.uscourts.gov/datastore/opinions/2021/03/04/19-10074.pdf