Opinion
Case No. CR-05-061-E-BLW.
May 25, 2006
MEMORANDUM DECISION AND ORDER
INTRODUCTION
The Court has before it Defendant's Motion for New Trial (Docket No. 62). Moses seeks a new trial on two grounds: (1) he was denied the effective assistance of counsel at trial; and (2) the Government did not produce evidence establishing a violation of the Clean Water Act ("CWA"). The Court heard oral argument on the motion on March 30, 2006. After the hearing, the Court asked the parties to submit additional briefing addressing three issues considered at the hearing, but not fully addressed in the initial briefs: (1) whether Moses' activities were permitted under Nationwide Permit No. 3; (2) whether Moses' activities were exempt from the permit requirement under section 404(f) of the Clean Water Act ("CWA"); and (3) whether the evidence at trial supported the jury's conclusion that Moses violated the CWA. The Court has now reviewed those briefs, as well as the initial briefs, and issues the following decision.
ANALYSIS
I. Ineffective Assistance of Counsel
The Court may grant a new trial "if the interests of justice so require." Fed.R.Crim.P. 33. Although claims raising ineffective assistance of counsel are normally raised for the first time in collateral proceedings, trial courts have addressed such claims on a defendant's Rule 33 motion. See e.g. United States v. Logan, 861 F.2d 859 (5th Cir. 1988). In those cases, courts typically look at the same Strickland standards that are applied in collateral challenges to a defendant's conviction. See id., at 864 (recognizing that it could be argued that the Strickland standards apply only in collateral proceedings and that a somewhat more lenient standard should be utilized in deciding a new trial motion, but declining to do so based upon the Supreme Court's comment that the "principles governing ineffectiveness claims should apply in federal collateral proceedings as they do on direct appeal or in motions for a new trial." quoting Strickland v. Washington, 466 U.S. 668 (1984)).
To support a claim of ineffective assistance of counsel under Strickland, defendant must show that (1) counsel's performance was deficient, and (2) the deficient performance prejudiced the defense so as to deprive the defendant of a fair trial. Strickland, 466 U.S. at 687. "To be prejudicial, a reasonable probability must exist that, but for counsel's conduct, the result of the trial would have been different. If either prong is not met, [the Court] must dismiss the claim." United States v. Sanchez-Cervantes, 282 F.3d 664, 671 (9th Cir. 2002).
Moses argues that trial counsel was ineffective because he failed to assert an estoppel defense, a defense that his activities came within the ambit of several nationwide permits, and a defense that his activities did not require a permit because of the exemption provided in § 404(f) of the CWA. At the hearing, the Court orally denied the motion as it relates to the estoppel argument. The Court will address the other arguments below.
A. Burden of Proof
As a threshold matter, the Court will note that the "general rule is that once a criminal defendant satisfies his burden of production with respect to an affirmative defense, the prosecution must prove the inapplicability of this defense beyond a reasonable doubt." United States v. Guess, 629 F.2d 573, 577 n. 4 (9th Cir. 1980). The burden shifts to a defendant only when the affirmative defense is asserted to excuse the charged criminal defense rather than disprove an element of the offense. See United States v. Beasley, 346 F.3d 930, 934 (9th Cir. 2003). In this case, Moses contends that his trial counsel should have asserted that his actions were authorized under various nationwide permits or under section 404(f) of the CWA. Whether the discharge was unpermitted is an element of the charged offenses in this case. (See Jury Inst. No. 12). Thus, had trial counsel asserted these affirmative defenses, the burden would have remained on the Government to show that the discharge was unpermitted. In determining whether the Defendant was prejudiced by any shortcoming in his attorney's performance, the Court will assume that if his attorney had raised these defenses, the Government would have been required to prove beyond a reasonable doubt that Moses' conduct was neither exempt under section 404(f) nor within the ambit of any nationwide permit.
B. Nationwide Permits
The criminal charges against Moses were based upon his discharge of pollutants (in the form of dredged and fill materials) into Teton Creek without the permit required by § 404 of the CWA. In monitoring the discharge of dredged or fill materials under the Clean Water Act, the Army Corps of Engineers ("the Corps") issues both individual permits, which require the making of individual applications, and general permits, which do not require individual applications. The general permits, established pursuant to § 404(e) of the CWA allow categories of activities that the Corps determines will do little or no harm to the environment. General permits that have been established nationwide are called "nationwide permits." Moses contends that his attorney was ineffective because he did not assert a defense that Moses' activities did not require an individualized permit because they were authorized by Nationwide Permit Nos. 3, 19 and 31.
1. Nationwide Permit No. 3
Nationwide Permit No. 3 applies to the maintenance of a variety of existing structures. The scope and extent of the Permit is described by the applicable regulations as follows:
3. Maintenance. Activities related to:
(i) The repair, rehabilitation, or replacement of any previously authorized, currently serviceable, structure, or fill, or of any currently serviceable structure or fill authorized by 33 CFR 330.3, provided that the structure or fill is not to be put to uses differing from those uses specified or contemplated for it in the original permit or the most recently authorized modification. Minor deviations in the structure's configuration or filled area including those due to changes in materials, construction techniques, or current construction codes or safety standards which are necessary to make repair, rehabilitation, or replacement are permitted, provided the adverse environmental effects resulting from such repair, rehabilitation, or replacement are minimal. Currently serviceable means useable as is or with some maintenance, but not so degraded as to essentially require reconstruction. This NWP authorizes the repair, rehabilitation, or replacement of those structures or fills destroyed or damaged by storms, floods, fire or other discrete events, provided the repair, rehabilitation, or replacement is commenced, or is under contract to commence, within two years of the date of their destruction or damage.
67 Fed. Reg. 2078 (January 15, 2002).
Thus, to fall within the scope of Nationwide Permit No. 3, the maintenance work must be to an existing structure expressly authorized through the permitting process, or authorized without a permit under 33 CFR § 330.3. The relevant language of 33 C.F.R. § 330.3 provides as follows:
The following activities were permitted by NWPs issued on July 19, 1977, and, unless the activities are modified, they do not require further permitting:
* * *
(b) Structures or work completed before December 18, 1968, or in waterbodies over which the DE [District Engineer] had not asserted jurisdiction at the time the activity occurred, provided in both instances, there is no interference with navigation. Activities completed shoreward of applicable Federal Harbor lines before May 27, 1970 do not require specific authorization.
Moses argues that Nationwide Permit No. 3 applied to his work on Teton Creek in 2002, 2003, and 2004 because he was merely "repairing" a "currently serviceable structure" that was installed in 1980, at a time when the District Engineer had not asserted jurisdiction over Teton Creek. Moses contends that Nationwide Permit No. 3 provided a complete defense to the criminal charges against him, so that his constitutional right to the effective assistance of counsel was violated when his attorney failed to raise this defense at trial or in pre-trial proceedings.
The Court is unpersuaded. Moses' argument fails because Nationwide Permit No. 3 and CFR § 330.3(b), sometimes referred to jointly as the unasserted jurisdiction permit, do not apply to actions based on the Clean Water Act. See United States v. Cumberland Farms of Conn., 826 F.2d 1151 (1st Cir. 1987).
The Corps administers a dual permit system under two different statutes — the River and Harbor Act and the Clean Water Act. In 1977, the Corps' regulations under the River and Harbor Act exempted from the individual permit requirement, structures or work completed before December 18, 1968 or in waterbodies over which the District Engineer had not asserted jurisdiction, provided there was no interference with navigation. See 33 C.F.R. § 322.4(g) (1977). No such exemption existed under the Clean Water Act.
In 1982, two years after Moses began his work in Teton Creek, the Corps published interim regulations contained in 33 C.F.R. § 330, which were applicable to permit programs under both the River and Harbor Act and the Clean Water Act. Unfortunately, the regulation was ambiguous and could be read to imply that the unasserted jurisdiction permit applied to activities regulated under both the River and Harbor Act and the Clean Water Act. However, "[i]n November 1986 . . . the Corps expressly clarified its intent by specifying in the final regulations that the unasserted jurisdiction permit only applies to section 10 of the River and Harbor Act." Cumberland, 826 F.2d at 1160.
Thus, it was clear in 1980, when Moses began work on Teton Creek, that the unasserted jurisdiction permit did not apply to the Clean Water Act. Moreover, it was abundantly clear by 2002, 2003 and 2004, the years covered by the Indictment in this matter, that the unasserted jurisdiction permit did not apply to the Clean Water Act. Therefore, Moses' actions in 2002-2004 were clearly not permitted by Nationwide Permit No. 3 and 33 CFR § 330.3.
Accordingly, counsel's performance in not asserting a defense based on Nationwide Permit No. 3 did not prejudice the defense so as to deprive Moses of a fair trial. There is simply no reasonable probability that the defense would have succeeded.
Even if Nationwide Permit No. 3 applied to the permitting requirements of the CWA, the Court is not persuaded that Moses could show any prejudice resulting from his attorney's failure to raise the defense. The Court is persuaded that there is no reasonable probability that a jury would find, even under the reasonable doubt standard which the Government must satisfy, that Moses' bulldozing the streambed of Teton Creek in 1980-82 constituted a "structure" under the regulations.
2. Nationwide Permit No. 19
Nationwide Permit No. 19 authorizes the "[d]redging of no more than 25 cubic yards below the plane of the ordinary high water mark from navigable water." Moses argues that there was no evidence at trial that dredging was not within 25 cubic yards. However, the contractors hired by Moses to perform the work, testified that they moved thousands of cubic yards over several days of bulldozing. Notably, Moses has offered nothing in support of his motion for a new trial which would contradict the contractor's testimony. The contractor's unrebutted testimony clearly removes Moses' activities from the protection of Nationwide Permit No. 19.
Accordingly, even if defense counsel's conduct fell below the competence standard established in Strickland, counsel's shortcomings did not prejudice the defense so as to deprive Moses of a fair trial. Even after taking into account the Government's burden of proving beyond a reasonable doubt that Moses' work was not covered by Nationwide Permit No. 19, the Court is persuaded there is no reasonable probability the jury would have found that Moses' activities were covered by that Nationwide Permit.
3. Nationwide Permit No. 31
Nationwide Permit No. 31 authorizes "[d]ischarges of dredge or fill material resulting from activities associated with the maintenance of existing flood control facilities . . . that (i) were previously authorized . . . by 33 CFR 330.3, or did not require a permit at the time it was constructed." Moses contends that his activities fall within Nationwide Permit No. 31 because he was maintaining an "existing flood control facility" that he had installed in 1980-82, at a time when such activity was authorized by 33 CFR § 330.3 because the District Engineer had not asserted jurisdiction over Teton Creek. Moses' ability to successfully argue that his activities were covered by Nationwide Permit No. 31 turns on three questions: First, did the work in 1980-82 create a "flood control facility." Second, was the work in 1980-82 authorized under 33 CFR § 330.3 because the District Engineer had not asserted jurisdiction over Teton Creek at that time. Third, did Moses comply with the other regulatory requirements which were necessary to rely upon the protection of Nationwide Permit No. 31.
The Court is not persuaded that the work performed in 1981-82 created a "flood control facility." The regulations describe such a facility as including "debris basins, retention/detention basins, and channels." At first blush, this language would appear to arguably cover the channelization of Teton Creek that Moses undertook in the early 1980's. However, the regulations provide further clarification that a "flood control facility" does not include natural water courses unless they have been specifically authorized as a "flood control facility." This much is suggested by the preamble to the Permit, which indicates that, "[o]nly channels within stretches of natural rivers that have previously been authorized as part of a flood control facility would be covered under this permit." 61 Fed. Reg. 30786 (June 17, 1996). There is no evidence that the work undertaken in 1980-82 by Moses had ever been authorized by the Corps. Therefore, the work performed by Moses in 1980-82 to channelize this stretch of Teton Creek does not qualify as a "flood control facility."
Moses presented evidence at the hearing on his motion for new trial that suggested that Corps representatives had made statements during a 1982 public meeting that the Corps was not asserting jurisdiction over Teton Creek because of its status as an intermittent water body. While the intermittent nature of Teton Creek has been at the heart of Moses' defense throughout these proceedings, it ignores the fact that Teton Creek is an interstate water which originates in Wyoming and flows into Idaho. The Government has always contended that the Corps has always asserted jurisdiction over Teton Creek as an interstate water. See 33 C.F.R. § 323.2(a)(4) (July 19, 1977).
Finally, and perhaps most significantly, Moses failed to present any evidence suggesting that he complied with the requirements that must be satisfied by one who claims to be performing maintenance work under Nationwide Permit No. 31. Under the terms of the Nationwide Permit, Moses would have been required to prepare a "maintenance baseline" detailing the physical characteristics of the flood control project. More specifically, the regulations required that:
The prospective permittee will provide documentation of the physical characteristics of the flood control facility (which will normally consist of as-built or approved drawings) and documentation of the design capacities of the flood control facility. The documentation will also include BMPs [Best Management Practices] to ensure that the impacts to the aquatic environment are minimal, especially in maintenance areas where there are no constructed channels.
67 Fed. Reg. 2084 (January 15, 2002). The District Engineer must then approve the maintenance baseline. After establishment and approval of the maintenance baseline, but before any work is conducted, the permittee must notify the District Engineer in accordance with the "Notification" General Conditions of the Nationwide Permit regulations.
Defendant argues that a letter he sent in 1995 to the Corps satisfies the notice and approval requirement. However, the 1995 letter does not even come close to providing compliance with the permit requirements. First, it does not contain any of the detailed information necessary to establish a maintenance baseline. Second, there is no indication of any approval by the District Engineer. Finally, the regulations make clear that "the notification may be for activity-specific maintenance" or it may be "for maintenance of the entire flood control facility by submitting a five year (or less) maintenance plan." Clearly a letter written in 1995 cannot be relied upon as establishing either notice of "activity specific maintenance" or a "five year (or less) maintenance plan" for work not undertaken until 2002, 2003 and 2004.
In summary, the Court is unpersuaded that there is a reasonable probability the outcome of the trial would have been different if Moses' attorney had raised the defense that his client's activities were covered by Nationwide Permit No. 31. Even if one considers the Government's burden of proving the inapplicability of the Nationwide Permit beyond a reasonable doubt, there is simply no reasonable probability the jury would have found that Moses' activities fell within that Nationwide Permit. Thus, even if Moses' trial counsel was deficient in not asserting a defense based on Nationwide Permit No. 31, counsel's performance did not deprive Moses of a fair trial.
B. 404(f) Exemption
Section 404(f) of the Clean Water Act provides in relevant part as follows:
(f) Non-prohibited discharge of dredged or fill material
(1) Except as provided in paragraph (2) of this subsection, the discharge of dredged or fill material —
(B) for the purpose of maintenance, including emergency reconstruction of recently damaged parts, of currently serviceable structures such as dikes, dams, levees, groins, riprap, breakwaters, causeways, and bridge abutments or approaches, and transportation structures.
is not prohibited by or otherwise subject to regulation under this section. . . .33 U.S.C. § 1344(f). By its terms, the 404(f) exemption only applies to the discharge of dredged material from the maintenance of "currently serviceable structures." The statute indicates" dikes, dams, levees, groins, riprap, breakwaters, causeways, and bridge abutments or approaches, and transportation structures" are examples of the "currently serviceable structures" that may be maintained without a section 404 permit. Simply put, Teton Creek does not constitute a "currently serviceable structure," as that term is used in the statute.
Moreover, the work performed by Moses went far beyond the "maintenance" permitted by the exemption. The Corps' regulations provide that "maintenance does not include any modification that changes the character, scope, or size of the original fill design." 33 C.F.R. § 323.4(a)(2). This provision assumes that the "original fill design" was either authorized by permit, or was constructed prior to the permit requirements imposed by the CWA in 1972.
The same conclusion was reached in United States v. Zanger, 767 F.Supp. 1030, 1035 (N.D.Cal. 1991), where the court stated that "[t]his exemption is unavailing because it is limited to the 'maintenance' of certain 'structures.'" The court found that there were no structures in the creek when defendants did their filling, and even if there had been, defendants' filling went far beyond any reasonable definition of maintenance or repair. See Zanger, 767 F.Supp. at 1035.
Even if the Court accepts Moses' argument that the log structures were previously constructed "structures," his work went far beyond maintenance or repair of those log structures. As noted above, Moses moved thousands of cubic yards over several days of bulldozing. Indeed, the Court's sense of the evidence was that the repair and maintenance of the log structures was a minor part of the work which Moses undertook in the relevant years. Thus, even if the Court considers the Government's heightened burden in proving the inapplicability of the section 404(f) exemption, the Court concludes that there is no reasonable probability that the jury would have found that Moses' activities were exempt.
II. Adequacy of the Evidence at Trial.
Moses also seeks a new trial based on an assertion that the evidence presented at trial did not support the jury's conclusion that he violated the CWA. Specifically, Moses argues that there was insufficient evidence to determine that the bulldozer used to manipulate the streambed was a point source. In making this argument, Moses relies upon National Mining Association, v. U.S. Army Corps of Engineers, 145 F 3d 1399 (D.C. Cir. 1998), in which the Court of Appeals for the D.C. Circuit rejected an attempt by the Corps to strictly construe the CWA so as to regulate even incidental fallback occurring during dredging operations. In so holding, the court concluded that:
The agencies' primary argument that fallback constitutes an "addition of any pollutant only upon being dredged" is ingenious but unconvincing. Regardless of any legal metamorphosis that may occur at the moment of dredging, we fail to see how there can be an addition of dredged material when there is no addition of material. Although the Act includes "dredged spoil" in its list of pollutants, Congress could not have contemplated that the attempted removal of 100 tons of that substance could constitute an addition simply because only 99 tons of it were actually taken away.Id., at 1404. The difficulty with Moses' argument is that it is not an incidental amount of fallback from a dredging operation that is at issue in this case. Instead, Moses directed his contractors to use bulldozers to move gravel in the creek bed, redistributing the material from one point to another. This, the Government contends, constitutes discharge of a pollutant from a point source.
The 10th Circuit's decision in United States v. Hubenka, 438 F.3d 1026 (10th Cir. 2006) supports the Government's argument. In Hubenka, the Tenth Circuit found that:
Corps regulations state that [t]he Corps and EPA regard the use of mechanized earth-moving equipment to conduct landclearing, ditching, channelization, in-stream mining or other earth-moving activity in waters of the United States as resulting in a discharge of dredged material unless project-specific evidence shows that the activity results in only incidental fallback."Id., at 1035 (emphasis in original). Therefore, the court concluded that the Defendant's use of a bulldozer to move river bottom materials in order to construct dikes constituted a discharge of a pollutant into a water of the United States. Id.
The Government correctly points out that the activity at issue here was not incidental fallback from a dredging operation. Rather, it was massive re-deposit of materials with thousands of cubic yards being moved around the streambed. Moses' activities clearly constituted the same type of " earth-moving activity in waters of the United States" that the 10th Circuit found to constitute a discharge of pollutants from a point source which is regulated by the CWA.
Finally, Moses contends that there was no evidence that any activity occurred while there was water in the streambed, or that water ever entered the streambed during the indictment period, and therefore there was no violation of the CWA. However, "[t]o state a violation of the [CWA], a plaintiff need only show that the Defendant discharged a pollutant into a water of the United States from a point source without a permit." Id., at 1026. If there is a discharge into the waters of the United States, it constitutes a violation, and waters of the United States include navigable waters and their tributaries. Id. There is no requirement that there be water in the streambed at the time of the discharge.
In this case, there was sufficient evidence at trial to show that Moses directed others to use bulldozers to redistribute, alter and reshape Teton Creek. Accordingly, the Court finds that the evidence presented at trial supported the jury's conclusion that Moses violated the CWA.
ORDER
NOW THEREFORE IT IS HEREBY ORDERED that Defendant's Motion for New Trial (Docket No. 62) shall be, and the same is hereby, DENIED.
IT IS FURTHER ORDERED that the sentencing in this matter shall resume on June 9, 2006 at 10:30 a.m. in the Federal Courthouse in Pocatello, Idaho.