989 F.3d 1088
9th Cir.2021Background
- Lucero directed contractors to dump dirt and debris at three sites near San Francisco Bay in July–August 2014; two sites were wetlands adjacent to Mowry Slough and one was a seasonal tributary ("Tributary 1").
- Government charged Lucero with three felony counts under the Clean Water Act for knowingly discharging pollutants without a permit; a jury convicted on all counts.
- The dispositive legal issues concerned: (1) the scope of the CWA mens rea (whether the government must prove the defendant knew the discharge was "into water" or knew it was into "waters of the United States"); (2) whether the regulatory definition of "waters of the United States" (wetlands and tributaries) was unconstitutionally vague as applied; and (3) whether the 2020 narrowed WOTUS rule should apply retroactively.
- The Ninth Circuit rejected Lucero’s vagueness and retroactivity claims but held the jury instructions omitted the statutory mens rea element—specifically knowledge that the pollutant was discharged "into water."
- Because the record was contested on whether Lucero knew the sites were inundated or "water," the court found the instructional omission not harmless, reversed the convictions, and remanded for a new trial.
Issues
| Issue | Plaintiff's Argument (United States) | Defendant's Argument (Lucero) | Held |
|---|---|---|---|
| Scope of mens rea: Does §1319(c)(2)(A)'s "knowingly" require knowledge that the material was discharged "into water" or that it was discharged into "waters of the United States"? | "Knowingly" applies to the substantive element only (must know discharge was "into water"); "waters of the United States" is a jurisdictional hook and need not be known. | "Knowingly" must extend to the jurisdictional element too—the defendant must know he discharged into "waters of the United States." | Court holds "knowingly" requires proof that defendant knew he discharged a pollutant "into water," but not that he knew the water qualified as "waters of the United States." |
| Jury instructions / harmless error: Did the jury need to be instructed on that mens rea and, if omitted, was the error harmless? | Jury need only find defendant knowingly discharged the pollutant; omission is harmless because facts show wet conditions and hydrological connections. | Instructions omitted the required mens rea (knowledge of discharge "into water"); omission prejudiced defendant because record about his knowledge is contested. | Omission was error and not harmless on this record; reversal and new trial ordered. |
| Vagueness of "waters of the United States": Are the regulatory definitions of wetlands and tributaries void for vagueness as applied? | Definitions and Rapanos/Healdsburg framework gave adequate notice; adjacency or significant nexus can be inferred from facts. | Definitions are too indeterminate (Rapanos fractured opinions, ambiguous "adjacency" and "significant nexus"). | Court rejects vagueness challenge as applied: standards provide ascertainable tests and Ninth Circuit precedent (Healdsburg) adopted Kennedy's significant-nexus approach at the time. |
| Retroactivity of 2020 WOTUS rule: Should the narrower 2020 regulation apply to Lucero’s 2014 conduct? | 2020 Rule is a new regulation and does not apply retroactively; prior rule governs. | 2020 Rule should narrow liability and apply to pending cases. | 2020 Rule is prospective only; court rejects retroactive application and applies the regulation in force in 2014. |
Key Cases Cited
- Rehaif v. United States, 139 S. Ct. 2191 (2019) (mens rea presumptively applies to elements criminalizing otherwise innocent conduct)
- Rapanos v. United States, 547 U.S. 715 (2006) (fractured opinions on scope of "waters of the United States"; plurality vs. Kennedy concurrence)
- United States v. Riverside Bayview Homes, 474 U.S. 121 (1985) (Congress intended broad protection for water quality; deference to agency definition of waters)
- County of Maui v. Hawaii Wildlife Fund, 140 S. Ct. 1462 (2020) (limits on point-source permitting and caution about overly expansive traceability)
- Luna Torres v. Lynch, 136 S. Ct. 1619 (2016) (distinguishing substantive elements from jurisdictional elements in federal crimes)
- Neder v. United States, 527 U.S. 1 (1999) (harmless-error standard for omitted jury instructions)
- Landgraf v. USI Film Prods., 511 U.S. 244 (1994) (presumption against retroactivity for statutes and regulations)
- United States v. Pozsgai, 999 F.2d 719 (3d Cir. 1993) (discusses apparent redundancy of "into water" and "to navigable waters")
- N. Cal. River Watch v. City of Healdsburg, 496 F.3d 993 (9th Cir. 2007) (adopted Justice Kennedy's significant-nexus test in Ninth Circuit)
- United States v. Davis, 825 F.3d 1014 (9th Cir. 2016) (en banc) (guidance on interpreting fractured Supreme Court opinions)