SAN FRANCISCO (CN) — A self-described “dirt broker” will be getting a new trial after the Ninth Circuit overturned his 2018 conviction for illegally dumping pollutants into nearly 12 acres of protected wetlands.
James Lucero charges trucking companies and contractors a fee in exchange for providing an open space to dump dirt and construction debris.
He was sentenced to 30 months in prison after a federal jury found him guilty on three counts of violating the Clean Water Act by knowingly discharging pollutants into the Mowry Slough — part of the Don Edwards San Francisco Bay National Wildlife Refuge in Newark, California.
Lucero’s dumping sites were separated from the slough by a levee made of packed dirt. At trial, the government presented evidence that the first area was connected to a tributary flowing underneath the slough, and that water flowed through the second site via tributaries that connected to the slough. Lucero was also convicted of a third count for dumping into a tributary of the Mowry Slough.
But a three judge panel of the Ninth Circuit found that the federal judge had not adequately conveyed to the jury that to convict Lucero, it had to find that he knowingly discharged the pollutants into the water.
The Clean Water Act defines pollutant as “dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water.”
The appellate court found Lucero’s conviction must be reversed, given this statutory definition of pollutant, since the jury instructions did not make clear that he had to know his discharge was “into water.”
“On this record, we cannot say that a properly instructed jury clearly would have found Lucero guilty,” Circuit Judge Patrick Bumatay, a Trump appointee wrote for the panel. “We therefore reverse Lucero’s conviction and remand for a new trial with jury instructions that make clear the government’s burden to prove that Lucero knowingly discharged fill material “’into water.’”
Bumatay was joined by U.S. District Judge Rose Marquez, an Obama appointee, and U.S. Circuit Judge Bridget Bade, a Trump appointee.
While Bade agreed that Lucero should get a new trial, she also diverged from her colleagues in her reading of the Clean Water Act.
While the majority interpreted the Clean Water Act’s discharge prohibition to mean the government only had to prove that Lucero knew he discharged a pollutant “into water,” Bade said it was important to note the distinction between dumping into water and “waters of the United States.”
The term “waters of the United States,” she wrote, is more than just a jurisdictional term, and should be included as part of the knowledge required to commit a crime.