Petition for Writ of Certiorari — Darren K. Byler, Petitioner v. United States

No. _ _ _ _ __ _ _

IN THE SUPREME COURT OF THE UNITED STATES

DARREN BYLER,

Petitioner,

V.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH DISTRICT

PETITION FOR WRIT OF CERTIORARI

LAW OFFICES KENNETH M. STERN

5850 Canoga Avenue

Fourth Floor

Woodland Hills, Ca. 91367

(818) 710-3824

On appointment by the

Court of Appeal

for the Ninth Circuit

QUESTIONS PRESENTED

1. Does 33 U.S.C. 407, The Refuse Act, apply to sewage?

2. Does 33 U.S.C., 407, The Refuse Act. require discharges, into

the water, to be morE than de minimis.

TABLE OF CONTENTS

A. QUESTIONS PRESENTED

B. TABLE OF CONTENTS

II

C. TABLE OF AUTHORITIES

IV

D. PETITION

I. OPINION BELOW

2

II. JURISDICTIONAL STATEMENT

2

Ill. CONSTITUTIONAL PROVISIONS, STATUTES AND RULES

2

IV. STATEMENT OF THE CASE

3

A. Procedural History.

3

B. Facts.

3

V. REASONS FOR GRANTING THE WRIT

4

VI. ARGUMENT

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1. THE REFUSE ACT DOES NOT MAKE IT UNLAWFUL TO

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DISCHARGE SEWAGE.

2. THE REFUSE ACT REQUIRES MORE THAN DE MINIMIS DISCHARGES.

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VII. CONCLUSION.

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Appendix A. Court of Appeal Memorandum

13

Appendix B. Denial of Petition for Rehearing

19

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Appendix C. Judgment

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TABLE OF AUTHORITIES

STATUTES

18 U.S.C. l 001 ...................................................... 3

28 U.S.C 1291

......................................................... 2

28 U.S.C. 1254 ......................................................... 2

33 U.S.C. 1311 ....................................................... 10

33 U.S.C. 1362 .................................................... 10, 11

33 U.S.C. 407 ...... . ........................................... 2, 3, 6, 9

CASELAW

Hawaii Wildlife Fund v. County of Maui, 881 F. 3d 754 (9th Cir.2018 ...... 5, 10

United States v. Boyd, 491 F .2d 1163 (9th Cir. 1973) ..................... 5, 10

United States v. Kennebec Log Driving Co., 530 F.2d 446, 448 (1st Cir. 197 6) .. 5, 9

United States v. Maplewood Poultry Co., 327 F. Supp. 686 (Me. 1971) ....... 5, 7

United States v. Republic Steel Corp., 362 U.S. 482 (1960) .................. 5-7

SECONDARY AUTHORITY

William H. Rodgers, Jr., Industrial Water Pollution and the Refuse Act:

A Second Chance for Water Quality, l l 9U. Pa. L. Rev. 7 61, 778 ( 1971)

IV

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No.- - - - - - - - -

IN THE SUPREME COURT OF THE UNITED STATES

DARREN BYLER,

Petitioner,

V.

UNITED STATES OF AMERICA

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH DISTRICT

PETITION FOR WRIT OF CERTIORARI

Petitioner hereby petitions for a Writ of Certiorari to the Supreme Court of

the United States to review the Memorandum of the United States Court of

Appeals for the Ninth Circuit affirming the District Court's judgment of conviction.

I. OPINION BELOW.

On June 20, 2018, the United States Court of Appeals for Ninth Circuit issued

its decision finding that petitioner was properly convicted of violating 33 U.S.C.

407, The Refuse Act . The Court found that ( 1) sewage does constitute refuse,

pursuant to The Refuse Act; and, (2) there is no de minimus requirement, as to the

amount of refuse that must be dumped, into the water, to constitute a violation

of The Refuse Act. (Appendix A.)

II. JURISDICTIONAL STATEMENT.

Jurisdiction existed, in the District Court, pursuant to 18 U.S.C. 3231, as the

Indictment charged petitioner with a crime pursuant to Title 18 and 33, United

States Code. The Court of Appeal had jurisdiction, pursuant to 28 U.S.C 1291 and

28 U.S.C. 1294, as an appeal from the United States District Court, District of

Alaska.

This court has jurisdiction pursuant to 28 U.S.C. 1254 subdivision ( 1).

Petitioner's Petition for Rehearing/Suggestion for Hearing En Banc was denied on

July 26, 2018. (Appendix B.)

Ill. CONSTITUTIONAL PROVISIONS, STATUTES AND RULES.

33 U.S.C. 407 provides:

"It shall not be lawful to throw, discharge, or deposit, or cause, suffer,

or procure to be thrown, discharged, or deposited either from or out

of any ship, barge, or other floating craft of any kind, or from the

shore, wharf, manufacturing establishment, or mill of any kind, any

refuse matter of any kind or description whatever other than that

flowing from streets and sewers and passing therefrom in a liquid

state, into any navigable water of the United States, or into any

tributary of any navigable water from which the same shall float or

be washed into such navigable water; and it shall not be lawful to

deposit, or cause, suffer, or procure to be deposited material of any

kind in any place on the bank of any navigable water, or on the

bank of any tributary of any navigable water, where the same shall

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be liable to be washed into such navigable water, either by ordinary

or high tides, or by storms or floods, or otherwise, whereby navigation

shall or may be impeded or obstructed: Provided, That nothing

herein contained shall extend to, apply to, or prohibit the operations

in connection with the improvement of navigable waters or

construction of public works, considered necessary and proper by

the United States officers supervising such improvement or public

work: And provided further, That the Secretary of the Army,

whenever in the judgment of the Chief of Engineers anchorage and

navigation will not be injured thereby, may permit the deposit of any

material above mentioned in navigable waters, within limits to be

defined and under conditions to be prescribed by him, provided

application is made to him prior to depositing such material; and

whenever any permit is so granted the conditions thereof shall be

strictly complied with , and any violation thereof shall be unlawful."

IV. STATEMENT OF THE CASE.

A. Procedural History.

Petitioner was charged, in the Indictment, with one count of violating 33

U.S.C. 407 and one count of violating 18 U.S.C. l 00 l. Petitioner was found

guilty on both counts and sentenced on January 23, 2017. Petitioner was

sentenced to probation with various terms and conditions.

On January 20, 2018, the Ninth Circuit filed its Memorandum Decision

affirming the District Court Judgment. (Appendix A and C.) On July 26, 2018, the

Ninth Circuit denied petitioner's Petition for Rehearing and Suggestion for Hearing

En Banc. (Appendix B.)

B. Facts concerning the underlying crime.

The facts upon which petitioner was convicted were as follows. Petitioner

owned a boat, the Wild Alaskan, which was anchored in a Kodiak Alaska harbor.

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Petitioner operated the Wild Alaskan as a strip club.

The Wild Alaskan was plumbed such that it would discharge sewage, from

its toilets, into the harbor, one flush at a time, which was within three miles of the

shore. There is no evidence, as found by the jury, as to the amount of sewage

discharged, at any one time, or in total. There is no evidence the discharges

were anything more than de minimis. That is because the jury rejected

petitioner's claims he discharged thousands of gallons at a time, which he

indicated he did in a proper manner, either by discharging such more than three

miles out to sea or discharging such in a reseptacle designed for such.

Petitioner also provided false information, to the government, regarding

the manner and method by which he disposed of the sewage, from the Wild

Alaskan. The government's inquiry, regarding such, related to the health of the

community and to be sure petitioner was in compliance with disposal

requirements.

V. REASONS FOR GRANTING THE WRIT.

Petitioner was improperly convicted, pursuant, to 33 U.S.C. 407, of dumping

sewage into a harbor. The conviction is invalid; as, the statue, pursuant to which

he was convicted, does not make dumping sewage into a harbor a crime.

Even assuming arguendo the statute does so, dumping de minimis amounts of

sewage, into a harbor, is not a crime, pursuant to said statute.

Whether dumping sewage into a harbor violates The Refuse Act is an

important issue; in that, although The Refuse Act is approximately 120 years old,

4

there has been scant interpretation of such, particularly as to whether sewage

discharge, into the water, is a violation of the Act.

The Ninth Circuit Opinion

conflicts with this Court's decision in United States v. Republic Steel Corp., 362 U.S.

482 (1960), and , the District Court decision in United States v. Maplewood Poultry

Co., 327 F. Supp. 686, 687-688 (Me. 1971 ).)

Whether The Refuse Act requires more than a de minimus discharge is an

important issue; as, there has been scant interpretation of whether discharges,

into the water, must be more than de minimis. The Ninth Circuit Opinion conflicts

with United States v. Kennebec Log Driving Co., 530 F.2d 446,448 (1st Cir. 1976),

United States v. Boyd, 491 F.2d 1163 (9th Cir. 1973), and, Hawaii Wildlife Fund v.

County of Maui, 881 F. 3d 754,765 (9th Cir. 2018.)

VI. ARGUMENT.

1. THE REFUSE ACT DOES NOT MAKE IT UNLAWFUL TO DISCHARGE SEWAGE.

Petitioner correctly asserted, in his appeal, The Refuse Act does not, as

interpreted this Court, and other appellate authority, make it unlawful to deposit

sewage in navigable water. The Memorandum wrote the following:

"The Refuse Act broadly prohibits "deposit[ing]" into navigable

waters "any refuse matter of any kind or description" "other than

that flowing from streets and sewers and passing therefrom in a liquid

state. " 33 U.S.C. § 407; see also United States v. Standard Oil Co., 384

U.S. 224, 229 ( 1966) ("More comprehensive language would be

difficult to select.") . Citing United States v. Republic Steel Corp ., 362

U.S. 482, 490-91 ( 1960), Byler interprets the exception as permitting his

dumping of human waste from the Wild Alaskan into the harbor. We

disagree.

"The defendant in Republic Steel Corp. operated mills on a riverbank

5

t

and deposited "industrial waste containing various solids" into the

river to raise the riverbed by several feet. 362 U.S. at 483. The Court

rejected the defendant's argument that the exception applied

because the industrial waste was deposited through sewers: "Refuse

flowing from 'sewers' in a 'liquid state' means to us 'sewage."' Id. at

490. The Court thus declined "the invitation to broaden the

exception," limiting the "sewers" exception to sewage flowing from

sewers. Id. Byler's conduct in dumping human waste directly from

the Wild Alaskan into the harbor is not permitted under the Refuse

Act." (Appendix 1, pp. 2-3.)

33 U.S.C. 407 provides, in pertinent part:

"It shall not be lawful to throw, discharge, or deposit, or cause, suffer,

or procure to be thrown, discharged, or deposited either from or out

of any ship ... or other floating craft of any kind ... any refuse matter

of any kind or description whatever other than that flowing from

streets and sewers and passing therefrom in a liquid state, into any

navigable water of the United States, or into any tributary of any

navigable water from which the same shall float or be washed into

such navigable water ... " (emphasis added.)

This Court, in United States v. Republic Steel Corp., supra, 362 U.S. at pp.

490-491, defined other than that flowing from streets and sewers and passing

therefrom in a liquid state, as sewage.

"As noted,§ 13 1 bans the discharge ... 'any refuse matter ... other

than that flowing from streets and sewers and passing therefrom in a

liquid state.' ... Refuse flowing from 'sewers' in a 'liquid state' means

to us 'sewage.' ... We follow the line Congress has drawn and

cannot accept the invitation to broaden the exception in § 13

because other matters 'in a liquid state' might logically have been

1

33 U.S.C. 407.

6

treated as favorably as sewage is treated." 2 3

When this Court writes of "treated as favorably as sewage", it is stating that

sewage is not encompassed, within The Refuse Act; while, industrial wastes,

within a liquid state, are so encompassed. Even the dissent notes that sewage is

not included in The Refuse Act.

" ... a nineteenth century Congress, in carving out an exception for

liquid sewage, ... " (Id. at p. 508.)

This is not out of context. This Court was interpreting the phrase,

determining it meant sewage. The Court intended to, and did, define what that

phrase meant, determining it meant sewage. This Court did not limit such

definition to sewage actually coming out of a sewer or from the streets.

That sewage is not refuse, within the meaning of The Refuse Act, was

settled at the time of trial herein. In addition to Republic Steel, this is shown by

the decision in United States v. Maplewood Poultry Co., supra, 327 F. Supp. at

pp. 687-688, which ruled such has been long established.

" It has long since been authoritatively settled that the Act prohibits

all discharges of polluting matter (other than sewage) into navigable

waters, regardless of its source or continuing nature and irrespective

2

As a practical matter, the occasional discharge of the sewage contained in

a single toilet flush could hardly be on a negative health par with sewage

flowing into a body of water from the amount that would be coming from a

sewer.

3

Republic Steel does not, state, for exclusion, the sewage must actually be

coming from streets and sewers.

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of its effect upon navigation." ... " (Id. at p. 688.) (emphasis added.) 4

William H. Rodgers, Jr., Industrial Water Pollution and the Refuse Act: A

Second Chance for Water Quality, 119U. Pa. L. Rev. 761,778 (1971), supports the

position that sewage is not excluded from the act. The article, at page 777,

acknowledges sewage is excluded from the act.

"3. The Sewage Exception

The important exclusion from coverage in section 13 of the 1899 Act

is that for discharges of refuse "flowing from streets and sewers and

passing therefrom in a liquid state, into any navigable water ....

"This reservation was explored briefly in United States v. Republic

Steel Corp.," a case in which the federal government sought to

enjoin several steel companies from discharging wastes into the

Calumet River without obtaining a permit from the Corps of

Engineers. The Court rejected the argument that these discharges

were excused by the statute because they had flowed from the

companies' sewers into the river in a liquid state.:"' In interpreting the

exception, Mr. Justice Douglas cryptically concluded that:

"The materials carried here are 'industrial solids,' as the

District Court found. The particles creating the present

obstruction were in suspension, not in solution. Articles in

suspension, such as organic matter in sewage, may undergo

chemical change. Others settle out. All matter in suspension is not

saved by the exception clause in § 13. Refuse flowing from 'sewers' in

a 'liquid state' means to us 'sewage.' ...

"The fact that discharges from streets and sewers may contain some

articles in suspension that settle out and potentially impair

navigability is no reason for us to enlarge the group to include these

industrial discharges." ... "

The article goes on to state it was the Legislature's intention to exclude

4

Maplewood does not, state, for exclusion, the sewage must actually be

coming from streets and sewers.

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sewage, as refuse, within the act, noting "The legislative motive for the sewage

exception is obscure." (Id. at p. 778 .)

2. THE REFUSE ACT REQUIRES MORE THAN DE MINIMIS DISCHARGES.

Petitioner correctly asserted, in his appeal, The Refuse Act requires more

than a de minimus amount of refuse, discharged, for there to be a violation of

The Refuse Act. The Memorandum wrote the following:

" ... the Refuse Act contains no exception for de minimis deposits.

See 33 U.S.C. § 407. the Refuse Act contains no exception for de

minimis deposits. See 33 U.S.C. § 407. Second, because Byler failed

to raise this argument at trial, he should prevail only if the asserted

error was so obvious that the district court should have raised the

issue sua sponte. See Molina-Martinez v. United States, 136 S. Ct.

1338, 1343 (2016) (" [T]he error must be plain-that is to say, clear or

obvious."). It is not obvious that de mini mis discharges are

exempted." (Appendix A, p. 3.)

Assuming arguendo, The Refuse Act applies to sewage, the amount of

sewage must be something more than a de minimis amount of discharge, for the

particular discharge. United States v. Kennebec Log Driving Co., supra, 530 F.2d

at p. 448 discusses The Refuse Act. Kennebec indicates, for there to be a

violation of such, any specific discharge, must be more than de minimis. In this

regard, Kennebec, which was construing The Refuse Act, looked to whether a

discharge, to be actionable pursuant to the Clean Water Act, had to be more

than de minimis. Kennebec wrote:

"Fn. 3 ... account in United States v. Boyd, 491 F.2d 1163 (9th Cir.

1973), of the legislative history of the 1970 Act suggests what the

attitude of Congress might well be when confronted with the task of

drafting specific exceptions to a broad-based statutory proscription .

The opinion quotes the following remarks for the Senate senior

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conferee, Senator Muskie:

"It was conceivable that de minimis quantities of oil ought not to be

subject to the notice provisions and ought not to be subject to the

penalty provisions of the law. It was difficult to define these

quantities in the statute. 'The definition, we felt, would depend upon

more extensive study than we could give, and even if we were in a

position to give that kind of study, there were other reasons why such

specificity ought not to be included in the law." 491 F.2d at 1167 n.

4." (Ibid)

So, in interpreting Kennebec, it is necessary to review United States v.

Boyd, supra, 491 F.2d 1163. That review shows that, as the Clean Water

Act requires something more than a de minimis discharge, so too, according to

Kennebec's incorporation of Boyd, The Refuse Act requires more than a de

minimis discharge. Boyd wrote:

"To meet this burden, Boyd argues at the outset that Congress did

not intend all oil discharges to be deemed 'harmful', and therefore

there is a certain class of de minimis discharges to which the

sanctions of subsection 1161 (b)(4) do not apply. We agree." (Id. at p .

1167.)

The Ninth Circuit, in Hawaii Wildlife Fund v. County of Maui, supra, 881 F. 3d

at p. 765, held for a violation of The Clean Water Act, there must be more than

a de minimis discharge of a violating pollutant. This is despite the fact that The

Clean Water Act does not, by its language, require a de minimis amount of

discharge. The Clean Water Act is similar to The Refuse Act. The Refuse Act

does not specifically, by its language, exclude de minimis discharges. However,

The Refuse Act requires a de minimis discharge. The position is supported by the

Ninth Circuit's ruling in Hawaii Wildlife Fund.

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Hawaii Wildlife Fund references two statutes, 33 U.S.C. 1311 and 33 U.S.C.

1362, which form the basis of violations of The Clean Water Act. Not only do

neither of these statutes, by their words, exempt de minimis discharges; but, they

refer to "any" discharges, as violating of The Clean Water Act. Yet, despite such

language, Hawaii Wildlife Fund requires more than de minimis discharges, for

violation of The Clean Water Act.

33 U.S.C. 1311 states:

" ... the discharge of any pollutant by any person shall be unlawful." 5

(emphasis added.)

33 U.S.C. 1362, which provides definitions, pursuant to The Clean Water

Act, as relevant, is as follows:

"(6) 'pollutant' means ... sewage ... sewage sludge ...

( 12) The term 'discharge of a pollutant' and the term 'discharge of

pollutants' each means (A) any addition of any pollutant to

navigable waters from any point source, (Bl any addition of any

pollutant to the waters ...

(16) The term 'discharge' when used without qualification includes a

discharge of a pollutant, and a discharge of pollutants." (emphasis

added.)

As such, the Ninth Circuit has recognized a statute can contain an implied

de minimis requirement; although, such a requirement is not specifically written

into the statute .

III

5

None of the exceptions apply, to exclude de minimis discharges.

11

VII. CONCLUSION.

For the reasons stated herein, it is respectfully submitted that this Court

grant the Petitioner Petition for Writ of Certiorari

Dated: August 24, 2018

LAW OFFICES KENNETH M. STERN

_.

.- M:. ER ,

Y FOR

P Tl . ER BY APPOINTMENT

THE

UNITED STATES COURT OF APPEAL , NINTH CIRCUIT.

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"'

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