Opposition Brief — Hanousek v. United States

~~

No. 99-323

EDWARD HANOUSEK, JR., PETITIONER

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

SETH P. WAXMAN

Solicitor (s¢ neral

Counsel of Re cord

LOIS J. SCHIFFER

Assistant Attorne Y General

ELLEN J. DURKEE

Attorne y

Departme nt of Justice

Washington, D (’. 20530-0001

(PQ?) 514-2217

QUESTIONS PRESENTED

1. Whether, in order to establish that a defendant

“negligently” violated the Clean Water Act, 33 U.S.C.

1319(c)(1), the statute requires the government to

prove “gross negligence”—.e., that the petitioner’s con-

duct was a “gross deviation” from the standard of care

that a reasonabie person would observe in the situation.

2. Whether Section 1319(c)(1)(A) of the Clean Water

Act violates due process by permitting misdemeanor

criminal penalties to be imposed based on a standard of

ordinary, as opposed to gross, negligence.

TABLE OF CONTENTS

Page

Opinions below 1

Jurisdiction 1

Statement 1

Argument 7

Conclusion 18

TABLE OF AUTHORITIES

Cases:

Holdridge v. United States, 282 F.2d 302 (8th Cir.

1960) 13, 14

Huddleston v. United States, 415 U.S. 814 (1974) ........... 11

Lambert v. California, 355 U.S. 225 (1957) cco 13, 14

Liparota v. United States, 471 U.S. 419 (1985) .............. 8,13

Morissette v. United States, 342 U.S. 246 (1952) ........... 9,13

Santillanes v. State, 849 P.2d 358 (N.M. 1998) ................. 7

Staples v. United States, 511 U.S. 600 (1994) 2.0.0... 8, 9,

13, 16, 18

State v. Grover, 437 N.W.2d 60 (Minn. 1989) 7

State v. Hazelwood, 946 P.2d 875 (Alaska 1997) .............. 14

State v. Ritchie, 590 So. 2d 1139 (La. 1991) 7

Stoddard v. Western Carolina Reg’l Sewer Auth.,

784 F.2d 1200 (4th Cir. 1986) 10

Texaco, Inc. v. Short, 454 U.S. 516 (1982) 13

United States v. Ahmad, 101 F.3d 386 (1996) .............. 16, 17

United States v. Ayo-Gonzalez, 536 F.2d 652 (1st

Cir. 1976), cert. denied, 429 U.S. 1072 (1977) 2.0... 13

United States v. Balint, 258 U.S. 250 (1922) 13

United States v. Dotterweich, 320 U.S. 277 (1943) .......... 13

United States v. Earth Sciences, Inc., 599 F.2d 368

(10th Cir. 1979) 10

United States v. Engler, 806 F.2d 425 (3d Cir. 1986),

cert. denied, 481 U.S. 1019 (1987) 12

(IIT)

IV Vv

Cases—Continued: Page Statutes and regulation—Continued:

United States v. Hopkins, 53 F.3d 533 (2d Cir. 38 U.S.C. 1344

1995), cert. denied, 516 U.S. 1072 (1996) 18 33 U.S.C. 1362(7)

United States v. International Minerals & Chem. Emergency Wetlands Resources Act of 1986,

Corp., 402 U.S. 558 (1971) 18 Pub. L. No. 99-645, Tit. V, § 501, 100 Stat. 3590

United States v: Simekey, 119 F.3d 712 (8th Cir. (16 U.S.C. 707(b))

an - Fastener Quality Act, 15 U.S.C. 5408(c)(3)

United States v. Standard Oil Co., 384 U.S. 224 Rivers and Harbors Act of 1899, 33 U.S.C. 401

(1966) 10 “ ~

United States v. Unser, 165 F.3d 755 (10th Cir. ene ie a1

1999), cert. denied, No. 98-1600 (Oct. 4, 1999)... 13 ;

United States v. Weitzenhoff, 36 F.3d 1275 (9th Cir. a

1994), cert. denied, 513 U.S. 1128 (1995) 18

United States v. White Fuel Corp., 498 F.2d 619 Miscellaneous:

(1st Cir. 1974) 10 118 Cong. Rec. 10,644 (1972)

United States v. Wilson, 133 F.3d 251 (4th Cir.

1997) 16

United States v. Wulff, 758 F.2d 1121 (6th Cir.

(1985) 12

Statutes and regulation:

Clean Water Act, 33 U.S.C. 1251 et seq.:

33 U.S.C. 1251(a) 2

33 U.S.C. 1319 10

33 U.S.C. 1319(a) 2

33 U.S.C. 1319(b) 2

BB U.S.C. UBUQECMD) ceesenreecceeeeeeee 1, 2,3, 8, 9, 10, 12, 16, 17

33 U.S.C. 1319(e)(1)(A) 5, 6, 7, 14

33 U.S.C. 1319%e)(2) 3, 10, 16, 19

33 U.S.C. 1319%e)(2)A) 16, 17

33 U.S.C. 13194) 2, 10

33 U.S.C. 131%) 2

33 U.S.C. 1321(b\3) 1, 5,6

33 U.S.C. 1321(b)(3) (1994 & Supp. II] 1997) wu 2,3,8

33 U.S.C. 1321(b)\6) 2

33 U.S.C. 1321(b\7(D) 6,8

33 U.S.C. 1321(f)(1)-(3) 9

Jn the Supreme Court of the Gnited States

No. 99-323

EDWARD HANOUSEK, JR., PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-22a)

is reported at 176 F.3d 1116. The opinion of the district

court (Pet. App. 23a-27a) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

March 19, 1999. A petition for rehearing was denied on

June 7, 1999 (Pet. App. 28a-29a). The petition for a writ

of certiorari was filed on August 23, 1999. The juris-

diction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

A jury convicted petitioner of negligently violating

the Clean Water Act’s prohibition on the discharge of

harmful quantities of oil into navigable waters of the

United States, 33 U.S.C. 1321(b)(3), 1319(c)(1), based on

his role in causing a rupture of a high-pressure oil

(1)

2

pipeline that resulted in the discharge of thousands of

gallons of oil into the Skagway River in Alaska. The

court of appeals affirmed the conviction. Pet. App. la-

22a.

1. The Clean Water Act (CWA) is a comprehensive

statute designed “to restore and maintain the chemical,

physical, and biological integrity of the Nation’s

waters.” 33 U.S.C. 125l(a). In pertinent part, the Act

prohibits the “discharge of oil or other hazardous

substances (i) into or upon the navigable waters of the

United States, adjoining shorelines, or into or upon the

waters of the contiguous zone * * * in such quantities

as may be harmful.” 33 U.S.C. 1321(b)(3) (1994 & Supp.

III 1997). Navigable waters for purposes of 33 U.S.C.

1321(b)(3) (1994 & Supp. III 1997) include all tributaries

of traditionally navigable waters. 33 U.S.C. 1362(7); 40

C.F.R. 110.1.

The CWA authorizes a wide array of mechanisms by

which the government may enforce the Act’s prohibi-

tion on the unauthorized discharge of oil into waters of

the United States. The Act may be enforced adminis-

tratively through issuance of administrative compliance

orders and imposition of civil administrative penalties.

See 33 U.S.C. 1319(a) and (g), 1821(b)(6), 1344. The Act

also authorizes the United States to bring a civil en-

forcement action in federal district court. 33 U.S.C.

1319(b). In such an action, the court may issue an in-

junction requiring compliance, and it may impose civil

penalties of up to $25,000 per day for each violation of

the Act, a permit, or an administrative compliance

order, 33 U.S.C. 1319(d).

In addition, criminal penalties may be imposed on any

person who “negligently” violates the prohibition in

Section 1321(b)(3) against discharging harmful quanti-

ties of oil into waters of the United States. 33 U.S.C.

3

1319(c)(1). A first conviction for negligent discharge is

a misdemeanor, punishable by a fine of not less than

$2,500 nor more than $25,000 per day of violation, im-

prisonment for not more than one year, or both. 33

U.S.C. 1319(c)(1). Subsequent convictions of the same

person for negligent violations may be punished with

fines of up to $50,000 per day of violations and imprison-

ment of up to two years, or both. Ibid.

Criminal penalties may also be imposed on any

person who “knowingly” violates Section 1321(b)(3). A

first conviction for a knowing violation is a felony,

punishable by a fine of not less than $5,000 nor more

than $50,000 per day of violation, or by imprisonment

for not more than three years, or both. 33 U.S.C.

1319(¢)(2).

2. Petitioner was the roadmaster for the Pacific and

Arctic Railway and Navigation Company (PARN), a

firm that operated the White Pass and Yukon Railroad.

As roadmaster, he was responsible for every detail of

the “safe and efficient maintenance and construction” of

the railroad and special projects, including, after May

1994, a rock removal project at a site referred to as Six-

Mile, so named because it was six miles outside of the

town of Skagway, Alaska. Pet. App. 7a. The purpose of

the project was to realign a railroad curve and to obtain

armor rock in order to extend a cruise ship dock in

downtown Skagway. J/bid. From at least May 1994

until the oil spill in October 1994, petitioner, as

supervisor and foreman of the rock-removal project,

directed the day-to-day activities at the Six-Mile site,

deciding what employees would be doing, how the rock

would be removed, and where it would be placed. Gov’t

C.A. Br. 5-6.

At the Six-Mile site, a high-pressure oil pipeline,

owned by Pacific and Arctic’s sister company, the

4

Pacific and Arctic Pipeline, Inc., was at or above ground

and ran parallel to the railroad tracks. The four-inch

diameter pipeline was used to transport petroleum

products from Skagway, Alaska, to White Horse,

Yukon Territory, Canada. The Six-Mile site was

located on an embankment 200 feet directly above the

Skagway River. Pet. App. 7a; Gov’t C.A. Br. 4.

The rock quarrying activity used dynamite to blast

rock out of the hills and then used heavy equipment,

such as a backhoe, to load the rock over the pipeline

onto railroad cars. On occasion in this loading process,

rocks would fall either from the backhoe bucket or from

the train and alongside the tracks. Before petitioner

took over supervisory responsibility for the project in

May 1994, railroad ties, sand and ballast material had

been placed over and along a 300-foot section of the

pipeline in order to protect it. This preparatory

precaution was the customary practice when using

heavy equipment in the vicinity of the pipeline. After

petitioner assumed responsibility for the project in May

1994, and the work area moved further along the

tracks, petitioner failed to protect the additional

sections of the exposed pipeline in any manner along

the 1000-foot work site, except for a platform for a

movable backhoe. Pet. App. 7a.

On October 1, 1994, a backhoe operator was engaged

in his usual task of using a backhoe to load large rocks

over the pipeline onto a train. After the train left, the

operator noticed that rocks had fallen near the tracks.

He moved the backhoe to sweep the rocks away from

the railroad tracks. At this location, the pipeline was

unprotected and covered with only a few inches of soil.

The backhoe bucket struck the pipeline causing a

rupture. As a result, an estimated 1000 to 5000 gallons

5

of heating oil were discharged over the course of many

days into the adjacent Skagway River. Pet. App. 8a.

3. Petitioner was indicted on one count of negli-

gently violating CWA Section 1321(b)(3).' In pertinent

part, the district court instructed the jury that in order

to find the petitioner guilty the government must prove

that “(t]he particular defendant caused the discharge of

oil” and “(t]he discharge was caused by the negligence

of the particular defendant.” C.A. E.R., Jury Instruc-

tion No. 8. The court defined negligence as follows

(C.A. E.R., Jury Instruction No. 10):

Negligence is the failure to use reasonable care.

Reasonable care is that amount of care that a

reasonably prudent person would use under similar

circumstances. Negligence may consist of doing

something which a reasonably prudent person

would not do, or it may consist of failing to do

something which a reasonably prudent person

would do. A reasonably prudent person is not the

exceptionally cautious or skillful individual, but a

person of reasonable and ordinary carefulness.

Petitioner objected to this definition of negligence and

contended that “negligently,” 33 U.S.C. 1319(c)(1)(A),

! Petitioner was also charged with one count of conspiring to

provide false information to government officials in violation of 18

U.S.C. 371, 1001. The jury acquitted petitioner on that count. The

government also charged M. Paul Taylor, an officer of Pacific and

Arctic Pipeline Inc., with conspiracy to make false statements, six

counts of making false statements, and negligently violating the

CWA. The district court dismissed the negligent violation count

against Taylor. The jury convicted Taylor of two counts of making

false statements and acquitted him on the other counts relating to

false statements. Gov't C.A. Br. 2. Taylor’s appeal is pending

before the Ninth Circuit.

6

must be defined as “a gross deviation from the standard

of care that a reasonable person would observe in the

situation.” Pet. 5. The district court disagreed, holding

that the plain language of the statute and the legislative

history revealed that Congress intended to impose a

simple negligence standard of reasonable care in

Section 1319(c)(1)(A). Pet. App. 23a-25a.

A jury convicted petitioner of negligently violating

Section 1321(b)(3) by discharging a harmful quantity of

oil into a navigable water. The district court sentenced

petitioner to six months of imprisonment, six months in

a halfway house, and six months of supervised release,

as well as a fine of $5000. Pet. App. 9a.

4. On petitioner’s appeal, the court of appeals af-

firmed the conviction and sentence.’ The court rejected

petitioner’s challenge to the jury instruction defining

negligence. The court concluded that the plain lan-

guage of the statute evidenced Congress’s intent in 33

U.S.C. 1319(c)(1)(A) to impose an ordinary, rather than

gross, negligence standard. The court observed that

“(t]he ordinary meaning of ‘negligently’ is a failure to

use such care as a reasonably prudent and careful

person would use under similar circumstances.” Pet.

App. 10a. The court also reasoned that if Congress had

intended to prescribe a heightened negligence standard

it could have done so explicitly, as it did in a neighbor-

ing provision, 33 U.S.C. 1321(b)(7)(D), which provides

for increased civil penalties where a violation is the

result of “gross negligence or willful misconduct.” Pet.

App. lla. The court further held that an ordinary neg-

ligence standard does not violate due process, particu-

2 The opinion indicated that District Judge Stagg, sitting by

designation, intended to file a separate dissenting opinion. Pet.

App. 22a n.5. However, adissenting opinion never issued.

7

larly because the CWA is a public welfare statute. Jd.

at 12a.°

ARGUMENT

No decision by this Court or any other court of ap-

peals addresses, much less conflicts with, the Ninth

Circuit’s conclusions that Congress intended to impose

a simple negligence standard of reasonable care in

Section 1319(c)(1)(A) and that this standard does not

violate due process. Because the judgment of the court

of appeals is correct and does not conflict with any

decision of this Court or any other court of appeals,

further review is not warranted.

1. a. Petitioner makes no claim that the Ninth

Circuit’s interpretation of Section 1319(c)(1)(A) con-

flicts with any other federal court decision, but does

assert that it conflicts with three state court decisions

interpreting unrelated state statutes. Pet. 19. No such

conflict exists, however. The cases he cites construe

the intent of state legislatures rather than Congress,

and the state statutory provisions at issue in those

cases bear little resemblance to the CWA provision

under which petitioner was convicted. Santillanes v.

State, 849 P.2d 358 (N.M. 1993) (felony negligent child

abuse statute); State v. Ritchie, 590 So. 2d 1139 (La.

1991) (negligent homicide); State v. Grover, 437 N.W.2d

60, 62 (Minn. 1989) (child abuse reporting statute which

required reporting when a person “knows or has reason

to believe” abuse has occurred did not encompass actor

who had reason to know or believe, but negligently

failed to recognize abuse).

3 The court also rejected petitioner’s challenges to other jury

instructions, to the sufficiency of the evidence, and to the district

court’s application of the sentencing guidelines. Pet. App. 14a-22a.

8

b. Petitioner suggests (Pet. 19-20) that the statutory

interpretation issue in this case is important because

allowing the Ninth Circuit’s decision to stand “will lead

to difficulty with the proper interpretation and applica-

tion” of a provision of the Fastener Quality Act,

15 U.S.C. 5408(c)(3), which provides for felony sanctions

for negligently failing to maintain records. But the

Ninth Circuit’s interpretation of the CWA was based

not only on the plain meaning of the unadorned word

“negligently,” but also on the structure and legislative

history of the CWA, including the fact that the term

“gross negligence” appears elsewhere in the CWA.

Thus, the interpretation of the Fastener Quality Act

will not necessarily be governed by the holding here

and should await a case presenting that question for

resolution by the lower courts in the first instance.

ce. In any event, the Ninth Circuit’s interpretation of

Section 1319(c)(1) is correct. Ascertaining the meaning

of the term “negligently” in that provision is purely a

matter of statutory construction. See Staples v. United

States, 511 U.S. 600, 604 (1994) (“The definition of the

elements of a criminal offense is entrusted to the legis-

lature, particularly in the case of federal crimes, which

are solely creatures of statute.”) (quoting Liparota v.

United States, 471 U.S. 419, 424 (1985)). In this case,

Congress’s intent is reflected in the plain language and

structure of the statute. When Congress wanted to

establish a liability standard higher than ordinary negli-

gence for purposes of the CWA, it said so expressly. In

Section 1321(b)(7)(D), for instance, Congress rendered a

certain category of defendants potentially liable for

large civil penalties (not less than $100,000) for any

violation of Section 1321(b)(3) that is the result of

“gross negligence or willful misconduct.” 33 U.S.C.

1321(b)(7)(D) (emphasis added). See also 33 U.S.C.

9

1321(f)(1)-(3) (providing for full recovery of removal

costs from owners or operators where the discharge

was the result of “willful negligence”) (emphasis

added). The absence of any such modifiers in Section

1319(c)(1), by contrast, leads to the conclusion that

Congress intended to base liability under that Section

on an ordinary negligence standard. As Representative

Harsha stated during consideration of a proposal to

expand the scope of the CWA penalty provisions, “I

would like to call to the attention of my colleagues the

fact that in this legislation we already can charge a man

for simple negligence, we can charge him with a

criminal violation under this bill for simple negligence.”

118 Cong. Rec. 10,644 (1972).

Where, as here, Congress’s intent is clear from the

plain language of the statute and supported by legisla-

tive history, resort to the statutory construction aids on

which petitioner relies (Pet. 18) is unnecessary. In any

event, the aids do not compel the result petitioner

propounds.

Citing Staples, 511 U.S. at 605, petitioner argues

(Pet. 18) that Section 1319(c)(1) must be construed in

light of common law principles, which petitioner claims

would require a gross negligence standard. However,

because the crime of negligently violating the CWA has

no common law crime antecedent, common law princi-

ples need not be imported into the CWA. See

Morissette v. United States, 342 U.S. 246, 257, 262

(1952). Moreover, the common law principle on which

petitioner relied in the courts below applies to the

felony of negligent homicide. In framing the misde-

meanor provisions of the CWA, Congress was likely to

have taken as a model not common law homicide but

rather the Rivers and Harbors Act of 1899, 33 U.S.C.

401 et seq., the federal water pollution control statute

10

that preceded the CWA. The Rivers and Harbors Act

has been construed by the lower courts as imposing

misdemeanor level penalties under a strict liability

regime. See 33 U.S.C. 411 (subjecting any person who

“violate[s]” the Act’s prohibitions against, inter alia,

discharging refuse into navigable waters to a potential

prison term of up to one year); United States v. White

Fuel Corp., 498 F.2d 619, 622 (1st Cir. 1974) (noting

that 33 U.S.C. 411 has consistently been construed as a

strict liability offense); but cf. United States v. Stan-

dard Oil Co., 384 U.S. 224, 230 (1966) (reserving ques-

tion).

Petitioner argues (Pet. 18) that the hierarchical pen-

alty scheme under the CWA implies that a more culpa-

ble standard than ordinary negligence is necessary to

support a conviction under Section 1319(c)(1). Peti-

tioner’s argument, however, misses the mark. It is well

settled that civil liability under Section 1319 may be

imposed on a strict liability basis. See, e.g., 33 U.S.C.

1319(d) (providing civil penalties for “[aJny person who

violates,” inter alia, certain enumerated provisions of

the Act); United States v. Earth Sciences, Inc., 599 F.2d

368, 374 (10th Cir. 1979) (interpreting CWA as imposing

strict liability in civil cases); Stoddard v. Western

Carolina Reg’l Sewer Auth., 784 F.2d 1200, 1208 (4th

Cir. 1986). By contrast, “negligent[]” violations of the

Act may be subject to misdemeanor level sanctions, 33

U.S.C. 1319(¢)(1), and “knowing[]” violations may be

subject to felony prosecutions, 33 U.S.C. 1319(c¢)(2)."

4 Under the CWA’s knowing endangerment provision, 33

U.S.C. 1319(c)(3), any person who “knowingly violates” the Act,

and “who knows at that time that he thereby places another per-

son in imminent danger of death or serious bodily injury,” may be

subject to even more severe penalties than those allowed under

Section 1319(c)(2).

11

Thus, although the need to preserve the hierarchical

penalty structure may explain why Congress deter-

mined that negligence—rather than the strict liability

scheme of the Rivers and Harbors Act—should be the

predicate for misdemeanor liability, any negligence-

based standard would preserve that hierarchical struc-

ture. The CWA’s hierarchical penalty structure, there-

fore, provides no support for petitioner’s claim that

misdemeanor liability requires a showing of gross negli-

gence.

Finally, contrary to petitioner’s suggestion (Pet. 18),

neither the rule of lenity nor the rule that statutes be

construed to avoid substantial questions of constitu-

tionality applies here, because there is no “grievous

ambiguity” in the statute, see Huddleston v. United

States, 415 U.S. 814, 831 (1974), and there is no sub-

stantial constitutional impediment to Congress’s impos-

ing a simple negligence standard, see pp. 11-15, infra.”

2. a. Petitioner identifies no split of authority on the

question whether Congress may constitutionally im-

pose misdemeanor level penalties based on an ordinary

negligence standard. Petitioner merely asserts that

any such scheme would violate the Due Process Clause,

anc he urges this Court to grant certiorari in order to

oA

Petitioner baidly asserts (Pet. 18) that a gross negligence

standard is required to avoid unreasonable results. Application of

the CWA in this circumstance does not offend reason or common

sense. The petitioner is in a specialized occupation in a heavily

reguiated area, under which he directed and oversaw on a daily

basis a project that involved exploding dynamite and removing

large rocks using heavy equipment alongside an unprotected, high-

pressure fuel pipeline. The jury found that the substantial oil spill

was the inevitable result of petitioner’s conduct in disregarding

customary safety precautions while managing the project. The

verdict is not an example of unreasonable application.

12

sesh out the constitutional scope of mens rea.” Pet.

16.

Petitioner’s second question presented asks whether

it violates due process to “eliminat{e] mens rea for of-

fenses punishable by significant terms of imprisonment

of one year or more.” Pet. i. That question, however,

mischaracterizes the issues actually presented by this

case in two respects. First, petitioner’s offense of con-

viction was for a first-time negligent violation of the

Act, which is punishable by a maximum of one year

imprisonment, not “one year or more.” Pet. i.’ Second,

petitioner incorrectly equates negligence with a

“rigorous form of strict liability” standard, Pet. 16

® Petitioner suggests (Pet. 15) that the present case provides a

vehicle for resolving an asserted conflict among the courts of ap-

peals as to whether the Migratory Bird Treaty Act (MBTA) vio-

lates due process by imposing felony level sanctions based on strict

liability. bid. (citing United States v. Wulff, 758 F.2d 1121, 1125

(6th Cir. 1985), and United States v. Engler, 806 F.2d 425, 434-435

(3d Cir. 1986), cert. denied, 481 U.S. 1019 (1987)). This Court, how-

ever, does not grant review to issue advisory opinions regarding

statutory provisions at issue in other cases. In any event, review

of this case would have no impact on the cited MBTA cases. Aside

from the fact that the MBTA provision in question was based on

strict liability, not negligence, and involved a felony offense, not a

misdemeanor, any conflict with respect to the scienter require-

ment under the MBTA was resolved by Congress in 1986, when it

added a “knowing” intent requirement to the felony prohibition in

response to the Wulff and Engler decisions. See Emergency

Wetlands Resources Act of 1986, Pub. L. No. 99-645, Tit. V, § 501,

100 Stat. 3590 (16 U.S.C. 707(b)).

7 Whether it would be consistent with due process, in a particu-

lar case, to impose a felony-level sanction of up to two years of

imprisonment on a person who, despite having already been con-

victed of a negligent violation of the CWA, proceeds to commit

subsequent negligent violations of the Act, see 33 U.S.C.

131%c)(1), is not presented in this case.

13

(quoting Staples, 511 U.S. at 607 n.3), i.e., one that com-

pletely “eliminati{es] mens rea.” Pet. i. To the contrary,

negligence is itself among the traditional categories of

criminal mental states. See Liparota, 471 U.S. at 423-

424 n.5 (noting that the Model Penal Code recognizes

four mental states: purpose, knowledge, recklessness,

and negligence); United States v. Ayo-Gonzalez, 536

F.2d 652, 656 (1st Cir. 1976) (statute that eliminates

mens rea is one that does not incorporate any “form of

culpability, including negligence, as an element”), cert.

denied, 429 U.S. 1072 (1977). The issue here is not, as

petitioner frames it, whether a strict liability standard

would contravene due process. Unlike strict liability,

negligence incorporates an element of blameworthiness

because it occurs only when a defendant deviates from

the standard of care which a person can reasonably be

expected to exercise in the situation.

In any event, this Court has stated that “where one

deals with others and his mere negligence may be

dangerous to them,” strict liability does not offend due

process. United States v. Balint, 258 U.S. 250, 252

(1922); see also Morissette v. United States, 342 U.S.

246, 256 (1952); United States v. Dotterweich, 320 U.S.

277, 281 (1943); see geherally United States v. Unser,

165 F.3d 755, 762-763 (10th Cir. 1999), cert. denied, No.

98-1600 (Oct. 4, 1999) (citing cases such as Holdridge v.

United States, 282 F.2d 302 (8th Cir. 1960)).° If strict

8 Petitioner identifies only one case holding that a strict liabil-

ity standard violated due process, Lambert v. California, 355 U.S.

225 (1957). Cf. Texaco, Inc. v. Short, 454 U.S. 516, 537 n.33 (1982)

(suggesting Lambert has limited application). Lambert held that

due process was violated by a state statute imposing strict criminal

liability for failing to register as a felon even though the defendant

did not know of the duty to register. Lambert does not hold,

however, that strict liability crimes are constitutionally impermis-

14

liability satisfies due process, then ordinary negligence

must as well. See State v. Hazelwood, 946 P.2d 875, 884

& n.17 (Alaska 1997) (holding that negligence standard

in analogous state-law context satisfies due process

because “criminal penalties will be imposed only when

the conduct at issue is something society can reasonably

expect to deter” and the “overwhelming majority of

jurisdictions allow crimes based on ordinary negli-

gence”).

b. Petitioner claims (Pet. 15-16) that due process is

violated by the application of an ordinary negligence

standard in this case, under the factors set forth in

Holdridge v. United States, 282 F.2d 302, 310 (8th Cir.

1960), to evaluate the constitutionality of strict liability

offenses. To the contrary, under the Holdridge criteria,

Section 1319(c)(1)(A) comports with due process. Sec-

tion 1319(c)(1)(A) is a “statutory crime * * * not taken

over from the common law.” Jbid. The penalty is “rela-

tively small” because it is a misdemeanor. /bid. As

discussed above, Congress intended to impose an ordi-

nary negligence standard. An ordinary negligence

standard meets the statutory purpose by deterring

conduct that would cause harmful pollution to waters of

the United States. Furthermore, “the standard im-

posed is, under the circumstances, reasonable and adh-

erence thereto properly expected of a person.” Jbid. It

is reasonable to expect persons to act in a non-negligent

way, particularly where, as here, the defendant was

responsible for a construction project that involved

blasting and using heavy equipment around a high-

pressure fuel pipeline located next to a river.

sible. Lambert, 355 U.S. at 228. Moreover, petitioner does not

suggest that Lambert controls this case.

15

Petitioner asserts that it violates due process to

criminally punish him for a “simple accident someone

else caused.” Pet. 17. However, as the Ninth Circuit

found, the jury instructions made clear that the peti-

tioner “could be convicted only on the basis of his own

negligent conduct and not on the basis of the negligence

of others” and required the jury to find that petitioner’s

own negligence caused the oil spill. Pet. App. 15a-16a.

Furthermore, the court of appeals found sufficient

evidence supporting the jury’s finding that petitioner’s

negligence caused the oil spill. Jd. at 18a-20a. Testi-

mony at trial established that the customary safety

practice when working with heavy equipment in the

vicinity of a high-pressure fuel pipeline is to build

protections around the pipeline to prevent ruptures in

the event of contact with heavy machinery or rock,

rather than simply relying on machine operators not to

make contact with the pipeline that they are working

over and around. In the haste to quarry the rock at

Six-Mile, petitioner failed to take the customary safety

precautions. Thus, petitioner’s claim that the ordinary

negligence standard does not satisfy constitutional due

process is without merit.

8. Petitioner claims that review is warranted to

resolve a conflict among the circuits as to whether the

CWA “is a ‘public welfare’ statute eliminating mens rea

as a requirement for criminal convictions.” Pet. 7. To

the contrary, there is no conflict on any issue that

would affect the court of appeals’ holdings in this case.

a. To begin with, there is no conflict among the

courts as to whether, in petitioner’s words, the CWA

“eliminat{es] mens rea as a requirement for criminal

convictions.” Pet. 7. Petitioner’s alleged conflict pre-

supposes that the courts which have characterized the

CWA as a public welfare offense have eliminated mens

16

rea and instead imposed “strict criminal liability.” Pet.

10. Petitioner, however, is in error. No court, regard-

less of whether it has characterized the CWA as a

public welfare statute, has held that any of the CWA’s

criminal provisions impose strict liability.’

b. Petitioner relies (Pet. 10) on a single decision by

the Fifth Circuit, United States v. Ahmad, 101 F.3d 386,

391 (1996), as the contrary decision that he believes

creates a conflict with the present case. Ahmad ad-

dressed the meaning of a “knowing” violation of the

CWA, see 33 U.S.C. 1319(c)(2)(A), and did not involve

or purport to address the standard for negligence under

the CWA. Thus, this case presents no conflict with

Ahmad.

Ahmad departed from the analysis in the present

case only to the extent that it is the only court of

® As noted below, the cases cited by petitioner (Pet. 9-10) deal

exclusively with the level of knowledge required to establish a

felony “knowing” violation of the CWA pursuant to 33 U.S.C.

1319(c)(2)—a statutory provision which is not at issue here. The

courts in those cases did not opine on the meaning of the term

“negligently” in 33 U.S.C. 1319(c)(1), nor did they address whether

imposing misdemeanor level penalties based on an ordinary

negligence standard would violate due process. Moreover, to the

extent that their analyses of the “knowingly violates” provision of

the CWA was informed by the “public welfare offense” doctrine,

not one of those courts construed the CWA as eliminating mens

rea or imposing the form of truncated strict liability described in

Staples, whereby the defendant is not required to “know the facts

that make his conduct fit the definition of the offense.” Staples,

511 U.S. at 608 n.3; see also id. at 612 n.6. See, e.g., United States

v. Sinskey, 119 F.3d 712, 717 (8th Cir. 1997) (“requiring the gov-

ernment to prove only that the defendant acted with awareness of

his or her conduct does not render § 1319(c)(4) a strict liability

offense”); United States v. Wilson, 133 F.3d 251, 263 (4th Cir. 1997)

(“Even under this public welfare doctrine, however, true or rigid

strict liability does not generally follow.”).

17

appeals decision to state that the CWA is not a public

welfare statute. However, the Fifth Circuit’s determi-

nation in Ahmad that the CWA does not define a public

welfare offense does not conflict with the holding in the

present case. In Ahmad, as in the other cases cited

by petitioner (Pet. 9-10), the court addressed whether

the meaning of “knowingly violates” in 33 U.S.C.

1319(c)(2)(A) should be construed in light of the princi-

ples that underlie “public welfare” offenses. While the

Ahmad Court decided that the statutory analysis at

issue there should not be guided by the public welfare

offense doctrine, the ultimate holding in that case—

that a “knowing” violation of the Clean Water Act

requires knowledge of the facts underlying the non-

jurisdictional elements of the o{fense—has no bearing

on the question presented here, i.e., whether Congress

intended the standard of negligence in 33 U.S.C.

1319(c)(1) to be ordinary or gross.” Furthermore, to

the extent that petitioner alleges that the courts of

appeals have been inconsistent in their analyses of the

meaning of “knowingly violates” in the CWA, 33 U.S.C.

1319(c)(2), any such inconsistency among the courts

with respect to a statutory provision that is irrelevant

to the instant prosecution would not provide a basis for

further review in this case."

10 In the instant case, the Ninth Circuit found it unnecessary to

resort to the public welfare doctrine as an aid to statutory inter-

pretation. The court instead found that the plain language of the

statute and legislative history alone were sufficient to conclude

that the unadorned phrase “negligently violate” means ordinary

negligence. Accordingly, the characterization of the CWA as a

public welfare statute was not a factor in the Ninth Circuit’s

statutory interpretation in this case.

4! In any event, the court of appeals’ characterization of the

CWA as a public welfare statute in this case was correct. Most

18

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

SETH P. WAXMAN

Solicitor General

LoIs J. SCHIFFER

Assistant Attorney General

ELLEN J. DURKEE

Attorney

OCTOBER 1999

public welfare offenses impose penalties for mishandling “deleteri-

ous devices or products or obnoxious waste materials,” which by

their very nature “put their owners on notice that they stand ‘in

responsible relation to a public danger.” Staples, 511 U.S. at 611

(citations omitted). In such statutes, Congress intends for the

defendant’s familiarity with the regulatory requirements to be

presumed so that the public health and safety may be fully

protected. United States v. International Minerals & Chemical

Corp., 402 U.S. 558, 564-565 (1971). As the Second Circuit noted,

“(t]he vast majority of the|) substances [subject to criminal

regulation under the CWA| are of the type that would alert any

ordinary user to the likelihood of stringent regulation.” United

States v. Hopkins, 53 F.3d 533, 539 (1995), cert. denied, 516 U.S.

1072 (1996). Moreover, as the Ninth Circuit observed, Congress

was keenly aware that “the improper and excessive discharge of

* * * [pollutants] can have serious repercussions for public health

and welfare,” and that the “dumping of sewage and other

pollutants into our nation’s waters is precisely the type of activity

that puts the discharger on notice that his acts may pose a public

danger.” United States v. Weitzenhoff, 35 F.3d 1275, 1286 (9th Cir.

1994) (citing legislative history), cert. denied, 513 U.S. 1128 (1995).

For these reasons, every court of appeals, except the Fifth Circuit,

has correctly characterized the CWA as a public welfare statute.