# Opposition Brief — Hanousek v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2000
- **Citation:** 528 U.S. 1102

## Text

~~

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0332%3A4. Public record. Not legal advice.