On Monday, the 9th Circuit affirmed the conviction of a Joseph Robertson, Montana man who:
discharged dredged and fill material into the surrounding wetlands and an adjacent tributary, which flows to Cataract Creek. Cataract Creek is a tributary of the Boulder River, which in turn is a tributary of the Jefferson River—a traditionally navigable water of the United States.
This somewhat attenuated connection to a “traditionally navigable water” put the case in the crosshairs of those seeking to narrow the definition of “Waters of the United States.” Robertson appealed on two grounds relevant to this larger debate. First, he argued that there was no jurisdiction, because the wetlands were not WOTUS. Second, claimed that he lacked fair warning of the scope of jurisdiction.
On the jurisdictional issue, the 9th Circuit had previously adopted, in Northern California River Watch v. City of Healdsburg, Justice Kennedy’s “significant nexus” test from his concurrence in Rapanos. The Court here therefore spent more time analyzing the complex rules for how to determine what the “holding” is in a Supreme Court decision without a majority opinion. Those fascinated by this topic can read more in the American College of Environmental Lawyer’s White Paper on the WOTUS issue. Suffice it to say here that the 9th Circuit found no reason to upset its precedent adopting the “significant nexus” test.
As to the notice issue, important to the criminal conviction, but not relevant to the broader jurisdictional issues, the Court found that Robertson was on notice that he was working in Waters of the United States, because the 9th Circuit had decided City Of Healdsburg before Robertson began work on his property. The Court might also have noted that Robertson was warned by EPA agents that his activities required permits under the CWA. Sounds like fair warning to me.
The decision breaks no new ground, either in the 9th Circuit or elsewhere, but given the attention on the WOTUS jurisdictional issue, it’s worth noting that the 9th Circuit is still backing Justice Kennedy. The real question at this point is whether Justice Kennedy still backs Justice Kennedy!