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JULY 2006

 

Legally Speaking with Brad Tamarro


One Bite – Maybe Two – of the Apple

Most environmental regulations carry a two-pronged enforcement mechanism. The enforcing agency often has discretion to pursue a violation as a civil/administrative action or a criminal action. In most cases, whether one faces civil fines or a potentially long jail term depends upon an evaluation of whether the unlucky entity subject to agency scrutiny meant to engage in a prohibited activity or simply made a mistake. As John Hubenka recently learned in the great state of Wyoming, a criminal conviction will often reward a sin twice visited.

The twisted course of events that led to Hubenka’s conviction on three counts of knowingly discharging pollutants into the Wind River began prior to 1994. The Wind River originates in Wyoming’s Wind River Range and flows through the Wind River Indian Reservation. Hubenka worked as a manager for the LeClair Irrigation District (LID), which maintained a diversion gate on the river that allowed water to flow into an irrigation canal. The Wind River itself flowed into multiple channels, with the main flow coursing through what was known as the north channel, which was close to the LID irrigation canal. Prior to 1994, LID and Hubenka worked with the Army Corps of Engineers (Corps) to obtain permits to dredge and stabilize the river bank to prevent it from eroding and threatening the irrigation canal.

However, in 1994, under Hubenka’s supervision and without Corps permits or authorization, LID constructed a dike using various materials including river cobble. The Corps learned of the activities and sent LID, via Hubenka, a Notice of Violation. The Notice told LID and Hubenka that their actions constituted unauthorized discharges and told them to stop adding materials to the dike and to begin removing the debris from the river. Once again, the Corps worked with LID and Hubenka to get the proper permits in place for the use of acceptable stabilization techniques and materials.

In late 1999 or early 2000, nature intervened to alter the river’s primary course, moving it further from the LID irrigation canal. In March 2000, Hubenka initiated the construction of a series of three dikes that were constructed in large part by pushing river cobble into the main channel, one of which was just downstream of the LID irrigation canal. The second and third were placed in positions to prevent the river from returning to the north channel.

In early 2004, Hubenka was charged with three counts involving the knowing discharge of pollutants into the Wind River. He subsequently was found guilty and the Tenth Circuit Court of Appeals sustained his conviction on February 21, 2006. US v. Hubenka (10th Cir. 2006) 438 F.3d 1026.

Hubenka gambled his freedom on a technical reading of the Clean Water Act (CWA). The CWA prohibits acts of pollution in waters of the United States. Since the Act itself does not provide any more detailed statement of what constitutes waters of the United States, the Corps established regulations stating that the term includes all navigable waters. The regulations later were expanded to include tributaries of navigable waters. Since the Wind River was a tributary, Hubenka challenged the government’s case, claiming that the CWA did not apply to the Wind River since the expansion of the coverage to tributaries was beyond the scope of the Corps’ authority.

The appellate court rejected the claim and sustained the convictions, recognizing that the CWA was meant to broadly define waters of the United States and the Corps was within its authority to expand the concept to tributaries since pollution injected into a tributary had the potential to reach beyond the tributary and degrade the quality of the adjacent navigable water.

There are several key lessons to be learned from the unfortunate experience that befell Hubenka:

  • Hubenka and LID had more than “one bite of the apple.” The question of whether they “knowingly” engaged in a prohibited activity was answered by the fact they had engaged in almost the exact same behavior before and had been told specifically that what they were doing was wrong.
  • As demonstrated by the Corps in its initial dealings with LID and Hubenka, most environmental agencies are willing to work with a regulated entity to help it obtain its goal if the agency is notified and a dialogue established.
  • “Pulling the tiger’s tail” is rarely an effective means of maintaining a peaceful coexistence with the agency that regulates your business. Repeated behavior that already has been identified as improper by the regulatory authorities can, and in most instances will, lead to escalated enforcement, often including the possibility of criminal prosecution.

In this instance, Hubenka had the tools available to safely navigate the requirements of the CWA but chose to gamble his freedom by taking what appeared to be a time-saving shortcut. Proper legal guidance can be the key to smooth sailing and to avoiding the unseen rapids of criminal prosecution.

 

 


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