United States v. Moses ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 06-30379
Plaintiff-Appellee,
v.  D.C. No.
CR-05-00061-BLW
C. LYNN MOSES,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, District Judge, Presiding
Argued and Submitted
July 10, 2007—Seattle, Washington
Filed August 3, 2007
Before: Ferdinand F. Fernandez and Kim McLane Wardlaw,
Circuit Judges, and Louis H. Pollak,* District Judge.
Opinion by Judge Fernandez
*The Honorable Louis H. Pollak, Senior United States District Judge
for the District of Pennsylvania, sitting by designation.
9283
9286 UNITED STATES v. MOSES
COUNSEL
Blake S. Atkin, Atkin Law Offices, P.C., Salt Lake City,
Utah, for the defendant-appellant.
Matthew J. McKeown, Acting Assistant Attorney General,
and Katherine W. Hazard, United States Department of Jus-
tice, Washington, D.C., for the plaintiff-appellee.
OPINION
FERNANDEZ, Circuit Judge:
Despite numerous warnings over the years, Charles Lynn
Moses continued to do work in the channel of Teton Creek in
Idaho for the purpose of rerouting, reshaping and otherwise
controlling the flow of the waters of the Creek. The govern-
ment finally prosecuted him for violating the Clean Water Act
(CWA). See 33 U.S.C. §§ 1251-1387. He was convicted and
sentenced, and now appeals. He claims that there was no dis-
UNITED STATES v. MOSES 9287
charge of pollutants into the waters of the United States. We
disagree and affirm.
BACKGROUND
Moses is a real estate broker and developer in Driggs,
Idaho. Beginning in the late 1970s, he worked on a develop-
ment known as the Aspens Subdivision, an approximately 50
acre parcel of land in Teton County, Idaho, which is located
on a flood plain next to Teton Creek. Because of an irrigation
diversion structure installed in Alta, Wyoming, upstream of
the subdivision, water actually flows in the portion of Teton
Creek adjacent to the subdivision only during the spring run-
off, which lasts about two months per year. During that time,
water is released from the diversion. When it does flow, the
volume and power of the flow are high, even torrential. Teton
Creek is a tributary of the Teton River, which flows into the
Snake River. Water continues to flow year-round in Teton
Creek above the diversion, and also from a point below the
subdivision until it reaches the Teton River. There is no claim
that the Snake River, the Teton River, and Teton Creek, apart
from the segment that flows only during the spring runoff, fail
to qualify as waters of the United States.
Beginning in the 1980s, and continuing for more than 20
years, Moses has worked to reroute and reshape Teton Creek,
in an attempt to convert the original three channels of the
Creek into one broader and deeper channel, which would
carry all of the seasonal flow of water. Over that period,
including during more recent work in 2002, 2003 and 2004,
Moses hired heavy equipment operators to recontour and
redeposit material within the Creek using bulldozers, and to
erect log and gravel structures in the Creek using other heavy
equipment.
Beginning in 1982 and on several occasions thereafter, the
Army Corps of Engineers (the Corps) warned Moses that his
stream alteration work required a CWA permit. During a
9288 UNITED STATES v. MOSES
hearing on the Aspens Subdivision in 1982, the Corps
informed Moses that it did have jurisdiction over the stream,
even though the flow of the stream was intermittent. In 1995,
the Corps issued a cease and desist order that directed Moses
to immediately stop all dredge and fill operations in Teton
Creek. In 1996 and 1997, the Corps once again wrote to
Moses, seeking his cooperation and explaining its regulations.
Moses essentially ignored all of that.
On two separate occasions in 2002,1 Moses hired the owner
of Tupco, Inc., an excavation business to rebuild and repair
log structures, to perform dredging and filling work, to build
a temporary ramp, and to remove gravel bars in Teton Creek.
An environmental resources specialist with the Corps saw the
work going on within the Creek bed in September 2002,
informed Moses that he needed a permit to conduct the work,
and advised him that the activities could result in civil or
criminal penalties. Moses treated that warning with his usual
disdain. In December 2002, the Corps issued a notice of viola-
tion to Moses, which again informed him of the need for a
permit and of the potential for criminal penalties.
Undeterred, in Spring 2003,2 Moses contacted the excava-
tion business operator for a third time and asked him to work
in Teton Creek. The operator again “repaired” log structures
within the Creek bed, and moved gravel out of and within the
Creek bed. Several months later, the Environmental Protec-
tion Agency (EPA) issued an administrative compliance order
pursuant to 33 U.S.C. § 1319(a), which directed Moses to
immediately “cease any unauthorized discharges of dredged
material, fill material, and other pollutants to any stream bed
and banks on the [s]ite,” and to submit a work plan for restor-
ing Teton Creek. Moses did not respond to the EPA’s order,
and less than two months later he hired the owner of Nord
1
The work was performed once before the 2002 runoff and once after
the runoff.
2
This work was hired before the 2003 high runoff.
UNITED STATES v. MOSES 9289
Excavating and Paving, Inc., to do more bulldozing work in
Teton Creek. That consisted of the removal of gravel bars and
contouring of the Creek bed.
Overall, the work on the Creek bed was substantial. Thou-
sands of cubic yards of gravel and other materials were
moved, and the channel was deepened, widened, and greatly
disturbed. The disturbance reached both upstream and down-
stream of the work perpetrated by Moses and his minions. Of
the hundreds of projects surveyed by Dale Miller, a govern-
ment expert, Teton Creek was “probably one of the more
impacted streams” he had observed, “both in terms of change
[at the part in question here] and also the upstream and down-
stream effects that have resulted from that change.” The
Creek was unstable into the bargain.
Finally, in March 2005, a federal grand jury returned a
three-count indictment charging Moses with felonious viola-
tions of the CWA for knowingly discharging, and causing to
be discharged, pollutants (including dredged and fill material)
from a point source or point sources into waters of the United
States without a permit. See 33 U.S.C. §§ 1311(a),
1319(c)(2)(A); 18 U.S.C. § 2. The counts covered discharges
by Moses into Teton Creek in the Aspens Subdivision area
from 2002 to 2004.
A four-day jury trial was held in September of 2005. On
September 14, 2005, after the close of the government’s case,
Moses timely moved for a judgment of acquittal under Rule
29 of the Federal Rules of Criminal Procedure, which the
court denied. Ultimately, the jury returned a verdict finding
Moses guilty on all counts. In February of 2006, Moses
moved for a new trial pursuant to Rule 33 of the Federal
Rules of Criminal Procedure and attempted to introduce new
evidence to support an estoppel argument. Moses claimed he
had been misled by the government into believing that his
conduct was lawful. The district court denied the motion. One
9290 UNITED STATES v. MOSES
month later, Moses filed a second motion for a new trial. The
district court denied that motion also.
On June 30, 2006, the district court sentenced Moses to 18
months imprisonment on each count, to be served concur-
rently, and imposed a $9,000 fine, a $300 special assessment,
and one year of supervised release. This appeal followed.
Moses asserts that the evidence was not sufficient to support
the verdict, and that he should have been granted a new trial.
JURISDICTION AND STANDARDS OF REVIEW
The district court had jurisdiction pursuant to 18 U.S.C.
§ 3231, and we have jurisdiction pursuant to 28 U.S.C.
§ 1291.
Because Moses “preserved his sufficiency claim by moving
for a judgment of acquittal, we review his claim de novo.”
United States v. Lyons, 454 F.3d 968, 971 (9th Cir. 2006).
Evidence is sufficient to support a conviction, if “ ‘viewing
the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential ele-
ments of the crime beyond a reasonable doubt.’ ” Id. (quoting
Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789,
61 L. Ed. 2d 560 (1979)).
We review for abuse of discretion a district court’s denial
of a motion for a new trial. See United States v. Mack, 362
F.3d 597, 600 (9th Cir. 2004); United States v. Sarno, 73 F.3d
1470, 1507 (9th Cir. 1995). A new trial may be granted by the
district court when the “interest of justice so requires.” Fed.
R. Crim. P. 33(a); Mack, 362 F.3d at 600.
DISCUSSION
Moses primarily attacks his conviction on the ground that
the evidence does not support a determination that the portion
of Teton Creek that he manipulated constitutes a water of the
UNITED STATES v. MOSES 9291
United States,3 and even if it does, the evidence will not sup-
port a determination that he made a discharge4 into that
United States water. We will take those issues up first. We
will then address his secondary issues, which rely on a notion
that he did not need a permit anyway. As already indicated,
and as we will explain further, we do not agree with any of
his theories.
A. Sufficiency of the Evidence
[1] Moses’ sufficiency arguments turn on his claims about
the reach of the CWA. That law was enacted by Congress in
order to “restore and maintain the chemical, physical, and bio-
logical integrity of the Nation’s waters.” 33 U.S.C. § 1251(a).
In order to achieve its objectives, Congress outlawed the
unauthorized “discharge of any pollutant by any person.” Id.
§ 1311(a). That, in turn, means that Moses could not add “any
pollutant to navigable waters,”5 which means “the waters of
the United States.”6 As used in the CWA, pollutant means
“dredged spoil, solid waste, incinerator residue, sewage, gar-
bage, sewage sledge, munitions, chemical wastes, biological
materials, radioactive materials, heat, wrecked or discarded
equipment, rock, sand, cellar dirt and industrial, municipal,
and agricultural waste discharged into water.” Id. § 1362(6).
Those facially simple provisions have generated a good deal
of regulatory and judicial attention. Suffice it to say that while
they are designed to bring clarity to the Nation’s waters, they,
themselves, are not hyaline. Moses was not much interested
in the subtleties involved; he should have been before he
undertook to ignore the government’s steady trickle of warn-
ings.
3
33 U.S.C. § 1362(7).
4
33 U.S.C. § 1362(16).
5
33 U.S.C. § 1362(12); see also id. § 1362 (16).
6
33 U.S.C. § 1362(7).
9292 UNITED STATES v. MOSES
(1) Waters of the United States
[2] The first thing that is apparent is that under both Corps
and EPA regulations,7 a body of water need not, itself, be nav-
igable in order to be one of the waters of the United States.
Even wetlands can come within that concept. See, e.g., United
States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 131-
35, 106 S. Ct. 455, 461-63, 88 L. Ed. 2d 419 (1985). The
Corps has issued regulations which define waters of the
United States to mean:
(1) All waters which are currently used, or were
used in the past, or may be susceptible to use in
interstate or foreign commerce, including all waters
which are subject to the ebb and flow of the tide;
(2) All interstate waters including interstate wet-
lands;
(3) All other waters such as intrastate lakes, rivers,
streams (including intermittent streams) . . .
....
(5) Tributaries of waters identified in paragraphs
(a)(1)-(4) of this section . . . .
33 C.F.R. § 328.3(a). EPA regulations are to the same effect.
See 40 C.F.R. § 122.2 (definition of waters of the United
States).
[3] We do not see how one can gainsay the fact that Teton
Creek was at least a tributary in the sense used by the Corps’
definition before the Creek was interrupted at Alta, Wyoming.
As we have noted, it flowed interstate and emptied into the
7
We owe deference to the agencies’ interpretations. See San Francisco
Baykeeper v. Cargill Salt Div., 481 F.3d 700, 705 (9th Cir. 2007).
UNITED STATES v. MOSES 9293
Teton River, which itself emptied into the Snake River.8 That
being so, it is doubtful that a mere man-made diversion would
have turned what was part of the waters of the United States
into something else and, thus, eliminated it from national con-
cern. Rather, what the courts have said regarding navigable
waters would seem applicable here. In George v. Beavark,
Inc., 402 F.2d 977, 978 (8th Cir. 1968), the court was faced
with a claim that a boat floating on a man-made lake, which
was created by damming the upper reaches of the White
River, was upon navigable waters of the United States. The
court, with no hesitation, declared: “If the river was navigable
prior to construction of the dam, it continues to be considered
as a navigable stream.” Id. And in a case where it pointed out
that navigability is not to be appraised on the basis of natural
conditions only,9 the Supreme Court went on to state that
“[w]hen once found to be navigable, a waterway remains so.”10
[4] Similarly, we do not see how a mere man-made diver-
sion, however long ago undertaken, could change Teton
Creek from a water of the United States into something else.
If the diversion could not do that, even the now often-dry por-
tion of Teton Creek remains a water of the United States just
as it was antediluvially. Of course, we recognize that the
diversion did take place long before the enactment of the
CWA itself. That should not change the analysis. But, as we
will explain, regardless of that purely historical consideration,
present conditions also dictate that the often-dry portion of
Teton Creek is a water of the United States.
8
There can be little doubt that a tributary of waters of the United States
is itself a water of the United States. See United States v. Hubenka, 438
F.3d 1026, 1032 (10th Cir. 2006); United States v. Phillips, 367 F.3d 846,
855-56 (9th Cir. 2004).
9
See United States v. Appalachian Elec. Power Co., 311 U.S. 377, 407,
61 S. Ct. 291, 299, 85 L. Ed. 243 (1940); see also Boone v. United States,
944 F.2d 1489, 1492-93 & 1493 n.6 (9th Cir. 1991).
10
Appalachian Elec., 311 U.S. at 408, 61 S. Ct. at 299.
9294 UNITED STATES v. MOSES
[5] Put most starkly, the question is whether a seasonally
intermittent stream which ultimately empties into a river that
is a water of the United States can, itself, be a water of the
United States. In Headwaters, Inc. v. Talent Irrigation Dist.,
243 F.3d 526 (9th Cir. 2001), we answered that question in
the affirmative, when we held:
But even if [the alleged polluter] succeeds, at certain
times, in preventing the canals from exchanging any
water with the local streams and lakes, that does not
prevent the canals from being “waters of the United
States” for which a permit is necessary. Even tribu-
taries that flow intermittently are “waters of the
United States.”
Id. at 534. In so doing, we relied upon the following reflection
by the Eleventh Circuit Court of Appeals:
[T]here is no reason to suspect that Congress
intended to exclude from “waters of the United
States” tributaries that flow only intermittently. Pol-
lutants need not reach interstate bodies of water
immediately or continuously in order to inflict seri-
ous environmental damage . . . . Rather, as long as
the tributary would flow into the navigable body of
water “during significant rainfall,” it is capable of
spreading environmental damage and is thus a
“water of the United States” under the Act.
United States v. Eidson, 108 F.3d 1336, 1342 (11th Cir. 1997)
(citations and footnote reference omitted).
Since then, the Supreme Court has revisited this area, but
has not undercut our prior analysis. See Rapanos v. United
States, ___ U.S. ___, 126 S. Ct. 2208, 165 L. Ed. 2d 159
(2006). In that case, the Court actually directly dealt with the
reach of the CWA over wetlands,11 but in so doing addressed
11
The scope of the wetlands regulation had been visited by the Court on
two previous occasions. See Solid Waste Agency v. U.S. Army Corps of
UNITED STATES v. MOSES 9295
itself to the question of what could be a tributary. Id. at ___,
126 S. Ct. at 2225. A four justice plurality ultimately
declared:
In sum, on its only plausible interpretation, the
phrase “the waters of the United States” includes
only those relatively permanent, standing or continu-
ously flowing bodies of water “forming geographic
features” that are described in ordinary parlance as
“streams[,] . . . oceans, rivers, [and] lakes.” The
phrase does not include channels through which
water flows intermittently or ephemerally, or chan-
nels that periodically provide drainage for rainfall.
The Corps’ expansive interpretation of the “the
waters of the United States” is thus not “based on a
permissible construction of the statute.”
Id. at ___, 126 S. Ct. at 2225 (citations omitted). But that
absolute sounding statement must be taken in the context of
the plurality’s prefatory definitional statement that “[b]y
describing ‘waters’ as ‘relatively permanent,’ we do not nec-
essarily exclude streams, rivers, or lakes that might dry up in
extraordinary circumstances, such as drought. We also do not
necessarily exclude seasonal rivers, which contain continuous
flow during some months of the year but no flow during dry
months . . . .” Id. at ___ n.5, 126 S. Ct. at 2221 n.5. The four
dissenting justices did agree that, “common sense and com-
mon usage demonstrate that intermittent streams, like peren-
nial streams, are still streams.” Id. at ___, 126 S. Ct. at 2260
(Stevens, J., dissenting).
That left Justice Kennedy in the middle so to speak, or to
put it more legally accurately, that left his opinion as the con-
trolling rule of law. See N. Cal. River Watch v. City of Heald-
Eng’rs, 531 U.S. 159, 171-72, 121 S. Ct. 675, 682-83, 148 L. Ed. 2d 576
(2001); Riverside Bayview Homes, 474 U.S. at 139, 106 S. Ct. at 465.
9296 UNITED STATES v. MOSES
sburg, 457 F.3d 1023, 1029 (9th Cir. 2006).12 His opinion
surely does not denigrate or even undercut the concept that a
seasonal stream could be a water of the United States. In fact,
he put it thusly: “[T]he dissent is correct to observe that an
intermittent flow can constitute a stream, in the sense of a cur-
rent or course of water or other fluid, flowing on the earth,
while it is flowing. It follows that the Corps can reasonably
interpret the Act to cover the paths of such impermanent
streams.” Rapanos, ___ U.S. at ___, 126 S. Ct. at 2243 (Ken-
nedy, J., concurring) (internal quotation marks and citations
omitted). In fact, he considered the plurality’s general princi-
ple to be inadequate. As he said, in language quite apposite
to the case at hand:
The plurality’s first requirement — permanent
standing water or continuous flow, at least for a
period of “some months,” — makes little practical
sense in a statute concerned with downstream water
quality. The merest trickle, if continuous, would
count as a “water” subject to federal regulation,
while torrents thundering at irregular intervals
through otherwise dry channels would not. Though
the plurality seems to presume that such irregular
flows are too insignificant to be of concern in a stat-
ute focused on “waters,” that may not always be
true. Areas in the western parts of the Nation provide
some examples.
Id. at ___, 126 S. Ct. at 2242 (citation omitted). Justice Ken-
nedy went on to hold that what is required is a showing of a
“significant nexus” between wetlands and navigable waters,
and declared that absent more specific regulations, the nexus
12
Both in his brief and at argument, Moses has attempted to induce us
to review and eschew River Watch. As Moses should know, we cannot do
that. See, e.g., Cal. Dept. of Water Res. v. FERC, 361 F.3d 517, 521 (9th
Cir. 2004); Murray v. Cable Nat’l Broad. Co., 86 F.3d 858, 860 (9th Cir.
1996).
UNITED STATES v. MOSES 9297
must be established by the Corps “on a case-by-case basis
when it seeks to regulate wetlands based on adjacency to non-
navigable tributaries.” Id. at ___, 126 S. Ct. at 2249.
[6] Therefore, far from undercutting our decision in Head-
waters, the Supreme Court unanimously agreed that intermit-
tent streams (at least those that are seasonal) can be waters of
the United States. That being so, we cannot say that the evi-
dence here failed to sustain the verdict.
[7] The man-made severance of Teton Creek at Alta, Wyo-
ming, may have made the portion in question here dry during
much of the year, but when the time of runoff comes, the
Creek rises again and becomes a rampaging torrent that ulti-
mately joins its severed lower limb and then rushes to the
Teton River, the Snake River, and onward to the Columbia
River and the Pacific Ocean. Indeed, it is that very rush of
water that induced Moses to take action.
[8] In short, on this record Teton Creek constitutes a water
of the United States and, as the Supreme Court has recog-
nized, regardless of any other disagreements, “no one con-
tends that federal jurisdiction appears and evaporates along
with the water in such regularly dry channels.” Id. at ___ n.6,
126 S. Ct. at 2221 n.6. That glissades to consideration of
Moses’ next claim.
(2) Discharge
Moses’ attack on the evidence to support the element of
discharge of a pollutant fares no better. He argues that he did
not run his heavy equipment and engage in his assault on
Teton Creek while the water was actually rushing between its
banks. Thus, he says, there was no discharge into waters of
the United States. He is wrong.
[9] Common sense tells us that, especially if the Corps
9298 UNITED STATES v. MOSES
retains jurisdiction, as it does,13 the mere fact that pollutants
are deposited while this part of Teton Creek is dry cannot
make a significant difference. See Headwaters, 243 F.3d at
533-34; Eidson, 108 F.3d at 1342. To hold otherwise would
countenance significant pollution of the waters of the United
States as long as the polluter dumped the materials at a place
where no water was actually touching them at the time.
[10] In addition, the evidence clearly supports a determina-
tion that the result of Moses’ efforts was to create a situation
where pollutants — disturbed and moved materials as well as
log structures — remained in Teton Creek when the water
rose within it. In fact, those pollutants were intended to do
just that. Even if no new materials were added to the Creek
bed by Moses’ activities, simply dredging up and redepositing
what was already there is sufficient to run afoul of the CWA.
See Borden Ranch P’ship v. U.S. Army Corps of Eng’rs, 261
F.3d 810, 814 (9th Cir. 2001), aff’d, 537 U.S. 99, 123 S. Ct.
599, 154 L. Ed. 2d 508 (2002) (affirmance by an equally
divided Court); Rybacheck v. U.S. Envtl. Prot. Agency, 904
F.2d 1276, 1285 (9th Cir. 1990). Moreover, the evidence sup-
ported a determination that when the water flowed, materials
dislodged by Moses’ operations would be carried downstream
into the lower portion of Teton Creek and on into the Teton
River.
But, argues Moses, even if he did see to the moving of
thousands upon thousands of cubic yards of material, by tak-
ing it from one part of Teton Creek and depositing it in
another location within the Creek, that was no violation; it
was just an incidental fallback of the material. See 33 C.F.R.
§ 323.2(d)(2)(i). Was it incidental fallback? To lay the defini-
tion alongside the evidence in this case is to answer the ques-
tion. The regulations provide:
13
See Rapanos, ___ U.S. at ___, n.6, 126 S. Ct. at 2221, n.6.
UNITED STATES v. MOSES 9299
Incidental fallback is the redeposit of small vol-
umes of dredged material that is incidental to exca-
vation activity in waters of the United States when
such material falls back to substantially the same
place as the initial removal. Examples of incidental
fallback include soil that is disturbed when dirt is
shoveled and the back-spill that comes off a bucket
when such small volume of soil or dirt falls into sub-
stantially the same place from which it was initially
removed.
33 C.F.R. § 323.2(d)(2)(ii); see also Nat’l Mining Ass’n v.
U.S. Army Corps of Eng’rs, 145 F.3d 1399, 1403-04 (D.C.
Cir. 1998) (holding Corps can regulate redeposit, but must
allow for mere incidental fallback). The evidence here shows
massive movement and redistribution of materials within
Teton Creek. Only a mind committed to a predetermined
answer could see that material redeposit as similar to a small
volume of dirt that happened to fall off a bucket and back to
the approximate place of removal.14
The claim that there was insufficient evidence of discharge
of pollutants must fail.
B. Claims That No Permit Was Required
After the jury verdict went against him, Moses tried to
recoup by claiming that he did not need a permit in the first
place, and was entitled to entirely ignore the demands of the
EPA and the Corps. He should have listened.
[11] Moses first points to the exception for discharges for
14
We have not overlooked Moses’ passing comment that there should
have been an instruction on incidental fallback. However, because that
was not raised at the district court, our review is for plain error, and on
this record he has not shown any interference with any substantial rights.
See United States v. Tirouda, 394 F.3d 683, 688 (9th Cir. 2005).
9300 UNITED STATES v. MOSES
the purpose of maintenance of currently serviceable struc-
tures. 33 U.S.C. § 1344(f)(1)(B). But that exception has an
exception of its own because the work performed cannot fur-
ther impair the waters of the United States if the exception is
to apply at all. See id. § 1344(f)(2); see also 33 C.F.R.
§ 323.4(a)(2). Exceptions from the CWA must be “analyzed
in light of the Act’s purposes” and exceptions must be con-
strued narrowly. United States v. Akers, 785 F.2d 814, 819
(9th Cir. 1986). As the district court pointed out, Moses’
activities went far beyond anything that could be called mere
maintenance of serviceable structures. He made great changes
to Teton Creek itself, which can hardly be called a structure
anyway. And even if some of the log placements within the
Creek were, themselves, structures that could be repaired,
some of those structures were actually built during 2001, and
none of them were built pursuant to a permit. All in all, while
Moses’ theory might be interesting, the evidence is against
him. The district court did not abuse its discretion when it
denied a new trial on this basis.
[12] Nor does Nationwide Permit No. 3, 67 Fed. Reg. 2078
(Jan. 15, 2002) (the Permit), supply the apotropaion that
Moses seeks. In the first place, the Permit was issued pursuant
to the Rivers and Harbors Act. See 33 U.S.C. § 403; see also
United States v. Cumberland Farms of Conn., Inc., 826 F.2d
1151, 1157-59 (1st Cir. 1987). It does not apply to activities
covered by the CWA. That was plain in 1980 when Moses
first began his activities in Teton Creek, and it was plain dur-
ing the period covered by the indictment. See id. at 1159-60.
[13] Secondly, even if the Permit did have application here,
it cannot be said that the vast amount of work on Teton Creek
took place before the Corps asserted jurisdiction. At best, the
new evidence submitted with Moses’ motion for a new trial
would indicate there is some conflict regarding his 1980
activity, but there can be no doubt that jurisdiction was
asserted at least as early as 1982. It was surely asserted during
the period covered by the indictment.
UNITED STATES v. MOSES 9301
The district court did not abuse its discretion when it deter-
mined that a new trial based upon the Permit was not appro-
priate.
CONCLUSION
Moses chose to ignore all demands by the EPA and the
Corps that he comply with the Clean Water Act before he
undertook his activities in Teton Creek. Even if he was con-
vinced that the Corps had eschewed jurisdiction in 1980, it is
not clear why he thought that gave him a sempiternal right to
continue after jurisdiction was duly asserted. And while his
sang-froid (or even contempt) in the face of agency demands
may show either courage or foolhardiness, it does not save
him from the consequences of his actions.
The evidence supported the determination that Teton Creek
does constitute a water of the United States and that Moses
did discharge pollutants into it. Moreover, his actions were
not exempt and were not taken pursuant to Nationwide Permit
No. 3.
AFFIRMED.