United States v. Mike Vierstra ( 2012 )


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  •                            NOT FOR PUBLICATION
    UNITED STATES COURT OF APPEALS                            FILED
    FOR THE NINTH CIRCUIT                              AUG 13 2012
    MOLLY C. DWYER, CLERK
    UNITED STATES OF AMERICA,                        No. 11-30225               U.S. COURT OF APPEALS
    Plaintiff - Appellee,              D.C. No. 1:10-cr-00204-REB-1
    v.
    MEMORANDUM*
    MIKE VIERSTRA,
    Defendant - Appellant.
    Appeal from the United States District Court
    for the District of Idaho
    Ronald E. Bush, Magistrate Judge, Presiding
    Submitted August 9, 2012**
    Seattle, Washington
    Before: BLACK,*** GRABER, and RAWLINSON, Circuit Judges.
    Defendant Mike Vierstra appeals his misdemeanor conviction for the
    negligent discharge of a pollutant into the waters of the United States without a
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by Ninth Circuit Rule 36-3.
    **
    The panel unanimously concludes this case is suitable for decision
    without oral argument. Fed. R. App. P. 34(a)(2).
    ***
    The Honorable Susan H. Black, Senior United States Circuit Judge for
    the Eleventh Circuit, sitting by designation.
    permit, in violation of 
    33 U.S.C. §§ 1311
    (a) and 1319(c)(1)(A). Whether we
    review de novo (as Defendant urges) or for plain error (as the government urges),
    we affirm, because there were no errors.
    1. The criminal prosecution did not violate double jeopardy principles,
    because the previous enforcement action was civil in nature. See Hudson v. United
    States, 
    522 U.S. 93
    , 99 (1997) ("The [Double Jeopardy] Clause protects only
    against the imposition of multiple criminal punishments for the same offense.").
    Defendant concedes that the statute labels the penalty as "civil," so our only
    inquiry is "whether the statutory scheme was so punitive either in purpose or effect
    as to transform what was clearly intended as a civil remedy into a criminal
    penalty." 
    Id.
     (internal quotation marks, citation, and brackets omitted). Having
    considered the relevant factors, 
    id.
     at 99–100, we easily conclude that this high
    standard is not met here, see 
    id. at 100
     ("[O]nly the clearest proof will suffice to
    override legislative intent and transform what has been denominated a civil remedy
    into a criminal penalty." (internal quotation marks omitted)). For instance, the
    criminal provisions have a mens rea element, whereas the civil provisions do not.
    Compare 
    33 U.S.C. § 1319
    (c)(1)(A) (requiring negligence) with 
    id.
     § 1319(g)(1)
    (no mens rea requirement).
    2
    2. Sufficient evidence supported the jury’s verdict because, viewing the
    evidence in the light most favorable to the government, United States v. Ramirez,
    
    537 F.3d 1075
    , 1081 (9th Cir. 2008), a rational jury could have concluded that a
    "significant nexus" existed between the Low Line Canal and the Snake River.
    Rapanos v. United States, 
    547 U.S. 715
    , 767 (2006) (Kennedy, J., concurring in the
    judgment); see N. Cal. River Watch v. City of Healdsburg, 
    496 F.3d 993
    , 999-1000
    (9th Cir. 2007) (describing the effect of the Supreme Court’s various opinions).
    For six to eight months a year, the Low Line Canal flows continuously and directly
    into a tributary of the Snake River, a traditionally navigable water. Additionally,
    the canal has a significant flow of water, an ordinary high water mark, and a
    defined bed and bank.
    3. The exercise of jurisdiction by the State of Idaho over the same waters
    does not affect the federal government’s jurisdiction. See generally United States
    v. ITT Rayonier, Inc., 
    627 F.2d 996
     (9th Cir. 1980). Nothing in the statute
    undermines the federal government’s clear prosecutorial authority under 
    33 U.S.C. § 1319
    (c)(1).
    AFFIRMED.
    3
    

Document Info

Docket Number: 11-30225

Judges: Black, Graber, Rawlinson

Filed Date: 8/13/2012

Precedential Status: Non-Precedential

Modified Date: 11/6/2024