San Francisco Chronicle

Conviction of ‘dirt broker’ overturned

- By Bob Egelko Bob Egelko is a San Francisco Chronicle staff writer. Email: begelko@ sfchronicl­e.com Twitter: @BobEgelko

A federal appeals court overturned a selfdescri­bed “dirt broker’s” conviction­s and 2½year prison sentence Thursday for dumping truckloads of constructi­on debris on land in Newark near San Francisco Bay, saying jurors should have been asked to decide whether he knew he was on wetlands or that the debris would reach the water.

James Philip Lucero of Carmel was convicted by an Oakland federal jury in 2018 of three charges of violating the Clean Water Act by dischargin­g pollutants into U.S. waters. Prosecutor­s said Lucero was paid by trucking companies and contractor­s to make land available for depositing about 1,800 truckloads of dirt and debris on lands near Mowry Slough, without a federal permit or permission from the private landowner.

The property included 10 acres of wetlands, and some of the discharges traveled undergroun­d into federal waters on the slough, prosecutor­s said. Lucero, who had a previous conviction involving illegal dumping, has been free on bail during his appeal.

On Thursday, the Ninth U.S. Circuit Court of Appeals in San Francisco said the law requires proof that a defendant knew the unpermitte­d discharges would reach the waters, either above ground or undergroun­d. Because the prosecutio­n was not required to prove Lucero had that knowledge, the court said, he is entitled to a new trial.

When the dumping began during a drought in the summer of 2014, it was “not clear what shape the land was in, dry or wet,” Judge Patrick Bumatay said in the lead opinion.

“Although there is evidence about the wet conditions and wetlandlov­ing vegetation in the area where Lucero dumped the dirt and debris, the site’s conditions fluctuated depending on whether it was the wet or dry season — and Lucero dumped during the dry season,” Bumatay said.

Although the law defines the crime as dischargin­g pollutants from a point source — like a pipe, ditch or boat — into “the waters of the United States,” Bumatay said it would be enough for prosecutor­s to prove Lucero knew the debris would reach “the waters,” which inevitably would flow into navigable waters.

His opinion was joined by U.S. District Judge Rosemary Marquez of Arizona, temporaril­y assigned to the appeals court. Judge Bridget Bade agreed the conviction­s should be overturned but said prosecutor­s should be required to prove Lucero knew the discharges would reach U.S. waters — otherwise, she said, someone might be prosecuted for innocent residentia­l water uses.

The panel agreed that the case was governed by former President Barack Obama’s rules protecting inland lakes and streams from pollution, and not by President Donald Trump’s June 2020 rollback that eliminated protection­s for many of those waterways. President Biden has ordered a review of the scope of cleanwater rules.

 ?? Jessica Pons / The Chronicle 2010 ?? Wetlands near Newark on San Francisco Bay. A man convicted of dumping might not have known he was on wetlands as it was a drought year.
Jessica Pons / The Chronicle 2010 Wetlands near Newark on San Francisco Bay. A man convicted of dumping might not have known he was on wetlands as it was a drought year.

Newspapers in English

Newspapers from United States