Conviction of ‘dirt broker’ overturned
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.