you good morning your honor said if it please the court my name is michael donahoe i work for the federal defenders of montana i'm here in behalf of mr robertson as many of us do i read a lot you know even in my spare time and i just i have something to say and it is that what this case is about at least insofar as counts one and three are concerned is how much water was in that channel ditch creek stream river however we want to refer to this what the important issue are concerned should be here this morning as between the significant nex pluralities test how much water was in that channel and if you look at the trial record from the first trial you can't answer that question because there was no flow test there was no measurement there was no temperature test their risk no chemical test there was no biological test and the so called expert that testified on all that subject matter admittedly that ed made it that and then finally we get to the point well what did you rely on mr til injure well we relied on the oh h w m the ordinary high watermark and i say is that important to you and he says well it is it's basically how we figure it out now why is that important to the discussion here this morning it's important because justice kennedy clearly indicates in his opinion the significant nexus test he disparages is that oh h w m criterion takes substantial issue with it in a fairly long narrative and indicates that there are many problems with using that as a presumption of flow now sticking with justice kennedy and that reponse opinion if the court could please and i'm sure the court has done that already carefully review justice kennedy's criticism of the and think about the fact that the flow is the issue here how much water is in that channel that twenty five hundred feet that mr tilling your can't answer that question but justice kennedy indicates the poor analogy is wrong because any amount of water so long as it's a surface water connection between the wetland and some water that gets to a traditionally navigable water will be appropriate and the criticism is you could have a very insignificant amount of water and that would satisfy the  and justice kennedy says that can't be right that can't be right so just as a basic matter of evidence here the court please  on what was the proof with the first trial on counts one and three there were separate motions made throughout the course of that it entire experience jurisdiction motions rule twenty nine motions sufficiency motions they were argued and they were exhausted in this record throughout that trial and they should have been granted under this court's decision in lewis because there's no way to figure out with any degree of certainty what the law i don't know how many times i've read repond i'm a criminal lawyer and this was a very steep learning curve for me and last night my hotel room i read a piece that i hadn't really never seen before and justice kennedy takes issue with the plurality again and he draws in justice roberts is concurrence chief justice roberts and concurrence where the chief justice had said in reponse you know it's a shame if they had just instituted new regulations and proposed some reasonable guidance we wouldn't be in the fix that were in today and justice kennedy recounts that whole narrative of just chief justice roberts and he says you know what the problem with that is is that the approach excludes the government regulators interpretation it excludes so it is in fact a straight up statutory interpretation to the exclusion of anything that the e p a or the corps has said about waters of the united states wholly apart from other issues that i think are nevertheless important court has to think about was the jurors stiction proved on counts one and three at the first trial you know i don't want if i don't have to  get into the question of am i allowed to bring that claim but i did raise it in the briefs because i thought it was only fair to raise it it seems to me the way that we brief this paper this court has said that that's a segregate ball claim this efficiency gets to come up on the first direct appeal and here we are on the first direct appeal now one last thing i want to talk about before i go into some of the other i'll call them trial proper issues and i do this i think it my own expense but it goes to this efficiency i wan talk a little bit about how the government improved its case in the second trial when i crossed mr till injure he tells me to do a chemical test the biological test he didn't do any temperature test he says it's important to know the relative frequency of the flow but it's not important to know the specific amount and he comes in and says as long as the thing is flowing for three months typically which is in the guidance which was in excluded exhibit he says we're good to go it's a relatively permanent water and he just you don't have any argument here there's not one thing in reponse plurality or in the significant nexis test that that three months typically is the duration of flow it's a completely contrived standard and this man mr tailings here was a very nice man testify to that standard you fast forward to the end of the trial in the six notes that the jury sent out one of the questions was what about this three month business and judge malloy was in agreement with me that that's not the law and we really couldn't address the question so what i'm here to submit is that by its own hand the government has confused and misunderstood this legislation they were remiss in acting regulations they have guidance that comports with neither the this significant nexus test and in fact guidance is in full wall and in any case the jury didn't know anything about any of these matters and they should have no so now move to the trial proper should the guidance manual have been admitted is in exhibit respectfully yes judge malloy was in error on that decision he wanted me to use it one point as a learned treatise but the guidance is just so full of information that is so conflicting even to the point where it indicates on the cover that it's not binding on individual citizens apparently so that material should have come in to evidence should mr till winter have been declared an expert witness on this jurisdiction issue this claim is well exhausted it was briefed it was objected to prior to his assuming the witness stand it was objected to in writing its document fifty eight in the district court record and nevertheless mr killen juror was authorized to go before the jury and in the stature of an expert indicate that we've got this that's basically what he tells the jury as the government we got this this jurisdiction will analysis here is kind of a piece of cake here's what we do we do a desktop assessment we look at maps that you can buy any sporting goods store we look to see with the configuration of the channels is now on those maps i d s the court to look at the evidence between the first and second trial when mr till injure is crossed at the second trial he's challenged on the maps that he used what was really interesting about that first trial testimony insofar as the maps are concerned is that mr tillman's your says this is a solid blue line and that generally indicates a relatively permanent or permanent water i want you may want to your remaining time for rebuttal but i had one quick question for you sure and that is there is no evidence at trial that he was warned that he might need a permit what where does that figure into your argument one way or the important ship with the p a and a criminal investigator it was a criminal investigation and there was no participation by the landowner so i don't think that the notice that he received is meaningful in any way thank you good morning i'm david gunter from the department of justice here for the united states as we've heard there's some uncertainty about exactly what standard applies here to waters of the united states but some of the facts in this case are not disputed joseph robertson used heavy machinery to dump tons of soil into streams and whelan's on property that he did not own much of that property was owned by the u s forest service and he had previously unsuccessfully sought to get a permit to build upon those problems on that property and then denied and he had been warned with respect to this activity by state and federal officials that he needed a permit and he should stop working and talk to the corps about whether that his waters were waters of the united states so he knew that his activity was illegal and he was properly convicted of a clean water act violation that a marks in the houses and those asunder the supreme court's marks case should point him in the direction of justice kennedy's opinion yes there there are several parts to your questions which will so let me see if i can get to all of them i think as a factual matter he clearly had notice that his the waters on his property were also on force of his property so that suffices for count two and also during the entire time this case during his activities and during his trial there was a clear standard established in this court that established justice kennedy standard as the operative definition of waters of the united states and that is the healdsburg decision so one question is healdsburg still still viable at this time there's also a question of whether he could have told he could have been aware that the street his particular streams were waters of the united states because they would meet either of the tests and on that let me just respond to counsel's argument about the evidence at first trial todd to enter the course when the expert at the first trial testified that he walked the entire stream all twenty five hundred feet of it in october twenty fourteen to ground truth his maps and that's an excerpt of record twenty seven twenty four and that it was continuously flowing you could see the entire stream and hear it all the way down so i think that robertson could have had a reasonable notice that his waters was the one that was necessary for him to follow based on the marks analysis and my principal argument this morning is that the court hasn't abrogated the standard that approving healdsburg there's a high standard for determining when a subsequent case overrules prior case such as whether davis has overruled healdsburg and it's only when the decisions are clearly irreconcilable the basis of healdsburg is that the government can prove a clean water act juristic prove clean water act jurisdiction under justice kennedy standard that in terms of fair notice is there any specific precedent from the supreme court the ninth circuit or some other circuit that says that a person in robertson situation has to look at the not only the language of the statute but also the language of healdsburg that is you know clearly the supreme court said you can look at the words of the statute as authoritative tape of lee construe or something like that in the linear case but i'm not aware of any case where they've said that that applies to a marks its authority of lee construed in that sense one when you get to the standard under a mar let me identify some of the ways that robertson could have known that i'm not aware of a case that holds directly what you're asking about whether there is a precedent but certainly the clean water act itself uses the phrase waters of the united states and just prohibits discharge into waters of united states then the question is what does that mean the corps and e p a have probably good regulations to describe what it means they include tributaries they include adjacent wetlands kinds of waters that clearly describe the waters at issue here what ripoffs did was only to limit the application of those regulations in some cases where justice kennedy and separately the plurality would have found that the corps and e p a were trying to cover waters that were not waters of the united states and so then the question is is there something in the case law for example marks that would have advised mr robertson that his waters were in the sort of speak or post exceptions rather than covered by the regulations and our submission is that there is nothing in the court's case law to exclude the water side issue here from the scope of the course regulations rather healdsburg which is what he would have found if he had gone to the books at the time clearly established justice kennedy standard as an appropriate standard for the government to establish waters of the united states in fact in healdsburg the court was asking what rule would command and the the assent of a majority of the justices in riposte there are two rules that would command the assent of a majority of justices eight justice s would agree that relatively permanent standing or flowing waters may be covered by the courts definition of waters of the united states and five justices would agree that waters with a significant nexus could be covered the government at trial concentrated on the second the significant nexus in or because that was the instruction the judgment lawyer gave to the jury appropriately we believe under healdsburg but if the court decides that the application of davis and mar is is a difficult question here and it it could decide that our submission is that also the evidence that the government presented at trial would satisfy the plurality test and would you go back because he started not by engaging in the home mark's response davis and alice's but a fairly simple proposition and that is because back to the first trial and then he used the significant nex the basic evidence would not even supported in that first trial i think that the evidence is ample at the first trial to support a conviction under the significant access test or under the pluralities tests in our brief has a number of those citations but i would point you again river so as to whether that would conclusively established beyond a reasonable doubt if in a harmless error analysis i don't know but on the first trial the only question for the core is sufficiency of the evidence could the jury have had a reasonable basis to find that that element of the offense has been satisfied and the testimony of record even if disputed by some of robertson's witnesses clearly establishes at least a sufficient basis for the jury to find the element of the offense would have been satisfied and therefore for the judge  to deny the motion for a directed acquittal but also like mr donahoe i would say this court doesn't need to decide that difficult question that arises from rest ago about whether you can even raise such a motion after  mistrial our position is that you can't raise such a motion after a mistrial and supported by case law from the first circuit and the fifth circuit if this court needs to decide that question i urge you to follow the first circuit in the circuit in finding that a mistrial wipes the slate clean and doesn't allow the defendant to to appeal a motion for directed acquittal that was denied after the first trial but as i said because the evidence at the first trial was sufficient the court can do what it did in resi zero and avoid that question simply by holding i appreciate that one question that may arise in this case is whether replant us itself if you work has been overruled by this if it's no longer still viable does reponse itself provide a controlling rule and our argument is that it is for the reason i stated before between the dissents and the concurrent between the dissent and the plurality opinion in justice kennedy's concurring opinion you can find the rule that a majority of justice would support but in the alternative i would also say that even if there is no controlling rule that in terms of understand the context of the case in terms of understanding the persuasiveness of the arguments and so those arguments in the dissent may provide a basis for finding that justice kennedy's or the pluralities test as a viable basis for establishing waters of the united states even if this court concludes that that rule doesn't necessarily have to be controlling it's also a persuasive rule and kind of goes back to the basic question of notice if you can't even figure out which parts of the venn diagram fit together amongst all these leaders and judges that is a regular citizen figuring that well again i submit that at the time of his activities and at the time of his trial that standard was clear this court had said the government may demonstrate jurisdiction under justice kennedy's test but beyond that i would also say this is not the only area of law where there are complicated regulations nuances based on case law if you look at marks itself it was discussing the obscenity standard that the supreme court had considered in memoirs and the obscenity standard is famously complicated and the supreme court was never able to decide exactly what constituted obscenity under the first amendment and yet the supreme court kept up holding some convictions and vacating other convictions on the basis that the standards that it set out you know per an interest redeeming social value etc could be reasonably and responsibly applied by the lower courts and the same is true here between the course regulations and this court statement in healdsburg the district court here was able to discern what standard to apply it's the same standard that been applying through guidance since riposte was decided and so if the if robertson here had gone to the poor for instance and said can you help me understand whether my waters or waters of the united states and of supreme court talks decision the court would have had to do that and that decision itself would have been reviewable but what the district court found is that robertson didn't care he had been told over and over he had previous violations on forest service land he was told over and over with respect to these violations that they violated the clean water act and in the district courts words he went ahead and did what he wanted to do anyway so i appreciate the fair notice concern here but i submit that on the facts of this case there's no question that robertson knew what he was doing was illegal and that the evidence in the in the record was sufficient to sustain a conviction the terms of him knowing what he did was illegal that depends on using a marks type analysis the sa conduct it was clearly established that healdsburg healdsburg clearly established justice kennedy's rule there was no need for him to do a marks analysis because this court had already done it in controlling case law and davis comes after his kind davis comes after his conduct after his trial it comes before sentencing so his judgment wasn't final it was it was reasonable and natural but it remains enough that if this were a case where he was the government was trying to get an injunction against him to stop him from modifying the stream i'd have no question that appeals work would be a political and that would work for me wouldn't be a difficult case i just  problem in a criminal case as to whether with that sort of convoluted analysis under the marxist theory and sufficiently complex that that our court took in bank and davis to have another run whether a citizen was supposed to know that and go to prison if they don't know respectfully judge gould if you do believe that the healdsburg decision would still apply in an injunction case then i think that it's perfectly appropriate to apply it to the conduct here the reason is that that standard if it is still viable has been viable the entire time and is is in e p a s in the corps regulations is in their guidance and is in the healdsburg case so the only we're the only question that davis might raise and that comes up in the mark's analysis is whether subsequent case law might invalidate healdsburg and thus invalidate the standard that was used at trial but if that standard is still viable it has never changed it has been in place the entire time so to summarize our view is that the davis and marks and or panos questions in this case are complicated they're a puzzle but all of the ways to solve that puzzle point toward the same conclusion which is that the government can use justice kennedy's standard to establish waters of the united states as it appropriately did at trial here every court who is who to have considered this question has allowed the government to use that standard and the evidence in the record supports robertson's conviction under that standard thank there's a difference between evidence sufficient to go to the jury to let them try and make a decision and sufficient evidence to convict and when we finally got to the rule twenty nine see stage the latter was the question was there sufficient evidence to convict and there wasn't i'd like to invite the court to volume ten of the excerpts the twenty seven forty one and forty two and i went through pretty quickly with mr tailings here his a piece of history or station analysis so we're limited to one day correct for determining this channel all the way down is that right correct did you determine in may whether it was running all the way down no did you determine any other day october to twenty fourteen when was when i was out or i did you determine in january of two thousand and fourteen no february no march no april no may no june no july no obvious no september no november no december no so you took one day out of three sixty sufficient proof of jurisdictional nexus here the other part i would ask the court to look at in this record from the first trial is my investigators testimony and his exhibits five hundred through five thirty three i have the pictures here with me or at least copies of them and if they're carefully examined you can see that there are places in this drainage where it's try and there's no water so giving that conflicting testimony the verdict in the end and a rule twenty nine c should have been not guilty counts one and three thank you  i just have one final question is your client's expected release dates dillon's december i'm an estimate on that and he has your honor a halfway house placement very soon ok thank you ye thank you the case just argued united states versus robertson has submitted