statute so those regulatory provisions do not directly govern the conduct in this case rd because of the deficiencies of the right of a tory definition the definition of waters applied in this case was based not only on the regulation but also on justice kennedy's panos significant next the standard and this court's definition of tributar specifically to the vagueness argument there is no argument here that the sites into mr into which mr lou's ceral call caused solid film material to be deposited were actually to sixty six dollars also the government's supplemental excerpts of record at eight you can see that what we're talking about here is not something that an ordinary person would identify in any way as a water this was land the land was dry it was being developed for purposes of residence is golf course in addition at the time of mr sorrow's conduct in the summer of  allow in wetlands to be part of what is that's correct your honor and wetlands in general are part of what is and we have no question that legally they can be part ordinary intelligence notice that what they were doing their conduct was criminal and requiring him to hire an expert or go to the core and in this case the landowners had to have their own maps drawn t government in you know hiring dr huffman is an expert spend one hundred and fifty thousand dollars it's not it's there's no requirement that that person be on notice or have a duty to do this kind of investigation before being put on notice it's the burden of the statute in other words in the statutory scheme to put the person on notice that this conduct that was not inherently criminal we're talking about unloading dirt that might violate a federal criminal statute well the fact that he had to cut a lock to enter the property and that he used false documents to show to show customers that he had into the waters of the united states and the fact that he knew perhaps was on the land illegally did not give him notice that the sites were waters of the united states and this was a violation of the federal clean water act perhaps the cunt government couldn't charge him with trespassing that's not what we're talking about here we're talking about a felony violation of the clean water act and whether that of statutes as interpreted by the regulations and ultimately by the supreme court justice kennedy and rough pantos whether that put a reasonable person of ordinary intelligence on notice that what the deposit a solid film and terry on these sites which is illegal and whether or not he cut the lock it didn't matter for purposes of the clean water act scheme whether or not he had the landowners her mission  fact it was the landowners who were violating the clean water act and the or most of the landowners and whether he was on the land illegally or not had nothing to do with whether the requirement or why do you believe there's a the business requirement that he know that the waters were waters of the united states if he knows he's putting a bill into into the vagueness argument because there was no requirement here that she have any knowledge about the fact that would have made these waters the united states and as i said at the time and if you look at the photographs you can see this looks like a trial a and so there was no actual notice from the fill site and we were prevented from presenting preventing evidence on that point but there was no actual notice but the lack of knowledge requirement does play into the vagueness argument to mean the court has said that amends radio requirement can help cure vagueness from the statute but there was no requirement here that goldwater's in the statute is that a jurisdictional element or is that actually part of the prohibited conduct as my co counsel will go into in more depth it is it has some jurisdictional elements to it but it also helps to define the criminal conduct here did charging for bill on land is not inherently criminal people move dirt all the time and they put it in various places whether for construction for gardening for whatever and that it is not an inherently criminal act so the fact that it was in choose a if you think just charging into water  water that was criminal conduct but for something d here where you're talking about just charging dirt on a piece of land no that's not inherently criminal  and i would have had my answer your honor i think if it is a few one thousand actually a pollutant something toxic and somebody is operating a plant that's you know under a permeating scheme as an whites inhofe discharging into the ocean i because those are the facts here i wouldn't amend my statement and say that i don't know that necessarily putting dirt into the ocean i don't think that would be necessarily criminal i would like to turn the case hackle permeated the trial and there's a fact i don't really want to emphasize for the court because there's been confusion about this at the trial in the district court and even here on appeal we had a defense at trial based and forty seven that i hope the court will be explaining that this land for fifty years was plowed and mowed that took the hydrology and changed it and made it difficult so for ten years the landowners studied this land and determined and made two different terminations they did not determine as they decided whether there were wetlands uplands other waters or tributaries and their findings council can you can you turn to the statu but then you have to look at pollutants which would be the spill into watir that is not the definition that applies in this case that is for thirteen forty two not forty four dollars it's it's still material is what he was charged with your honor discharge internet pickle waters the secretary made as you permits after notice an opportunity for public hearings for the discharge of drenched or fill material that's our knowledge to establish a criminal act such as the staples case i think is very important here in that guns are not a public welfare offense and that the government had to prove knowledge that the gun was criminal and how  quickly and then reserve my last few minutes it had to fit into one of the categories and the rd twenty eight dollars and we argued at trial this was another water as it had maps for ten years which required a commerce element that couldn't be proven here but all the thus it was not jurisdictional because you couldn't prove the elements that are required for that which is the commerce element and our evidence of other water was that the experts had mapped it for ten years as other water and determined in the jurisdictional determination you show that advantage his knowledge by showing his knowledge of the physical characteristics that indicate wars are weapons and i can talk a bit more once about what evidence there wasn't a cite but whether district or found is that the discharge element does not include knowledge of jurisdiction and that was correct because it is in compliance with the general rule that we know from history where in feel among many other cases it is then it does not have to know facts about an we agree with the instruction that with the part of the instruction that you requested which is the yesterday physical facts that indicate the presence of waters or weapons now many experts here testified that they were able to direction also said that phil material requires discharge into waters if they just if the jury had believed that he knew he was just for a single material but that he knew that he was treading on to dry land i think that under these instructions they would not have convicted him it would have concluded that he did not know it was still material how is that the case in the definition of filming five pages after the elements and it doesn't at all make it clear that he connects that knowledge to the rejecting was or isn't struction then perhaps it should bank we are now i think that those instructions barely cover the law which is the standard and you know you may or may not agree with that but the prior question is was the district required to write misusers proposed instruction included that but also included that he had to have knowledge of specifically jurisdiction and that was the part where mr was there is argument was over brought on the waters of the united reason to distinguish generally the nation's waters from wars of the united states so thirty three u s c twelve the ones that's for the purposes of the act and it says that one of the purposes is to restore the nation wars so that identifies the waters that congress leaves are worthy of protection but that section also says that congress recognizes that states and the federal government have distinct roles to play in protecting those waters is the united states is not there to establish what conduct is harmful but rather which of the universe of harmful conduct discharge into the nation's waters is within congress has power to regulate and so that makes and that's what the government's experts were there to testify about but then the additional step of whether those were waters of the united states goes only to jurisdiction it doesn't help defying the harmful conduct i not aware of a regulation that separately defines water in the context of what is a pollutant that is just rushed into water the agencies draw lines between water including wetlands and the twins using the definition that is in three hundred and twenty eight dollars but also using a wide variety of other materials that the government experts testify about in this case there are many holes instructions there are objective standards that  the public can refer to to determine whether water is or weapons and this obviously was not only to the knowledge question but also to the vainest question and so the experts can go out and say as the zero requested the jury  instructed what are the physical characteristics of the land here that identify it as wetlands and the experts that you surprised organization hired and that's fine for the government here didn't have any problems figuring out that there were weapons present here they testified that they saw multiple feet of material deposited directly on to about one vegetation dr goh an expert from the court went out two months after his arrows activities ended when there still had been no and they were afraid that the trucks would get stuck and so instead they dumped the film in tiriel in an area and this was her personally or his associates in the bulldozer bush that back over a nine or ten foot drop into the area that the trucks were not able to go because it was too wet so even if the jury instruction here was in error and should have included something about the physical characteristics of the land our submission is that the jury beyond a reasonable doubt could have found that  saying that you can't look at the definition of woe to us twenty eight point three or anything other than jurisdiction i'm saying that mr was arrogant have to have knowledge of the jurisdiction in order to bring the waters described in that section under the reach of the  be just based on the meaning of the term water the reason that congress has delegated the authority to the agencies to write these regulations is because they are experts they can establish objective standards that i all over the nation and use here and so there is some level of technical has to as he said this is this is is requested instruction he would you want to the jury to be instructed that he should have the physical characteristics of the property identify it as a weapon including his example warning vegetation and so he was able to see the physical characteristics of the land just by virtue of being there tense since the agency had happened to find water and are to discharge into water as from the definition of pollution why shouldn't the jury just use the ordinary meaning of water and and the literal meaning of water and so how do you  case well the jury should use the instructions that were given by the district or who defined wars of the united states for them yes but that's but that's not to discharge into water as part of  definition of  e i'm sorry i'm just going to say i'm not entirely understand your question and maybe it's because it seems that if you just take the ordinary meaning of water that would necessarily indicate well and yet what winds are plainly current under the clean water act so  yours you seem to be suggesting that the jurisdiction of the united states under the clean water act will be broader than the physical characteristics of the waters that are covered what i'm suggesting is that the three hundred and twenty eight dollars the instructions of the district were gave t jury well some understand the physical characteristics of water that are covered and also owes them understand the jurisdictional facts the very defined in order to establish the united states and didn't that just agreement with plaintiffs excuse me then we would agree that would have been proper and his knowledge includes knowledge of just charge into wars or weapons the way you show that knowledge is by knowledge of the physical characteristics of property that identifying waters or  status as a mitigation factor or his guilt he said that makes it is trespasser status makes it easier for him to argue the land looked dry or i didn't know the qualities of the land of the thin wire act is hard to understand but the soprano organization talked about depositing so material they talk about navigable waters the nd point i'd like to make about the government's comments about the experts in the owner's knowledge that was because they hired experts they hired experts with expertise in the science the experts spent years and thousands of dollars hundreds of one thousand dollars mapping the site and that you separate from whether a person of common intelligence would have known the nature of these sites again this is a criminal case felony charges here and there had to have been some element of knowledge the jury did not make any findings about knowledge it was not asked to make any findings not even