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United States v. Robinson

ELR Citation: 37 ELR 20265
Nos. No. 05-17019, (11th Cir., 10/24/2007)

The Eleventh Circuit, adopting the Seventh and Ninth Circuits' reading of Rapanos v United States, 126 S. Ct. 2208 (2006), reversed, vacated, and remanded defendants' convictions for their roles in a Clean Water Act (CWA) conspiracy and for violations under the CWA where the trial court's definition of "navigable waters" was erroneous. The original indictment alleged inter alia that defendants knowingly discharged pollutants into a nearby creek in violation of the facility's national pollutant discharge elimination system permit. But the jury instructions failed to include the "significant nexus" criteria from Rapanos or consider the possible physical, chemical, or biological effects of the receiving water upon navigable waters. Even though the government showed that there was a continuous connection between the receiving water and the navigable water in a manner that would likely satisfy Justice Scalia's version of the Rapanos test, only Justice Kennedy's version of the Rapanos test applies. In addition, the conviction based upon making false statements under 18 U.S.C. §1001 is reversed. Even though the underlying document was false, the certification signed by the company employee merely attested that the documents were prepared by other qualified employees and that based upon inquiry, the employee believed the documents to be accurate. Because there was no showing that the attesting employee knew of the falsehood, the employee's certification was accurate and the company must be acquitted on the charge of knowingly submitting false statements.