United States of America v. Getty Oil Co.

Criminal No. 71-G-8 (S.D. Tex. October 12, 1971)

Defendant's motion for dismissal of Refuse Act information denied. Discharge of refuse forbidden by Act is malum prohibitum and scienter is not an essential element of the offense. Defendant's contention that Act does not prohibit discharge from a "production platform," is affront to common sense since such a structure was without doubt of the type with which Congress was concerned when it prohibited discharges from, "a wharf manufacturing establishment, or mill of any kind."

Counsel for Plaintiff:
Ellis C. McCullough Assistant U.S. Attorney
Anthony J. P. Farris U.S. Attorney
P.O. Box 61129
Houston, Texas 77061
(214) 226-4765

Counsel for Defendant:
Jack Brandon
Getty Oil Company Legal Department
P.O. Box 1404
Houston, Texas 77001
(214) CA8-9361

[1 ELR 20601]

Noel, J.:

MEMORANDUM AND ORDER

Defendant has moved for dismissal on two grounds. First, defendant asserts that the information is fatally defective because it fails to allege that the defendant violated the Act willfully, intelligently, knowingly, or negligently. Depositing refuse in navigable waters is the malum prohibitum constituting a violation of Section 13 of the Rivers and Harbors Act of 1899 (33 U.S.C.A. § 407); i.e., an act which is not inherently immoral, but becomes so because its commission is expressly forbidden by positive law. No element of scienter appears in the statute, and in absence of any statutory or decisional requirement of a showing of scienter in a prosecution brought under the seventy-year old statute, this Court finds no basis for reading such a requirement into the Act. United States v. Interlake Steel Corp., 297 F. Supp. 912, 915 (N.D. Ill. 1969); United States v. United States Steel Corp., 328 F. Supp. 354 (N.D. Ind. 1970). The offense of depositing refuse in navigation waters in violation of the Refuse Act of 1899 falls within the category of public welfare offenses made the subject of strict criminal liability, and the information charging an offense under the Act is not defective because it fails to allege that the defendant acted "willfully, intelligently, knowingly, or negligently."

Defendant's next argument is that the information is insufficient because it fails to state an offense against the laws of the United States; to wit, the statute under which the offense is charged does not make it a crime to discharge refuse from a "production platform". Title 33, United [1 ELR 20602] States Code, Section 407 provides that it shall constitute an offense to discharge refuse from "any ship, barge, or other floating craft of any kind, or from the shore, wharf, manufacturing establishment, or mill of any kind. . ." It is not the function of the Court to create offenses where Congress has not acted nor to expand statutory language in criminal cases to encompass ambiguous circumstances. But whatever may be said of the rule of strict construction, it cannot provide a substitute for common sense, precedent and legislative history. In United States v. Standard Oil Co., 384 U.S. 224 (1966), the Supreme Court advised that Section 13 of the Rivers and Harbors Act should not be construed in a vacuum. Although the Act does not expressly make reference to a "production platform", such a structure is without doubt of the type with which the legislature was concerned and should be included within the statutory language, "a wharf, manufacturing establishment, or mill of any kind".

For the above reasons defendant's motion to dismiss is denied.The Clerk shall send copies of this Memorandum and Order to all counsel.