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December 7, 2017  |  Written by Daniel L. Quinley

Criminal Conviction Upheld for Failure to Properly Permit Ponds Built in Federally Protected Wetlands as Ninth Circuit Affirms Justice Kennedy’s “Significant Nexus” Test as Proper Standard to Determine Jurisdiction under the Clean Water Act

On Wednesday, November 27, 2017, in United States v. Robertson, No. 16-30178, slip op. (9th Cir., Nov. 27, 2017), the Ninth Circuit upheld the conviction of Mr. Joseph Robertson for violations of the Clean Water Act (CWA) in Montana.  In upholding a jury’s conviction, the Ninth Circuit reaffirmed its reliance on U.S. Supreme Court Justice Kennedy’s concurring opinion in Rapanos v. United States, 547 U.S. 715 (2006).

Mr. Robertson excavated and constructed a series of ponds on National Forest lands and on a private mining claim in 2013 and 2014.  Robertson, slip op. at 4.  While constructing the ponds, Mr. Robertson discharged dredge and fill material into surrounding wetlands and a tributary to Cataract Creek without appropriate permitting.  Cataract Creek is a tributary to Boulder River, a tributary to the traditionally navigable Jefferson River.  Id.  Based on these discharges, Mr. Robertson was convicted of CWA violations after a second trial.  Id. at 5.  The first trial resulted in a hung jury, but in the second trial, the jury returned a guilty verdict.  Id.  On appeal, Mr. Robertson contended that the United States did not sufficiently establish CWA jurisdiction, based upon the meaning and the U.S. Army Corps of Engineers’ (Corps) interpretation of navigable waters under the CWA.  Id.

The Ninth Circuit reviewed the Montana District Court’s determination of CWA jurisdiction de novo.  Central to the legal review is an understanding of the Corps’ interpretation of CWA jurisdiction, particularly surrounding wetlands (and, more broadly, the appropriate test used to determine if a water feature falls under the Corps’ jurisdiction).  An outline of that test follows.

In Rapanos, the U.S. Supreme Court issued a 4-1-4 opinion, with Justice Kennedy concurring in the judgment.  Justice Kennedy offered his own explanation regarding the extent of the Corps’ jurisdictional limits that is broader than the plurality opinion authored by the late Justice Scalia, and narrower than the deference articulated in Justice Stevens’ dissent.  Justice Kennedy’s test is referred to as the “significant nexus” test.  Under this test, the Corps may only exercise jurisdiction over a wetland if there is a “significant nexus” between affected wetlands and navigable waters.  Rapanos, 547 U.S. at 779, as articulated, suggests that wetlands, impermanent streams, and other non-traditionally navigable bodies of water, may be subject to CWA jurisdiction if, “the [waters] either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’”  Id. at 780.

One year after the decision in Rapanos, the Ninth Circuit adopted Justice Kennedy’s “significant nexus” test as the controlling opinion in Northern California River Watch v. City of Healdsburg, 496 F.3d 993, 995 (2007).  In that case, the Circuit found that Justice Kennedy’s opinion provided “the narrowest ground to which a majority of the Justices would assent if forced to choose in almost all cases . . . .”  Id. at 999 (relying upon Justice Stevens’ dissent in Rapanos that acknowledges Justice Kennedy’s approach as having “far fewer faults” than Justice Scalia’s plurality opinion.  Rapanos, 547 U.S. at 810.  In the Robertson opinion, the Ninth Circuit found another Circuit authority adopting Justice Kennedy’s “significant nexus” test persuasive, including authority from the Seventh Circuit in United States v. Gerke Excavating, Inc., 464 F.3d 723 (7th Cir. 2006).

On appeal, Robertson argued that the Ninth Circuit’s adoption of Rapanos in Healdsburg was no longer controlling, based on an intervening authority.  Robertson relied on authority in United States v. Davis, 825 F.3d 1014 (9th Cir. 2016), which was not a wetlands analysis.  Rather, Davis, ruled on by an en banc Ninth Circuit, clarifies the requirements to adopt authority from a Supreme Court plurality decision.  Id. (requiring a lower court to determine the narrowest grounds for concurrence in the event of a plurality opinion).  Id. at 1021-22; see also Marks v. United States, 430 U.S. 188, 193 (1977) (articulating that the holding of the Court may be discerned by establishing the narrowest grounds taken by those concurring in the judgment).  In Davis, the Ninth Circuit established a “reasoning-based” approach to apply Marks and determine controlling authority from a fractured Supreme Court.  Davis, 825 F.3d at 1028.  In determining the “reasoning-based” approach, the Circuit “assumed” but did not decide, that “dissenting opinions may be considered as part of a Marks analysis.”  Robertson, slip op. at 13, citing Davis, 825 F.3d at 1025, n.12.

Mr. Robertson argued that Healdsburg did not employ the “reasoning-based” approach now outlined by Davis.  Among other things, he submitted that the Healdsburg’s court’s reliance on Justice Stevens’ dissenting opinion was not allowed.  Robertson, slip op. at 12.

The Ninth Circuit rejected this argument, and found that Healdsburg was not irreconcilable with Davis.  First, the court held that while Justice Stevens’ dissent could not be used to find that the test represented controlling authority, it could be used to determine the grounds on which most justices would agree.  The Circuit held that both Justice Kennedy’s concurring opinion and Justice Scalia’s plurality opinion were subsets of Justice Stevens’ dissent “because both narrow the scope of federal jurisdiction.”  Robertson, slip op. at 17.  This reasoning was expressed in Gerke and found persuasive in Healdsburg.  Therefore, the court held that Healdsburg remained binding precedent.  Mr. Robertson’s conviction was upheld.

Based on this ruling, in the Ninth Circuit, courts will continue to apply the “significant nexus” test in determining the scope of Corps’ jurisdiction under the CWA.  Thus, prior to disturbing creeks, streams, or other water bodies for storage, a prior wetlands analysis is always prudent to avoid running afoul of the CWA.

For additional information please contact Daniel Quinley at

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