construction drawing -- makes the very existence of the requirement ambiguous at best. Second, defendants contend that the language of Note 7 itself does not expressly require the installation of permanent trench breakers at both sides of every wetland with sufficient clarity to permit criminal enforcement.
In addition to the arguments already cited above, defendants assert that Note 7 provides no guidance as to when, in terms of the construction process, the breakers would be used. Although the government contends that Note 7 refers to permanent trench breakers or plugs installed at wetland edges following pipe installation, defendants assert that the language of Note 7 and its drafting history are inconsistent with the government's position. Rather, defendants claim that Note 7 probably reflects Iroquois' intent to use temporary ditch breakers or plugs made of sandbags or other materials, which Iroquois placed in the open trench prior to pipe installation, to prevent changes in the natural drainage patterns. Moreover, defendants assert that the drawings themselves support the view that Note 7 refers to temporary breakers. In this regard, defendants note that the drawings are pictorial depictions of construction methods that Iroquois planned to use during construction in wetlands and with few exceptions the drawings and their notes refer to temporary measures to be used while construction operations were on-going.
In response to defendants' arguments, the government contends that the requirement contained in Note 7 is not unconstitutionally vague, either on its face or as applied to defendants. Furthermore, the government asserts that the permit application makes it absolutely clear that Iroquois proposed the wetland breaker obligation and in no way limited it to temporary installation during construction, to instances where water was flowing in the trench, or to perched wetlands. As an example, the government directs the court's attention to the section of the permit application which addresses dredged and fill material. In this section, Iroquois addressed how it intended to respond to potential impacts from dredge and fill activities. See Defendants' Joint Exhibits at Vol. I, Tab 6 at 4-1. In particular, Iroquois stated that "following construction activities, . . . trench breakers will be used to ensure that the trench does not drain the wetland." See id. at Vol. I, Tab 6 at 4-19. Moreover, the government notes that in the permit application section entitled "Detailed Description of Proposed Activity," defendants included the drawings which they now claim are ambiguous.
As further support for its position, the government relies upon an under-oath interview of Craig Ferris, an unindicted co-conspirator and co-owner of defendant Phenix Environmental. During that interview the prosecution asked Mr. Ferris the following question: "Okay. So if breakers were not placed at the edges -- at both edges of each wetland, that would be in violation of the Corps of Engineers permit?" To which Mr. Ferris responded, "Correct." See Government's Memorandum of Law in Response to Defendants' Motion to Dismiss Counts 14-19 at 13. The government submits that this answer is an admission by Mr. Ferris at least as to Defendant Phenix Environmental, Inc. with respect to the matters at issue in these counts.
The government also relies upon a July 24, 1991 "Inter-office Memorandum" from Ed Karpiel addressed to "All Spread Supervisors" regarding "Ditch Breaker Requirements." This memo states, in pertinent part, that "breakers should continue to be installed as directed by the Company Inspector for all slopes over 5 percent or 3 degrees where seeps, run-offs, swales could cause water piping in the trench. Also, breakers are specified at both sides of wetlands[,] creeks, streams[,] drainage swales, etc. . . ." See id. at 14 and Exhibit 1 attached thereto. This memo also indicates that it was placed in a file entitled "Non-Compliance, Contract Clarification." See id.
Finally, the government directs the court's attention to a memorandum authored by Nick Yost, the attorney who represented Iroquois during the permitting and certification process, dated January 11, 1991, to Joseph Seebode, the Chief of Regulatory Compliance for the Corps' New York District. In this memo, Mr. Yost states that "we understand that an issue arose as to whether Iroquois is bound to use trench plugs to prevent drainage around the pipe at the edge of wetlands. Iroquois included such trench plugs in documents filed with agencies and is prepared to commit to their use." See Government's Memorandum of Law, Exhibit 4 attached thereto at 2.
Whether a permit is unconstitutionally vague is a question of law. "'A defendant is deemed to have fair notice of an offense if a reasonable person of ordinary intelligence would understand that his or her conduct is prohibited by the law in question.'" United States v. Weitzenhoff, 35 F.3d 1275, 1289 (9th Cir. 1993) (quoting United States v. Fitzgerald, 882 F.2d 397, 398 (9th Cir. 1989)). Normally, in evaluating whether a particular statute is vague, the court looks to the common understanding of its terms. See id. However, if the statutory prohibition
"involves conduct of a select group of persons having specialized knowledge, and the challenged phraseology is indigenous to the idiom of that class, the standard is lowered and a court may uphold a statute which 'uses words or phrases having a technical or other special meaning, well enough known to enable those within its reach to correctly apply them.'"
Weitzenhoff, 35 F.3d at 1289 (quoting Precious Metals Assocs., Inc. v. Commodity Futures Trading Commission, 620 F.2d 900, 907 (1st Cir. 1980) (quoting in turn Connally v. General Constr. Co., 269 U.S. 385, 391, 46 S. Ct. 126, 127, 70 L. Ed. 322 (1926))).
In the present case, the court is faced with somewhat of a unique situation because the "ambiguity," if there is one, is not at the statutory level. Rather, it involves a single requirement within a permit, to which the parties ascribe different meanings. In other words, defendants do not assert, at least for purposes of this motion, that § 1319(c) is vague. That statute clearly penalizes a person who either knowingly or negligently violates "any requirement imposed . . . in a permit issued under section 1344 of this title by the Secretary of the Army . . ." 33 U.S.C. § 1319(c). Nor do defendants challenge the Corps' authority to issue a § 404 permit to regulate the discharge of dredged or fill material into the navigable waters, including wetlands, of the United States. What they do challenge, however, is the meaning of the trench breaker requirement found in Note 7 of two typical construction drawings attached to the Iroquois Permit.
If the court were to conclude that Note 7 is ambiguous, it would have to apply the rule of lenity. With respect to this rule, the Supreme Court has stated that "where text, structure, and history fail to establish that the Government's position is unambiguously correct -- we apply the rule of lenity and resolve the ambiguity in [the defendants'] favor." United States v. Granderson, 511 U.S. 39, 54, 114 S. Ct. 1259, 1267, 127 L. Ed. 2d 611 (1994).
The court has reviewed the text, structure and history of Note 7 and finds that the government's position is not unambiguously correct. The phrase in Note 7 that "clay plugs or ditch breakers will be installed to prevent changes in the natural drainage pattern" is open to two equally reasonable interpretations: (1) that Iroquois was required to install clay plugs or ditch breakers where needed to ensure that the wetlands would not be drained and (2) that Iroquois was required to install clay plugs or ditch breakers at both edges of every wetland crossed by the pipeline, regardless of the need to ensure that the wetlands would not be drained. Moreover, the regulatory history of the Iroquois Permit does not erase this ambiguity. Although some parts of the regulatory history lead to the reasonable conclusion that Iroquois was required to install the clay plugs or ditch breakers only if needed, other sections of this same history lead to the equally reasonable conclusion that Iroquois was required to install the clay plugs or ditch breakers at both edges of each wetland crossed by the pipeline, regardless of need, as a prophylactic measure.
Given this ambiguity, the court is left with no choice but to apply the rule of lenity and resolve the ambiguity in defendants' favor. See Granderson, 511 U.S. at 54, 114 S. Ct. at 1267, 127 L. Ed. 2d at . Mindful that this situation might arise, the court inquired of both the government and defendants at oral argument what the outcome would be if the court were to rely upon the rule of lenity. Both sides agreed that the result would be dismissal of Counts 14-19. The court concurs with this conclusion. Accordingly, the court holds that the rule of lenity provides an alternative basis for granting defendants' motion to dismiss Counts 14-19 of the Indictment.
III. Motion to Dismiss Counts 2-13 and 26-31 of the Indictment for Lack of Authority to Enforce Criminally Provisions of Appendices C and D to the FEIS
Counts 2-13 and 26-31 are based solely upon alleged violations of technical construction guidelines and procedures that appear in Appendices C and D of the FEIS, a document promulgated and prepared by FERC pursuant to its authority under the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 431 et seq. The gravamen of defendants' motion to dismiss these counts is that they seek to hold defendants criminally liable under the CWA for certain conduct relating to the construction of the Iroquois natural gas pipeline which is neither proscribed by the CWA nor by any legal requirement appearing in the Iroquois Permit.
The government opposes this motion in its entirety, arguing that Special Condition 10 of the Iroquois Permit, which directs compliance with Appendices C and D, is a proper exercise of the District Engineer's authority to place conditions or limitations on a permit issued pursuant to § 404. Therefore, argues the government, a violation of Special Condition 10 provides a proper basis for Counts 2-13 and 26-31.
The basis for defendants' contention that the provisions in Appendices C and D cannot be criminally enforced is two-fold. First of all, they assert that Special Condition 10 of the Iroquois Permit does not incorporate the provisions of Appendices C and D by reference and, therefore, these provisions are not requirements of the Iroquois Permit. Secondly, defendants argue that even if Special Condition 10 does incorporate Appendices C and D by reference, such incorporated provisions cannot serve as a basis for criminal prosecution under the CWA because it was FERC, not the Corps, that promulgated the FEIS, including Appendices C and D, pursuant to NEPA; and Congress did not authorize FERC to define criminal conduct for purposes of the CWA.
Special Condition 10 provides that Iroquois
shall implement the "Stream and Wetland Construction and Mitigation Procedures" contained in Appendix D of the Final Environmental Impact Statement (FEIS) when constructing across flowing streams, rivers and wetlands; and shall implement the "Erosion Control, Revegetation, and Maintenance Plan" contained in Appendix C of the FEIS for all other disturbed areas. Any deviation from these procedures must be coordinated and approved by the Corps of Engineers office reference [sic] in Special Condition a [sic] at least 2 weeks prior to implementation. Any deviation that is determined to be substantial cannot be implemented without the prior written approval of the Corps of Engineers, in consultation with other interested state and federal agencies as appropriate.