ELR Citation: ELR 21049
No(s). 97-30185 (9th Cir. Mar 19, 1999)

The court upholds the conviction and sentence of a railroad employee for negligently discharging a harmful quantity of oil into a navigable water in violation of the Federal Water Pollution Control Act (FWPCA). The employee was responsible for a rock quarrying project along the railroad track. Under the employee's supervision, a backhoe operator struck an oil pipeline causing it to rupture and discharge oil into the Skagway River in Alaska. The court first holds that the district court properly instructed the jury that to establish a violation under FWPCA §309(c)(1)(A), the government was required to prove only that the employee acted with ordinary negligence. The FWPCA does not define "negligently," and the ordinary meaning of the term is a failure to use such care as a reasonably prudent and careful person would use under similar circumstances. If Congress intended to prescribe a heightened negligence standard, it could have done so explicitly. The court then holds that §309(c)(1)(A) does not violate due process by permitting criminal penalties for ordinary negligent conduct. It is well established that a public welfare statute may subject a person to criminal liability for his or her ordinary negligence, and the criminal provisions of the FWPCA constitute public welfare legislation.

The court next holds that the district court's failure to provide the employee's proposed instructions on vicarious liability was not reversible error. The district court's instructions adequately explained to the jury that the employee could be convicted only on the basis of his own negligent conduct. The court further holds that the district court's jury instruction on causation was proper. In addition, the court holds that the totality of the evidence is sufficient to support the conviction. Last, the court holds that the sentencing procedures that resulted in a sentence of six months in prison, six months in a halfway house, and six months of supervised release were proper under the U.S. Sentencing Guidelines. The employee's supervisory role in the criminal activity warranted a two-point upward adjustment in the sentence.

Counsel for Plaintiff
Ellen J. Durkee
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendant
Bruce E. Gagnon
Atkinson, Conway & Gagnon
420 L St., Anchorage AK 99501
(907) 276-1700

Before Tashima and Stagg,^* JJ.