Any developer is aware of problems associated with wetlands. Wetlands are protected, generally swampy areas that serve important ecological functions. To environmentalists, wetlands are sensitive areas that need to be protected from development. Many laws limit development on or near them. To developers, wetlands can seriously limit the ability to make a profit on a development.

In the last several years, there has been a movement to criminalize wetlands offenses. The case of U.S. v. Wilson concerns a criminal prosecution of a wetlands case. One Defendant, a CEO of a large Maryland development company, was found guilty and sentenced to prison. In December 1997, a federal appeals court reversed the convictions.

Background
Defendant James Wilson is a land developer with more than 30 years of experience. Defendant Interstate General is a publicly traded Maryland company with 2,000 shareholders, 340 employees and $100 million in assets.

The Defendants were undertaking a large scale project, which would increase the local resident population of a Maryland community from 33,000 residents to 80,000 residents. The project provided for the creation of schools, parks, recreation areas and required that a minimal amount of property be preserved for open space. In addition, the project required that 75 acres of wetlands be preserved.

The Trial
At trial, the government introduced evidence that between 1988 and 1993 the Defendants drained three parcels so that they would lose their wetlands characteristics. Excavated soils were deposited next to the excavation locations within the wetlands, a process known as "side casting." In addition, the government introduced evidence showing that substantial amounts of fill were also posited in the wetlands, without an Army Corps permit.

The government demonstrated to the trial court's satisfaction that the property in question contained wetlands and the Defendants failed to obtain permits for filling them from the U.S. Army Corps of Engineers. Furthermore, water from the wetlands flowed in a drainage pattern through streams and other water bodies into the Potomac River, which ultimately flows into the Chesapeake Bay.

In addition, the government produced evidence demonstrating that the Defendants were aware that in fact they were filling federally protected wetlands. The Defendants took special measures to build in the wet areas. Some of the construction required restoring "efforts" because of shifting problems associated with the wet soils.

After 15 hours of deliberation, the jury convicted the Defendants on the various felony counts relating to illegal filling of the wetlands.

Appeals Court Reverses
Though the federal appeals court reversed the trial court decision, the judges did not agree on all of the issues. The following issues were addressed by some of the appellate court judges:

First, there was concern that the government regulation defining the extent of federally protected wetlands is too expansive. The problem is that the United States Constitution limits the permissible scope of federal laws. Laws defining regulated wetlands are limited to waters which affect interstate commerce. Since the government regulations at issue have the effect of regulating water bodies that are purely intrastate and have no possible impact on navigable waters, the appeals court found the regulations are invalid and remanded the case for a new trial.

Second, the judges were concerned about the side casting convictions. One appeals judge found that as a matter of law, the re-positing of dredged wetlands soils just several feet from their excavation location is not a new discharge prohibited by the Wetlands Act.

Third, some of the judges were concerned about the issue of "mens rea." Mens rea means guilty mind, and most crimes require some showing of mens rea for a conviction.

On appeal, the Defendants asserted that the government should have been required to prove that the Defendants had actual knowledge that their conduct was illegal. The appeals court disagreed, holding instead that the government's burden was to show that the Defendants' knew each fact satisfying each element of the wetland's related crimes.

The appeals court still found that a new trial was required because the jury instruction did not clearly define what mens rea meant in relation to this particular case. Since the instruction were capable of confusing the jury, a new trial was ordered.

The information provided in this column is written by Stuart Lieberman,a practicing environmental attorney, and is for general information purposes only. It is not legal advice and should not be used in place of legal advice.

Stuart Lieberman, Esq., and IRED.Com, Inc., will not accept any responsibilty for any reliance on the information in this column or any damages whatsoever resulting from reading this column.