SUPREME COURT OF THE UNITED STATES
EDWARD HANOUSEK, JR v. UNITED STATES
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 99-323. Decided January 10, 2000
The petition for a writ of certiorari is denied.
JUSTICE THOMAS, with whom JUSTICE O'CONNOR joins,
dissenting from the denial of certiorari.
In 1994, petitioner Edward Hanousek, Jr., was em-
ployed by the Pacific & Arctic Railway and Navigation
Company as the roadmaster of the White Pass & Yukon
Railroad. In that capacity, petitioner supervised a rock
quarrying project at a site known as "6-mile," which is
located on an embankment 200 feet above the Skagway
River six miles outside of Skagway, Alaska. During rock
removal operations, a backhoe operator employed by Hunz
& Hunz, an independent contractor retained before peti-
tioner was hired, accidentally struck a petroleum pipeline
near the railroad tracks. The operator's mistake caused
the pipeline to rupture and spill between 1,000 and 5,000
gallons of oil into the river.
Petitioner, who was off duty and at home when the
accident occurred, was indicted and convicted under the
Clean Water Act (CWA or Act), 86 Stat. 859, 33 U. S. C.
SS1319(c)(1)(A), 1321(b)(3), for negligently discharging oil
into a navigable water of the United States.#1 Petitioner
was fined $5,000 and sentenced to sequential terms of six
months imprisonment, six months in a halfway house, and
six months of supervised release. On appeal, petitioner
argued, among other things, that it would violate his due
process rights to impose criminal liability for ordinary
negligence in discharging oil into the river.
In rejecting the due process claim, the Court of Appeals
reasoned, in part, that the criminal provisions of the CWA
are "public welfare legislation" because the CWA "is de-
signed to protect the public from potentially harmful or
injurious items" and criminalizes " 'a type of conduct that a
reasonable person should know is subject to stringent
public regulation and may seriously threaten the commu-
nity's health or safety.' " 176 F. 3d 1116, 1121 (CA9 1999)
(quoting Liparota v. United States, 471 U. S. 419, 433
(1985)). Whether the CWA is appropriately characterized
as a public welfare statute is an issue on which the Courts
of Appeals are divided. Compare, e.g., United States v.
Kelley Technical Coatings, Inc., 157 F. 3d 432, 439, n. 4
(CA6 1998) ("[V]iolations of the CWA fit squarely within
the public welfare offense doctrine"), and United States v.
Weitzenhoff, 35 F. 3d 1275, 1286 (CA9 1993) ("The crimi-
nal provisions of the CWA are clearly designed to protect
the public at large from the potentially dire consequences
of water pollution . . . and as such fall within the category
of public welfare legislation"), with United States v. Ah-
mad, 101 F. 3d 386, 391 (CA5 1996) (rejecting the argu-
ment that the CWA is public welfare legislation).
Whatever the merits of petitioner's underlying due
process claim, I think that it is erroneous to rely, even in
small part, on the notion that the CWA is a public welfare
statute. We have said that "to determine as a threshold
matter whether a particular statute defines a public wel-
fare offense, a court must have in view some category of
dangerous and deleterious devices that will be assumed to
alert an individual that he stands in 'responsible relation
to a public danger.' " Staples v. United States, 511 U. S.
600, 613, n. 6 (1994). See also id., at 628-629 (STEVENS,
J., dissenting) (" 'Public welfare' offenses . . . regulate
'dangerous or deleterious devices or products or obnoxious
waste materials' ") (quoting United States v. International
Minerals & Chemical Corp., 402 U. S. 558, 565 (1971)).
Although provisions of the CWA regulate certain danger-
ous substances, this case illustrates that the CWA also
imposes criminal liability for persons using standard
equipment to engage in a broad range of ordinary indus-
trial and commercial activities. This fact strongly mili-
tates against concluding that the public welfare doctrine
applies. As we have said, "[e]ven dangerous items can, in
some cases, be so commonplace and generally available"
that we would not consider regulation of them to fall
within the public welfare doctrine. Staples, 511 U. S., at
611. I think we should be hesitant to expose countless
numbers of construction workers and contractors to
heightened criminal liability for using ordinary devices to
engage in normal industrial operations.
We have also distinguished those criminal statutes
within the doctrine of "public welfare offenses" from those
outside it by considering the severity of the penalty im-
posed. See, e.g., id., at 616-618. We have said, with
respect to public welfare offenses, that "penalties com-
monly are relatively small, and conviction does no grave
damage to an offender's reputation." Morissette v. United
States, 342 U. S. 246, 256 (1952). See also Sayre, Public
Welfare Offenses, 33 Colum. L. Rev. 55, 72 (1933) (stating
that it is a "cardinal principle" of public welfare offenses
that the penalty not be severe). The CWA provides that
any person who "negligently" violates the Act may be
imprisoned for up to one year. S1319(c)(1). A second
negligent violation of the Act may subject a person to
imprisonment for up to two years. Ibid. The CWA also
contains a felony provision that provides that any person
who "knowingly" violates S1321(b)(3) "shall be punished by
a fine of not less than $5,000 nor more than $50,000 per
day of violation, or by imprisonment for not more than
three years, or by both. If a conviction of a person is for a
violation committed after a first conviction of such person
under this paragraph, punishment shall be by a fine of not
more than $100,000 per day of violation, or by imprison-
ment of not more than 6 years, or by both." S1319(c)(2).#2
The seriousness of these penalties counsels against con-
cluding that the CWA can accurately be classified as a
public welfare statute.
The Court of Appeals disregarded these factors, and
relied instead on our previous statements that public
welfare offenses regulate " 'conduct that a reasonable
person should know is subject to stringent public regula-
tion and may seriously threaten the community's health or
safety.' " 176 F. 3d, at 1121 (quoting Liparota v. United
States, supra, at 433). But we have never held that any
statute can be described as creating a public welfare of-
fense so long as the statute regulates conduct that is
known to be subject to extensive regulation and that may
involve a risk to the community. Indeed, such a sugges-
tion would extend this narrow doctrine to virtually any
criminal statute applicable to industrial activities. I
presume that in today's heavily regulated society, any
person engaged in industry is aware that his activities are
the object of sweeping regulation and that an industrial
accident could threaten health or safety. To the extent
that any of our prior opinions have contributed to the
Court of Appeals' overly broad interpretation of this doc-
trine, I would reconsider those cases. Because I believe
the Courts of Appeals invoke this narrow doctrine too
readily, I would grant certiorari to further delineate its
limits.
1 Section 1319(c)(1)(A) provides that anyone who "negligently [vio-
lates certain provisions of the CWA] shall be punished by a fine of not
less than $2,500 nor more than $25,000 per day of violation, or by
imprisonment for not more than 1 year, or by both." Section 1321(b)(3)
prohibits "[t]he discharge of oil . . . into or upon the navigable waters of
the United States."
2 Some courts interpreting the felony provisions of the CWA have
used the public welfare doctrine to determine that a person may
"knowingly" violate the statute even if he is not aware that he is
violating the law. See, e.g., United States v. Weitzenhoff, 35 F. 3d 1275,
1284-1286 (CA9 1993).
|
MAIN
