[ Thomas ]
EDWARD HANOUSEK, Jr v. UNITED STATES
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
The petition for a writ of certiorari is denied.
Justice Thomas, with whom Justice OConnor joins, dissenting from the denial of certiorari.
In 1994, petitioner Edward Hanousek, Jr., was employed 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 petitioner was hired, accidentally struck a petroleum pipeline near the railroad tracks. The operators 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. § 1319(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 designed to protect the public from potentially harmful or injurious items and criminalizes
Whatever the merits of petitioners 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 welfare 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.
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 imposed. See, e.g., id., at 616618. We have said, with respect to public welfare offenses, that penalties commonly are relatively small, and conviction does no grave damage to an offenders 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. §1319(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 §1321(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 imprisonment of not more than 6 years, or by both. §1319(c)(2).2 The seriousness of these penalties counsels against concluding 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
1. Section 1319(c)(1)(A) provides that anyone who negligently [violates 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, 12841286 (CA9 1993).