Dredging conviction is upheld: Developer violated Clean Water Act

BOISE – The 9th U.S. Circuit Court of Appeals has upheld the 18-month prison sentence of an eastern Idaho developer who bulldozed a stream bed in a subdivision.

In its ruling Friday, the appellate court said Charles Lynn Moses repeatedly ignored government warnings that his work on Teton Creek was illegal. Unless another appeal is filed, the ruling means U.S. District Judge B. Lynn Winmill can order the Driggs developer to serve the prison time. It also means that once Moses is released, he must abide by a 2004 order issued by the U.S. Environmental Protection Agency ordering him to repair the damage to the stream bed and restore the wetlands.

Moses’ attorney, Blake Atkins of Salt Lake City, could not be reached for comment.

The case involves work Moses did in the Aspens Subdivision in Teton County starting in the 1980s. As early as 1982 and several times after, U.S. Army Corps of Engineers officials told Moses that altering Teton Creek required a permit under the Clean Water Act, according to the ruling. Still, Moses worked to reroute and reshape the creek for more than 20 years, the ruling says, dumping gravel, dirt and logs into the creek and deepening the channel.

“While his sangfroid (or even contempt) in the face of agency demands may show either courage or foolhardiness, it does not save him from the consequences of his actions,” Judge Ferdinand Fernandez wrote in the ruling.

In 1995, the Corps of Engineers ordered Moses to halt dredge and fill operations, and follow-up letters were sent to the developer in 1996 and 1997, according to the ruling.

Moses failed to apply for permits in 2002, 2003 and 2004, and violated a 2004 EPA cease-and-desist order by dumping dredged material into the creek, court records show.

In 2005, a federal grand jury indicted Moses on three counts of felonious violations of the Clean Water Act. He was found guilty several months later.

Winmill handed down the sentence plus a $9,000 fine, but agreed to postpone it while Moses appealed.

Attorneys for Moses contended he believed it was critical to build makeshift dikes and dams and to excavate the creek’s bed so it wouldn’t flood the subdivision where he had developed and sold new homes.

The debris Moses dumped into the creek altered the waterway and stream flow, causing banks to collapse and increasing the likelihood of flooding, Fernandez wrote. It also polluted a spawning bed for Yellowstone cutthroat trout.

“Overall, the work on the creek bed was substantial,” he wrote. “Thousands of cubic yards of gravel and other materials were moved, and the channel was deepened, widened, and greatly disturbed. The disturbance reached both upstream and downstream of the work perpetrated by Moses and his minions.”

Moses’ claims that the creek is not under the jurisdiction of the United States and that he didn’t need a permit, Fernandez said.

“He took a natural stream and turned it basically into a half-pipe,” said Mark Ryan, an attorney representing the EPA. “He’s basically turned Teton Creek into a huge drainage ditch.”