Robert J. Lucas owned Big Hill Acres, Inc. (BHA, Inc.) and Consolidated Investments, Inc. Through these companies, he acquired Big Hill Acres (BHA), a large parcel of land in Jackson County, Mississippi, approximately eight miles from the Gulf of Mexico. He subdivided the property and sold mobile home lots under long-term installment plans. The property was not connected to a central municipal waste system, and County law required Lucas to certify and install individual septic systems on each lot before they could establish electric hook-ups or sell the lots. In Jackson County, septic systems must be approved by an engineer with the Mississippi Department of Health (MDH) or by an independent licensed engineer.

Lucas initially hired an MDH engineer to approve septic systems, but MDH withdrew many of its initial approvals when it found that the lots were on saturated soils.

Lucas then hired a private licensed engineer, M. E. Thompson, Jr., to approve and certify the septic systems.

Robbie Lucas Wrigley, Lucas’s daughter, advertised the lots, showed them to prospective buyers, and leased them.

The [U.S.] Army Corps of Engineers, the EPA [Environmental Protection Agency], the MDH, and the Mississippi Department of Environmental Quality (DEQ)

became concerned that Defendants were selling house lots and installing septic systems on wetlands.

These agencies issued several cease and desist orders against Lucas and Thompson, and the EPA sent letters to residents and organized a meeting of the residents to warn them of lot conditions and to tell them where wetlands were located on the property. It also met with BHA’s counsel to attempt to designate the areas where they would allow development. These efforts were not fully successful.

The Government fi led a forty-one-count indictment against Defendants

* * * , charging fi lling of wetlands without a Section 404 permit from the [U.S. Army] Corps [of Engineers], failing to obtain Section 402 National Pollutant Discharge Elimination System (NPDES) Permits for the septic tanks, mail fraud, and conspiracy to commit mail fraud and to violate Sections 402 and 404 of the CWA

[Clean Water Act]. * * * A jury convicted Defendants on all counts, and the court * * * sentenced Lucas, Wrigley, and [Thompson] to prison terms; placed BHA, Inc., and Consolidated Investments on probation; and ordered all Defendants to pay restitution, special assessments, and fines.

* * * *

The first and overarching [dominant] question is jurisdiction— whether the jury was properly required to fi nd that the property at issue was subject to the CWA. * * *

The instructions stated in relevant part,

* * * *

The term wetlands means those areas that are inundated or saturated by surface or groundwater at a frequency and duration suffi cient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions * * * . * * *

Wetlands that are waters of the United States are protected by the Clean Water Act. Wetlands are considered waters of the United States if they are adjacent to a navigable body of open water. Wetlands are adjacent to a navigable body of water if there is a signifi cant nexus [connection]

between the wetlands in question and a navigable-in-fact waterway.

Some of the factors which you may wish to consider in determining whether there is a signifi cant nexus include, but are not limited to:

* * * fl ow rate of surface waters from the wetlands into a navigable body of water * * * when, or to what extent, contaminants from the wetlands have or will affect a navigable body of water * * * .

[Emphasis added.]

Defendants argue that the court erred in not including their requested language that:

* * * adjacency implicates a

“signifi cant nexus” between the water in question and the navigable-in-fact waterway. If the government fails to prove beyond a reasonable doubt that the wetlands at issue in this case are in fact navigable or truly adjacent to [that is,] lying near, close, contiguous, or adjoining a navigable waterway, you must fi nd the defendants not guilty * * *.

* * * *

* * * A district court abuses its discretion in omitting a requested jury instruction only if the requested language “(1) is substantively correct;

(2) is not substantially covered in the charge given to the jury; and (3)

concerns an important point in the trial

* * *.” [Emphasis added.]

The court’s instructions were not in error, nor was the court’s omission of Defendants’ requested instructions. * * * The instructions substantially covered Defendants’

requested instructions by requiring adjacency as defi ned by a signifi cant nexus.

* * * *

The government has shown that there is a signifi cant nexus between the wetlands on Big Hill Acres and navigable-in-fact waters. * * * The surface from the Big Hill Acres site drains in three directions. The western portions of the site drain into Bayou Costapia. Bayou Costapia empties into the Tchoutacabouffa River, which then empties into the Gulf of Mexico. The central portions of the Big Hill Acres development drained through tributaries into Old Fort Bayou Creek. And Old Fort Bayou Creek connects to Old Fort Bayou, which is a protected coastal preserve emptying into the Gulf of Mexico. And the eastern portions drain into the headwaters of Little Bluff Creek, which then connects to Bluff Creek, which fl ows into the Pascagoula River and on to the Gulf of Mexico. The court did not abuse its discretion in giving the CWA instructions.

Questions:-

1. Assume that during most of the year, there was a solid strip of land around the property in question that was never under water or saturated. Would the outcome of this case have been the same? Why or why not?

2. According to the judge, what three characteristics of jury instructions does a federal appellate court examine to determine whether a district court has abused its discretion in omitting a requested jury instruction? Which of these three characteristics was at issue in this case?