United States v. Michael H. Weitzenhoff Thomas W. Mariani

ORDER AMENDING OPINION AND DENYING PETITION FOR REHEARING AND REHEARING EN BANC

Aug. 8, 1994.

The opinion filed at 1 F.3d 1523 is amended as follows:

At 1 F.3d 1530 , bottom of the first column, delete:

Add footnote “5” following “violating law).” in the line prior to the deleted text:

Replace the deleted language of text with:

At 1 F.3d 1530 , second column, immediately following first paragraph, insert:

Except for the above amendments, the petition for rehearing is denied and the petition for rehearing en bane is rejected.

The petition for rehearing en banc was circulated to the full court. An active judge of this court requested a vote as to whether the case should be reheard en banc. Less than the required majority of the non-re-cused active judges voted to take the case en banc.

No further petitions for rehearing or rehearing en banc will be entertained. The mandate shall issue forthwith. -

OPINION

Michael H. Weitzenhoff and Thomas W. Mariani, who managed the East Honolulu Community Services Sewage Treatment Plant, appeal their convictions for violations of the Clean Water Act (“CWA”), 33 U.S.C. §§ 1251 et seq., contending that 1) the district court misconstrued…

35 F.3d 1275 24 Envtl. L. Rep. 21 ,504 UNITED STATES of America, Plaintiff-Appellee, v. Michael H. WEITZENHOFF; Thomas W. Mariani, Defendants-Appellants. Nos. 92-10105, 92-10108. United States Court of Appeals, Ninth Circuit. Argued and Submitted Jan. 11, 1993. Decided Aug. 3, 1993. As Amended on Denial of Rehearing and Rehearing En Banc Aug. 8, 1994. Craig H. Nakamura, Asst. U.S. Atty., Honolulu, Hawai'i, for plaintiff-appellee. Philip H. Lowenthal, Lowenthal, August and Graham, Wailuku, Hawai'i, for defendant-appellant Weitzenhoff. Peter C. Wolff, Jr., Honolulu, Hawai'i, for defendant-appellant Mariani. Appeal from the United States District Court for the District of Hawaii. Before: GOODWIN and FLETCHER, Circuit Judges and HUFF, * District Judge. ORDER AMENDING OPINION AND DENYING PETITION FOR REHEARING AND REHEARING EN BANC Aug. 8, 1994. The opinion filed at 1 F.3d 1523 is amended as follows: At 1 F.3d 1530 , bottom of the first column, delete: But see United States v. Speach, 968 F.2d 795 (9th Cir.1992) (distinguishing Hoflin and holding that different subsection of RCRA uses word "knowingly" in different manner so as to require showing that transporter of hazardous wastes…

*1293 DISSENTING OPINION FROM ORDER REJECTING SUGGESTION FOR REHEARING EN BANC

Aug. 8, 1994

I respectfully dissent from our decision to reject the suggestion for rehearing en banc.

Most of us vote against most such petitions and suggestions even when we think the panel decision is mistaken. We do so because federal courts of appeals decide cases in three judge panels. En banc review is extraordinary, and is generally reserved for conflicting precedent within the circuit which makes application of the law by district courts unduly difficult, and egregious errors in important eases. In my view, this is a case of exceptional importance, for two reasons. First, it impairs a fundamental purpose of criminal justice, sorting out the innocent from the guilty before imposing punishment. Second, it does so in the context of the Clean Water Act. This statute has tremendous sweep. Most statutes permit anything except what is prohibited, but this one prohibits all regulated conduct involving waters and wetlands except what is permitted. 33 U.S.C. § 1311 (a); United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 , 106 S.Ct. 455 , 88 L.Ed.2d 419 (1985). Much more ordinary, innocent,…