IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA BUTTE DIVISION

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1 Case 2:10-cr JCL Document 6 Filed 09/17/10 Page 1 of 5 MARK S. SMITH Assistant U.S. Attorney U.S. Attorney s Office P.O. Box 1478 Billings, MT Third Ave. North, Suite 400 Billings, MT Phone: (406) FAX: (406) mark.smith3@usdoj.gov ATTORNEY FOR PLAINTIFF UNITED STATES OF AMERICA IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA BUTTE DIVISION UNITED STATES OF AMERICA, Plaintiff, CR BU-JCL vs. CONFLUENCE CONSULTING, INC, OFFER OF PROOF Defendant. 1

2 Case 2:10-cr JCL Document 6 Filed 09/17/10 Page 2 of 5 Plaintiff, United States of America, by and through its counsel of record, Mark S. Smith, Assistant United States Attorney for the District of Montana, hereby files its Offer of Proof. THE CHARGE The defendant in this case, Confluence Consulting, Inc., is charged by Information with Negligent Discharge of Pollutants into Waters of the United States Contrary to Permit Conditions in violation of 33 U.S.C. 1311(a) and 1319(c)(1)(A). PLEA AGREEMENT There is a plea agreement in this case. Pursuant to the plea agreement, Confluence Consulting, Inc. will enter a plea of guilty to the Information. ELEMENTS OF THE CHARGE TO WHICH THE DEFENDANT WILL ENTER A PLEA In order for the defendant to be found guilty of Information with Negligent Discharge of Pollutants into Waters of the United States Contrary to Permit Conditions in violation of 33 U.S.C. 1311(a) and 1319(c)(1)(A), the United States must prove each of the following elements beyond a reasonable doubt: 2

3 Case 2:10-cr JCL Document 6 Filed 09/17/10 Page 3 of 5 on or about March 22, 2007, in the state and District of Montana, Confluence Consulting negligently discharged pollutants; that such discharge went into the East Gallatin River, a water of the United States; that such discharge was contrary to conditions contained in a permit issued by the U.S. Army Corps of Engineers PENALTY The defendant is subject to a penalty of not more than one year imprisonment and a $25,000 fine per day of violation. ANTICIPATED EVIDENCE If this case were tried in United States District Court, the United States would prove the following: On January 31, 2007, the Army Corps of Engineers granted a Nationwide Permit to Mr. Joe Billion authorizing stream bank stabilization work on Billion s property abutting the East Gallatin River near Bozeman, Montana. The Permit stated that [a]ny activity that fails to comply with all the terms and conditions of this authorization will be considered unauthorized and subject to appropriate enforcement action. 3

4 Case 2:10-cr JCL Document 6 Filed 09/17/10 Page 4 of 5 Confluence Consulting, Inc. submitted the Permit application to the Corps on Billion's behalf, and Confluence Consulting was sent a copy of the Permit issued by the Corps. Confluence Consulting had been hired by Billion to manage the stream bank stabilization work. James Lovell was Confluence's project manager. James Lovell is the owner and registered agent for Confluence. On March 30, 2007 Doug Chapman of Montana Aircraft, Inc. took aerial photographs of the Billion property. These photos show concrete blocks diverting the East Gallatin River. Chapman s photos also show a trackhoe in a cofferdam constructed within the river. The construction of the cofferdam and the placement of the concrete blocks in the East Gallatin River were not authorized by the Permit. On April 19, 2007, the Gallatin Conservation District held a meeting wherein the District discussed a complaint about Confluence s stream bank stabilization work at the Billion property. The minutes for the meeting contained a statement by James Lovell admitting Confluence did not have a 310 permit for the concrete barriers. Mr. Joe Billion told SA Solari that the plan was to remove the dams every day and that the dams were in the river three days. 4

5 Case 2:10-cr JCL Document 6 Filed 09/17/10 Page 5 of 5 Confluence told the Gallatin Conservation District that the dams were left in the river overnight twice. On May 10, 2007, SA Solari called James Lovell to discuss the cofferdam and the use of concrete blocks. Lovell told SA Solari that the dams were placed in the river for three days and then removed. He further stated that the dams were needed for Confluence to perform their job, and it was at his direction that the dams were built. DATED this17th day of September, MICHAEL W. COTTER United States Attorney /s/ Mark S. Smith MARK S. SMITH Assistant U.S. Attorney Attorney for Plaintiff 5