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Circuit Court Overturns Montana Clean Water Act Conviction

August 22, 2019
By Duggan Flanakin

A federal court vacated the conviction of a property owner for violations of Section 404 of the Clean Water Act.

A federal court vacated the conviction of a property owner for violations of Section 404 of the Clean Water Act.

Jailed for Property Upgrades

The decision followed an April 2019 U.S. Supreme Court decision allowing the widow of the late Joe Robertson to have her day in court concerning his claim he had been wrongly charged and convicted.

Navy veteran Robertson, then 77, was arrested, charged, and convicted in 2016 for failing to obtain a Section 404 permit from the U.S. Army Corps of Engineers before constructing ponds and a firebreak on his own property. He was sent to prison for 18 months and fined $130,000.

On appeal, his conviction and fine were upheld by the Ninth Circuit Court of Appeals.

Robertson, who appealed this decision to the Supreme Court, died of a stroke while still on parole just a month before the Court issued its ruling in April immediately vacating the Ninth Circuit’s judgment while the latter court reconsidered the case.

The Court also agreed Joe’s widow, Carri, should be allowed to represent his estate in the case before the Ninth Circuit.

In a complete vindication for the late Joe Robertson, the Ninth Circuit Court vacated his conviction on July 10.

Arrested Over a Ditch

In 2013 and 2014, the Robertsons, who operated a small firefighting support truck business, built several ponds to allow them to fill up multiple water trucks to fight wildfires in the area. The U.S. Environmental Protection Agency claimed a small, foot-wide ditch on the property was a federally protected waterway that could not be altered or modified unless the owner received a permit from the government.

EPA argued this even though Robertson’s land was 40 miles from the nearest navigable river. Robertson was convicted of violating the Clean Water Act in 2016.

On appeal, the Ninth Circuit court upheld the lower court’s conviction.

With backing from the Pacific Legal Foundation (PLF), Judicial Watch, and the Allied Educational Foundation (AEF), Robertson appealed his conviction and the $130,000 fine on the grounds it “affirmed illegal agency actions in prosecuting Joseph Robertson based on a misreading of federal law.”

“[The Court] should take this opportunity to correct the confusion in overbroad interpretations of the Clean Water Act, which have led to unjust prosecutions and federal intrusions into both state authority and individual liberty,” the petitioners argued.

Considered Dirt a ‘Pollutant’

In its filing, Judicial Watch said Robertson’s ditches “were situated on or near a small downhill water flow of about three garden hoses in volume.”

In addition, Robertson’s legal team pointed out, there was no manufacturing or any other industrial activity nearby that could release chemicals or waste into the water, yet under the government’s interpretation of the Clean Water Act “even turning the soil with a shovel can be considered to be releasing a ‘pollutant’ into water.”

Called for Clarification

In their brief, Judicial Watch and AEF said the case involved issues larger than the Robertsons’ personal plight, including the constitutional separation of powers between Congress, the Executive Branch, and the Supreme Court, saying it was the Court itself that introduced confusion into the definitions of “adjacent wetlands,” “point source,” and “navigable waters.”

“It was not foreseen that the judiciary could eventually aid and abet the complete sacrificing of power by one of those two branches, effectively leaving a one-branch government where the founders intended three,” the plaintiffs’ legal brief stated. “When the Court goes too far in reading statutes as broadly assigning sweeping interpretive power to agencies, this allows Congress to give up power altogether and to stop the necessary work of revising and repealing statutes.

“Congress has proven itself either willing to give up those powers or unable to stop itself from doing so, preferring to ask the executive branch to reinterpret or reimagine statutes in ever more creative ways while sparing members of Congress the pain of responsibility for national policy,” the plaintiffs stated. “The Court should not countenance this upending of the constitutional order.”

Achieved a Limited Victory

Although the Supreme Court allowed Joe Robertson’s widow Carri to continue the case on his behalf, the Justices did not overturn his conviction, decide whether Robertson’s ditches should have been subjected to Section 404 permitting in the first place, or address the broader issues concerning the separation of powers raised by Robertson’s legal team.

The Court simply remanded the case to the Ninth Circuit for further consideration.

The Supreme Court’s decision, though limited, was a victory for the Robertsons and other property owners, says Tom Fitton, president of Judicial Watch.

“This is a victory against an overreaching government bureaucracy,” Fitton said. “The government should not be allowed to regulate every drop of water in America, and the Supreme Court was right to brush back the radical bureaucrats.”

Received Complete Vindication

Although the time Robertson was imprisoned can never be returned, his criminal record is now clean and his estate does not have to pay the $130,000 fine initially awarded the government.

The ruling was fair and long overdue, says Tony Francois, a PLF senior attorney who worked on behalf of the Robertsons.

“We are very pleased that the Ninth Circuit agreed that Joe’s convictions should be vacated, and very pleased for Carri, who will no longer have a $130,000 federal judgment hanging over her head,” Francois said in a statement.

“It has been an honor to represent Joe and now to be able to complete his vindication on behalf of his wife, Carri,” Francois said.

Duggan Flanakin (dflanakin@gmail.com) writes from Austin, Texas.

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