78-Year-Old Veteran Sent to Prison, Fined $130K for Digging Ponds on Property Under Obama EPA Ruling
The Obama Justice Department prosecuted U.S. Navy veteran Joe Robertson for digging ponds on his Montana property to fight forest fires, resulting in the then-78-year-old going to federal prison for 18 months starting in 2016 and being fined $130,000, The Daily Signal reported.
The 9th U.S. Circuit of Appeals affirmed the ruling the following year, including the jail time and a requirement that the $130,000 be deducted from Robertson’s Social Security checks.
The appeals court denied a rehearing in July 2018.
Robertson, 80, died unexpectedly of a stroke in March of this year, while he was still on probation for the Clean Water Act conviction and his case was on appeal to the U.S. Supreme Court.
His widow, Carrie, has taken up his case, seeking to clear her husband’s name and reverse the fine, which is still in place as a lien against his estate.
The Pacific Legal Foundation, which represented Robertson and is now representing his wife, recounted the case began after the Environmental Protection Agency decided the Montanan was in violation of the Clean Water Act when he constructed small fire protection ponds fed by a narrow channel on his property.
“The EPA said the ditch was a federally protected commercial waterway under the Clean Water Act and required a federal permit — even though his land is 40 miles from the nearest navigable waterway,” the PLF said.
Robertson lived deep in the Montana woods at the edge of a national forest, which is an area increasingly prone to wildfires.
“Joe and his wife ran a fire fighting support truck business, and he knew that protecting his property depended on a better water supply,” the PLF said. “So in 2013 and 2014 he dug some small ponds in and around the channel, so that multiple water trucks could fill up.”
In 2015, the DOJ under President Barack Obama indicted Robertson on two counts of violating the Clean Water Act by interfering with the flow of the unnamed channel, ruling it was part of “navigable waters.”
The DOJ argued the series of ponds fell on both National Forest System Lands, which Robertson contested, and on private lands.
The 9th Circuit, in its decision, said, “In the process of creating these ponds, Robertson discharged dredged and fill material into the surrounding wetlands and an adjacent tributary, which flows to Cataract Creek. Cataract Creek is a tributary of the Boulder River, which in turn is a tributary of the Jefferson River — a traditionally navigable water of the United States.”
The Clean Water Act “prohibits the discharge of dredge or fill material into ‘navigable waters,’ unless authorized by a permit from the Secretary of the Army through the Army Corps of Engineer,” the court said.
The punishment for “knowingly” violating the law is a fine, imprisonment or both.
Robertson’s attorneys countered the definition of “navigable waters” is too vague, not giving their client any clear notice that he was potentially in violation of federal law.
We’d like to offer our congratulations to the federal government for imprisoning a 78-year-old Navy veteran for the crime of…
[checks notes]
…digging ponds on his own property@TonyFrancoisEsq @DailySignalhttps://t.co/3rqLowPGge pic.twitter.com/EECfHNXhsu
— Pacific Legal ?⚖️ (@PacificLegal) March 30, 2019
Having lost at the federal district court level and at the 9th Circuit, the PLF appealed its client’s case to the U.S. Supreme Court last November.
The high court granted Robertson’s petition for review earlier this month. It vacated the 9th Circuit’s ruling and has ordered the appeals court to determine whether Robertson’s estate can contest the fine.
PLF senior attorney Tony Francois wrote in The Hill that Robertson still owed much of the $130,000 fine at the time of his death.
Congrats to my @PacificLegal colleagues @MillerAppeals, @JeffreyWMcCoy, @ethanwb, and @TSnowball_Esq https://t.co/GkcKQPsTg3
— Tony Francois (@TonyFrancoisEsq) April 15, 2019
The PLF said in a statement following the April 15 ruling that “clearly the Justices felt the Ninth Circuit’s decision was erroneous, or they wouldn’t have granted Joe’s petition, or vacated the Ninth Circuit’s decision, after his untimely death.”
“The Supreme Court wants the Ninth Circuit to confirm whether Joe’s estate has a continuing right to challenge the government’s $130,000 fine,” it said. “The fine was bad enough before Joe died, but now the government can enforce it against his heirs.”
The Daily Signal reported the Trump administration has taken steps to withdraw the Obama-era rule and replace it with one that limits the reach of what’s defined as “navigable waters.”
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