by Kevin Mooney, DC Clothesline:
An elderly veteran who ran a business supplying water to fight forest fires was prosecuted by the federal government and sent to prison for digging ponds on his own property, one of his lawyers says.
Joe Robertson, a Navy veteran from Montana, was 78 when he was convicted and sentenced to 18 months in federal prison and ordered to pay $130,000 in restitution through deductions from his Social Security checks.
Robertson, whose business supplied water trucks to Montana firefighters, dug a series of small ponds close to his home in 2013 and 2014. The site was a wooded area near a channel, a foot wide and a foot deep, with two to three garden hoses’ worth of flow, according to court documents.
The U.S. government prosecuted Robertson for digging in proximity to “navigable waters” without a permit, a violation of the Clean Water Act administered by the Environmental Protection Agency and the Army Corps of Engineers.
Tony Francois, a senior attorney with Pacific Legal Foundation, a nonprofit, public interest law firm specializing in property rights, described the events leading up to Robertson’s prosecution during a panel discussion Monday at The Heritage Foundation.
Also on the panel was Kevin Pierce, vice president of Hawkes Co., a Minnesota-based family business that harvests peat for golf course greens. Daren Bakst, Heritage’s senior research fellow for agriculture policy, was moderator of the event, called “Horror Stories of EPA and Corps Overreach under the Clean Water Act.”
Pacific Legal Foundation filed a petition on behalf of Robertson, asking the Supreme Court to review his case, which turns on the definition of “navigable waters.”
The Navy veteran argued that he didn’t violate the Clean Water Act because
digging the ponds did not discharge any soil to navigable waters, since the trickle in the channel didn’t constitute navigable waters.
The largest navigable body of water anywhere near the Robertson home is more than 40 miles away, Francois said.
Because Robertson lived in a wooded area that is “increasingly fire prone,” he was “concerned about the safety and vulnerability of his property,” Francois said. He built the ponds “with a view toward being well-prepared should a fire strike.”
The Supreme Court is expected to decide in April whether it will hear Robertson’s appeal.
Robertson, sentenced in 2016, completed his 18 months behind bars in late 2017.
He was still on parole for the next 20 months when he died March 18 at age 80 of natural causes, according to his widow.
Pacific Legal Foundation filed papers this week to substitute Robertson’s widow, Carri Robertson, as the petitioner in the appeal to the Supreme Court.
Another case Francois cited concerns a proposed road in Marquette County, Michigan. The project, known as CR-595, would shorten the travel time between a nickel mine and a refinery 22 miles away.
The only route now available to the mine, called Eagle Mine, is three times as long, Francois said. The nickel mine, currently the only one in the U.S., is expected to bring about $4 billion in economic activity to the county, according to Pacific Legal Foundation.
The Marquette County Road Commission’s CR-595 proposal called for a direct road from the mine to a refinery.