Joe Robertson just wanted to protect his property in the Montana woods from the increasing risk of devastating fires. But when Joe built small fire protection ponds and narrow ditch near his land, the federal government criminally prosecuted and convicted him. 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 77-year-old Navy veteran was sentenced to 18 months in prison and fined $130,000, a conviction upheld by the Ninth Circuit Court of Appeals. Joe asked the U.S. Supreme Court to overturn his conviction because nobody should have to face prison for incorrectly guessing what the government thinks is navigable. The Supreme Court granted Joe’s petition, vacated the Ninth Circuit’s ruling, and on subsequent consideration, the Ninth Circuit threw out his unconstitutional conviction and reversed the impoverishing fine.
A veteran of the U.S. Navy, Joe Robertson lived deep in the Montana woods at the edge of a national forest, an area increasingly prone to destructive, life-threatening fires. The only available water supply to fight fires near his property is the couple of garden hoses of flow in a foot-wide, foot-deep nameless channel that flows through a clearing near his home. Joe and his wife ran a fire fighting support truck business, and he knew that protecting his property depended on a better water supply. So in 2013 and 2014 he dug some small ponds in and around the channel, so that multiple water trucks could fill up.
Then, the EPA showed up and claimed that the foot-wide, foot-deep nameless channel is a federally protected “navigable water,” even though it is more than 40 miles from the nearest river that is actually navigable. EPA said Joe needed permission from the Army Corps of Engineers to dig the ponds. The federal government criminally prosecuted him, and at age 77 he was sent to prison for 18 months and fined $130,000, a conviction upheld by the Ninth Circuit Court of Appeals.
Joe asked the U.S. Supreme Court to overturn his conviction because the Clean Water Act’s failure to adequately define “navigable waters” is unconstitutional. No reasonable person would think that a narrow ditch you could step over with a normal stride is a federally protected commercial waterway.
Sadly, Joe passed away unexpectedly in March 2019, but PLF asked that Joe’s wife Carri be allowed to stand in his shoes to finish the effort to clear his name, overturn his unconstitutional conviction, and reverse the impoverishing fine.
On April 15, 2019, the Supreme Court granted Joe’s petition, vacated the Ninth Circuit’s ruling, and ordered the Ninth Circuit confirm whether Joe’s estate can still contest the fine.
On July 10, the Ninth Circuit vacated the conviction and fine, plus returned $1,250 in restitution, which Joe had already paid, to Carri.