Joe Robertson’s Clean Water Act case draws friends at Supreme Court

December 13, 2018 | By TONY FRANCOIS

This week six friend of the court briefs were filed asking the U.S. Supreme Court to hear Joe Robertson’s Clean Water Act case. Robertson, a 77-year-old Navy veteran in the small town of Basin, Montana, was unjustly convicted of Clean Water Act violations for digging firefighting ponds to protect his property.

The prosecution turned on the definition of “navigable waters,” even though Joe’s ponds are 40 miles away from the nearest navigable river. PLF has asked the Supreme Court to overturn Robertson’s conviction.

These supportive briefs represent a very good showing for Joe’s case and substantially increase the likelihood the court will hear the case.

Here are the highlights:

  • Recent PLF Supreme Court clients weigh in: Duarte Nursery, Hawkes Company, and Chantell and Michael Sackett filed a joint brief encouraging the court to take Joe’s case. The Sacketts and Hawkes were successful before the Supreme Court in opening courthouse doors to judicial review of EPA and U.S. Army Corps of Engineers enforcement and jurisdictional decisions under the Clean Water Act. Duarte Nursery was a successful party to the Supreme Court’s decision this year allowing legal challenges to EPA’s illegal 2015 navigable waters regulation to proceed in district courts around the country. They all argue that the court should hear the case to rule that only actually navigable rivers and lakes are regulated by the Clean Water Act.
  • The Cato Institute and the Center for Constitutional Jurisprudence asked the Supreme Court to hear Joe’s case and rule that expansive interpretation of the Clean Water Act violates the Constitution’s Commerce Clause.
  • The National Federation of Independent Business echoed Joe’s argument that expansive interpretations of the Clean Water Act are void for vagueness and that the court should take the case to resolve that question.
  • The National Association of Home Builders argues that the court needs to hear the case to provide better guidance on how lower courts should apply fractured Supreme Court decisions like Rapanos v. U.S., the 2006 decision that is currently the source of major confusion over the meaning of “navigable waters.”
  • And Judicial Watch filed a brief addressing the ongoing problem of judicial deference to agency interpretations of statutes.

The government will be filing its response to Joe’s petition in early January. Stay tuned for more updates.