Today the Ninth Circuit is hearing oral argument in U.S. v. Robertson. Joseph Robertson is presently incarcerated in federal prison in Colorado, serving an 18 month sentence for building two ponds on land owned by the Forest Service in Montana. He is 78 years old. One of the counts for which Mr. Robertson was imprisoned by the federal government was that he built the ponds without a permit from the Army Corps of Engineers, in alleged violation of the Clean Water Act. The ponds were built on a small forest stream, Cataract Creek, at a location 60 miles from the nearest actually navigable water body, the Jefferson River.
On appeal from his conviction, Robertson is arguing that the Clean Water Act’s definition of “navigable water,” as interpreted by Supreme Court Justice Anthony Kennedy in what most courts consider to be the controlling view of the matter, is unconstitutionally vague. The gist of this argument is that the government may not impose punishment on citizens for alleged legal violations unless the law provides adequate notice of its requirements and prohibitions.
Robertson makes a good point when it comes to the ambiguity of the Clean Water Act. Judge Kelly of the Eighth Circuit Court of Appeals recently stated:
“This is a unique aspect of the CWA; most laws do not require the hiring of expert consultants to determine if they even apply to you or your property.”
“Lower courts and regulated parties will now have to feel their way on a case-by-case basis.”
The late Justice Scalia, for the unanimous Court in Sackett in 2012, alluded directly to the Chief Justice’s lament in Rapanos by describing the Sacketts as “interested parties feeling their way.” And Justice Alito concurred in Sackett to say that the “reach of the Clean Water Act is notoriously unclear.” And Justice Kennedy, in the Court’s recent unanimous decision in Army Corps of Engineers v. Hawkes Company, concurred to endorse Justice Alito’s concern about the Act’s ambiguity in Sackett, and then added:
“The Act . . . continues to raise troubling questions regarding the Government’s power to cast doubt on the full use and enjoyment of private property throughout the Nation.”
Ambiguous indeed, given that Justice Kennedy is commenting on the ambiguity of a legal definition of “navigable waters” that he himself authored in Rapanos.