Ninth Circuit hears appeal from elderly man jailed for building ponds
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.
learn more about
United States v. Robertson
The Environmental Protection Agency and the U.S. Army Corps of Engineers prosecuted Joseph Robertson for allegedly polluting waters of the United States as a result of a series of ponds he built on land above the small town of Basin, Montana. The prosecution turned on a definition of “waters of the United States” that included land 60 miles away from the nearest navigable river. A jury agreed with this definition, finding the ponds had a “significant nexus” to the river, and convicted Robertson. As amicus, PLF supports Robertson’s appeal, arguing that the court should apply a narrower definition of “waters of the United States” that would exclude the ponds.Read more
What to read next
This past week Cato Institute, Southeastern Legal Foundation, and the NFIB Small Business Legal Center filed amicus briefs supporting our Petition for Writ of Certiorari in the Ganson v. City of Marathon regulatory takings case. … ›
California has now rescinded the state’s onerous “certificate of authenticity” requirement for the sale of autographed books. Hear directly from Bill and case attorney Anastasia Boden about the impact of this victory for freedom, common sense, and Bill’s right to be an upstanding small business owner.
One of the most fundamental rights of American citizens is the right to seek redress from illegal government action in a court of law. But the federal government has an arsenal of weapons it wields to deny or curtail this right. Nowhere is this more prevalent than in the government’s attempts to stifle landowner suits challenging federal agency action under the Clean Water Act.