Ninth Circuit poses tough questions to government in Robertson argument

August 29, 2017 | By TONY FRANCOIS

Today’s Ninth Circuit oral argument in U.S. v. Robertson produced an interesting series of exchanges between the Justice Department appellate attorney and Ninth Circuit Judges Gould and McKeown. A key issue in the case, as I laid out in this morning’s post, is whether the Clean Water Act’s counter-intuitive definition of “navigable water” affords regulated parties with constitutionally adequate fair notice of what the law requires and prohibits.

Oddly, Mr. Robertson’s attorney made no mention of this point in his argument, but Judge Gould pressed the government’s attorney on it repeatedly. By my notes and rewatching of the argument video (See below, from 14:14 through 28:57), Judge Gould asked about the issue four separate times, and it was the only thing that he asked about.

The crux of Judge Gould’s concern about fair notice appears to be that instead of providing a clear authoritative interpretation of the Clean Water Act’s phrase “navigable waters” on which the public can rely, the Supreme Court issued a fractured decision in Rapanos in 2006 which even judges have difficulty applying, through a complex interpretive method called a Marks analysis.

Here is one way that Judge Gould put the issue:

I just have the problem in a criminal case as to whether with that sort of convoluted analysis under the Marks theory and sufficiently complex [sic] that our court took an en banc in Davis to have another run at it, whether a citizen is supposed to know that, and go to prison if they don’t know that.

This came after Judge McKeown had pointed out to the Justice Department attorney:

It kind of goes back to the basic question of notice. If you can’t even figure out which parts of the Venn Diagram fit together amongst all these lawyers and judges, how does a regular citizen figure it out?

The government’s basic argument in response was that agency officials had told Robertson he needed a permit to build the ponds for which he now languishes in prison, but that did not seem to satisfy Judge Gould. From the tone of Judge McKeown’s observation on the issue, Mr. Robertson just may have a panel majority to reverse his conviction.

A decision in Robertson’s case should come down in the next two to four months.