The Hill: It’s time for the Supreme Court to end regulators’ abuse of Clean Water Act rule

This article was originally published by The Hill on April 11, 2019.

For years, federal regulators harassed U.S. Navy veteran Joe Robertson, charging him with violating the Clean Water Act for digging ponds on private property and subjecting him to ongoing legal proceedings. They even put him in prison for a year and a half.

Robertson, 80, died from a stroke on March 18, which you might think would end the government’s vendetta against him. Guess again. The feds are lining up to target his widow — unless the Supreme Court steps in to correct the government’s injustice against the Robertsons.

This week, the court will decide whether to review Robertson’s 2016 conviction. As a matter of justice, the court should allow his widow, Carrie, to take his place in the appeal.

The Robertsons’ ordeal began when he dug water supply ponds for fire prevention in a clearing in the woods near his home in Montana.

For this act of service to his family and community, Robertson faced federal prosecution. The government claimed Robertson’s pond construction violated the Clean Water Act, which regulates navigable waterways.

The problem with that argument: the Robertsons’ property is 40 miles from the nearest navigable waters. You might think that “navigable” has a specific meaning, suggesting a waterway that allows the passage of a boat or other watercraft. Sounds like common sense, right?

But in the complex and absurdly overreaching definition used by government bureaucrats, “navigable” describes virtually any body of water within the United States, no matter how small, thus giving them nearly limitless regulatory authority over private property.

Sadly, this dubious notion comes from the federal courts, which in earlier decisions allowed the Environmental Protection Agency to regulate not just navigable rivers as indicated by the statute, but also remote ponds and small rivulets.

Such vague standards are an invitation to government abuse, which is what happened to Robertson. He was prosecuted, and his first trial was declared a mistrial. In his second trial, Robertson was sentenced to 18 months in federal prison and ordered to pay $130,000 to the U.S Forest Service.

He finished his prison sentence over a year ago, but when he passed away last month, he still owed most of the $130,000. In a cruel twist, the government could collect the money from Robertson’s estate. This would impoverish his widow.

Unless the Supreme Court steps in. Robertson’s attorneys with Pacific Legal Foundation have asked the court to allow Carrie Robertson to take her husband’s place in the case and to review and overturn his convictions.

For the court to do so would be a step in the direction of justice. But just as importantly, the court’s decision would clarify the incoherence of the government’s definition of “navigable waters,” while serving to restrain regulatory agencies from further vindictive actions against property owners.

The reality is that, despite what regulators appear to believe, the federal government does not have the authority to regulate every drop of water in the United States. The current enforcement regime has resulted in confusion on the part of property owners and abusive actions on the part of regulators.

Enough is enough. The Supreme Court needs to clarify the situation by taking Robertson’s case, reversing his unjust conviction, and clarifying that “navigable” refers to waterways that are passable by floating boats, and not nameless trickles in the woods.

Tony Francois is a senior attorney with Pacific Legal Foundation, which litigates nationwide to achieve court victories enforcing the Constitution’s guarantee of individual liberty. Follow him on Twitter @TonyFrancoisEsq.