Trickle or torrent, all property owners are haunted by waters

On Saturday, the Wall Street Journal published my op-ed about Navy veteran Joe Robertson, who went to federal prison for digging ponds high in the Montana mountains. Here’s the article’s opening:

“I am haunted by waters,” wrote Norman Maclean in “A River Runs Through It,” his 1976 novel about growing up in a family of Montana fly fishermen. Joe Robertson was haunted by waters of a different kind—the kind that can land someone in federal prison without warning. These are “navigable waters,” which carry on their current the full force of federal power to bankrupt and jail people who meddle with them. The problem is that no one knows what they are.

Joe certainly didn’t know, and he paid a heavy price for it. Joe owned some land up in the Montana mountains, an alpine hillside peppered with trees. A river did not run through it, but a trickle did. That trickle amounted to the combined force of two garden hoses. That is the “navigable water” that landed Joe in prison.

Joe dug a few ponds in the path of that trickle as a protection against wildfire. He didn’t get the federal government’s permission for his ponds because he had no idea that federal regulators would show up and deem his trickle to be a “navigable water” subject to the Clean Water Act. Joe’s little ponds were considered an unlawful “discharge” into that navigable water.

Joe spent eighteen months in prison for his ponds, and the government slapped him with a $130,000 fine. Joe’s case went to the Ninth Circuit Court of Appeals, which affirmed his conviction, and then we carried his case on to the Supreme Court. One question we raised was whether the phrase “navigable waters” was so vague as to violate due process. As the op-ed puts it, “If a law is  so poorly written that no one can understand it, then that law doesn’t give fair notice to the people who must follow it and is ripe for abuse by its enforcers.” Such was the case for Joe.

Weeks before the Supreme Court was set to review the petition, Joe passed away. He left behind his wife, Carrie, who may now have to take up the cross of Joe’s $130,000 restitution order. But Joe’s death does not spell death for his case. As the op-ed concluded:

One way or another, the high court will eventually have to answer the question that nagged Joe Roberston to his death: What is a navigable water? When that time comes, the justices should hold that the meaning of “navigable waters” is too vague to enforce in a nation committed to due process and the rule of law. No one should face federal prison for a pond because a trickle runs through it.

Saddled with a law none of us understand, all property owners are haunted by waters. Trickle or torrent, liability and prison could lurk beneath the surface. For Joe, his mountain trickle haunted him to his grave. But the haunting did not die with him; the specter continues to haunt lands across the United States, and will continue to do so until the Supreme Court holds the Clean Water Act unconstitutional as written.