Vindication for Joe: Ninth Circuit vacates late Montanan’s Clean Water Act conviction

Today, the Ninth Circuit vindicated Joe Robertson.

Joe, a late Navy veteran was sentenced to 18 months in prison for allegedly violating the Clean Water Act. The Ninth Circuit vacated Joe’s criminal conviction after a Supreme Court order in April of this year granted, vacated, and remanded Mr. Robertson’s case.

In 2015, the federal government indicted Joe, then in his mid-70s, with two counts of violating the Clean Water Act. At the time, Joe lived deep in the Montana woods at the edge of a national forest. As with many rural areas in the West, Joe’s home had become increasingly prone to destructive, life-threatening fires.

He and his now-widow, Carrie, ran a fire-fighting support truck business. To help fight wildfires, they needed water. So in 2013 and 2014 Joe dug some small ponds in and around a small, unnamed channel near his home, to allow multiple water trucks to get in and fill up. The ponds slowly filled up, and then the water flowed out the bottom one and rejoined the channel.

The channel is small, carrying only two to three garden hoses of flow. It flows downhill a half a mile until it meets a creek, which flows a couple of miles to the Boulder River. From there, the Boulder River runs 40 miles until it meets the Jefferson River, which is the river Lewis and Clark ascended in 1805 in their search for a navigable water route to the Pacific. Despite being 40 miles away from any river that can actually carry a boat, the federal government claimed Joe was guilty of discharging a pollutant into a “navigable water.”

Joe’s first trial ended in a hung jury. The government decided to retry Joe and, unfortunately, his second trial ended in conviction. In addition to the prison sentence, the court ordered Joe to pay $130,000 of restitution. Joe’s punishment resulted from his alleged violation of a vague law that many lawyers and judges struggle to understand.

The Clean Water Act was a set of amendments, passed in 1972, to the Federal Water Pollution Control Act of 1948. The Act regulates what can and cannot go into “navigable waters” which is defined in the Act as “Waters of the United States.” If those terms seem vague to you, you are not alone. After 46 years of litigation, there is still no answer about what is covered by the Clean Water Act.

Even the Supreme Court has had a hard time answering this question. In 2006, PLF argued Rapanos v. United States. The Supreme Court heard the case in an attempt to clarify what is covered by the Clean Water Act. However, five Justices were unable to agree on a definition of “navigable waters.” Instead, four Justices had one definition, four Justices had a different definition, and Justice Kennedy provided a third approach. Chief Justice Roberts lamented this split, saying that courts and regulated people would “have to feel their way on a case-by-case basis.”

Nearly a decade and a half later, Joe’s case provided an opportunity to clarify the meaning of the Clean Water Act. PLF took over Joe’s case after an unsuccessful appeal. In November of 2018, PLF petitioned the Supreme Court, asking it to finally provide some clarity to the meaning of the Clean Water Act. Many organizations, business owners, and individuals recognized the importance of the case, and asked the Supreme Court to hear the case.

Regrettably, Joe passed away in March, while his petition to the Supreme Court was still pending. PLF argued that the Supreme Court should still hear the case, because Joe’s conviction required him to pay $130,000. That obligation to pay would pass along to his estate, depriving Carrie and his other heirs of their inheritance. Joe’s conviction was based on an incorrect interpretation of the Clean Water Act, and his widow should not suffer because her husband died before the Supreme Court could hear the case.

The Supreme Court partially agreed. It ordered the Ninth Circuit to decide what effect Joe’s death had on the case. PLF filed a motion asking the Ninth Circuit to vacate Joe’s conviction, abate any obligation to pay the restitution, and order the government to pay back the few thousand dollars Joe had already paid. Today, the Ninth Circuit granted everything PLF asked for.

PLF and Carrie are delighted by the order. Joe’s name is officially cleared, and Carrie will not have to pay tens of thousands of dollars to the United States government. Joe is no longer tarnished as a felon for building small firefighting ponds near his home in Montana.

But all is not perfect. Joe still had to serve 18 months in prison, because the Clean Water Act is so vague, even legal experts do not know what it means. Unfortunately, there are other Joe Robertson’s out there whom the government will seek to punish for doing ordinary work on their own land.

Fortunately, one man stood up to the federal government and won this round. But the war against government abuse wages on. PLF fought for Joe, and will continue to fight for others.