Feds Jailed and Fined Husband for Digging Ponds on Own Land; Widow Seeks Relief

May 30, 2019 Updated: May 31, 2019

Lawyers for a recently deceased Montana man’s estate say, despite his death, they may yet have a chance to challenge his federal convictions for digging ponds on his property without the government’s permission.

“Congress hasn’t authorized the agencies to tramp around on people’s property just because there is a little water on it,” senior attorney Tony Francois of the Pacific Legal Foundation told The Epoch Times.

Nor has it authorized the agencies to put people “in jail for acting to protect their property,” said Francois, who represents the estate.

Property owners have long been angered by what they consider to be the federal government’s heavy-handed regulatory approach to making rules about bodies of water on private lands.

The government claims the right to regulate even tiny bodies of water on private property under the “navigable waters rule” under the Clean Water Act (CWA), which gave the government authority to regulate interstate commerce by prohibiting discharges into the nation’s “navigable waters.” The thinking was that the CWA applied to a body of water if it could be used to transport goods from one state to another.

But the Environmental Protection Agency (EPA) and the Army Corps of Engineers have tried to augment their regulatory authority by defining “navigable waters” in a way critics say is overbroad. Critics say small pools of water that can’t be navigated at all have wrongly come under the regulatory purview of both agencies.

U.S. Navy veteran Joseph D. Robertson languished in prison for a year and a half for digging fire protection ponds near his home outside Basin, Montana, without federal Clean Water Act permits. He used to operate a business that supplied water trucks to fire-fighting agencies. Robertson was also fined $130,000. In November 2018, he asked the Supreme Court to look at his conviction after it was upheld by the 9th Circuit Court of Appeals.

Anthony Francois, lawyer representing the estate of John Robertson and his wife Carrie. (Courtesy Pacific Legal Foundation)

Robertson unexpectedly died on March 18 at age 78, but on April 15, the Supreme Court quietly granted Robertson’s petition without even proceeding to the oral argument phase. The high court vacated the judgment of the 9th Circuit, remanding the case to the circuit court to consider whether the case is moot at this point. Weeks before that, the Supreme Court agreed to substitute the petitioner’s wife and representative of his estate, Carri Robertson, as petitioner in place of Robertson.

“While far from a done deal, the Supreme Court’s order to send the case back to the 9th Circuit is a big win for” the Robertson family, according to Francois.

“The High Court’s decision came via summary disposition, which means it did not issue a written opinion. But, clearly, the justices felt the 9th Circuit’s decision was erroneous, or they wouldn’t have granted Joe’s petition, or vacated the 9th Circuit’s decision, after his untimely death,” Francois said.

The legal issue is whether the estate has a continuing right to fight the $130,000 fine, which the lawyers describe as exorbitant, and which can now be enforced against Robertson’s heirs.

But whether the issue gets a new hearing before the Supreme Court depends on what happens in the case before then.

Francois said in coming days he will file a motion in the circuit court to have the convictions of his client vacated and the fine abated. When a person convicted of a crime dies without the appeal process having completely run its course, the conviction is normally vacated.

But it is unclear what position the government will take. Even if the convictions are dismissed, the fine could remain, in which case the controversy may yet find its way back to the Supreme Court, Francois explained.

The estate paid about $1,250 of the fine so far, he said. Francois said he will move that the fine be vacated and the funds paid be refunded to the estate.

Francois said he would like the opportunity to argue about the facts of the case.

The place where Robertson built his ponds were very close to his house and there is some ambiguity about whether the property belongs to the federal government, he said.

Robertson built the ponds in a clearing, using earth-moving equipment to capture the trickle of water from a nearby rivulet, he said.

The government claimed the trickle could be regulated as navigable waters, even though it is 40 miles upstream from the nearest navigable river, the Jefferson River, he said.

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