The latest Supreme Court case dealing with alleged violations of Section 404 of the Clean Water Act involved the conviction, upheld by the Ninth Circuit Court of Appeals, of the late Joseph Robertson.

His crime? Building a firebreak ditch and some ponds on his Montana property.

Robertson, arrested at age 77, was targeted because the government maintains that his protection ponds and narrow ditch located in the northern Montana woods have become increasingly prone to destructive, life-threatening fires. But the government’s claim is suspect.

The Robertsons know a lot about how to fight fires. In fact, they operated a small firefighting support truck business. Knowing the fire danger, they built several ponds so they could fill up multiple water trucks to fight wildfires. But the EPA seized upon his firefighting efforts and claimed he had violated Section 404 of the Clean Water Act. The EPA called this tiny ditch a federally protected commercial waterway that required a federal permit — even though the Robertsons’ land was 40 miles from the nearest navigable waterway.

Robertson was charged with failing to obtain a Section 404 permit from the U.S. Army Corps of Engineers and sent to prison for 18 months and fined $130,000. His conviction and fine were later upheld by the Ninth Circuit. Robertson appealed, but tragically passed away from a stroke while still on parole just a month before the Supreme Court issued its final ruling in the case.

The good news is that the Court did vacate the judgment against Robertson, did substitute his widow Carri Robertson as petitioner in his stead, and did remand the case to the Ninth Circuit for consideration of the question whether the case is moot.

The bad news is that the Court (1) did not issue a recorded vote, (2) did not address larger issues raised by petitioners, including whether this small ditch and ponds should be subject to Section 404 permitting, and (3) did not even provide full assurance that the $130,000 fine against the Robertsons was being voided.

As a result, Robertson’s attorneys have asked the government whether they agree that his convictions and the restitution award should be abated. To date, the government has not responded. There remains the possibility that the government will attempt to keep the money already collected and even try to collect the other $128,000 from Robertson’s estate. Depending on how the Ninth Circuit handles the matter on remand, the case could be brought back to the Supreme Court to review the underlying convictions and associated Clean Water Act issues.

As counsel of record Anthony L. Francois of Pacific Legal Foundation explained, it is common practice that when a criminal defendant dies while his case is on appeal, the appellate court abates the conviction and orders the trial court to dismiss the indictment. So it was not surprising that the Supreme Court issued a “Grand, Vacate, and Remand” summary disposition. But it was disappointing that the Court did not address any of the legal issues raised by the Robertsons.

The Ninth Circuit, Francois explained, should act to abate any further obligation by Robertson’s estate or his widow to pay restitution, which would prevent the government from trying to collect the remaining $128,000. However, under Ninth Circuit law, the estate would not be entitled to reimbursement of the $2,000 or so that had been taken out of his social security checks and paid on the restitution award.

The Pacific Legal Foundation, together with Judicial Watch and the Allied Educational Foundation (AEF), had asked the Supreme Court to review the Ninth Circuit ruling that had upheld Robertson’s conviction on grounds that the decision “affirmed illegal agency actions in prosecuting Joseph Robertson based on a misreading of federal law.”

The Court, petitioners added, “should take this opportunity to correct the confusion in overbroad interpretations of the Clean Water Act, which have led to unjust prosecutions and federal intrusions into both state authority and individual liberty.”

Judicial Watch asserted in its filing that the ditches the Robertsons dug “sat on what a federal agency defines as wetlands and were situated on or near a small downhill water flow of about three garden hoses in volume.” Their attorneys noted that Robertson was not engaged in manufacturing or any other industrial activity that would release chemicals or waste into the water, but that “under the Clean Water Act even turning the soil with a shovel can be considered to be releasing a ‘pollutant’ into water.”

Judicial Watch and AEF further argued that the issue was larger than Robertson’s personal plight – that it also involved the separation of powers among Congress, the Executive Branch, and the Supreme Court, which they added has itself introduced confusion into the issues of “adjacent wetlands,” “point source,” and “navigable waters.” The Robertson case, and others like it, belong, said petitioners, with state governments, not bureaucratic Washington, DC.

According to the brief, Congress has been all too willing to forego its Constitutional duty by deferring to Executive Department agencies:

It was not foreseen that the judiciary could eventually aid and abet the complete sacrificing of power by one of those two branches, effectively leaving a one-branch government where the founders intended three. When the Court goes too far in reading statutes as broadly assigning sweeping interpretive power to agencies, this allows Congress to give up power altogether and to stop the necessary work of revising and repealing statutes. Congress has proven itself either willing to give up those powers or unable to stop itself from doing so, preferring to ask the executive branch to reinterpret or reimagine statutes in ever more creative ways while sparing members of Congress the pain of responsibility for national policy. The Court should not countenance this upending of the constitutional order.

Specifically, the Court did not address any of the three major issues raised in Pacific Legal Foundation’s petition for writ of certiorari:

  1. Is the Clean Water Act term “navigable waters” void for its vagueness, as some justices have suggested?
  2. Should the Court revisit its fractured decision in the Rapanos case to clearly and authoritatively interpret “navigable waters” under the Clean Water Act?
  3. Whether a defendant who is retried and convicted for an offense after a hung jury may appeal, after final judgment, the erroneous denial of his motion for judgment of acquittal during the first trial (given that the Ninth Circuit insisted that appellate courts may not review such denials)?

Despite the Court’s avoidance of these larger issues, Judicial Watch President Tom Fitton announced that the April 15 action to vacate Robertson’s conviction was “a victory against an overreaching government bureaucracy.” Fitton added that “the government should not be allowed to regulate every drop of water in America, and the Supreme Court was right to brush back the radical bureaucrats.”

Francois noted that there are several other Section 404 cases working their way through the federal courts. In an Idaho case, a district court ruled in favor of the EPA that a vacant lot in a built-out subdivision is really a federally protected wetland. That case first will go to the Ninth Circuit Court, whose record of upholding federal agency actions is well known.

In another California case, the U.S. Army is prosecuting a civil case against Jack LaPlant for farming without a Clean Water Act permit, despite the fact that the Act and its implementing regulations state that no permit is needed for normal farming practices.


  • Duggan Flanakin

    Duggan Flanakin is the Director of Policy Research at the Committee For A Constructive Tomorrow. A former Senior Fellow with the Texas Public Policy Foundation, Mr. Flanakin authored definitive works on the creation of the Texas Commission on Environmental Quality and on environmental education in Texas. A brief history of his multifaceted career appears in his book, "Infinite Galaxies: Poems from the Dugout."