(Note: this has been edited for clarification and detail. 3/2/17)
GREAT NEWS!!! Today, President Trump has issued an executive order to "pave the way" to overturn the Obama Administration's "Waters of the US" (WOTUS) rule.
Tragic news :( Montana resident Joe Robertson is currently in federal PRISON for “violating” the same WOTUS rule that is soon to be a non-rule. In an outrageous miscarriage of justice, last year the WOTUS rule was used to incarcerate this disabled, 78-year old Navy veteran.
Joe's “crime”? He created a series of small ponds near his isolated mountain home which, by the way, is located about 60 miles from the nearest actual “Water of the United States”. The alleged pollution was not established by any evidence at the trial.
Joe didn’t harm the environment, he helped it. Joe didn’t impact a “water of the U.S.” in any way. But that didn’t stop a ridiculously heavy handed EPA and a notorious environmental activist federal judge from using the WOTUS “non-rule” to throw poor old Joe into the clink.
Now, six months into an 18-month sentence to federal prison, in addition to tens of thousands of dollars in fines, Joe continues to suffer from declining health. , confusion, and depression. He has reportedly had two strokes since being sentenced last summer. He was ripped from his VA medical treatment and separated from his service dog Sasha. He was transferred to numerous prisons throughout the west, thrown in solitary confinement, stripped of his veteran’s pension and Social Security benefits, unlawfully deprived of his right to be present when sensitive legal mail from his lawyer was opened, and barred from having visits from family and friends.
President Trump rightly called WOTUS "one of the worst examples of federal regulation." He continued:
it has truly run amok, and is one of the rules most strongly opposed by farmers, ranchers and agricultural workers all across our land. It's prohibiting them from being allowed to do what they're supposed to be doing. It's been a disaster.
WOTUS led to numerous Americans being needlessly hassled and persecuted by the federal government. Trump mentioned the case of Andy Johnson, whose case was represented by the Pacific Legal Foundation and successfully overturned:
“In one case in a Wyoming, a rancher was fined $37,000 a day by the EPA for digging a small watering hole for his cattle. His land. These abuses were, and are, why such incredible opposition to this rule from the hundreds of organizations took place in all 50 states.”
On the back of today's Executive Order, Joe - and everyone else persecuted under this rule - deserves an immediate, unconditional federal pardon, and compensation for wrongful imprisonment.
Timeline of Events
In an egregious and horrific misuse of regulatory and judicial power against a private citizen, Joe Robertson found himself charged in May 2015 with two criminal violations of the EPA’s Clean Water Act, for “polluting waters of the United States” and one of “malicious mischief” relating to “injury/depredation of property of the United States”.
Robertson’s alleged crime was violating the Clean Water Act, because he “knowingly discharged and caused to be discharged a pollutant, namely dredged or fill material” into a “water of the United States” without an EPA permit. Yet the said water was a seasonally flowing tributary located miles from the nearest navigable waterway. They also indicted him for damaging “National Forest Service Lands”; he had a mining claim in this area.
The first trial, in October 2015, resulted in a mistrial as the jury was unable to reach a unanimous verdict. At a second trial in April 2016, Robertson was convicted and is currently serving his prison sentence.
No expert testimony was allowed in Joe’s defense during the trials. The U.S. government prosecutors did utilize their own experts to manufacture the case against Robertson. According to the Justice Department:
One of the central legal issues at trial was whether the waters polluted by Robertson were “waters of the United States” for purposes of the Clean Water Act. The United States introduced evidence and expert testimony from the Army Corps of Engineers and the EPA that the stream and wetlands had a significant nexus to traditional navigable waters, and therefore were “waters of the United States.”
Yet the case put forth by the U.S. government against Robertson seems to have numerous problems. Two highly qualified individuals, Ray Kagel (a former federal regulator) and Susan Kagel (a wetlands biologist), visited Mr. Robertson’s property in April 2016 to ascertain whether the allegations had any merit. Here is the detailed report they prepared (pro bono), and these are a few of their key points:
- Areas such as yours are absent of federally mapped wetlands and absent of federally mapped hydric soils.
- Kegel Environmental LLC [KE] observed that the pond construction, either within the narrow channel of the intermittent creek or adjacent wetland, did not appear to have required a permit since the work was accomplished via non-regulated excavation.
- KE observed and photo-documented that the unnamed intermittent creek lacks a continuous surface hydrological connection to a traditionally navigable water of the U.S. It’s KE’s understanding that Justice Scalia, writing for the plurality in the Supreme Court's Rapanos decision, stipulated that intermittent and ephemeral streams are not "waters of the United States" and therefore are not-regulated under Section 404 of the Clean Water Act.
- It’s implausible that the discharge of dredged or fill material could have a “significant effect on the physical, chemical, and biological integrity of the nearest TNW” - the Jefferson River, located about 60 miles downstream of Pond #9.
- The creation of Ponds #1, #2, and #3, which we understand are located on USFS lands, have actually enhanced the aquatic resources relative to the intermittent channel and adjacent wetlands.
In other words, by any objective standard, Robertson a) was not causing any pollution, and b) the water into which he was disposing of his inert material was not navigable, and therefore not part of the federal waters of the U.S.
Others have pointed out that no stream or creek can be seen on any published map of the region. As written in the Montana Standard, the general area around Robertson’s property is hardly pristine; it has been explored and mined for decades:
The land above Basin has been mined for more than a century, and evidence of such is almost anywhere you look. There are tailings on the shore of Cataract Creek just 100 yards downstream from a stump marking where the unnamed tributary Robertson [allegedly] polluted dives under the road and flows into the creek.
The application of the WOTUS rule to Robertson’s activities seems to be fundamentally unreasonable and unjust, along with a severely disproportionate punishment. That’s why Robertson and anyone else convicted under this reprehensible rule deserve to be pardoned and compensated.