By Kevin Mooney | July 16, 2019
At the time of his death four months ago, Joe Robertson was supposed to be on parole for another 20 months. (Photo courtesy Joe Robertson's family)
After being convicted, fined, and imprisoned under the Clean Water Act for digging ponds to protect his Montana home from forest fires, Joe Robertson had his name cleared last week.
The 9th U.S. Circuit Court of Appeals vacated Robertson’s conviction in a legal victory that comes posthumously, since the Navy veteran died four months ago at age 80.
Robertson was 78 when the federal prosecution led to his prison sentence in 2016; he completed his 18 months behind bars in late 2017. At the time of his death March 18, he was supposed to be on parole for another 20 months.
Robertson also had been ordered to pay $130,000 in restitution through deductions from his Social Security checks.
The 9th Circuit initially upheld a lower court ruling against Robertson in November 2017 and denied him a rehearing in July 2018. But last November, he petitioned the U.S. Supreme Court to review his case.
On April 15, the high court responded by vacating the 9th Circuit ruling and sending the case back to that appeals court for further review.
Robertson’s widow, Carrie, had stepped in to carry on his legal battle. The Pacific Legal Foundation, a nonprofit, public interest law firm specializing in property rights, represented the Robertsons in their legal dispute with federal officials.
“We are very pleased that the 9th Circuit agreed that Joe’s convictions should be vacated and very pleased for Carrie, who will no longer have a $130,000 federal judgment hanging over her head,” Tony Francois, a senior attorney at Pacific Legal Foundation, said in a press release.
Prior to his conviction, Robertson operated a business that supplied water trucks to Montana firefighters.
In 2013 and 2014, Robertson had dug a series of ponds close to an unnamed channel near his home, to store water in case of fire. The foot-wide, foot-deep channel carried the equivalent of two to three garden hoses of water flow, his petition says.
The Environmental Protection Agency claimed the ditch was a federally protected waterway under the Clean Water Act, and Robertson needed a federal permit to dig the ponds.
But the Montana man argued that he didn’t violate the federal law because digging the ponds did not discharge any soil into “navigable waters,” since the flow in the channel didn’t amount to that. The ponds are more than 40 miles away from “the nearest actual navigable water body,” the Jefferson River, his petition argues.
With the 9th Circuit’s action July 10, Robertson’s case has been settled in his favor.
The federal government will return to his widow the $1,250 in restitution that Robertson already had paid, according to Pacific Legal Foundation’s press release.
“It has been an honor to represent Joe and now to be able to complete his vindication on behalf of his wife, Carrie,” Francois said.