A Navy Veteran Went to Prison for Digging Ponds in the Mountains The Supreme Court can remedy the injustice done by the EPA’s unclear ‘navigable waters’ rule.The Supreme Court can remedy the injustice done by the EPA’s unclear ‘navigable waters’ rule. By Ethan Blevins
https://www.wsj.com/articles/a-navy-veteran-went-to-prison-for-digging-ponds-in-the-mountains-11556317175
“I am haunted by waters,” wrote Norman Maclean in “A River Runs Through It,” his 1976 novel about growing up in a family of Montana fly fishermen. Joe Robertson was haunted by waters of a different kind—the kind that can land someone in federal prison without warning. These are “navigable waters,” which carry on their current the full force of federal power to bankrupt and jail people who meddle with them. The problem is that no one knows what they are.
Robertson, a Navy veteran who died in March at 80, spent 18 months in prison for getting the definition of “navigable waters” wrong. The land he owned in the Montana mountains was more than 40 miles from the nearest genuinely navigable river, but a trickle ran through it: the combined force of two garden hoses meandering down the slope in a channel about a foot deep and a foot wide.
Before he died, Robertson and his wife, Carrie, dug ponds in the path of their modest mountain trickle. The Environmental Protection Agency declared it a “navigable water” subject to the Clean Water Act and prosecuted him for “discharging” pollutants without a permit. He was found guilty in 2016. In addition to his 18 months in prison, Robertson was ordered to pay a $130,000 fine.
With the help of the Pacific Legal Foundation, Robertson petitioned the Supreme Court, claiming that the reach of the Clean Water Act is so vague as to violate constitutional due process. If a law is so poorly written that no one can understand it, then that law doesn’t give fair notice to the people who must follow it and is ripe for abuse by its enforcers.
The justices granted Robertson’s petition in April, sending it back to the Ninth U.S. Circuit Court of Appeals to determine what should happen next in light of his death. Depending on what the Ninth Circuit does, the Supreme Court may yet address the “navigable waters” puzzle that led to a man jailed and scourged for digging a few ponds in the mountains.
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