78-Year-Old Ex-Navy Montana Veteran Sentenced To 18 Months In Federal Prison For Digging Several Ponds On His Own Property

April 1, 2019






Montana News Disclaimer:  One of the most sacred principles in the American criminal and civil justice system, holding that a defendant is innocent until proven guilty.

In other words, the prosecution  or Plaintiff's must prove, beyond a reasonable doubt, each essential element of the crime or civil allegations charged or leveled.  Until then the defendant or respondent is considered innocent of the charges or civil allegations

by: Donald Cyphers Investigative reporter

Syndicated by: Montana News

All Montana landowners should be worried, If the government did this to Navy Veteran Joe Robertson, 78-years-old they can an will do it to other Montana Landowners. Robertson is the victim and was handed down an 18 month Federal prison term and has to pay a $130,000 in restitution to the government for digging several ponds on his property that he OWNS.


Montana man Joseph David Robertson who is a Navy veteran has been wrapped up in a court battle with the government for creating a couple of ponds for forest firefighters to use to help put out wildfires.


The government says that Navy Veteran Joseph David Robertson who is considered elderly (78)-years-old, owned a fire fighting support truck business.


This business was located deep in the woods in the State of Montana.Joseph David Robertson was arrested and charged for digging a couple of water channels that was 40 miles from the Jefferson River.


The EPA considers the Jefferson River as a navigable waterway.The crime that the United States charged Robertson with was for digging a channel in navigable waters without obtaining a Clean Water Act permit. Moreover, causing damage to federal property.


A quick summary of events:In a District Court case, the Court denied Robertson's motions for acquittal under a criminal Rule 29(c) and in that trial that ended in a mistrial after the jury came back as a hung jury.The overzealous United States the retried Robertson again.


In this retrial, the prosecution was able to obtain a conviction, and the court handed down a federal prison term of 19 months and leveled a $130,000 fine.The 9th circuit Court affirmed, stating that the Justice Kennedy's concurrence rules proof of navigable water in Rapanos V. Unites States, 547 U.S. 715 (2006) and that when the court's denial of Rule 29(c) motions in a first trial ending in a mistrial when it is not appeal-able.


The problem here, in this case, is that the EPA's definition of "Navigable waters," is inclusive and unclear.The Rapanos decision is very legally fractured in the intent and regulatory definition of "navigable waters" and is considered plurality instead of concurrence.


Meanwhile, the Trump Administration has announced that it's intent will be to repeal the 2016 Rule and adopt a new regulatory definition of "navigable waters."


This repeal is a good thing for all Montana Landowners and especially the victim and now convicted Joseph David Robertson.The Court continues to assert their jurisdiction even to the outer boundaries of what is called a watershed over minute channels across various regulated entities step without the public noticing.Here are the facts of what took place.


Robertson dug a foot-wide channel at the top of a watershed which was more than 40 miles from an actual legal navigable river.This channel he created and dug to help forest firefighter have easier quicker access to water for their firefighting duties.


The unnamed channel is about a foot or so wide and the same depth wise. This channel runs through a clearing in the Montana woods with about two or three garden hose stream flow (psi).This channel runs downhill discontinuously for about half of a mile that drains into the Cataract Creek. This water then flows down a further two miles to meet up with the Boulder River near Basin, Montana.


From Basin Montana, the Boulder River then flows for about 40 miles from the east alongside Interstate 15 to Boulder, Montana, and then heads south still along the side of the State highway 69 which meets up to the Jefferson River which is near Cardwell, Montana.


The elderly Navy Veteran Joe Robertson lived on the property that he owned along with his wife, Carri.


The featured property is called the White Pine Lode, and they also owned the Manhattan Lode but lost it during a tax sale in the year of 2013.


There is some record at various times that Robertson held the mineral rights associated with the Mohawk un-patented mining claim that sits somewhere between his White Pine Lode and the Manhattan Lode, which he owned at the time of digging the channel.


Joseph David Robertson dug the ponds without approval from the Forest Service that disturbed the surface estate of the Mohawk Lode, all without the permission from the Army Corps under the Clean Water Act.

This is what all the Boo Hoo is all about.


Did the Government overstep its authority using a vague navigable waters definition? Probably but you the reader can make your mind up and decide for yourself.


"MISSOULA – Following a four day federal trial, a Montana jury found Joseph David Robertson, 78, guilty on two counts of unauthorized discharge of pollutants into waters of the United States and one count of injury or depredation of United States property.


Robertson was indicted by a grand jury in May of 2015 as a result of illegal ponds he built on two parcels of land near Basin, Montana, one on Beaverhead-Deerlodge National Forest land and the other on adjacent private property.  The ponds resulted in the discharge of dredged and fill material into a tributary stream and adjacent wetlands and caused widespread damage to both properties.


At trial, the government introduced evidence that in October of 2013, a United States Forest Service (USFS) Special Agent visited the National Forest property to determine whether Robertson had complied with previously issued conditions of probation for misdemeanor violations of USFS regulations. 


The Agent testified at trial that during the site visit, she observed multiple ponds dug into an existing stream on both USFS and adjacent private property.


During a subsequent site visit in November of 2013, Robertson admitted to Environmental Protection Agency (EPA) and USFS Criminal Special Agents that he had performed the work on the National Forest property using an excavator.  State and federal officials visited the site again in May of 2014, and observed that Robertson had done additional work.  The site was now approximately 1.2 acres in size, and extended beyond the National Forest property to a private property that he did not own. 


The work consisted of nine ponds of varying sizes, including some as large as approximately 4900 square feet that were placed directly in the stream and wetlands area.  Unconsolidated dredged material from the ponds had been used to create the berms and had been placed in and around the stream and wetlands.  Robertson admitted that he had completed the additional work. 


Additional investigation revealed that Robertson continued to construct ponds on the USFS property after May of 2014, despite being told repeatedly that he had no legal right to do so.


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.”  Fishery biologists from the Montana Fish, Wildlife and Parks (FWP) and the USFS testified that this headwater and wetland complex provided critical support to trout in downstream rivers and fisheries, including the Boulder and Jefferson Rivers.


“This verdict sends a message that the United States will not stand by and allow streams and wetlands of the United States to be polluted, or National Forest lands to be injured,” said United States Attorney for the District of Montana Mike Cotter.  “Clean and healthy waterways are a critical resource for all forms of life and are a Montana value.  It is imperative that we protect this increasingly scarce resource.  The collaborative efforts of multiple state and federal agencies in cases like this help ensure that individuals who seek to degrade it will be held accountable.”


“Rivers, streams and wetlands provide essential habitat for fish and wildlife which must be protected, and EPA and its law enforcement partners are committed to protecting these invaluable natural assets as well as the communities around them,” said Jeffrey Martinez, Special Agent in Charge of EPA’s criminal enforcement program in Montana. 


“The defendant’s illegal activity took place not only on public land but also on private property he didn’t own.  Today’s guilty verdict demonstrates that polluters will be held accountable for their actions."


The case was prosecuted by Assistant U.S. Attorney Bryan Whittaker and Special Assistant U.S. Attorney Eric Nelson from the United States Environmental Protection Agency. "


This article was published by: Donald Cyphers Investigative reporter License# USPA-ID-US/VI-01/29995

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