Montana Veteran Convicted Over Pond
… Here We Go Again!
By Shari Dovale
You might remember that Andy Johnson, the rancher from Wyoming, just won his case this week against the Environmental Protection Agency (EPA).
That battle concerned their environmentally friendly stock pond on their private property. The EPA demanded that he remove the pond and threatened him with fines of $37,500 per day if he did not comply. The case was settled this week and the Johnson Family are happy.
He is not the only citizen that the EPA has targeted. More cases are coming to light on the extreme overreach of this organization.
Disabled Navy veteran Joseph Robertson, 77, of Basin, Montana, and his wife, Carri, own about 200 acres of beautiful Montana mountain land. They homestead the White Pine Lode patented mining claim that he owns, and live “green” as Robertson is quick to explain. “I’ve worked over 30 years for mining corporations and I know what contamination is.”
They lease a portion of it to the Helena Veteran’s Support group. They offer camping, hiking and more to veterans and their families. “There is a great veteran support group here,” Robertson tells Redoubt News.
They, also, own a large Freight-liner water tender that they loan to the volunteer fire department, and share with their neighbors. Additionally, they have an outfitted fire truck, including foam, hose reels, etc. that they use with the volunteer fire department.
They love their community and are active in helping, and sharing with, their neighbors.
Due to multiple fires in the area over the past several years, Robertson has maintained and improved his property by building stock ponds for his animals and fire prevention for his and the neighbor properties.
But, he has also scrapped with the government, by way of the Forest Service and the EPA, for years. The harassment by the government began over a decade ago, complaining that he was not allowed to repair the road that leads to his private property. This came to a head in 2013 when they charged this disabled veteran for violation of the Clean Water Act.
The government contends that nine stock ponds affect approximately one-tenth (1/10) of an acre of discharged pollutants into the Jefferson River, nearly 60 miles away.
The first trial was held last year and ended in a hung jury. It would probably have concluded in favor of Mr. Robertson had the federal defender presented all of the evidence. Yet, the defense, Michael Donahoe, refused to call any expert witnesses.
The Director of Veterans Affairs for Senator Steve Daines, Denny Lenoir, was in the courtroom during the trial. Donahoe seemed upset when Robertson would consult with Lenoir. “Why are you making this political?” he complained.
Donahoe’s group had paid for, and received, an environmental impact report detailing how Robertson did NOT violate the law, yet he treated it as if it was not accurate. This report outlines the fact that there is no stream from the Robertson pond to any tributary. Donahoe’s response was that the EPA was the expert testimony, and he would rely on their report.
Donahoe has a good bio with criminal defense. Why would he choose not to use his own expert witness, and report? He chose instead to claim the EPA was the only expert testimony needed in this case.
There is a second, nearly identical report, completed by Kagel Environmental, LLC, included here. Documented by Ray Kagel, a former federal regulator, he shows that Robertson actually improved the land and could not have contaminated any US waters.
The report outlines that the alleged wetlands “is not waters of the U.S.” and it is virtually impossible for them have a “significant effect on the physical, chemical, and biological integrity of the Jefferson River.”
Kagel spoke with Robertson’s public defender, offering to testify on Robertson’s behalf. Donahoe declined the offer and stated he did not wish to use any expert testimony. Kagel completed the report, pro-bono, for the Robertson’s anyway. Thank you Ray Kagel!
Judge Donald W. Molloy retired in 2011. Molloy was the subject of a complaint letter by Robertson some years ago, so it is surprising that, knowing there is bad blood between them, he came out of retirement specifically to hear this case. However, seeing the way this case was handled, maybe it is not so surprising after all.
A week after the first trial ended in a hung jury, Donahoe asked the Robertsons to travel to his office in Helena. Upon the return to their home, they caught two EPA agents attempting to drain their pond, trying to make a stream flow a mile down the canyon to Cataract Creek. It was a blatant attempt to manufacture evidence to support the government case. The timing does seem suspect, as they do not travel off of their property often. It just so happened that they were called away, by their attorney, during this event.
When this information was brought to the attention of Judge Molloy, the Judge did not see a problem with this manufactured evidence. In fact, this ‘evidence’ was allowed at the second trial. Robertson tells me that even Judge Molloy questioned Donahoe as to why he was not objecting to this evidence being presented. Still, Donahoe did not object.
The second trial was completed last month. During the trial, Judge Molloy seemed upset that Robertson wanted his service dog with him. Robertson was required by his attorney to get documentation that authorized him to have the dog, Sasha, in the courtroom.
The second trial ended in a conviction for this 77 year old Navy veteran. He now faces prison and hundreds of thousands in fines. This will amount to life in prison and forfeiture of his property.
“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.
“Today’s guilty verdict demonstrates that polluters will be held accountable for their actions.” said Jeffrey Martinez, Special Agent in Charge of EPA’s criminal enforcement program in Montana.
Mr. Robertson did not harm the environment, he actually improved it. However, the government did not control these actions, and therefore, seems intent on sending that message. Robertson, who served his country honorably, including tours in Vietnam, faces losing everything he built over his lifetime.
Robertson could now be sentenced up to 15 years in prison and a $250,000 fine. It would appear that their Federal Public Defender showed that he knows who he really works for, and it was not for Mr. Robertson. His oath to defend Robertson seemed not as strong as the oath to defend the government. In accordance with this stance, there currently is no appeal expected.
Sentencing is scheduled for July 20, 2016.
Updated: John Jacob Schmidt interviews Joseph Robertson!
Kris Ann Hall Talks about Joe’s case:
Edited to fix broken link. 01/24/2019