Kagel Environmental Explains EPA vs Robertson

Kagel Environmental Explains the EPA and the Robertson Case

In an exclusive interview with Redoubt News, Ray Kagel, of Kagel Environmental, LLC, tells us why he performed a Pro Bono study for Joe Robertson.

***UPDATE***

This story has been held back for several weeks at the request of Ray Kagel. His reasoning has been that he has been working to secure an attorney (pro bono) for Joe.

He was in contact with Katten Muchin Rosenman, LLP over the course of the last month. They have repeated the request to keep this story quiet while they determined if they were willing to help Joe.

The finally got back in touch with Ray yesterday, and they are still making excuses. They do not want to commit to helping Joe, but they sure seem to want this story buried.

It is time to get Joe some help!

Ray Kagel has a long list of credentials. He began in the US Army Corps of Engineers in the late 1980’s. With them for 12 years, he worked throughout the country, in three different districts, including Philadelphia, Omaha, and Walla Walla.

Prior to leaving the Corps, he was the final expert, or Point Of Contact (POC) for making determinations on jurisdiction under the Clean Water Act for 404 permits, for the State of Idaho. In the event that something was controversial, particularly complex, or the site was going to be the subject of litigation, the Corps, and the Environmental Protection Agency (EPA) depended on Kagel as the expert government witness for making the final determination for what was a regulated wetland, or a water of the United States.

He was, also, an instructor, teaching wetland delineation and identification courses. When he left the Corps, he was the Senior Regulatory Project Manager and Enforcement Officer and a Specialist in wetlands identification.

He has testified in cases all over the country. Jack Barron, a property owner from Priest Lake, Idaho, was charged by the EPA with violating the Clean Water Act. Kagel testified on his behalf, which resulted in Barron’s acquittal of criminal charges in 2010. More recently, Kagel assisted in the defense of Andy Johnson in Wyoming.

Ray Kagel is an expert that has proven that he really knows what he is talking about.

Which is why the EPA doesn’t seem to like him.

And, could be, why Mike Donahoe, the public defender in the Joe Robertson case in Montana, chose not to use Kagel’s testimony to defend his client.

Kagel first heard about Joe Robertson after the conviction in the second trial. Calling Donahoe directly, Kagel was rebuffed by the defense attorney and told he was not needed. Kagel felt there was a severe lack of compassion for Mr. Robertson by this attorney, so he chose to contact Robertson directly.

“I just couldn’t imagine a nearly 78 year old guy facing 15 years in prison,” Kagel tells us. “I wanted to see how bad it was. The Public Defender wouldn’t volunteer any information about the case. He wouldn’t volunteer the severity of the environmental impact, or how large the alleged violation was, or anything.“

He offered to travel to Montana, conduct a study of the environmental impact, and the charges against Robertson, all at no cost to the disabled veteran. Completely pro bono, Kagel did warn Robertson that the study could result in favor of the EPA. Robertson was willing to take that chance, as he still didn’t believe that he had done anything wrong.

“We are scientists, not politicians. We just report our findings.” Kagel explains.

Kagel, along with his business partner and wife, Dr. Susan Kagel, spent a weekend on Joe Robertson’s mountain. “We didn’t see any evidence of what would be considered measurable environmental degradation, or damage, whatsoever.”

“We also determined, in our professional opinion,” he further explains, “that the area in which he built these little ponds are not subject to the ‘Clean Water Act’, and don’t even require a 404 permit.”

When the size of the ‘impact’ is so small, about a tenth of an acre total for all nine stock ponds, and the fact that they were stock ponds, there is no requirement for 404 permits, or the need to compensate under the Clean Water Act.

In 2006, The Supreme Court ruled, and Justice Scalia wrote, that intermittent waters are not waters of the United States, so they’re not covered and they are not protected. But in addition, “It’s our understanding that Justice Scalia ruled for the plurality,” Kagel clarifies, “that in order to be a jurisdictional water of the U.S., there must be a continuous surface hydrological connection to a traditionally navigable water of the U.S., in this case it’s the Jefferson River.”

In Joe Robertson’s case, Kagel found that the tiny unnamed intermittent tributary channel on his land does NOT have a continuous surface connection, because the little tributary actually goes underground for a distance of close to a hundred feet (84′ to be precise).

On the surface above the nearly 100 feet of subterranean intermittent flow, there is no evidence of a distinct channel, no bed or banks, and clearly no evidence of an ordinary high water mark which is a benchmark whereby the Corps of Engineers and EPA take their jurisdiction on stream channels.

“That’s probably why the Supreme Court emphasized that there must be a surface hydrological connection,” Kagel continues. “We found that there are two distinct facts that preclude the government from having Section 404 Clean Water Act jurisdiction in Joe’s case.”

Justice Kennedy concurred, saying that in order to be covered, the water must have a significant nexus, or relationship, to a navigable water. This means that it must have a significant effect on the physical, chemical and biological integrity of the nearest traditionally navigable water, which in this case is almost 60 miles away, the Jefferson River.

“So, if Mr. Robertson put some dirt or sand in the creek, for it to have a significant nexus, according to Justice Kennedy of the Supreme Court,” Kagel clarifies, “that means that little pollutant, that dirt, would have to have a significant effect on all 3 things: physical, chemical and biological integrity of the Jefferson River 60 miles away.”

“That would be impossible. It is not even plausible.”

We asked Mr. Kagel how this could be happening to Mr. Robertson, given the strict guidelines of the Army Corps of Engineers. They “ignore their own guidelines all the time,” he tells us. “And the other thing is, they gave this case over to the EPA. The EPA is really the ‘Enforcement Arm’ of the Clean Water Act.”

“The EPA is notorious for being overreaching and untruthful,” he continues. “In my experience, the EPA has been unjustified in how harshly they try and prosecute alleged violators.”

Kagel is clear, “I believe this man is being wronged by the government.”

Robertson’s motive is also important. He was not trying to make a profit on anything. He didn’t want to fill wetlands to make a parking lot for Walmart. He wanted some fire protection. He wanted an area where he could feed his livestock. This was not a commercial, or financial undertaking, where he was going to profit by it.

“We think [Robertson] enhanced the area. It provided protections in the future. You know, from erosion, and stream bed sedimentation, head cutting, providing wildlife habitat and open waters stuff. Just all kinds of benefits.“

So, if Mr. Robertson did nothing wrong and actually enhanced the area, why is the EPA, trying to persecute this man? Why is his Federal Public Defender not giving him a reasonable defense? Why did the Judge come out of retirement just to hear this case?

Why is this 77-year-old disabled veteran facing a virtual life sentence and loss of his property to the United States Federal Government?

I think there are too many questions left to be answered. It sounds like it may be time to follow the money.

By Shari Dovale