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Selkirk Mountain Real Estate

Joe Robertson Appeal Stalled

Joe has already served his full prison sentence and is currently back home in Montana.

Joe Robertson Appeal Stalled

Joe Robertson Appeal Stalled:

Waiting for a Ruling by the Supreme Court
in another Case on another Subject!

By Roger Roots

Navigating through federal law is sometimes more treacherous than negotiating the rapids of Montana’s most ferocious whitewater rivers.

Montana landowner Joe Robertson lives on forested acres near I-15 between Butte and Helena.  In 2016, Robertson was prosecuted and convicted (after an earlier trial ended in a hung jury) of polluting “waters of the United States” and damaging federal property.  His alleged crime: using an excavator to dig several small ponds on his property adjacent to public land.

Joe’s property is high in a bowl where spring mountain runoff occasionally sends a small flow of snowmelt down the mountain.  During much of the year, there is no stream whatsoever.

How could the digging of small ponds by Joe Robertson have ‘polluted the waters of the United States’?  The government’s theory is that the NATURAL DIRT disturbed by Joe in 2013 was a pollutant, and that such dirt may have found its way into creeks below—and then, many miles later, into the Jefferson River (which flows into the Missouri).  It is noteworthy that this entire area is a traditional mining corridor not far from Butte’s “richest hill on earth” which has been blasted, drilled and dredged for more than a century.


The government’s theory rests on a view of the Clean Water Act that is highly contested.  By most definitions, “waters of the United States” means lakes and rivers which are navigable.  This was the view of Justice Scalia in the Supreme Court’s 2006 Rapanos v. United States decision.  This is also the view of the Trump Administration.  According to this view, Joe Robertson could not have been convicted of polluting the waters of the United States.

A rival interpretation is that ‘waters of the United States’ can mean any water on the earth’s surface which might possibly flow into larger streams and rivers.  This interpretation was the interpretation of the “losing” opinion of the Rapanos 4-1-4 split decision, written by the four liberals on the Court.


Because the 2006 Rapanos decision was a 4-1-4 split among 9 justices, the four losing justices could argue that they “tied” with the four winning justices.  The outcome in Rapanos turned on the lone vote of Justice Anthony Kennedy—who agreed with Scalia and the conservatives that Mr. Rapanos could not be prosecuted for developing his Michigan wetland property but disagreed over legal definitions.  Kennedy’s stand-alone concurring opinion said that waters of the United States are those which have a “significant nexus” to navigable rivers.  Thus, “waters of the United States” can include wetlands which occasionally run off into larger streams—such as Joe Robertson’s ponds.  This was the view of the Obama Administration which prosecuted Joe Robertson in 2015.

A “concurring opinion” is a vote that agrees with the OUTCOME of the majority (or plurality) but has differing reasons for doing so.  For example, two judges on a 3-judge panel might agree that an inmate’s conviction should be overturned but disagree as to why.  (One judge might say the conviction must be overturned because of prosecutorial misconduct, while another judge might find no prosecutorial misconduct but say the conviction must be overturned due to insufficient evidence.)  What if a third judge feels the inmate’s conviction should be upheld, and dissents from both “winning” judges who themselves disagree with each other?  What really is the “rule” of such a case?

And how can 1 vote overrule 2 or more votes?  The Supreme Court, in a 1977 case called Marks v. United States, said that in such cases, lower courts must decipher the “narrowest grounds” upon which both the winning plurality and the concurrence(s) can be reconciled.  Of course, this can yield great confusion.


This problem is especially troubling when the Supreme Court splits 4-1-4.  How can one vote of Kennedy in Rapanos dominate all 8 others?

As it happens, the Supreme Court is poised to wade into these troubled waters (no pun intended) in a current pending case called Hughes v. United StatesHughes involves a sentencing question (not relevant here), which turns on the meaning of another sentencing decision called Freeman v. United States (2011). The Freeman decision was also split 4-1-4; and its lone concurring vote was cited as ‘the rule’ of Freeman by the 11th Circuit in Hughes.

Now the 9th Circuit has ordered that Joe Robertson’s pending motion for rehearing should be postponed until the Supreme Court releases its decision in Hughes.  (Joe has already served his full prison sentence and is currently back home in Montana where his legal problems have greatly hindered him and impacted his property.)

*Roger Roots is an attorney and writer who has authored an amicus curiae (friend of the court) brief for the Constitution Society supporting Joe Roberson’s appeal.


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5 Comments on Joe Robertson Appeal Stalled

  1. Please tell me what “land” the Federal Government may own according to the Constitution. Without land there is no water, so again, what does the Constitution say, and if you respond with some dribble about the “antiquities act” or so, show me the Amendment ratified according to article 5 of the Constitution that changed the current supreme law of the land. While your at it, find me the amendment IAW article 5, that took away gold & silver currency …

  2. what they are doing is Agenda 21 … and the effort to discourage people from wanting to be in areas NOT within the prescribed Agenda 21 map where people can live is the herding process they are using on people like this guy .

    • The people supporting this “herding” are more scary than Communists and Socialists. They are pure unadulterated authoritarians; they, upon discerning, people will not acquiesce to being “herded” would lief commit genocide with the maljustification that eugenics and global sustainability logically concludes a “culling” of those who won’t be “herded”.

      As evidence that Communism proposes the exact OPPOSITE of Agenda 21 I point to Communist Plank #9:

      “Combination of agriculture with manufacturing industries; [gradual abolition of the distinction between town and country by a more equable distribution of the population over the country].”

      Something is very very wrong in Human affairs in this time.

  3. Starting from the fact that Joe Robertson should have never been accused and imprisoned in the first place, We could ask ourselves just how long this kind of malicious persecution will be allowed to continue ? The Federal Court system has become a madhouse, the black robed arm of the fourth branch of our Govt – those corrupt and predatory Federal Agencies. As unpleasant and unsettling as it is to contemplate, these cavalier and aggressive agencies know that they can abuse with impunity, assured that the court will “Have their back” in any legal dispute. In truth, The Federal Culture has become a painting by Hieronymus Bosch, and I’d suggest the reader look up Bosch’s “Christ carrying the cross” to see who we are dealing with. Do you suppose we could argue fine points of law or expect any conscience or decency from these people? Should we allow ourselves to be sucked into this Psychopathy by giving credibility to their fantasies and arguing with them whether the earth is flat or round? Joe, a private citizen, was hauled into a federal court, with a Federal Judge, Federal prosecutors and accused by a Federal agency. In such an arena, sustaining the “Government Interest” will trump any consideration of right or wrong. We see this Federal war of conquest in operation all across the west, and being fought right now in the case of Ministerio Roca Solida vs US, a case of special poignancy in that the pastor, Victor Fuentes, escaped Castro’s Cuba only to find himself attacked by the government in the “Land of the free”. The solution to all this Federal insanity ? State and local authority. When a state Govt or County Sheriff – backed up by the County government and it’s citizens, can tell these madmen “NOT HERE”! power will be in the right hands.

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