Trump should rescue 78-year-old Navy veteran that Obama put behind bars

In February, President Trump signed an executive order revoking the notorious, unconstitutional expansion of the Environmental Protection Agency’s authority, otherwise known as the “Waters of the United States” (WOTUS) rules promulgated under President Obama in August 2015. Those rules interpreted the Clean Water Act to give the agency authority to regulate every puddle of water on every farm or ranch anywhere if that puddle had even the remotest, most minuscule “nexus” with any “navigable waterway,” no matter how minimal that possible runoff may be or how far away that potentially navigable stream might be. 

A section of the president’s executive order instructed the EPA administrator and the attorney general to review all pending litigation under the WOTUS rules.

{mosads}Unfortunately, that action can have no effect on Clean Water Act cases already prosecuted by the EPA, such as what happened to Joe Robertson in federal district court in Montana. Robertson was prosecuted and convicted of violating the Clean Water Act as interpreted by the EPA, the Army Corps of Engineers and an Obama-appointed U.S. attorney. Robertson is now halfway through an 18-month sentence in a federal facility in Lakewood, Colo. (The facility is located about five miles from my home, but I am unable to visit him because prison rules bar Robertson from having visitors he did not know before his conviction.)

Western rancher and 78-year-old Navy veteran Joseph David Robertson’s modest 200-acre ranch is located in the mountains behind Basin, Mont., off Interstate 15 between Butte and Boulder. The property is 60 miles from the Jefferson River, the nearest river that might be considered a “navigable waterway” under a generous definition of the term. Nevertheless, the EPA and the Army Corps of Engineers claimed he had polluted the waterway by dredging and constructing a couple of ponds near his home to be used mainly for local firefighting.

Those EPA “WOTUS” rules were controversial from the beginning when published in draft in 2014. Thirty-one states sued to block the rules when first proposed, and 13 states later tried to persuade the EPA to delay the final rule’s implementation in August 2015. Pacific Legal Foundation attorneys Todd Gaziano and M. Reed Hopper called the rules “more EPA Overreach” in an Aug. 3, 2015, Forbes report on the egregious federal power grab. 

In June of 2015, the Nebraska attorney general put the matter in constitutional perspective, saying, “The EPA has redefined ‘waters of the U.S.’ in order to gain greater authority and power over private land.” Regrettably, the EPA proceeded to implement its notorious rules and then prosecuted landowners who ran afoul of the agency’s expansive interpretation of threats to clean water.

The EPA’s first effort at punishing Robertson ended in a hung jury, so Obama’s federal prosecutor moved the case to Missoula to get a conviction. Robertson had only an appointed public defender, who Robertson asserts provided an ineffective legal representation. For example, an independent expert analysis of the water runoff question done gratis by a retired EPA employee was barred from consideration as part of his sentencing report.

Robertson is attempting to appeal his conviction, but he is in poor health and his 18-month sentence likely would be completed before any appeal can be adjudicated. He may not survive long enough to see a higher federal court repudiate his unjust prosecution under an unconstitutional regulatory edict.

The decent and appropriate resolution for Joe Robertson’s unjust imprisonment caused by EPA arrogance is an immediate presidential commutation of his sentence to time served. He deserves a full pardon and an apology, but a commutation will at least give him his freedom. 

I am writing to Attorney General Jeff Sessions to request an expedited review of the case and timely action to recommend a commutation by President Trump. I hope others will join me in seeking some small token of justice for Joe Robertson.

Tom Tancredo represented Colorado’s 6th Congressional District from 1999 to 2009.

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