Joe Robertson

Joe Robertson points to one of the ponds he created outside Basin, Montana.

Several months after his death, the U.S. 9th Circuit Court of Appeals has vacated the sentence of a Basin man convicted of federal charges he polluted waters of the United States.

Joe Roberston was sentenced in July 2016 to 18 months in prison and restitution of $130,000 for digging ponds on his property and National Forest land above Basin. He was 80 when he died in March while on probation and appealing his conviction.

Robinson's case was centered on what qualifies as "waters of the U.S.," as defined by the Clean Water Act. The ponds Robertson dug to provide water for his horses and a fire tender truck had what the Environmental Protection Agency and the U.S. Army Corps of Engineers said — and a jury agreed — was a "significant nexus" to traditional navigable waters that were polluted by his actions.

The ponds above the small town of Basin ran into Cataract Creek and then the Boulder River and finally the Jefferson River, which the government said has been documented as navigable going back to the Lewis and Clark expedition.

The "significant nexus" definition came out of a split 2016 U.S. Supreme Court decision that created confusion and led the EPA to propose the Clean Water Rule in an attempt to clarify what falls under its jurisdiction. Since then, landowners like Robertson have clashed with the federal government over the definition.

Tony Francois, the lead attorney with Pacific Legal Foundation, which represented Robertson, said vacating a sentence is common when a person appealing their conviction dies. 

"The normal way the federal courts deal with cases where one of the parties dies is to generally stop dealing with the merits of the case and determine, based on what stage the case is at, procedurally what should be done about the death of one of the parties," Francois said. "Because (the person who died) hasn't had the final opportunity to contest the case and appeal the conviction, the justice system views that as falling short of the due process we're all entitled to."

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After Robertson died, Francois was able to have his wife, Carri, take his place in the appeal.

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"If his conviction had remained final, that would have actually been a lien against (Robertson's) estate that his heirs, including Carri, would have been liable for," Francois said. "We argued that she had adequate interest in challenging his conviction even though he had passed away because his estate would still be liable."

The high court did a summary disposition in April, where they took the case but didn't get briefs or hear oral arguments, and instead decided to vacate the 9th Circuit's original 2017 decision to uphold the conviction, and sent it back for further proceedings to reflect Robertson's death. After the sentence was vacated July 10, Carri Robertson no longer owes $130,000 in restitution. The court also agreed to return $1,250 Robertson had already paid.

"She's very happy to have that burden removed, and it's very satisfying to have been able to help her accomplish that," Francois said.

The vacating of Robertson's sentence is not something that sets a precedent in other Waters of the U.S. cases. 

"This certainly doesn't address the underlying Clean Water Act issues that Joe was challenging before he passed away," Francois said.

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