Robertson v. United States

Originally published at
Joseph Robertson dug ditches to collect water from a rivulet that ran through his private property. In the process some dirt got into the rivulet, which emptied into a local stream, which emptied into a state river, which entered a river that crossed state lines. The Army Corps of Engineers charged Robertson under the Clean Water Act (CWA) with criminal sanctions for failing to get a permit for the “dumping” of “dredge and fill” into interstate waters.

Joseph Robertson was a property owner in Montana who sometimes dug ditches from a rivulet to collect water into ponds on his property. In the course of that work, according to the Cato Institute description of the case, “some dirt got into the rivulet, which emptied into a local stream, which emptied into a state river, which entered a river that crossed state lines.” This led the Army Corps of Engineers to criminally charge Robertson with criminal sanctions for failing to get the appropriate permit for his actions under the Clean Water Act.

Robertson’s ponds hardly qualified as navigable waterways of interstate commerce, which is the general rationale that gives the federal government the constitutional authority to regulate such matters.  But the government’s theory of the case was so sweeping that Robertson’s manipulation of the dirt on his own property that may have eventually crossed state lines in a river justified a criminal prosecution. This is textbook overcriminalization.

Robertson was convicted, sentenced to 18 months in prison, and ordered to pay a $180,000 fine. He appealed his case all the way to the Supreme Court, challenging the overbroad reading of the Clean Water Act’s language. Sadly, Robertson passed away while his case was under review. The Supreme Court sent the case back to the appeals court, which eventually threw out his conviction and the fine.

You can read the Cato Institute’s amicus brief in support of Robertson here. You can also read an op-ed about the case written by one of Robertson’s attorneys in The Hill .