Landowner Sentenced for CWA Violations

Wetlands Expert Claims No Waters of US Harmed by Landowner's Actions

Todd Neeley , DTN Staff Reporter
A Montana landowner was sentenced in U.S. District Court for the District of Montana in Missoula on Wednesday after years of legal battles on a variety of fronts with the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers. (Logo courtesy of EPA)

OMAHA (DTN) -- A Montana landowner was sentenced on Wednesday to 18 months in federal prison and ordered to pay $130,000 in restitution after a grand jury in April found him guilty on two counts of unauthorized discharge of pollutants into waters of the United States and one count of injury or depredation of United States property.

Joseph David Robertson, a Basin, Montana, landowner and 77-year-old war veteran, was sentenced in U.S. District Court for the District of Montana in Missoula on Wednesday after years of legal battles on a variety of fronts with the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers.

A wetlands scientist who offered to provide expert testimony at Robertson's sentencing, however, told DTN his offer was turned down even though he says he found no evidence of waters of the U.S. on Robertson's property.

Ray Kagel, owner/operator of Kagel Environmental, LLC, based in Idaho, told DTN he visited the property in question and completed an analysis. Kagel is a former Corps of Engineers wetlands scientist.

"Federal Judge (Donald) Molloy refused to see our report and refused Mr. Robertson's polite request for his sole expert witness to speak on his behalf," Kagel said to DTN following the verdict.

"His (Robertson's) public defender refused to even speak to me or accept my report. The EPA and DOJ (U.S. Department of Justice) attorney asked the judge to take Joe into custody immediately, and the public defender had no objection when asked by the judge. U.S. marshals handcuffed Joe and escorted him out of the courtroom..."

A grand jury indicted Robertson in May 2015 for allegedly violating the Clean Water Act by building nine ponds on two parcels of land near Basin, Montana -- one on Beaverhead-Deerlodge National Forest land and the other on adjacent private property. In filing charges, the U.S. government alleged Robertson had discharged dredged and fill material into a tributary stream and adjacent wetlands, without a federal permit. A jury found Robertson guilty on all charges in April 2016.

The CWA violation occurred, the government argued, when Robertson built the ponds directly in a stream and wetlands area. Government witnesses provided expert testimony during trial proving a so-called significant nexus existed between Robertson's property and waters of the U.S.

Kagel outlined his findings in an April letter to Robertson following the conviction, claiming he had found no evidence of waters of the U.S.

"KE (Kagel Environmental) found powerful evidence that the approximate one-tenth acre of total discharge into alleged wetlands associated with the nine small ponds is not waters of the U.S.," Kagel said in the letter to Robertson.

"KE's office research, two-day on-site field investigation, and boots-on-the-ground study of the project site resulted in a determination that the subject unnamed intermittent tributary lacks 'continuous surface hydrological connectivity' to Cataract Creek.

"Furthermore, KE also determined that it's virtually impossible for the relatively tiny total discharge of native soil that was placed into a wetland adjacent to the little headwater unnamed intermittent creek, would have a significant effect on the physical, chemical, and biological integrity of the Jefferson River located approximately 59.6 miles downstream of the nearest pond. Not only did KE professional wetland scientists fail to identify any federal jurisdiction of Section 404 of the Clean Water Act (i.e. no violation), we also failed to identify any significant nor measureable degradation/damage to public land resulting from the excavation of the several small ponds located adjacent to your (Mr. Robertson's) property."

Attempts to reach Robertson's public defender were unsuccessful.

Kagel told DTN Robertson suffers from post-traumatic stress disorder -- something Kagel said government prosecutors recognized in their recommendation for sentencing. Robertson could have faced 15 years in prison.

Todd Neeley can be reached at todd.neeley@dtn.com

Follow him on Twitter @toddneeleyDTN

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Todd Neeley