MISSOULA – A 77-year-old Basin man whose case attracted attention from anti-government groups was sentenced Wednesday in Missoula federal court to 18 months in prison for water pollution.
U.S. District Court Judge Donald Molloy said after Joseph David Robertson is released from custody, he will be under supervision with certain conditions for three more years, and must pay almost $130,000 in restitution to the U.S. Forest Service to restore the damage caused by the ponds, several of which were on government property.
About 50 members of the Oath Keepers protested outside U.S. District Court in Missoula, claiming Robertson was a victim of federal government overreach. Robertson carried a copy of the U.S. Constitution in his back pocket as he walked into court Wednesday, a gift from a member of the Oath Keepers.
Robertson had run afoul of the U.S. Environmental Protection Agency and the Army Corps of Engineers for discharging dredged and fill material when he was digging a series of ponds on land north of Basin.
Since discovering the ponds in 2013, officials had informed Robertson he was breaking the law and needed to stop digging them, consult with experts and acquire a permit. Instead, Robertson continued to build, saying the ponds are used in part to water his horses, but primarily to fight wildfires in the area.
“Why do we get punished for protecting our community? How did all our laws get turned around like this?” he said.
Bryan Whittaker, one of the federal prosecutors on the case, said the people who came to support Robertson had been brought there under false pretenses. While Robertson continues to claim, and is involved in ongoing litigation, that the private property some of his ponds were built on belongs to him, it was sold to another person at a sheriff’s sale before he dug the pits.
“They’ve been played like a piano,” Whittaker said. “Mr. Robertson will say whatever he wants to get what’s best for him.”
The comment evoked calls of “liar” from the audience. Molloy singled one member of the crowd who was particularly vocal, and after a back and forth, ordered that she be removed from the courtroom. Another member was later removed for scoffing at comments made by a prosecutor.
Whittaker said since his conviction, Robertson had made a comment in a radio interview that he “wouldn’t allow” federal officials onto the land to reclaim the damage from the ponds. The prosecutor said he took the comment as a threat.
Robertson said all he had meant by the statement was that he intending to dig up the road with an excavator to prevent officials from approaching.
“They can BS but the truth is I wouldn’t hurt anyone,” he said.
Robertson’s federal public defense attorney, Michael Donahoe, acknowledged there had been some bumps in the road between him and his client, but asked that the judge be lenient.
“I would ask that the court be generous,” Donahoe said in his sentencing recommendation. “He’s just a man who is a property owner. He just wants to enjoy his property in peace.”
Just before sentencing him, Molloy said Robertson has repeatedly ignored court orders and convictions issued in other legal matters that have brought him before state and federal judges, as well as warnings from federal officials that he acquire a 404 permit from the Corps of Engineers, required for any activity that will result in discharge or placement of dredged or fill material into waters of the U.S.
Molloy said given those facts, he did not believe a probation sentence was appropriate.
“Mr. Robertson has repeatedly demonstrated that he has no respect for the law,” Molloy said. “It might be a different story if Mr. Robertson had heeded what he was told.”
As part of his three-year supervised release after the 18 months incarceration, Molloy said Robertson must attend mental health and substance abuse treatment, and is barred from consuming alcohol or entering into bars. As a convicted felon, Robertson is also banned from owning firearms.
Molloy also imposed $129,933.50 in restitution to the U.S. Forest Service Robertson will have to pay to restore the ecosystem damaged by his ponds.
Robertson said he intends to appeal the case.
During opening statements, Molloy said it is difficult to determine how the phrase “waters of the United States” in the Clean Water Act should be interpreted, saying the U.S. Supreme Court most recently offered a fractured decision with no majority agreeing on a definition or test. Without clear guidance, Molloy said the legal issue raised in cases like Robertson’s was “significant and perplexing.”
In a concurring opinion written in that 2006 decision, Justice Anthony Kennedy had said no continuous surface connection was necessary to deem there to be an ecosystem nexus, splitting from the four-judge plurality that only continuous waters met the definition. It was under Kennedy’s assessment of a nexus that a jury convicted Robertson in April. During the trial, the EPA testified that the ponds were a “significant nexus” to navigable waters, running from a tributary into the nearby Cataract Creek, and ultimately into the Boulder and then Jefferson rivers.
Prosecutors asked for Robertson, who had been released until sentencing, to be taken into custody to begin serving his prison sentence immediately. After Donahoe did not object, Molloy ordered it done.
In the hours before the sentencing, a group of Oath Keepers and other supporters of Robertson, gathered in front of the federal courthouse in Missoula.
Alan Wright of Townsend said he didn’t know anything about Robertson’s case until he saw a story in the newspaper around a month ago. He said he felt he needed to come to Missoula on Wednesday to show his support.
“I just thought about it and I said, "Wow, how can this guy be imprisoned?'” he said. “How many laws can we endure? We’ve gone from people with rights to people with privileges.”
Wright and other members of the Oath Keepers and their supporters said they hoped that the protest held outside the federal courthouse would draw attention to another example of what they view as government overreach, as well as convince the judge to take a second look at some of the claims made by Robertson.
While members of the Oath Keepers have been known to show up heavily armed at rallies or protests, none of the people who came to support Robertson on Wednesday were carrying firearms.
Steve Putnam and his wife Donna came to Missoula from their home in Pasco, Wash. to show support for Robertson.
Putnam said he’s attended several Oath Keeper rallies in the past, including three in Portland, Ore. and several at a memorial on the highway outside Burns, Ore. where LaVoy Finicum was killed by law enforcement in a standoff following the armed occupation of the Malheur National Wildlife refuge.
“We’re just standing up for people’s rights,” Putnam said, holding a black flag with Finicum’s brand imprinted in white. “(Robertson) should never have been brought to court.”
Putnam said in the spring, an election was held in Oregon to recall a county judge, Steve Grasty, who had opposed the occupation of the refuge. The recall attempt failed.
“Somebody should shoot that guy,” his wife Donna said.
Jason Van Tatenhove, a Eureka-area man who serves as the national media director for the Oath Keepers, indicated he had doubts about the performance of Robertson’s federal public defense attorney, Michael Donahoe, saying he had “refused” to push for certain issues in the case, including getting an independent assessment of the water system around the ponds, admitted into evidence.
“It sure seems that he’s taking orders from someone who doesn't have Joe’s best interests in mind,” Van Tatenhove said. “(The report) blows away the entire narrative that has been set up.”
That report, written after the trial by former Corps of Engineers and EPA employee Ray Kagel, found “no measurable or quantitative adverse impacts to the aquatic ecosystem.” Kagel, who runs a wetlands and wildlife consulting firm in Idaho decided to produce a pro-bono report after the conviction countering claims made by the EPA after hearing about Robertson’s case.
While some of the Oath Keepers and other Robertson supporters stayed outside, around 30 filed into the courtroom for the sentencing hearing. Just before the judge entered, the group recited the Lord’s Prayer.
The trial in April where Robertson had been convicted was the second on his charges. His first trial, held in the fall, had ended in a hung jury.
Robertson, a Navy veteran with PTSD, said he was grateful for the show of support from the people who had turned up to watch his hearing.
“I wish I knew we had brothers like this at the first trial,” he said. “They beat me up so bad I was back in the hospital.”
Following the first trial, Robertson said he was ordered to go through a psychiatric evaluation to determine if he was fit to stand trial.
“They wanted me to be deemed incompetent. They didn’t want this,” he said.
Robertson said that a week after that trial, he caught representatives from the EPA on his property draining one of the ponds.
Multiple times he was approached with plea agreement offers, but Robertson said he doesn’t think he has done anything wrong and refused to accept them.
“Donahoe said you’re a veteran, Molloy’s a veteran, he will cut you a deal,” Robertson said. “You know where I told him to put that.”
As she left the courtroom with Robertson’s service dog, his wife Carri yelled at the prosecution.
“I hope it was worth ruining my life too.”