August 13, 2019

Man jailed for 18 months for digging fire-protection ponds on his own land finally cleared by court


When congress passes laws banning X or mandating Y, critics often note the potential for that law to be abused by an insane leftist judge.  Democrats quickly act to reassure you this couldn't possibly happen, and that anyone who claims it could is a dangerous, far-right conspiracy nut.

So how do Democrats react when it happens--again and again?

Why, they put their fingers in their ears.  Deny they ever heard of the law in question, let alone heard any concerns about possible abuse.  Let alone claimed such concerns were dumb paranoia.  Yep.  So here's example #3,795,607:

Everyone loves clean water, right?  So when congress proposed to help clean up waterways by prohibiting people from dumping waste into the nation’s “navigable waters,” virtually everyone applauded.  The result was the "Clean Water Act" of 1972.  And who could be against clean water, eh?

Congress claimed the power to do this by invoking the Constitution's "interstate commerce" clause.  Of course that meant the federal government could only exercise its unlimited power over waterways that could be used to transport goods between states, not lakes or ponds within a given state.  Cuz, "interstate commerce," see?  Such rivers were termed "navigable waters."
 
So to repeat, the legal rationale was that the CWA only applied to "waters" that could be used to transport goods from one state to another.  No one imagined that within a few years the government would be claiming that the CWA actually gave it the power to regulate even tiny ponds or "intermittent creeks" on private property.

The bad actors here are the insanely power-hungry bureaucrats in the Environmental Protection Agency (EPA) and the Army Corps of Engineers.  In 1989 the EPA claimed the act gave it the power to prevent a landowner from doing anything with a wetland that was near a ditch that eventually drained into navigable water 11 miles away.  Seventeen years later the U.S. Supreme Court disagreed.

In 2001 the Corps claimed the CWA gave it the power to assert control over even isolated bodies of water – in that particular instance, an abandoned sand and gravel pit.  Again the courts disagreed. 

The cases illustrate an important point: When a government agency overreaches, is sued by a citizen and loses in court, it costs them nothing.  There's no penalty for trying to extend the agency's power, and the agency can keep trying new ways to extend its power--again with no penalty if it loses.

Thus it won't surprise anyone that in 2014 the EPA and Army Corps--with the explicit approval of the Obama administration--proposed a new rule that expand the definition of “navigable waters” beyond absurdity, so as to include virtually any wet spot – or occasional wet spot – in the country, including ditches, low spots that held water after storms, intermittent streams, ponds, impoundments, prairie potholes, and large ‘buffer areas’ of land adjacent to every waterway.” 
 
No way were these areas "navigable waters," nor could they be used for interstate commerce.
 In short, the two agencies--again with the explicit approval of the Obama administration--sought to assert regulatory power over a vast amount of private property--under the guise of "interstate commerce" and "navigable waters."

After a cosmetic "public comment period" of 60 days the agencies adopted the new defninition.
 
In 2013 agents from the EPA visited a Montana rancher, Joe Robertson regarding ponds he'd built on what the government claimed was U.S. property.  The rancher said he'd built the ponds to impound water for firefighting. The work consisted of nine ponds of varying sizes, including some as large as approximately 4900 square feet (i.e. 70 feet on a side).  
 
Government regulators claimed Robertson's building ponds interfered with “navigable water,”  The  EPA claimed the ditch a federally protected waterway under the Clean Water Act and required a federal permit—even though his home is 40 miles from the Jefferson River, the nearest navigable waterway.
 
The EPA brought the entire weight of the federal gruberment down on the guy, sentencing him to 18 months in prison and fining him $130,000.  (And if you want a real education in power, click here to read the press release from the "Department of Justice" bragging about how great they were in taking out this grave threat to the security of the American people.  Seriously, the word "agent" is always capitalized, as is the 3-word term "Criminal Special Agents."  You'd think this was about the sale of nuclear weapons secrets to China or something.)
 
Robertson appealed, arguing that the tiny stream could not possibly be considered "navigable waters," but the thoroughly socialist, Obozo-supporting 9th circuit--using the new "We Own Every Drop of Water in the U.S." definition--ruled against him.

He appealed to the Supreme Court.  And now something very interesting happened:  the Supreme Court quietly granted Robertson’s petition without even hearing oral arguments.

This is interesting cuz it's a sign that the court was thinking something was REALLY rotten with this case.  And sure enough, the Supreme Court ordered the 9th Circuit Court of Appeals to reconsider their ruling.  Last month the 9th Circuit reversed its earlier ruling, clearing Robertson and removing the $130,000 fine.

No word on whether Robertson planned to sue for the year-and-a-half of his life that the 78-year-old man had just spent in prison--for digging fire protective ponds near his home without a federal permit.

Oh wait: That's because Robertson is dead.  Died just after being paroled from prison, and a month before the Supreme Court agreed to hear his appeal.

For being jailed and fined for...building firefighting ponds without a federal permit.  On "navigable waters" four inches wide.

If you're a Democrat pol or a big-government fan:  Own this.  And don't ever EVER piously claim your shit laws won't--and can't--be absurdly expanded to do things never intended. 

Next week:  How Democrats have already claimed that "Title IX" confers special protected status on trannies.  Meaning every sports organization would be forced to allow men to compete against women in what were once amusingly called "womens' sports."  You'll love it.

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