Joseph David Robertson carried a copy of the United States Constitution in his back pocket as he walked into U.S. District Court on Wednesday, a gift from a member of the Oath Keepers.
About 50 members and sympathizers of the group formed to battle perceived government overreach showed up to support Robertson as he was sentenced in Missoula Wednesday for polluting federal waters.
The 77-year-old Basin man 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 told 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 to water his horses and 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 told U.S. District Judge Donald Molloy at Wednesday's hearing.
Molloy ordered Robertson to spend 18 months in jail. When he is freed, he 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.
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 openly carrying firearms.
Steve and Donna Putnam came to Missoula from their home in Pasco, Washington.
Putnam said he’s attended several Oath Keeper rallies in the past, including three in Portland, Oregon, and several at a memorial on the highway outside Burns, Oregon, 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,” said Donna Putnam, his wife.
Jason Van Tatenhove, a Eureka-area man who serves as the national media director for the Oath Keepers, said he had doubts about the performance of Robertson’s federal public defense attorney, Michael Donahoe, saying he had refused, for example to push to get 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 countering the EPA's findings was written after the trial by former Corps of Engineers and EPA employee Ray Kagel. He found “no measurable or quantitative adverse impacts to the aquatic ecosystem.”
Kagel, who runs a wetlands and wildlife consulting firm in Idaho, wrote the document on his own and at no charge.
While some of the Oath Keepers and other Robertson supporters stayed outside, about 30 filed into the courtroom for the sentencing hearing. Just before the judge entered, the group recited the Lord’s Prayer.
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.”
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Robertson was convicted in April after his first trial ended with a hung jury.
Following the initial trial, Robertson said he was ordered to go through a psychiatric evaluation to determine if he was fit to aid in his defense. “They wanted me to be deemed incompetent. They didn’t want this,” he said.
He said he was approached multiple times with plea agreement offers, but he refused to accept them because he believed he had done nothing wrong.
His attorney told him, "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.”
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 – in lawsuits and in interviews – 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.”
That comment evoked calls of “liar” from the audience. Molloy singled out one member of the crowd who was particularly vocal, and after a back and forth, ordered that she be removed from the courtroom. Another spectator was removed later 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 he simply meant that he intended 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.
Donahoe, Robertson’s federal public defender, 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. In addition, he disregarded warnings that he needed a permit from the Corps of Engineers for any activity that would result in discharge or placement of dredged or fill material into waters of the United States.
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 his 18 months in prison, 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 also is banned from owning firearms.
Robertson said he intends to appeal the case.
Although he sent Robertson to prison, Molloy acknowledged the law was murky.
During opening statements, the judge said it is difficult to determine how the phrase “waters of the United States” in the Clean Water Act should be interpreted. 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.”
Prosecutors asked for Robertson, who had been released until sentencing, to begin serving his prison sentence immediately. After Donahoe did not object, Molloy ordered it done.
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.”