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Joseph David Robertson v. United States

Paid petition · United States Court of Appeals for the Ninth Circuit, No. 16-30178 · judgment November 27, 2017

GVR'd · April 15, 2019
Pre-decision estimate: 1% cert probability

Before the decision, well below the 4.1% base rate, with no standout signals pointing toward a grant.

Question presented

Petitioner Joseph David Robertson is an elderly Navy veteran who ran a fire fighting support truck business deep in the Montana woods. He dug some water supply ponds in and around a foot-wide, footdeep channel carrying 2 to 3 garden hoses of flow, 40- plus miles from the Jefferson River, the nearest navigable waterway. The United States criminally prosecuted Robertson for digging in “navigable waters” without a Clean Water Act permit, and for damaging federal property under 18 U.S.C. § 1361. The district court denied Robertson’s motions for acquittal under Criminal Rule 29(c) during a first trial that ended in mistrial after a hung jury. On retrial, the second jury convicted, and the court sentenced him to 18 months in prison and $130,000 in restitution. The Ninth Circuit affirmed, holding that proof of “navigable waters” is governed by Justice Kennedy’s concurrence in Rapanos v. United States, 547 U.S. 715 (2006), that “navigable waters” is not void for vagueness, and that denials of Rule 29(c) motions in a first trial ending in mistrial are not appealable. The questions presented are: 1. Is the Clean Water Act term “navigable waters” void for vagueness, as members of this Court have suggested? See Sackett v. EPA, 566 U.S. 120, 132-33 (2012) (Alito, J., concurring); United States Army Corps of Engineers v. Hawkes Co., Inc., 136 S. Ct. 1807, 1816-17 (2016) (Kennedy, Alito, Thomas, JJ., concurring) (citing Sackett, 566 U.S. at 133 (Alito, J., concurring)).

Counsel of record

For petitioner
Anthony Lee Francois
Pacific Legal Foundation

For respondent
Noel John Francisco
Jones Day

Case

Conference history
Distributed for 1 conference

Amicus briefs
6 cert-stage

Linked docket
18A108

Proceedings

  1. May 17 2019
    JUDGMENT ISSUED.
  2. Apr 15 2019
    The motion to substitute Carri Robertson, authorized representative, as petitioner in place of Joseph D. Robertson, Deceased is granted.
  3. Apr 15 2019
    Petition GRANTED. Judgment VACATED and case REMANDED for consideration of the question whether the case is moot.
  4. Apr 07 2019
    Letter of April 7, 2019 from counsel for petitioner filed. (Distributed)
  5. Mar 27 2019
    DISTRIBUTED for Conference of 4/12/2019.
  6. Mar 27 2019
    Motion to substitute Carri Robertson, as authorized representative, as petitioner in place of Joseph David Robertson, Deceased under Rule 35.1 filed.
  7. Mar 22 2019
    Reply of petitioner Joseph David Robertson filed.
  8. Mar 11 2019
    Brief of respondent United States in opposition filed.
  9. Feb 01 2019
    Motion to extend the time to file a response is granted and the time is further extended to and including March 11, 2019.
  10. Jan 31 2019
    Motion to extend the time to file a response from February 8, 2019 to March 11, 2019, submitted to The Clerk.
  11. Jan 08 2019
    Motion to extend the time to file a response is granted and the time is further extended to and including February 8, 2019.
  12. Jan 07 2019
    Motion to extend the time to file a response from January 9, 2019 to February 8, 2019, submitted to The Clerk.
  13. Dec 10 2018
    Brief amicus curiae of National Federation of Independent Business Small Business Legal Center filed.
  14. Dec 10 2018
    Brief amicus curiae of Center for Constitutional Jurisprudence filed.
  15. Dec 10 2018
    Brief amici curiae of Duarte Nursery, Inc., et al. filed.
  16. Dec 10 2018
    Brief amicus curiae of National Association of Home Builders filed.
  17. Dec 07 2018
    Motion to extend the time to file a response is granted and the time is extended to and including January 9, 2019.
  18. Dec 06 2018
    Motion to extend the time to file a response from December 10, 2018 to January 9, 2019, submitted to The Clerk.
  19. Dec 06 2018
    Brief amici curiae of Judicial Watch, Inc. and Allied Educational Foundation filed.
  20. Dec 06 2018
    Brief amicus curiae of Cato Institute filed.
  21. Nov 29 2018
    Blanket Consent filed by Petitioner, Joseph David Robertson.
  22. Nov 07 2018
    Petition for a writ of certiorari filed. (Response due December 10, 2018)
  23. Jul 30 2018
    Application (18A108) granted by Justice Kennedy extending the time to file until November 7, 2018.
  24. Jul 26 2018
    Application (18A108) to extend the time to file a petition for a writ of certiorari from October 8, 2018 to December 7, 2018, submitted to Justice Kennedy.
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