Whether the Clean Water Act term 'navigable waters' is void for vagueness

QUESTIONS 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, 40plus 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 8. Ct. 1807, 1816-17 (2016) (Kennedy, Alito, Thomas, JJ., concurring) (citing Sackett, 566 U.S. at 133 (Alito, J., concurring)). ii 2. Should this Court revisit its fractured decision in Rapanos, to clearly and authoritatively interpret “navigable waters” under the Clean Water Act? 3. Whether a defendant who is retried and convicted for an offense after a hung jury may appeal, after final judgment, the erroneous denial of his motion for judgment of acquittal during the first trial, as recognized in United States v. Gulledge, 739 F.2d 582, 584 (11th Cir. 1984), or whether the appellate courts may not review such denials, as the Ninth Circuit held below? iii LIST OF ALL PARTIES Petitioner Joseph David Robertson was the defendant and appellant below. The United States of America was the plaintiff and appellee below.