Debate on the opinion pages used to be one of the hallmarks of a healthy democratic society. People with divergent views could discuss and argue over matters of policy and ethics, giving the readers of the local paper the chance to evaluate their competing claims, secure in the knowledge that the newspaper in question would, while welcoming multiple points of view, ensure that the op-eds made the paper’s standards for factual accuracy.
In recent years, though, the Lee Papers in Montana have turned their op-ed pages over to Astroturf ideologues like the Montana branch of Americans for Prosperity and other well-funded, right-wing groups. And today’s decision to publish a factually inaccurate op-ed from Chuck Denowh is just the latest example of turning the press into an agent for misinformation.
In a piece about the conviction of a Montana man for his repeated violations of federal law, Denowh mischaracterizes the convict, the law, and the role of the EPA, dishonestly stoking fears of an out-of-control federal government to a crowd already inclined to believe the worst about it.
Joe Robertson’s story is a cautionary tale. Last year Robertson, a 77-year-old disabled Navy veteran from Basin, was sentenced to 18 months in prison and fined hundreds of thousands of dollars. His crime? Digging ponds on his property after getting a state — but not a federal — permit.
That’s just not true. The conviction was for doing damage to national forest land and private property. From the Department of Justice:
Robertson was indicted by a grand jury in May of 2015 as a result of illegal ponds he built on two parcels of land near Basin, Montana, one on Beaverhead-Deerlodge National Forest land and the other on adjacent private property. The ponds resulted in the discharge of dredged and fill material into a tributary stream and adjacent wetlands and caused widespread damage to both properties.
Next, Denowh claims that those tiny little ponds absolutely couldn’t have impacted downstream waters, writing:
The water in question on the Robertson property was not navigable, nor did it abut any navigable water. In fact, the nearest navigable water was the Jefferson River, 20 miles away.
Again, not true. From the Flathead Beacon, we learn that not only were the ponds discharging dredged and fill materials into a creek and wetlands but that those tyrannical government officials repeated told Robertson not to continue his work before finally having to charge him:
The ponds that Robertson dug in 2013 and 2014 discharged dredged and fill materials into a tributary of Cataract Creek and into nearby wetlands, prosecutors said. He continued to dig after being told repeatedly that it was illegal for him to do so, resulting in nine ponds over more than an acre, prosecutors said.
And, at trial, the Montana State Program Manager for the U.S. Army Corps of Engineers explained that the connection between Robertson’s ponds and nearby waterways well enough to convince a jury of his peers.
Lee’s own papers confirm that Robertston received letters and visits from federal officials that he chose to ignore:
Robertson doesn’t deny building the ponds; he freely admits using an excavator and rubber-tired backhoe to do the work. Last week he talked about improvements he still wants to make, even after his conviction and — before that — a series of letters and visits from federal officials over several years telling him he was breaking the law.
It’s rhetorically convenient for Denowh to depict Robertson as the victim of a system no person could be capable of understanding, but federal officials repeatedly warned the man and gave him the opportunity to avoid prosecution. He chose to ignore them. He chose to continue his work, despite the danger scientists said they posed to the waters around his property.
Denowh also mischaracterizes Supreme Court precedent on the issue of navigable waters, writing that “In the Rapanos case, a plurality of the court held that the Clean Water Act is applicable only to navigable waters and directly abutting wetlands.”
Again from Lee’s own reporting:
The inclusion of waters that have a “significant nexus” to navigable waterways comes out of a split U.S. Supreme Court decision in 2006 in which Justice Anthony Kennedy said a continuous surface connection wasn’t necessary for a wetland to fall under the Clean Water Act’s jurisdiction. A jury found that Robertson’s ponds met the nexus test.
Stoking the right-wing mania that enables anti-government rhetoric to flourish, Denowh writes:
It also had its own SWAT-style tactical force, outfitted with military-style assault weapons and body armor. This is the force that came at Joe Robertson.
That simply did not happen in this case. Robertson was not arrested by a platoon of shock troops nor assaulted by any federal agents. Given the anti-government rhetoric stoked by people in the “responsible” wing of the Republican Party to gin up votes, though, it’s not hard to understand why federal agents need to be better armed than they were decades ago.
Those who have championed Robertson’s cause are also cause for concern. Extremist anti-government and militia groups like the OathKeepers have championed his cause and Alternet reports that Robertson spoke at a meeting of 100 antigovernment activists just this past year.
And one last note seems important. While Mr. Denowh attempted to stoke the pity of his audience by detailing the plight of an innocent elderly man, he left out a few other details. Again, from Alternet:
In 2007, Robertson was cited by the Forest Service for destroying government property, livestock grazing without a permit and four other charges related to illegal activities on federally owned land. He refused to show up for his trial, but was found guilty in absentia of two counts of damaging federal property and allowing livestock on Forest Service land.
In 2012, Robertson was again charged and convicted of misdemeanors related to violating Forest Service regulations. He avoided jail, was placed on probation and ordered to remove various structures, including a barn, fence and culvert that he had illegally constructed on federally owned land. When a Forest Service special agent went to the property to see if Robertson was complying with the court’s order, the officer discovered he had illegally constructed ponds on the land.
Or perhaps this 2007 story from the Billings Gazette detailing six charges against Robertson might seem less biased.
Surely the Montana architect of the passage of Marsy’s Law should be sure to tell all of the victims of this crime against Montana the true story, right? I’m certainly sympathetic to the plight of this man and his experience in jail, but to depict him as the innocent victim of a tyrannical government is to ignore the truth.
As the pressure grows on newspapers to fill column inches, the temptation to populate the op-ed pages with outside, free content has to get stronger every day and there is certainly no shortage of right-wing outlets ready to fill those pages with half-truths and outright distortions. There’s just noe excuse for printing it, though, especially when those opinion pieces actually contradict reporting done in your own newspapers.
The opinion page should absolutely include perspectives from the right and left, but it’s critical that the newspapers running them hold those opinion pieces to factual reporting of what happened. Everyone is entitled to her own opinion but not her own facts and the Independent Record should do better, especially when this kind of dangerous anti-government talk is spreading across our state.