Court upholds deep-ripping ruling, 4-4

(Note: Permit to plow now required -- when will the insanity stop? It will stop when people decide that they have had enough.)

December 16, 2002

By Michael Kirkland, UPI Legal Affairs Correspondent

>From the Washington Politics & Policy Desk

WASHINGTON, Dec. 16 (UPI) - A deadlocked Supreme Court Monday upheld a lower-court ruling against "deep ripping," a form of deep plowing, without a permit in areas affected by the Clean Water Act.

The vote in the case was 4-4, with Justice Anthony Kennedy abstaining from participation in the case. Neither Kennedy nor the court would explain why he did not participate in the case. Kennedy did not attend argument when it was heard last week.

But years ago, before becoming a federal judge, Kennedy practiced law in California and the current case could have had a connection, however, remote, to a former client.

Cases that end in a 4-4 tie are resolved by an unsigned "per curiam" opinion upholding the lower court, setting no Supreme Court precedent.

Although the case specifically dealt with the agricultural preparation practice known as "deep ripping," the National Association of Home Builders contended the issue goes beyond agriculture and would affect a "vast spectrum of soil movements."

The case comes from central California. It involves the Environmental Protection Agency and the Army Corps of Engineers and their assertion of jurisdiction over a farmer's plowing practices. A lower court upheld the agencies' jurisdiction.

"Based on the agencies' past response to judicial decisions," the National Association of Home Builders said in a support brief filed with the Supreme Court, "NAHB submits that the Corps and EPA will attempt to use the (lower court's ruling) to justify federal regulation over a vast spectrum of soil movements (not just plowing) in all (Clean Water Act) jurisdictional waters.

Indeed, a joint Corps/EPA regulation issued in January 2001 currently (and illegally) 'regards' that an 'earth-moving activity' caused by a machine results in a statutory 'discharge' and thus requires a (Clean Water Act) permit."

The association supported California's Borden Ranch.

In asking for Supreme Court intervention in the case, Borden Ranch said the "fundamental issue in this case is whether a farmer and rancher may deeply plow his agriculturally zoned ranchland to plant higher value crops without need of a federal permit or ... whether the Corps has jurisdiction to regulate such traditional farming activity under the federal Clean Water Act."

A petition from the ranch partnership complains that the "Corps asserts such jurisdiction in this case and others, contending that the traditional farming activity of plowing alone of dry ground in areas of seasonal wetlands constitutes the 'discharge' of 'pollutants' ..."

The 8,400-acre Borden Ranch is in Sacramento and San Joaquin counties. The ranch is bisected by Dry Creek, which also serves as the county line.

The ranch was bought in 1993 by a partnership and the current general partner, Angelo Tsakopoulos. After the purchase, Tsakopoulos wanted to convert rangeland into vineyards and orchards, then subdivide the land into smaller parcels for sale. Vineyards and orchards require deep-root systems.

"Their cultivation therefore requires 'deep ripping,' a process in which bulldozers drag rippers, consisting of 4-foot to 7-foot metal prongs, through the earth," the Justice Department said in a brief filed on behalf of the EPA and the Corps. "That activity breaks up the restrictive layer and disgorges rock, sand and biological material behind the ripper .... Deep ripping alters the movement of surface and subsurface water and limits or destroys the ability of wetlands to retain water."

The department said Tsakopoulos knew when he purchased Borden Ranch that it contained wetlands protected by the Clean Water Act, and he was told by the Corps that he would need a permit.

Nevertheless, he began deep ripping without a permit several times over a number of years, the Justice Department told the Supreme Court.

The Corps twice issued a "cease and desist" order without effect, the department said. When the EPA issued an administrative order saying that Tsakopoulos had violated the Clean Water Act in 1997,

Tsakopoulos and the Borden Ranch Partnership filed suit in federal court challenging the authority of the Corps and the EPA to regulate deep ripping.

However, a federal judge dismissed their claims, and gave Tsakopoulos a choice of paying a $1.5-million civil penalty or paying $500,000 and restoring four acres of wetlands.

He chose the latter, pending appeal.

A federal appeals court largely upheld the judge, reversing only a violation involving an isolated pool.

Tsakopoulos and the Borden Ranch Partnership then asked the Supreme Court for review.

Tuesday's 4-4 opinion resolving the case consisted of one sentence: "The judgment is affirmed by an equally divided court."

As is customary, there was no other explanation.

(No. 01-1243, Borden Ranch Partnership and Angelo Tsakopoulos vs. U.S. Army Corps of Engineers and EPA.)

Copyright 2002 United Press International