Tsakopoulos loses battle in a tie vote: Fine is affirmed in wetlands case

December 17, 2002

By David Whitney -- Bee Washington Bureau

202-383-0004

dwhitney@mcclatchydc.com.

Bee staff writer Paul Schnitt contributed to this report.

The Sacramento Bee

Sacramento, California

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Washington, D.C. - The U.S. Supreme Court announced Monday that it was deadlocked 4-4 on a wetlands case involving developer Angelo Tsakopoulos, and thus affirmed a lower-court ruling fining him $500,000 for plowing two acres of wetlands in a south Sacramento County vineyard.

The decision came less than a week after the high court heard oral arguments in the case, closely watched by environmental and development interests because it challenged the government's authority to regulate farm plowing under the Clean Water Act.

The even split on the nine-member Supreme Court came after Justice Anthony Kennedy, a law professor at Sacramento's McGeorge School of Law before joining the high court, recused himself because he is acquainted with Tsakopoulos.

After hearing arguments last week, the eight justices left to decide the case found that they were evenly divided and didn't have a majority to write an opinion. That split was announced Monday, and the 9th U.S. Circuit Court of Appeals decision against Tsakopoulos automatically was affirmed.

The Supreme Court said it does not keep statistics on how many times justices have voted to review a case, heard arguments and afterward pronounced themselves deadlocked and unable to produce a ruling.

Timothy Bishop, a Chicago lawyer who represented Tsakopoulos in the arguments, said that because Kennedy had voted with the majority with a 5-4 decision two years ago in an Illinois case limiting federal regulation of isolated wetlands, his decision not to participate in this case probably "was quite costly to us."

In a telephone interview, Tsakopoulos said the irony of his association with Kennedy did not escape him.

"One of my friends called this morning and said it's a pretty expensive friendship I have with Justice Kennedy," Tsakopoulos said.

He said that while he is disappointed that the ruling against him was upheld, he is not bitter and hopes that another case will come before the court soon that will permit all of the justices to participate.

"This was not life or death for us," Tsakopoulos said. "You can't win them all."

California farm groups were strongly disappointed.

"Our concern is that the 9th (Circuit decision) will be interpreted by the regulating agencies to give rise to extremely aggressive enforcement to folks doing rather routine agricultural practices," said Bill Thomas, a rancher and lawyer representing the California Cattlemen's Association.

Environmentalists breathed a sigh of relief.

"Sanity has prevailed with the Supreme Court's affirmation of the government's ability to protect valuable wetland resources," said Mark Van Putten, president of the National Wildlife Federation.

They had worried that a Supreme Court ruling for Tsakopoulos would have opened a major loophole in the Clean Water Act permitting the drainage of wetlands by developers contending that they were engaged in a farming operation.

On the other side of the case were such organizations as the California Farm Bureau Federation, the National Association of Homebuilders and the American Forest and Paper Association. They worried that a ruling against Tsakopoulos would open their businesses to further governmental regulation.

"Now I guess, at least here in the West, we are left with the 9th Circuit decision, and we hope it will be reasonably and fairly interpreted because apparently we are not going to get further clarification by the Supreme Court," said Thomas, who chairs the Cattlemen's Association environmental and water quality committee.

Even though the court let stand the 9th Circuit's ruling for Western states, Environmental Defense lawyer Thomas Searchinger said it was something less than a victory.

"We're calling it a reprieve," he said. "Don't dance late into the night."

Searchinger said the Bush administration is under pressure from development, logging and mining interests to relax wetlands protections around small-and medium-sized streams.

EarthJustice lawyer Howard Fox said another wetlands regulatory challenge raising similar questions was delayed in the federal courts in Washington, D.C. -- pending a decision in the Tsakopoulos case -- and now may start moving through the courts and eventually show up at the Supreme Court.

"This case shows that the court is very firmly divided," said Bishop, who also argued the Illinois case. "The conservative and liberal blocs on the court have different ways of looking at the Clean Water Act. I think the court will be looking for a case to decide where all nine justices can participate."

Bob Krauter, with the Farm Bureau Federation, said it was encouraging that four members of the Supreme Court sided with Tsakopoulos.

The next time this issue comes back up and makes it to the U.S. Supreme Court "hopefully we'll have nine justices weigh in," Krauter said.

The case grew out of Tsakopoulos' preparations to subdivide part of the 8,350-acre Borden Ranch into apple orchards and vineyards. He used a method of soil preparation called deep plowing or deep ripping to loosen the clay subsurface of nearly 1,000 acres so that the roots of deep-growing trees and vines could penetrate. During the course of that work, about two acres of wetlands also were plowed, although to lesser depths.

The government contended that Tsakopoulos needed a Clean Water Act permit to disturb the wetlands area, which he did not obtain, despite repeated warnings.

But Tsakopoulos argued that normal farming practices, including deep plowing, were excluded specifically from the Clean Water Act.

The government said that was true only if the plowing did not change the character of the farmland.

During the oral arguments last week, the justices vigorously debated whether the wetlands disturbance at the Borden Ranch met that exemption.

One of the issues was whether the mixing of the subsurface soils and clay amounted to the addition of pollutants that would qualify it for regulation under the act.

In announcing its deadlock Monday, the court did not say how the eight justices came down on these issues.

But lawyers presumed, based on the earlier Illinois decision, that Chief Justice William Rehnquist and Justices Antonin Scalia, Clarence Thomas and Sandra Day O'Connor favored Tsakopoulos -- while Justices David Souter, Stephen Breyer, Ruth Bader Ginsburg and John Paul Stevens likely supported the government's handling of the case.

Note: There are two maps and other photos at the original website for this article, shown below.

http://www.sacbee.com/content/politics/story/5621876p-6598065c.html