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Sacramento Developer Loses Clean Water Act Case At High Court

WASHINGTON _ A deadlocked U.S. Supreme Court has upheld a $500,000 fine against a California developer for "deep ripping" about two acres of wetlands on a Central Valley ranch while converting pasture to vineyards and orchards. The justices divided 4-4 in an appeal by Angelo Tsakopoulos seeking to set aside penalties levied by the U.S. Army Corps of Engineers for violating provisions of the Clean Water Act that require a permit before filling or dredging waterways. Tsakopoulos, a prominent Sacramento-area housing and commercial developer, drew the fines for deep plowing wetlands that lay on parts of the 8,400-acre Borden Ranch about 30 south of Sacramento that he bought in 1993. The Corps of Engineers said the deep ripping a process also called deep ripping, which involves heavy bulldozers dragging five-foot-long plow shanks through the soil filled the wetlands with dirt, rock, and sand churned up from the densely packed "claypan" below the layer of arable soil. The high court's tie vote, announced in a one-sentence, unsigned opinion, resulted from the decision by Justice Anthony M. Kennedy to recuse himself from the case because of his acquaintanceship with Tsakopoulos and his family. The court does not announce individual votes in tie cases, but lawyers and observers surmised from questioning and past cases that the justices divided along conservative-liberal lines. The split has the effect of affirming a decision by the Ninth U.S. Circuit Court of Appeals upholding the fines (see CP&DR Legal Digest, October 2001). Tsakopoulos and an array of industry groups had warned that the ruling went beyond the Corps of Engineers' statutory authority and could hurt farmers, ranchers, developers, mining companies, and road builders. Environmental groups said they were pleased with the high court's action even though the government's power to regulate deep ripping remains unresolved. "So far, so good," said John Echeverria, a professor and director of Georgetown University Law Center's Environmental Law Institute. "The Ninth Circuit ruling is upheld, the precedent remains in effect, and the battle is deferred to another case in which Justice Kennedy doesn't know one of the parties." "We're delighted," said Howard Fox, managing attorney with the environmental law firm Earthjustice. "There were a lot of industries in the Supreme Court asking for major loopholes in the Clean Water Act. We're already losing tens of thousands of acres of wetlands, and to have weakened the law further would have made that situation even worse." For their part, industry groups said they remain hopeful that the court will back their position in a future case. "We're disappointed that they didn't see things our way, but we were encouraged that they took the case," said Rick Krause, regulatory counsel with the American Farm Bureau Federation, which filed a brief supporting Tsakopoulos. "We think that that might mean they had a little bit of difficulty with the Ninth Circuit reasoning, and we're hopeful that after an appropriate case arises in the future that they'll take it and that all nine justices will be able to vote on it so that they will have a clear direction." In a prepared statement, National Association of Home Builders President Gary Garczynski attempted to find a positive outcome. "The speed and brevity of the high court's decision a 4-4 split ruling delivered less than one week after oral arguments were heard, without Justice Kennedy's participation, with little precedential value and with no legal analysis raises more questions than it answers," Garczynski said. "We are by no means discouraged by this split ruling." The deadlock was announced December 16, only six days after oral arguments at the high court. The justices' questions from the bench had indicated a possible division along ideological lines leading lawyers on either side of the case to forecast a tie vote. In addition, the court had split 5-4 along ideological lines in its most recent wetlands regulation case just last year. In that case, Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, 121 S. Ct. 675 (see CP&DR Legal Digest, February 2001), the court ruled that the federal government has no authority to regulate isolated ponds or wetlands. Kennedy joined the court's other four conservatives in the majority, while the four members of the court's liberal wing were in dissent. The legal question in Tsakopoulos's case turned on provisions of the Clean Water Act that require a permit from the Corps of Engineers for "any addition of any pollutant to any navigable waters from any point source." In urging the justices to strike down the fines against Tsakopoulos, Chicago attorney Timothy Bishop contended that deep plowing did not meet that statutory definition. "Deep plowing of that sort doesn't add fill or dredge material, and it doesn't involve a point source," Bishop argued. "We don't think it's permissible to protect wetlands by disregarding the words of the statute," he added. In turn, Assistant U.S. Solicitor General Jeffrey Minear argued that Congress used broad language to apply to "any unauthorized addition of a pollutant" to protected waters. "The most common form of dredging is moving material from one point of a body of water to another," Minear said. "Turning over material in place," he added, "does environmental harm." Krause, the farm bureau lawyer, said the group was most concerned with the possibility that the Corps of Engineers would claim authority to regulate any form of plowing despite an exemption in the law for "normal farming activities." In its brief, the government said the exemption did not apply because the deep plowing was intended to change the use of the land and had the effect of transforming the wetland areas to dry land. The home builders' association had been hoping for a ruling in Tsakopoulos's favor for use in a pending challenge to a general regulation issued by the Corps affecting builders. In that case, National Association of Home Builders v. U.S. Army Corps of Engineers, NAHB is carrying on a 12-year-fight against the Corps' authority to regulate land clearing if it involves "incidental fallback" of soil into wetlands or other waterways. NAHB asked that the case pending in federal district court in Washington be put on hold pending the high court's decision in the Borden Ranch case. Bishop who represented the Cook County solid waste agency before the Supreme Court said he thought Kennedy's absence in the Tsakopoulos case had cost the landowner a victory. "Had Justice Kennedy been able to participate in this case, we quite likely would have won it," Bishop told the Associated Press. Echeverria called Bishop's assessment "a plausible guess," but "premature." "Kennedy is a swing vote in a variety of environmental cases," Echeverria said. "He just hasn't been heard from." The case: Borden Ranch Partnership v. United States Army Corps of Engineers, No. 01-1243. Filed December 16, 2002. The attorneys: For Borden Ranch: Timothy S. Bishop, Mayer, Brown, Rowe & Maw, (312) 782-0600. For Corps of Engineers: Jeffrey P. Minear, Assistant U.S. solicitor general, (202) 514-2203.
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