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Tsakopoulos Loses Battle in a Tie Vote

  Sacramento Bee - 12/17/02, By David Whitney, staff writer. Washington – “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 . . . “ Read the complete article at http://www.aswm.org/wbn/archive/02/021231b.htm.

Additional Coverage

Slip Opinion: http://www.supremecourtus.gov/opinions/02pdf/01-1243.pdf

San Francisco Chronicle, 12/17/02 http://sfgate.com/cgi-bin/article.cgi?f=/c/a/2002/12/17/MN116015.DTL

Court Upholds Fines in Wetlands Case: New York Times http://www.nytimes.com/aponline/national/AP-Scotus-Farm-Plowing.html?ex=1041064168&ei=1&en=7004a149c4518372

Supreme Court Fails To Address Reach of the Clean Water Act: Defenders of Property Rights news release, 12/16/02. http://www.defendersproprights.org/front.asp

Wetlands Protections Upheld by U.S. Supreme Court: By Cat Lazaroff, Washington, DC, 12/18/02. Environmental News Service. http://ens-news.com/ens/dec2002/2002-12-17-06.asp

Borden Ranch Deadlock Vote Elevates Question Of Whether Tulloch Wetlands Rule Is Illegal: National Association of Home Builders statement from President Gary Garczynski. http://www.nahb.org/news_details.aspx?sectionID=148&newsID=255

Borden Ranch Amicus Briefs Under Development

On June 10 the U.S. Supreme Court agreed to hear arguments in a case in which a California developer accused of violating Section 404 of the Clean Water Act when he "deep ripped" wetlands on his property. The technique involves dragging long metal shanks through the soil. Regulators charged that the activities caused dirt to be discharged into 28 swales or intermittent drainages. As such, the U.S. Army Corps of Engineers said the developer was required to obtain a Section 404 dredge and fill permit. The U.S. District Court for the Eastern District of California ruled in November 1999 that the developer had violated the law hundreds of times by repeatedly deep ripping through protected wetlands and ordered him to pay $1.5 million in fines. The U.S. Court of Appeals for the Ninth Circuit upheld that decision. (Borden Ranch Partnership v. U.S. Army Corps of Engineers, U.S. 01-1243, cert. granted, 6/10/02)

The Supreme Court certified three questions:
1. Whether "deep ripping" is exempt from 404 as a "normal farming practice."
2. Whether "deep ripping" involves the "discharge" of dredge or fill material (this will require the Court to review the revised Tulloch Rule)
3. Whether the $1 million penalty is so excessive that it contstitues denial of due process.

For a brief history of the case read the Contra-Costa Times article, "Farm plowing case will test federal water rules" by Denny Walsh at http://www.aswm.org/fwp/borden/walsh-020613.htm
The lower court decisions, petitioners brief etc. can be found at http://supreme.lp.findlaw.com/supreme_court/docket/2002/december.html#01-1243
ASWM Brief on behalf of the respondents http://www.aswm.org/fwp/borden/pp-bordenbrief.pdf
Memo on Tulloch Rule (referenced in ASWM brief) http://www.aswm.org/fwp/borden/cfox_memo_tulloch6_1_99.pdf
A calendar of events related to the Borden Ranch case as well as the list of amicus briefs filed on behalf of the petitioner can be found at http://www.supremecourtus.gov/docket/01-1243.htm

Earthjustice Asks US Supreme Court to Protect Wetlands and Streams

Earthjustice news release, 10/25/02. Washington, DC - Earthjustice submitted a brief asking the Supreme Court to uphold the Clean Water Act against industry attempts to weaken it. Addressing one of the most crucial environmental cases on the Supreme Court's docket this term, the Earthjustice brief opposes attempts by agricultural, mining, and roadbuilding interests to accelerate unpermitted destruction of wetlands and streams around the nation. At issue in the case are activities on a California ranch that destroyed and damaged numerous wetlands and streams, in order to convert them to crop production. Borden Ranch Partnership v. U.S. Army Corps of Engineers, 261 F.3d 810, 812 and 815 (9th Cir. 2001).
http://www.earthjustice.org/news/display.html?ID=463