Posted on Thu, Jun. 13, 2002

Farm plowing case will test federal water rules
By Denny Walsh
SCRIPPS-McCLATCHY NEWS SERVICE

via CONTRA COSTA TIMES

SACRAMENTO - The U.S. Supreme Court has agreed to review a face-off between Sacramento developer Angelo Tsakopoulos and federal environmental regulators that could change the way the Clean Water Act is applied to the nation's farmers.

The case involves deeper than normal plowing -- called "deep ripping" -- that Tsakopoulos employed to convert thousands of acres of range land at his Borden Ranch near Galt to fruit crops. Two lower courts found that the plowing destroyed seasonal wetlands protected by the Clean Water Act.

At issue is whether plowing, at whatever depth, constitutes a "discharge" of fill material or the addition of a "pollutant" into drainages defined by the act as waters of the United States.

The other issue is whether plowing is exempt by statute as a "normal farming activity."

Tsakopoulos and his daughter, Eleni Tsakopoulos-Kounalakis, said they were pleased by the Supreme Court's action this week.

"We believe it is critically important to farmers across the country that the government's desire to regulate how deep we set our plow be overturned," said Tsakopoulos-Kounalakis, who is serving as a spokeswoman for her father in the matter.

The multibillion-dollar agriculture industry is looking to the case to tell it where deep-root crops may be planted.

The high court does not disclose vote counts on whether to accept cases for review. All of the justices review requests, and four of the nine must be in favor.

Justice Anthony Kennedy, who is from Sacramento, "took no part in the consideration or decision of this petition," according to a notation on the court's Monday order list. Kennedy is "an acquaintance" of the Tsakopoulos family, according to Tsakopoulos-Kounalakis.

Deep ripping, which penetrates a dense layer of soil called a "restrictive layer" or "clay pan," has been used by Tsakopoulos since 1993 to turn pastureland into vineyards and orchards on the 8,400-acre ranch that straddles the Sacramento County-San Joaquin County line.

He and his lawyers have consistently argued that long-established farming practices should be immune from the meddling of regulators and have from the beginning cast the legal battle as "a national test case."

When he sued the U.S. Army Corps of Engineers and Environmental Protection Agency more than five years ago, Tsakopoulos vowed to take his challenge to the Supreme Court if necessary.

A split three-judge panel of the 9th U.S. Circuit Court of Appeals last year affirmed U.S. District Judge Garland E. Burrell Jr.'s finding that deep plowing is subject to the jurisdiction of the Corps of Engineers and the EPA, and there must be prior approval by the corps.

The Pacific Legal Foundation, the California Farm Bureau Federation and the California Cattlemen's Association filed a joint brief with the appellate court in support of Tsakopoulos. The American Farm Bureau Federation and the National Association of Home Builders also weighed in on his side.

Upon learning of Monday's action by the Supreme Court, Tsakopoulos attorney Arthur Coon said the case "presents a tremendous opportunity for the high court to stem the creeping tide of regulatory overreaching. We strongly believe Congress never intended to require a farmer or rancher to obtain a federal permit merely to plant new crops."

Coon said he expects the matter to be argued by the end of the year and is hopeful an opinion will come down by next June.

After years of bitter debate with the Corps of Engineers and the EPA, Tsakopoulos sought a court determination. The government countersued, claiming he had violated the act by deep plowing without a permit.

After a three-week, nonjury trial, Burrell ruled in 1999 that Tsakopoulos had violated the act 348 times by deep ripping through 29 drainages, and on 10 occasions by ripping a vernal pool.

The judge gave Tsakopoulos the option of paying a $1.5 million civil fine or paying $500,000 and restoring four acres of wetlands.

Tsakopoulos chose the latter and appealed.

The circuit panel reversed Burrell only with respect to the vernal pool, citing a 2001 Supreme Court opinion. Based on that aspect of its decision, the panel remanded the case to Burrell for a recalculation of the fine.

But Tsakopoulos' petition to the high court kept it from returning to Sacramento.