Environmental regulators may exercise control over certain farming activities.

Developer loses ranch land ruling:
An appeals court sides with the EPA on 'deep ripping.'

By Denny Walsh
Bee Staff Writer
(Published Aug. 16, 2001)

Prominent Sacramento developer Angelo Tsakopoulos, as well as farmers and
ranchers across the country, suffered a major setback Wednesday when a
federal appellate court decided that environmental regulators may exercise
control over certain farming activities.

Tsakopoulos employed deeper than normal plowing -- called "deep ripping" --
to convert thousands of acres of rangeland at his ranch near Galt to fruit
crops. The plowing destroyed wetlands that are protected by the federal Clean
Water Act.

In an unprecedented ruling, a divided three-judge panel of the 9th U.S.
Circuit Court of Appeals said the act requires a federal permit for that type
of plowing, which Tsakopoulos did not have.

The decision is now law in nine Western states and two Pacific island
territories. As precedent, it would be relied upon by the government to
enforce similar actions throughout the nation.

"It's depressing," Arthur Coon, one of Tsakopoulos' attorneys, said Wednesday
of the ruling. "It is a very significant issue to farmers across the country
that plowing done on ranchland can be defined as a discharge of pollutants
into navigable waters of the United States. We've come a long, long way from
what Congress intended with the Clean Water Act."

Tsakopoulos has consistently argued that long-established farming practices
are off limits to environmental regulators. He has declared an unshakable
resolve to make the legal battle "a national test case" that he will "take to
the U.S. Supreme Court, if necessary."

Deep ripping, which penetrates a dense layer of soil called a "restrictive
layer" or "clay pan," was used by Tsakopoulos to turn pasture land into
vineyards and orchards on his 8,400-acre Borden Ranch east of Galt.

But the two-judge appellate majority affirmed U.S. District Judge Garland E.
Burrell Jr.'s finding that the activity is subject to the jurisdiction of the
Army Corps of Engineers and the Environmental Protection Agency and must be
permitted by the Corps.

The opinion was written by Judge Michael Daly Hawkins, with Judge William C.
Canby Jr. concurring. Judge Ronald M. Gould dissented.

The case has been watched closely by the agriculture industry nationwide. The
Pacific Legal Foundation, the California Farm Bureau Federation and the
California Cattlemen's Association filed a joint brief with the 9th Circuit
in support of Tsakopoulos.

Coon called Gould's dissent the "enlightened view of the situation."

"Farmers have been altering and transforming their crop land from the
beginning of our nation, and indeed in colonial times," said Gould. "I
conclude that the Clean Water Act does not prohibit 'deep ripping' in this
setting."

Coon said he has not yet discussed the next move with his co-counsel and his
client but acknowledged the likelihood that he will be seeking a rehearing
before an enlarged circuit panel.

Like Coon, Assistant U.S. Attorney Edmund Brennan said Wednesday's ruling has
far-reaching implications. Unlike Coon, Brennan was delighted.

"We are very pleased the court found deep ripping can constitute a point
source of pollution within the framework of the Clean Water Act," Brennan
said.

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

He 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 with respect to the vernal pool, citing a
U.S. Supreme Court decision earlier this year. The high court found that
extending the definition of navigable waters to include pools used as habitat
by migratory birds -- as the Corps of Engineers did in the Borden Ranch case
-- exceeds the agency's authority.

Based on that aspect of the matter, the circuit panel remanded it to Burrell
for a recalculation of the fine. The panel denied Tsakopoulos' request that
the case be assigned to a different district judge.

Tsakopoulos contends that deep ripping cannot pollute wetlands because it
simply churns up soil that is already there.

But the circuit majority held that to be inconsistent with case law that says
activities that destroy the ecology of a wetland "are not immune from the
Clean Water Act merely because they do not involve the introduction of
material brought in from somewhere else."

Tsakopoulos argues that, even if deep ripping pollutes, it is exempt from
regulation under the act's exceptions for "normal farming."

Again, the circuit majority said case law trumps that position. Citing
15-year-old 9th Circuit precedent, Hawkins wrote that "the intent of Congress
... was to prevent conversion of wetlands to dry lands, and we have
classified as non-exempt those activities which change a wetland's
hydrological regime."

Gould countered that Congress "did not literally prohibit any conduct by
farmers or ranchers that changes the hydrological character of their land."

The majority opinion "makes new law by concluding that a plow is a point
source and that 'deep ripping' includes discharge of pollutants into
protected waters," Gould said. "The policy decision involved here should be
made by Congress, which has the ability to study and the power to make such
fine distinctions.

"The alternatives are an agency power too unbounded, or judicial law-making,
which is worse."

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