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BORDEN RANCH PARTNERSHIP, et

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BORDEN RANCH PARTNERSHIP, et.al. v. UNITED STATES ARMY CORPS OF ENGINEERS; UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 261 F.3d 810 (9th Cir. 2001) OPINION: HAWKINS, Circuit Judge This appeal concerns the authority of the U.S. Army Corps of Engineers (“the Corps”) and the Environmental Protection Agency (“EPA”) over a form of agricultural activity called “deep ripping” when it occurs in wetlands…. Facts and Procedural Background In June of 1993, Angelo Tsakopoulos, a Sacramento real estate developer, purchased Borden Ranch, an 8400 acre ranch located in California’s Central Valley. Prior to Tsakopoulos’s purchase, the relevant areas of the ranch had been used primarily as rangeland for cattle grazing. The ranch contains significant hydrological features including vernal pools, swales, and intermittent drainages. Vernal pools are pools that form during the rainy season, but are often dry in the summer. Swales are sloped wetlands that allow for the movement of aquatic plant and animal life, and that filter water flows and minimize erosion. Intermittent drainages are streams that transport water during and after rains. All of these hydrological features depend upon a dense layer of soil, called a “restrictive layer” or “clay pan, “which prevents surface water from penetrating deeply into the soil. Tsakopoulos intended to convert the ranch into vineyards and orchards and subdivide it into smaller parcels for sale. Vineyards and orchards, however, require deep root systems, much deeper than the restrictive layer in the relevant portions of Borden Ranch permitted. For vineyards and orchards to grow on this land, the restrictive layer of soil would first need to be penetrated. This requires a procedure known as” deep ripping,” in which four-to seven-foot long metal prongs are dragged through the soil behind a tractor or a bulldozer. The ripper gouges through the restrictive layer, disgorging soil that is then dragged behind the ripper. Under the Clean Water Act, an individual seeking to fill protected wetlands must first obtain a permit from the Corps. Since 1993, Tsakopoulos and the Corps have disagreed about the Corps’ authority to regulate deep ripping in wetlands. Tsakopoulos initiated deep ripping without a permit in the fall of 1993, and the Corps granted him a retrospective permit in the spring of 1994, when Tsakopoulos agreed to various mitigation requirements. In the fall of 1994, the Corps and the EPA informed Tsakopoulos that he could deep rip in uplands and that he could drive over swales with the deep ripper in its uppermost position, but that he could not conduct any deep ripping activity in vernal pools. The next spring, the Corps discovered that deep ripping had occurred in protected wetlands and promptly issued a cease and desist order. From July 1995 through November 1995, Tsakopoulos again initiated deep ripping on various parcels of land without a permit. The Corps concluded that more protected wetlands had been ripped and again issued a cease and desist order. In May of 1996, the Corps and the EPA entered into an Administrative Order on Consent with Tsakopoulos that was intended to resolve his alleged Clean Water Act violations. Under the agreement, Tsakopoulos set aside a 1368-acre pre-serve and agreed to refrain from further violations. In December of 1996, the Corps and the EPA issued a regulatory guidance letter that distinguished deep ripping from normal plowing activity. The letter stated that deep-ripping in wetlands “destroys the hydrological integrity of these wetlands” and therefore “requires a permit under the Clean Water Act.” In March of 1997 the Corps concluded that Tsakopoulos had continued to deep rip wetlands without permission. That April, EPA investigators visited the ranch and observed fully engaged deep rippers passing over jurisdictional wetlands. EPA then issued an Administrative Order to Tsakopoulos. Tsakopoulos responded by filing this lawsuit, challenging the authority of the Corps and the EPA to regulate deep ripping. The United States filed a counterclaim seeking injunctive relief and civil penalties for Tsakopoulos’s alleged violations of the Clean Water Act. Both parties filed motions for summary judgment. The district court ruled that the Corps has jurisdiction over deep ripping in jurisdictional waters…. The district court subsequently entered findings of fact and conclusions of law determining that Tsakopoulos had repeatedly violated the Clean Water Act. The court found 348 separate deep ripping violations in 29 drainages, and 10 violations in a single vernal pool. The district court gave Tsakopoulos the option of paying a $ 1.5 million penalty or paying $ 500,000 and restoring four acres of wetlands. Tsakopoulos chose the latter option. After denying a motion for more specific findings of fact, the district court entered its final order in favor of the United States. Tsakopoulos then brought this timely appeal. Analysis I. Corps Jurisdiction over Deep Ripping The Clean Water Act prohibits” the discharge of any pollutant” into the nation’s waters. The nation’s waters have been interpreted to include wetlands adjacent to navigable waters. See United States v. Riverside Bayview Homes, Inc. (1985). The Act defines discharge as “any addition of any pollutant to navigable waters from any point source.” A point source is “any discernible, confined and discrete conveyance ...from which pollutants are or may be discharged.” A pollutant is defined, inter alia, as “dredged spoil, ... biological materials, ... rock, sand, [and] cellar dirt.” It is unlawful to discharge pollutants into wetlands without a permit from the Army Corps of Engineers. A. Discharge of a Pollutant Tsakopoulos initially contends that deep ripping cannot constitute the “addition” of a “pollutant “into wetlands, because it simply churns up soil that is already there, placing it back basically where it came from. This argument is inconsistent with Ninth Circuit precedent and with case law from other circuits that squarely hold that redeposits of materials can constitute an “addition of a pollutant” under the Clean Water Act. Rybachek v. United States Envtl. Prot. Agency (9th Cir. 1990), considered a claim that placer mining activities were exempt from the Act. We held that removing material from a stream bed, sifting out the gold, and returning the material to the stream bed was an” addition” of a “pollutant.” The term” pollutant” encompassed “the materials segregated from gold in placer mining.” Our reasoning in Rybachek is similar to that of the Fourth Circuit in United States v. Deaton (4th Cir. 2000). In Deaton, a property owner alleged that the Corps could not regulate “sidecasting,” which is” the deposit of dredged or excavated material from a wetland back into that same wetland.” Id. at 334. The property owner asserted that “sidecasting results in no net increase in the amount of material present in the wetland” and therefore could not constitute the “addition of a pollutant.” Id. at 335. The Fourth Circuit squarely rejected this argument, in language that is worth quoting in full: Contrary to what the Deatons suggest, the statute does not prohibit the addition of material; it prohibits the “addition of any pollutant.” The idea that there could be an addition of a pollutant without an addition of material seems to us entirely unremarkable, at least when an activity transforms some material from a nonpollutant into a pollutant, as occurred here .... Once [earth and vegetable matter] was removed [from the wetland], that material became “dredged spoil,” a statutory pollutant and a type of material that up until then was not present on the Deaton property. It is of no consequence that what is now dredged spoil was previously present on the same property in the less threatening form of dirt and vegetation in an undisturbed state. What is important is that once that material was excavated from the wetland, its redeposit in that same wetland added a pollutant where none had been before. As the court concluded, “Congress determined that plain dirt, once excavated from waters of the United States, could not be redeposited into those waters without causing harm to the environment.” Id. at 336; see also Avoyelles Sportsmen’s League, Inc. v. Marsh (5th Cir. 1983) (holding that the word “addition” may be reasonably understood to include “redeposit”). These cases recognize that 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. In this case, the Corps alleges that Tsakopoulos has essentially poked a hole in the bottom of protected wetlands. That is, by ripping up the bottom layer of soil, the water that was trapped can now drain out. While it is true, that in so doing, no new material has been “added,” a “pollutant” has certainly been “added.” Prior to the deep ripping, the protective layer of soil was intact, holding the wetland in place. Afterwards, that soil was wrenched up, moved around, and redeposited somewhere else. We can see no meaningful distinction between this activity and the activities at issue in Rybachek and Deaton. We therefore conclude that deep ripping, when undertaken in the context at issue here, can constitute a discharge of a pollutant under the Clean Water Act. Tsakopoulos also contends that no case has ever held a plow to be a point source, and that a prohibited discharge must be from a point source. This argument has no merit. The statutory definition of “point source” (“any discernible, confined, and discrete conveyance”) is extremely broad, and courts have found that” bulldozers and backhoes” can constitute “point sources,” In this case, bulldozers and tractors were used to pull large metal prongs through the soil. We can think of no reason why this combination would not satisfy the definition of a “point source.” B. The Normal Farming Exception Tsakopoulos next contends, that even if deep ripping constitutes a discharge of pollutants, it is nonetheless exempt from regulation under the “farming exceptions, “which state that discharges “from normal farming ... and ranching activities, such as plowing” are not subject to the Clean Water Act. The section of the statute containing the farming exceptions, however, includes a significant qualifying provision: Any discharge of dredged or fill material into the navigable waters incidental to any activity having as its purpose bringing an area of the navigable waters into a use to which it was not previously subject, where the flow or circulation of navigable waters may be impaired or the reach of such waters be reduced, shall be required to have a permit under this section. 33 U.S.C. § 1344(f)(2). Thus, even normal plowing can be regulated under the Clean Water Act if it falls under this so-called “recapture” provision. We conclude that the deep ripping at issue in this case is governed by the recapture provision. Converting ranch land to orchards and vineyards is clearly bringing the land” into a use to which it was not previously subject,” and there is a clear basis in this record to conclude that the destruction of the soil layer at issue here constitutes an impairment of the flow of nearby navigable waters. Although the Corps cannot regulate a farmer who desires “merely to change from one wetland crop to another,” activities that require “substantial hydrological alterations” require a permit. United States v. Akers (9th Cir. 1986). As we have explained, “the intent of Congress in enacting the Act 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.” In this case, Tsakopoulos’s activities were not intended simply to substitute one wetland crop for another; rather they radically altered the hydrological regime of the protected wetlands. Accordingly, it was entirely proper for the Corps and the EPA to exercise jurisdiction over Tsakopoulos’s activities. II. The Vernal Pool The district court found Clean Water Act violations in one isolated vernal pool on Tsakopoulos’s property. Earlier this year, the Supreme Court ruled in Solid Waste that the Corps’ rule extending the definition of “navigable waters” under the Clean Water Act to include intrastate waters used as habitat for migratory birds exceeds the authority granted to the Corps under the Clean Water Act. The government now concedes that Solid Waste precludes Corps’ authority over the vernal pool in dispute and has formally withdrawn its enforcement claim with respect to the pool. We accordingly reverse the district court’s findings of Clean Water Act violations in the vernal pool…. Conclusion We affirm the district court’s holding that deep ripping in this context is subject to the jurisdiction of the Corps and the EPA…. DISSENT: GOULD, Circuit Judge I respectfully dissent. The crux of this case is that a farmer1 has plowed deeply to improve his farm property to permit farming of fruit crops that require deep root systems, and are more profitable than grazing or other prior farm use. Farmers have been altering and transforming their crop land from the beginning of our nation, and indeed in colonial times. Although I have no doubt that Congress could have reached and regulated the farming activity challenged, that does not in itself show that Congress so exercised its power. I conclude that the Clean Water Act does not prohibit “deep ripping” in this setting. I would follow and extend National Mining Association v. U.S. Army Corps of Engineers (D.C. Cir. 1998), and hold that the return of soil in place after deep plowing is not a “discharge of a pollutant.” In National Mining, the court held that the Corps exceeded its authority under section 404 of the Clean Water Act by regulating the redeposit of dredged materials that incidentally fall back in the 1Appellant, Angelo Tsakopoulos, is referred to by the majority as a "real estate developer." As the owner of Borden Ranch, which apparently engaged in both farming and ranching activities, it seems to me correct to refer to him as a farmer or a rancher, in addition to being a developer. Whether viewed as a farmer, rancher, or developer, his rights as a citizen are the same. Because the challenged activities in this case arise on land previously used for rangeland for cattle grazing, and his deep ripping was converting the land for orchard and vineyard farming, I consider him as a farmer and rancher, and the issues raised by his position in this litigation may impact farmers and ranchers regardless of whether they plan to sell portions of improved land. course of dredging operations. The court explained that “the straightforward statutory term ‘addition’ cannot reasonably be said to encompass the situation in which material is removed from the waters of the United States and a small portion of it happens to fall back.” The court rejected the agencies’ primary argument that incidental fallback constitutes an “addition” because once dredged the material becomes a pollutant: Regardless of any legal metamorphosis that may occur at the moment of dredging, we fail to see how there can be an addition of dredged material when there is no addition of material. Although the Act includes “dredged spoil” in its list of pollutants, Congress could not have contemplated that the attempted removal of 100 tons of that substance could constitute an addition simply because only 99 tons of it were actually taken away. Those considerations are persuasive here as deep ripping does not involve any significant removal or “addition” of material to the site. The ground is plowed and transformed. It is true that the hydrological regime is modified, but Congress spoke in terms of discharge or addition of pollutants, not in terms of change of the hydrological nature of the soil. If Congress intends to prohibit so natural a farm activity as plowing, and even the deep plowing that occurred here, Congress can and should be explicit. Although we interpret the prohibitions of the Clean Water Act to effectuate Congressional intent, it is an undue stretch for us, absent a more clear directive from Congress, to reach and prohibit the plowing done here, which seems to be a traditional form of farming activity. Rybachek v. United States Environmental Protection Agency (9th Cir. 1990), in my view, is distinguishable. In Rybachek, we held that placer mining, “a process in which miners excavate dirt and gravel in and around waterways and, after extracting the gold, discharge the left-over material back into the water,” fell within the scope of section 404 of the Clean Water Act. Id. at 1285. There, the Rybachek court identified the regulable discharge as the discrete act of dumping leftover material into the stream after it had been processed. Id. As the concurrence in National Mining makes clear, however, “the word addition carries both a temporal and geographic ambiguity. If the material that would otherwise fall back were moved some distance away and then dropped, it very well might constitute an ‘addition. ‘Or if it were held for some time and then dropped back in the same spot, it might also constitute an ‘addition.’” National Mining (Silberman, J., concurring). Because deep ripping does not move any material to a substantially different geographic location and does not process such material for any period of time, Rybachek is not controlling. Nor is the Fourth Circuit’s opinion in United States v. Deaton (4th Cir. 2000), relied on by the majority, persuasive to me in the context presented. A farmer who plows deeply is not, in my view, redepositing dredged or excavated materials. While the Fourth Circuit relied on the fact that a “dredged spoil” is a statutory pollutant, the deep plowing activity here, in my view, is not the same as dredging dirt from and redepositing it in waters…. I would hold that the district court erred in finding that the activities here required a permit and otherwise violated the Clean Water Act. The problem of interpretation here arises because Congress prohibited the discharge or addition of any pollutant to navigable waters from any point source. It did not literally prohibit any conduct by farmers or ranchers that changes the hydrological character of their land. The majority opinion, motivated perhaps by the purposes of the statute, makes new law by concluding that a plow is a point source and that deep ripping includes discharge of pollutants into protected waters. The policy decision involved here should be made by Congress, which has the ability to study and the power to make such fine distinctions. I understand how the majority reaches its position based on Rybachek, and incremental judicial reasoning. Notwithstanding, the judicial determination that a deep plowing technique constitutes a pollution of navigable waters, with no prior adequate guidance from Congress, goes beyond mere statutory interpretation. It would be preferable for the public, the regulators, and us were Congress to speak explicitly on the subjects of what normal farming or ranching activities may include discharge of pollutants and require permits under the Clean Water Act, and whether it wishes to exempt any such activities and upon what terms. The alternatives are an agency power too unbounded or judicial law-making, which is worse. I respectfully dissent. Running head: CASE LAW ANALYSIS 1 Case Law Analysis Name Institution CASE LAW ANALYSIS 2 Case Law Analysis In summary, OAKES (n.d) assert that the state of America played a part in determining that South view possesses a lot operation for feeding cattle with a remarkable quantity of animals in a clustered nourishing facility that lacks any plant life. To that place, that entire operation classifies as a pollution source as per the Clean Water Act (CWA) and not dependent on any farming indemnity. In view of that, this means that the verdict of the regional high court, which overruled the ruling of the panel of judges, is reversed and the basis deferred for additional legal actions. In my opinion, the Second Circuit was overturned since the appeals court interpreted the meaning of a concentrated animal feeding operation, abbreviated CAFO, in an extremely constricted manner. More specifically, the court of appeals ruled that a huge cattle ranch house would be mandated to cultivate vegetation within its livestock sheds in order to acquire certification for the CWA exclusion for dairy processes that nurture fodder, thus effectually abolishing that immunity. In addition to this, the court also defined farming emissions of storm water to merely imply unpolluted water from rain. Consequently, this made the exclusion of the legislative body unsuitable to any storm water resulting from agricultural processes, which customarily comprises other material. Ultimately, the Second Circuit also identified other secondary bases of toxic waste in the area in the structure of compost propagators and pits in the land. In brief, I believe that this case characterizes as one where an appeals court, in a surge of ecological enthusiasm, determined that Congress did not adequately justify farming effluence. Thus, the former redrafted the statute in line with its own preference for a wider civic directive, in contrast to the desires of the latter. CASE LAW ANALYSIS 3 References OAKES. (n.d). ‘Concerned Area Residents for the Environment (CARE), et. al. v. Southview Farm 34 F.3d 114 (2d Cir. 1994).’ Accessed May 3, 2021 from file:///C:/Users/pc/Downloads/attachment_1%20(54).pdf