Borden Ranch Partnership v. United States Army Corps of Engineers

RONALD M. GOULD, Circuit Judge, dissenting:

I respectfully dissent. The crux of this case is that a farmer 1 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, 145 F.3d 1399 (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 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.” Id. at 1404 . 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 consti *820 tute an addition simply because only 99 tons of it were actually taken away.

Id. at 1404 (emphasis omitted).

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, 904 F.2d 1276 (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 leftover 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, 145 F.3d at 1410 (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, 209 F.3d 331 (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.

Also, even assuming that deep ripping can be viewed as a discharge of a pollutant into navigable waters, it seems at first consideration exempt as a normal farming activity. The Clean Water Act exempts normal farming activity, including plowing. See 33 U.S.C. § 1344 (f)(1)(A). The exemption as cast by Congress is not limited to shallow plowing, but would appear literally to cover the deep plowing technique referred to as deep ripping.

This exemption, however, does not apply by its terms to “any activity having as its purpose bringing an area of the navigable waters into a use to which it was not previously subject.” See 33 U.S.C. § 1344 (f)(2). Moreover, the Corps of Engineers, by regulation, has provided explicitly that the plowing exemption does not include “redistribution of soil, rock, sand, or other surficial materials in a manner which changes any area of the waters of the United States to dry land.” 33 C.F.R. § 323.4 (a)(l)(iii)(D). The Corp’s regulation, which we upheld in United States v. Akers, 785 F.2d 814, 819-20 (9th Cir.1986), must be read consistent with the statute’s terms. Although this limitation defeats the exemption for any deep ripping that had the purpose of transforming land, it *821 does not, in my view, defeat the exemption as to any unintended impairment. Most violations found by the district court involved a purposeful attempt to transform the land. But some of the transgressions (indentations in swales caused by moving the deep ripper to different locations) found by the district court here were apparently unintentional, or at least there was no finding by the district court of purposeful modification as to all of the violations.

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 madé 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.

. Appellant, 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.