Petition for Writ of Certiorari — Borden Ranch Partnership v. United States Army Corps of Engineers

Supreme Court brief2002

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Text

No.

Supe Cour u =

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in The 941243 FEB 22 2003

Supreme Court of the Usted States

BORDEN RANCH PARTNERSHIP;

ANGELO K. TSAKOPOULOS,

Petitioners,

UNITED STATES ARMY CORPS OF ENGINEERS;

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

Timotny S. BisHop

Mayer, Brown, Rowe &

Maw

190 South LaSalle Street

Chicago, IL 60603

(312) 782-0600

EDMUND L. REGALIA

Miter, STARR &

REGALIA

A Professional Law

Corporation

1331 N. California Blvd.

Fifth Floor

Post Office Box 8177

Walnut Creek, CA 94596

(925) 935-9400

ARTHUR F. Coon

‘Counsel of Record

Miter, STARR &

REGALIA

A Professional Law

Corporation

1331 N. California Blvd.

Fifth Floor

Post Office Box 8177

Walnut Creek, CA 94596

(925) 935-9400

Counsel for Petitioner

QUESTIONS PRESENTED

The issue presented by this case is whether a farmer

needs a federal permit to plow his agriculturally-zoned

ranchland to plant new crops. Section 404 of the Clean

Water Act authorizes the Army Corps of Engineers to

require permits only for those activities that “discharge”

or “add” a “pollutant” from a “point source” into waters

of the United States, and further expressly exempts “nor-

mal farming and ranching activities, such as plowing,”

which do not convert the body of water “into a use to

which it was not previously subject.” Petitioners acquired

the Borden Ranch, an 8,400 acre property in California’s

Central Valley that is zoned for agricultural use, and

sought to enhance portions of the land that previously

had been used to grow forage crops for higher value

vineyards and orchards. Petitioners did this by deep

plowing to prepare the soil for these deep-rooted crops.

The Army Corps asserted jurisdiction under Section 404

of the Clean Water Act over these plowing activities,

claiming petitioners were discharging pollutants into sea-

sonal wetlands. The Ninth Circuit upheld this assertion of

federal jurisdiction, over Judge Gould’s dissent. and in

conflict with the D.C. Circuit’s National Mining decision.

The questions presented are:

l. Does a rancher’s deep plowing to

enhance the soil’s agricultural viability “add” a

“pollutant” to a wetland so as to constitute a

regulated point-source “discharge” within the

meaning of Section 404 of the Clean Water Act?

QUESTIONS PRESENTED - Continued

2. Is deep plowing of ranchland, which is

used to grow forage crops and is farmable in its

natural state, in order to plant crops with deeper

root systems, statutorily exempt from regulation

under Section 404 as a “normal farming activ-

ity” that does not bring a water of the United

States “into a use to which it was not previously

subject”?

3. Does the Clean Water Act's civil penalty

section, authorizing penalties “not to exceed

$25,000 per day for each violation,” authorize

assessing the maximum daily penalty for each

time a plow crosses a jurisdictional drainage

feature, without regard to the number of days

when such activity occurred?

ili

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .............ccsccccecees i

TABLE OF AUTHORITIES ..............cceceeeeees Vv

TS + ccnesesedeeseeesncecesntoces: 1

EE bcd Ebb sdeSedénadedescddccdetcenecs 1

STATUTORY PROVISIONS INVOLVED............. 1

PEE, bo b0biee he cbuedocews see ccdeccedossocess 2

A. The Statutory and Regulatory Scheme ........ 5

1. Basic Elements of Section 404 Jurisdiction ... 5

2. The CWA’s Farmer Exemptions ............ 7

3. The Penalty Provision ..................4:- 8

B. Petitioners’ Plowing Activities On Borden Ranch

and the Corps’ Assertion of Jurisdiction ....... 9

C. Petitioners’ To The Corps’ Jurisdiction

Over Plowing And District Court’s Ruling... 11

D. The Ninth Circuit’s Decision .................. 13

REASONS FOR GRANTING THE PETITION ....... 15

I. THE CIRCUITS ARE SPLIT OVER THE CORPS’

AUTHORITY TO REGULATE “INCIDENTAL

FALLBACK” AS A POINT SOURCE DIS-

CHARGE OF POLLUTANTS UNDER THE CWA

Il. THE NINTH CIRCUIT ERRED IN HOLDING

PLOWS ARE “POINT SOURCES” ............. 20

TABLE OF CONTENTS - Continued

Page

Ill. THE NINTH CIRCUIT ERRED IN HOLDING

THAT PLOWING RANCHLAND TO PLANT

CROPS IS A “CHANGE IN USE” NEGATING

THE CWA’S INTENDED BROAD EXEMPTION

OF PLOWING AS A “NORMAL FARMING

RETEUEEE cccedccuseccccececcccccecececeesees

IV. THE NINTH CIRCUIT ERRED IN CALCULAT-

ING THE CIVIL PENALTY BY CALCULATING

EACH PASS OF THE PLOW THROUGH

WATERS, RATHER THAN EACH DAY OF

PLOWING, AS A SEPARATE VIOLATION UNIT

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TABLE OF AUTHORITIES

Page

Cases

Angelo K. Tsakopoulos v. American Manufacturers

Mutual Insurance Co., et al.

(U.S. Dist. Ct. E.D. Cal.), Civ. No. S-99-0853 GEB

Pc cnecesacecoceccceséédeesbedesNawedenvedecveces 1

Atlantic States Legal Foundation v. Tyson Foods,

897 F.2d 1128 (11th Cir. 1990).................. 28, 29

Avoyelles Sportsmen's League, Inc. v. Marsh, 715 F.2d

fhe See 14, 21, 22, 23, 24

Bay Foundation v. Gwaltney of Smithfield,

791 F2d 304 (4th Cir. 1986)...............0005. 28, 29

Chevron U.S.A., Inc. v. Natural Resources Defense

Council,

Se eee GEF Gee coverncccccressnnccesncoccsecss 27

Downer v. U.S. By And Through Dept. of Agriculture,

894 F.Supp. 1348 (D.S.D. 1995) ..........,....0eee. 23

Harrison v. Northern Trust Co.,

Be Ce GO GD cnccecc ccc ccdéteeccdudbececdeses 7

Hawaii's Thousand Friends v. City and County of

Honolulu,

821 FSupp. 1368 (D. Haw. 1993)............... 28, 29

Hess v. Port Auth. Trans-Hudson Corp.,

SED TBS GRIPE 0 cer ccccicesccccccvess bGGabevcee 26

In re Carsten, ,

211 B.R. 719 (Bkrtcy. D. Mont. 1997) ............ 7, 22

TABLE OF AUTHORITIES - Continued

Page

National Mining Ass'n. v. U.S. Army Corps of

at on

145 F.3d 1399 (D.C. Cir. 1998).............055. passim

Resource Invs. v. U.S. Army Corps of Eng’rs.,

151 F.3d 1162 (9th Cir. 1998).............0cceues 6, 19

Rybachek v. United States EPA,

904 F.2d 1276 (9th Cir. 1990)......... 3, 13, 14, 17, 18

Solid Waste Agency of Northern Cook County v. U.S.

yp Ag of Eng’rs. (“SWANCC”),

Se GD MED co cccdeccncsocescesces 6, 16, 26, 27

Tidewater Oil Co. v. United States, !

SF Ce BS QE cc cedd tice cot scdcvedededecsesées 8

United States v. Akers,

785 F.2d 814 (9th Cir. 1986)................ 23, 25, 26

United States v. Amoco Oil Co.,

580 F.Supp. 1042 (W.D. Mo. 1984)................. 29

United States v. Bass,

Se See GE ED ccvemsarecnccocconncnduencseaes 27

United States v. Deaton,

209 F.3d 331 (4th Cir. 2000)................. 3, 13, 14

U.S. v. Riverside Bayview Homes, Inc.,

Ge ee Se Ge etnns scare come pages cccndsuseene 6

United States v. Wilson,

fF 3s 8 4: Be eer 7

Clean Water Act

Section 404 (33 U.S.C. § 1344) ................ passim

vii

TABLE OF AUTHORITIES - Continued

Page

1985 Food Security Act ...........ccccceceeeeeeneees 23

BD Wes B TOE ve cccccciccccccccccccésoccsessetuve 1

SD WEG, Boss ee ccc b tec cicdeccvccvoeess 5, 20, 26

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PD OBE. OBIE. inks ccc ciiswtedevcccssces 1, 8, 9, 28

BD DB © Tec cccccccdcccesetesscvcevecceesees 5, 26

a Te | PPE EPPPTTTITISTTTTT TTT Tee passim

33 U.S.C. § 1344(f)(1)(2) ... 2... cece cece eee eeees passim

33 U.S.C. § 1362(6), (12), (14), and (16).......... passim

33 C.F.R.

Section 323.2(d)(1), (iii), (2)(i) (ii), (3)(iii), (4)(iii) . . . . . 2

BED GEER ceececcdesevceveccedonescccescceces 25

Section 323.4(a)(1)(i), (ii), (i#i)(D) ............6--006- 2

40 C.F.R.

Section 232.3(c)(1)(i)Aii) and (d)(4) ............2-05- 2

Section 232.4(4)(idi) ... 0... 6. cece cece cece ee ee ences 1

OrHER AUTHORITIES

Vol. 3, A LEGISLATIVE HISTORY OF THE

CLEAN WATER ACT OF 1977 (1978) (hereafter

“1977 LEG. HIST.”) at 645 (Senate Report on S.

& | + eer rrr rrr rrr rT rrr 24

4 1977 LEG. HIST. at pp. 919-920......... eencepeces 25

4 1977 LEG. HIST. at pp. 924, 181, 289, 351, 524... 24

Viii

TABLE OF AUTHORITIES - Continued

Page

AMERICAN HERITAGE DICTIONARY OF THE

ENGLISH LANGUAGE, NEW COLLEGE ED.

Se aC a conn s cb bisdiccoddebinecdescciecc 23

BLACK’S LAW DICTIONARY (5th ed. 1979), p.

EEE LES ETRE LE EN Ee ae in 23

S. - No. 95-370, at 76 (1977), reprinted in 1977

U.S.C.C.A.N. 4326, 4401 ..... fe otagebtdedeceess 2, 20

WEBSTER’S DICTIONARY OF THE ENGLISH

LANGUAGE UNABRIDGED (Encycl. ed. 1977)..... 5

PETITION FOR A WRIT OF CERTIORARI

Petitioners Borden Ranch Partnership and Angelo K.

Tsakopoulos respectfully petition for a writ of certiorari

to review the judgment of the United States Court of

Appeals for the Ninth Circuit.

OPINIONS BELOW

The court of appeals’ opinion (App., infra, 1-22) is

reported at 261 F.3d 810. The district court’s opinion on

summary judgment (App., infra, 28-56) is unreported. Its

decision after the counterclaim trial (App., infra, 67-121)

is unofficially reported at 1999 WL 1797329. The district

court’s summary judgment opinion in a related action,

Angelo K. Tsakopoulos v. American Manufacturers Mutual

Insurance Co., et al. (U.S. Dist. Ct. E.D. Cal.), Civ. No.

S-99-0853 GEB JFM (Hon. Garland E. Burrell, Jr.) (App.,

infra, 135-164) is unreported. The U.S. Army Corps of

Engineers’ (“Corps”) December 12, 1996 Regulatory

Guidance Letter setting forth the basis for its regulation

of petitioners’ deep plowing is set out at App., infra,

199-207.

JURISDICTION

The court of appeals’ opinion was filed August 15,

2001. On November 28, 2001, the court of appeals issued

its Order denying petitioners’ petition for rehearing en

banc. On December 18, 2001, the court of appeals issued

its Order granting petitioners’ motion to stay the man-

date pending filing of this petition. Jurisdiction of this

Court is invoked under 28 U.S.C. Section 1254(1).

STATUTORY PROVISIONS INVOLVED

The relevant provisions of the Clean Water Act, 33

U.S.C. Sections 1311(a), 1319(d), 1344(a), (f), 1362(6), (12),

(14), and (16), are reproduced at App., infra, 209-213. The

relevant regulations, 40 C.F.R. Section 232.4(4)(iii), 40

“-

C.F.R. Section 232.3(c)(1)(i)(ii) and (d)(4), and 33 C.FR.

Section 323.2(d)(1), (iii), (2)(i),{ii), (3)(iii), (4)(iii) and 33

U.S.C. Section 323.4(2)(:)(i), (ii), (iii)(D), are reproduced

at App., infra, 213-218.

STATEMENT

The fundamental issue in this case is whether a

farmer and rancher may deeply plow his agriculturally-

zoned ranchland to plant higher value crops without

need of a federal permit or, conversely, whether the

Corps has jurisdiction to regulate such traditional plow-

ing activity under the Federal Clean Water Act (“CWA”

or “Act”). The Corps asserts such jurisdiction in this case

and others, contending that the traditional farming activ-

ity of plowing alone of dry ground in areas of seasonal

wetlands constitutes the “discharge” of “pollutants”

(native soil) from a “point source” (the plow) which is

regulated under CWA Section 404.

The Corps’ expansive claim of federal permitting

jurisdiction over traditionally local activities - such as

farming and plowing - under CWA Section 404! has

resulted in conflict among the courts of appeals as to the

statute’s reach. The D.C. Circuit has held “incidental

fallback” of native materials from a dredge bucket during

aquatic dredging operations is not an “addition” of pollu-

tants and thus not a “discharge” of dredged or fill mate-

rial regulated under Section 404, because no materials are

added and the disturbed native materials fall back to

their same general location. National Mining Ass'n. v. U.S.

Army Corps of Eng’rs., 145 F.3d 1399, 1404 (D.C. Cir. 1998).

1 33 U.S.C. § 1344, see App., infra, 210-211. Congress did not

intend CWA Section 404 to extend to normal farming activities,

which it contemplated would be “controlled by State and local

agencies under (the Act’s non-point source provisions].” S. Rep.

gigs, at 76 (1977), reprinted in 1977 U.S.C.C.A.N. 4326,

It further held the CWA farmer exemptions for plowing

and other normal farming activities evince that Congress

“emphatically did not want the law to impede these

bucolic pursuits.” Id. at 1405.

The Ninth Circuit, by contrast in its 2-1 decision here

(Judge Gould, dissenting), holds deep plowing - which

also adds no materials and results in plowed native soil

falling back to its same general location - produces a

“regulable redeposit” of the plowed soil “pollutant”

because it “constitutes environmental damage sufficient

to constitute a regulable redeposit.” App., infra, 8. Over

the strong dissent of Judge Gould, who would have fol-

lowed National Mining and held “the return of soil in

place after deep plowing is not a ‘discharge of a pollu-

tant[,]’” App., infra, 18, the panel majority relied on the

Ninth Circuit’s prior decision holding redeposits of

extracted and processed materials from in stream placer

mining operations are regulated, and a Fourth Circuit

decision (citing the same Ninth Circuit decision) holding

“sidecasting” from backhoe dredging to drain wetlands

for residential subdivision construction was regulated.

Rybachek v. United States EPA, 904 F.2d 1276, 1285 (9th Cir.

1990); United States v. Deaton, 209 F.3d 331, 333-336 (4th

Cir. 2000). App., infra, 6-8.

Despite the express statutory exemption for any “dis-

charges” from “normal farming . . . and ranching activ-

ities such as plowing . . . for the production of food,

fiber... ,” App., infra, 210, the Ninth Circuit also holds

the “recapture” exception to the exemption applies

because “[c]onverting ranch land to orchards and vine-

yards is clearly bringing the land ‘into a use to which it

was not previously subject[.]’” App., infra, 10; see App.,

infra, 211.

The Ninth Circuit’s decision is legally erroneous and

inconsistent with the CWA’s plain language and legisla-

tive history, as well as authorized implementing regula-

tions. Plowing alone does not “add” pollutants or soil

and does not produce regulated point source “dis-

charges.” No statute or regulation states plowing is a

CWA-regulated activity. Moreover, the relevant statutes

and regulations expressly exempt all forms of plowing from

Section 404 regulation as required by Section 404(f)(1)’s

“farmer exemptions.” App., infra, 210; see App., infra, 212

(exempting agricultural runoff from point source pro-

gram). No other case has ever invoked the facially-nar-

row “recapture provision” to hold plowing alone - as

opposed to plowing conducted incidental to and as a

minor part of other activities primarily intended to fill

and dry out waters or wetlands - is a CWA-regulated

activity. No other case has held plows used only for

normal farming purposes are “point sources.” Dissenting

from the Ninth Circuit panel majority’s complete evis-

ceration of the Act’s fundamental jurisdictional require-

ments and farmer exemptions, Judge Gould would have

held return of soil in place after deep plowing is not a

“discharge,” because “deep ripping” does not involve

any significant removal or “addition” of material to the

site, and plows are not “point sources.” App., infra, 19-22.

He observed the majority was making new law in

upholding federal regulation under Section 404’s point

source program of a traditional farming activity without

any clear or express Congressional authorization of that

result. App., infra, 22.

Given (1) the split among circuits on whether “inci-

dental fallback” is a regulated “discharge,” (2) the stat-

utorily untenable basis of the Corps’ position that it may

regulate any form of mere plowing of agricultural land as

a point-source discharge, (3) the nationwide importance

of agriculture and (4) the nationwide importance of effec-

tuating Congress’ intent to meaningfully exempt farming

activities from Section 404, this Court’s review of the

legality of the Corps’s assertion of federal permitting

jurisdiction over normal farming activities in this case is

appropriate and necessary at this time. Congress did not

intend to federalize regulation of traditionally local land

use matters when it adopted the CWA. It did not intend or

envision when it enacted the CWA and its “farmer exemp-

tions” that a farmer plowing dry, agriculturally-zoned

ranchland to plant higher value crops — a normal activity

farmers have engaged in since colonial times, App., infra,

18 — would require a federal permit for the “discharge” of

“pollutants” from a “point source” to do so.

A. The Statutory and Regulatory Scheme

1. Basic Elements of Section 404 Jurisdiction

CWA Section 404 authorizes the Corps to directly

regulate and issue federal permits “for the discharge of

dredged or fill material into the navigable waters at speci-

fied disposal sites.” 33 U.S.C., § 1344(a); App., infra, 210.

Section 301(a) provides that the “discharge of any pollu-

tant by any person” is unlawful unless in compliance with

the Act’s permit requirements. § 1311(a); App., infra, 209.

“Discharge” is defined as “any addition of any pollutant to

navigable waters from any point source.” § 1362(16), (12);

App., infra, 212; National Mining, supra, 145 F.3d at 1401.?

As a prerequisite to the existence of a regulated point

source “discharge,” the statute’s plain text requires an

“addition” of a “pollutant.” To “add” is “to join or unite

(to) so as to increase the number, size, quantity, etc.”

WEBSTER’S DICTIONARY OF THE ENGLISH LAN-

GUAGE UNABRIDGED (Encycl. ed. 1977).

The courts below treated plowed native soil as both a

“pollutant” and “fill material,” and plows themselves as

2 CWA Sections 208 and 319 direct the States to take certain

steps to address nori-point source pollution, but the States

determine the nature of those steps. See 33 U.S.C. §§ 1288, 1329.

Farming and ranching activities are explicitly contemplated to

fall within the non-point source area subject to State and local

control. E.g., 33 U.S.C. §§ 1288(b)(2)(F), 1362(14).

regulated “point sources.” “Pollutants” within the Act

include, inter alia, “dredged spoil, . . . rock, sand, cellar

dirt . . . and agricultural waste discharged into water.”

§ 1362(6); App., infra, 211. “Fill material” has been held to

mean material used for the “primary purpose” of replac-

ing an aquatic area with dry land or changing the bottom

elevation of a water body. Resource Invs. v. U.S. Army

Corps of Eng’rs., 151 F.3d 1162, 1168 (9th Cir. 1998);

National Mining, supra, at 145 F.3d at 1402, fn. 1. A “point

source” is defined as “any discernible, confined and dis-

crete conveyance, including but not limited to any pipe,

ditch, channel, tunnel, conduit, well, discrete fissure, con-

tainer, rolling stock, concentrated animal feeding opera-

tion, or vessel or other floating craft, from which

pollutants are or may be discharged... . ” § 1362(14);

App., infra, 212, emph. added.

The relevant “navigable waters” or “waters of the

United States” on the semi-arid Borden Ranch are widely

dispersed seasonal drainage swales and intermittent

drainages — shallow linear features ranging from several

inches to several feet wide, and up to several hundred

feet long - which exist and carry stormwater runoff for

brief periods only during and after seasonal rains, and

which ultimately drain to intermittent streams, which

themselves ultimately flow to tributaries of navigable

waters. App., infra, 2; ER1011-12.3 “Navigable waters”

under the Act include wetlands adjacent to rivers, streams

and more conventionally identifiable “waters”, National

Mining, supra, 145 F.3d at 1401, citing U.S. v. Riverside

Bayview Homes, Inc., 474 U.S. 121, 131-32 & n. 8 (1985), but

not isolated intrastate waters. Solid Waste Agency of North-

ern Cook County v. U.S. Army Corps of Eng’rs.

3 As cited herein, “ER” is the “Excerpts of Record” from the

Ninth Circuit’s proceedings, “CR” is the Court Record, taken

from the district court’s Docketing Sheet, and “TE” is a district

court Trial Exhibit.

(“SWANCC”), 531 U.S. 159, 167-174 (2001); United States v.

Wilson, 133 F.3d 251, 257 (4th Cir. 1997). The Corps

defines wetlands as areas “inundated or saturated by

surface or ground water at a frequency and duration

sufficient to support, and that under normal circum-

stances do support, a prevalence of vegetation typically

adapted for life in saturated soil conditions.” National

Mining, supra, 145 F.3d at 1401-1402.

2. The CWA’s Farmer Exemptions

In 1977, Congress amended Section 404, adding

“farmer exemptions” to clarify “that certain discharges,

such as those associated with farming, silviculture, and

ranching activities, are not prohibited or otherwise sub-

ject to regulation under § 404.” In re Carsten, 211 B.R. 719,

731 (Bkrtcy. D. Mont. 1997). As amended, Section 404

exempts any “discharge”:

(A) from normal farming, silviculture, and ranch- '

ing activities such as plowing, seeding, cultivating,

minor drainage, harvesting for the production of

food, fiber, and forest products, or upland soil and

water conservation practices;. . . .

33 U.S.C. § 1344(f)(1)(A); App., infra, 210, emph. added.

Section 1344(f)(2)’s textually narrow “recapture”

exception to these “farmer exemptions” requires a permit

for:

Any discharge of dredged or fill material into

the navigable waters incidental to any activity

having as its purpose bringing an area of the naviga-

ble waters into a use to which it was not previously

subject, where the flow or circulation of naviga-

ble waters may be impaired or the reach of such

waters be reduced... .

§ 1344(f)(2); App., infra, 211, emph. added.

The legislative history of the 1977 CWA mn farmer

exemptions” must be used to determine Congress’ intent

and provide context. Harrison v. Northern Trust Co., 317

U.S. 476, 479 (1943); Tidewater Oil Co. v. United States, 409

U.S. 151, 157 (1972). The CWA farmer exemptions evince

Congress “emphatically did not want the law to impede

these bucolic pursuits.” National Mining, supra, 145 F.3d at

1405.

The EPA and Army Corps expressly interpret the

CWA to exempt plowing ranchland to plant crops in their

regulations defining “plowing” as:

... all forms of primary tillage, including mold-

board, chisel, or wide-blade plowing, disking,

harrowing, and similar physical means utilized

on farm, forest or ranch land for the breaking

up, cutting, turning over, or stirring of soil to

prepare it for the planting of crops. . . . Plowing,

as described above, will never involve a discharge of

dredged or fill material.

App., infra, 216; see id. at 218.

3. The Penalty Provision

As applied here, 33 U.S.C. Section 1319(d), App.,

infra, 209, authorizes civil penalties “not to exceed

$25,000 per day for each violation” for discharging pollu-

tants without a permit.

* * *

Petitioners challenge the Corps’ assertion of federal

permitting jurisdiction over the plowing of ranchland to

plant crops in this case as in violation of CWA Section

404’s jurisdictional limitations requiring a “discharge” of

“pollutants” from a “point source,” as well as its express

exemption for “normal farming . . . and ranching activ-

ities such as plowing.” Should this Court determine the

Corps has Section 404 jurisdiction over plowing ranch-

land which is farmable in its natural state to plant crops,

Petitioners challenge the lower courts’ imposition of the

maximum $25,000 penalty for each time a plow crossed a

seasonal drainage feature, without regard to the number

of days on which such activity occurred, as violating

Section 1319(d).

B. Petitioners’ Plowing Activities On Borden Ranch

and the Corps’ Assertion of Jurisdiction

The 8,400-acre Borden Ranch is all agriculturally-

zoned, Central Valley land, in both Sacramento and San

Joaquin Counties, and is bisected by Dry Creek, the

County Line. Presently owned by Borden Ranch Partner-

ship (“BRP”) (Tsakopoulos is managing partner and title

holder) and its vendees, the Ranch has historically been

used for cattle grazing, irrigated pasture, and growing

wheat, hay, alfalfa, and row crops. Since late 1993, por-

tions have been deep plowed and planted to vineyards

and orchards. The Ranch contains seasonal hydroiogical

features such as vernal pools, and swales and intermittent

drainages (both hereinafter “drainages”). ER101i-12;

App., infra, 2-3.

The Corps asserted CWA jurisdiction over the

Ranch’s drainages and vernal pools as “navigable

waters” and contended that deep plowing, also ey as

. ripping” or “d slip plowing,” rangeland in

Pua tn. a Sd Per An. dredged or fill material and

requires a Section 404 permit. CR189, ER1013-1015; App.,

infra, 3.

Despite the Act and regulations, which exempt all

‘orms of plowing, the Corps and EPA first distinguished

deep plowing from shallower plowing. The Corps con-

tended plowing in seasonal wetlands to “root zone

depth,” including disking, is not regulated but that deep

plowing is. The Corps and EPA contended deep plowing

would adversely affect “navigable waters” by puncturing

restrictive subsurface soil layers believed integral to their

inundation and functioning. TE30, ER13-15, he TE31,

App. infra, 2-3. Relying on the Corps’ oral and written

ices abenunied tried to plow in ways the Corps told

him would not require CWA permits. CR204, ER921:8-16.

The Corps sought guidance from EPA in 1994 as to

whether the CWA’s farmer exemptions applied to

Tsakopoulos’ deep plowing. TE2., ER7. EPA confirmed

the Corps’ jurisdiction, and the Corps in late 1994 again

distinguished deep plowing (prohibited without a per-

mit) from shallow plowing at root zone depth, which it

conceded was au‘t ~ized under the exemptions without

a permit and wiuc. sone Corps regulator testified was 18

to 24 inches into the soil. TE30, ER13, CR204, ER910:18 -

911:2. Tsakopoulos authorized further plowing under the

Corps’ guidance until the winter rainy season, when it is

not possible to plow once the ground becomes wet.

CR204, ER909:3-6, CR226, ER981-983.

In 1995, Corps and Federal Natural Resources Con-

servation Service (“NRCS”) officials met at the Ranch to

discuss Tsakopoulos’ plowing plans. NRCS advised deep-

ripping through drainages had no hydrological impact

and was a good farm management practice. CR204,

ER915:11-20. The Corps continued to assert jurisdiction

over deep plowing, but told Tsakopoulos orally and in

writing he could deep rip uplands and cross areas delin-

eated as “waters/wetlands” with the deep plow provided

he raised the shank as high as possible even though it

would still drag across and cut into the ground to some

extent. TE31, ER20, TE558, ER16; see App., infra, 3.

Tsakopoulos attempted to comply in authorizing addi-

tional 1995 plowing in Sacramento County. CR204,

ER921:8-16. The Corps and EPA later claimed noncom-

pliance and issued a November 1995 cease and desist

order. App., infra, 3; TE50, ER30. Without conceding

wrongdoing, Tsakopoulos settled the alleged 1995 plow-

ing violations by dedicating a 1418-acre seasonal wet-

lands preserve (with 1368 contiguous acres) in May 1996.

App., infra, 3-4, 165, 176; TE66, ER33, TE592, ER65.

In September 1996, Corps and EPA officials provided

guidance for 1996 plowing on the Ranch’s San Joaquin

side, and reconfirmed that without a permit Tsakopoulos

uld “d low” uplands and cross drainages with the

ane Pow coed CR204, ER922-926. Tsakopoulos again

attempted to comply in 1996 plowing, TE617, ER,

TE615, ER88, CR227, ER994-995, CR226, ER984-987, which

plowing ended before December 1996. TE78, 80, 83, 85,

88, ER90, 97, 133, 148, 158. Pibidotods

The Corps’ first official public guidance distinguish-

ing “deep ripping” from other plowing was a December

12, 1996 Regulatory Guidance Letter (“RGL : ). App., infra,

4, 199-207. The RGL came only after dedication of the

preserve and after all plowing operations later found to

be CWA violations had already occurred, App., infra, 103;

CR189, ER1043:12-15; TE78, 80, 83, 85, 88; ER90, 97, 133,

148, 158, see CR204, ER909.

After the 1996-1997 rainy season, BRP resumed plow-

ing (disking) in San Joaquin, and almost immediately

EPA representatives unaware of the September 1996 guid-

ance descended on the site, saw shallow furrows through

some drainages (from raised deep plow shanks in 1996

plowing), and claimed some vernal pools were clipped.

CR226, ER970:17-973:23; App., infra, 4. Ignoring concerns

expressed by EPA’s Washington headquarters that deep

plowing might not produce jurisdictional discharges in

light of the D.C. district court's then-recent American

Mining decision (affirmed on appeal in 1998 as National

Mining), TE630, ER309, EPA Region 9 took an aggressive

enforcement position and issued an April 1997 cease and

desist order stopping all Ranch activity involving

machinery crossing drainages. TE103, ER313; App., infra,

C. Petitioners’ Challenge To The Corps’ Jurisdiction

Over Plowing And The District Court’s Ruling

Petitioners filed their Complaint May 6, 1997, for

declaratory relief and to challenge Government regula-

tions and the RGL. CR1, ER328. On August 6, the Govern-

ment answered and counterclaimed alleging CWA

violations by “filling waters of the United States” on four

Borden Ranch San Joaquin County parcels. CR7, ER385;

App., infra, 4. By August 3, 1998 order, App., infra, 28-56,

the district court denied Tsakopoulos’ summary judg-

ment motion, and partially granted and denied the Gov-

ernment’s motion, leaving for trial the Counterclaim

issues concerning alleged CWA violations. CR74,

ER500-526; App., infra, 4-5. At the bench trial, from

August 24 through September 16, 1999, App., infra, 5, the

U.S. claimed Tsakopoulos’ deep plowing in San Joaquin

deposited “fill” into jurisdictional “waters” including

drainages and pools.

Tsakopoulos disputed these claims and contended he

had followed the Government’s wee by oe the

ri shank to uppermost position when crossing drain-

an anmnen only in concededly unregulated shallow

plowing. He also contended the six tiny pools allegedly

filled were not jurisdictional “waters” within the Govern-

ment’s Comrnerce Clause power to regulate, since they

were wholly isolated and not hydrologically connected to

navigable waters, and were not actual migratory bird or

endangered species habitat.

On November 8, 1999, the district court entered its

50-page Findings of Fact and Conclusions of Law, App.,

infra, 67-121, finding 348 separate deep plowing viola-

tions in 29 widely dispersed drainages (aggregating

“about 2 acres” in total area) and 10 violations in a single

150 square foot vernal pool - the only one of six pools it

found to be a jurisdictional water. App., infra, 5, 91, 98,

103, 105, 109; ER1030-1032. Despite Tsakopoulos’

acknowledged efforts to follow the Corps’ guidance,

App., infra, 143-144, and the tiny area of alleged viola-

tions in comparison to the size of the Ranch area plowed

and the area of wetlands/waters wholly avoided, Arp.,

infra, 105, 109, the court imposed a $1.5 million civil

penalty. App., infra, 5, 118. On February 10, 2000, the

court denied without hearing Tsakopoulos’ Motion for

More Specific Findings as to the actual depth of the

plowing violations it had found. App., infra, 5, 122-126.

On March 3, 2000, final judgment was entered. App.,

infra, 127-134. Petitioners timely appealed on March 28,

2000. App., infra, 5; CR220, ER1092.

D. The Ninth Circuit's Decision

The Ninth Circuit affirmed the district court's deci-

sion in most respects in a 2-1 panel decision, the majority

holding, over Judge Gould’s dissent, that Petitioners’

deep plowing of historical ranchland is regulated under

CWA Section 404, App., infra, 210, which governs “dis-

charges” of “pollutants,” including “dredged or fill mate-

rial,” from “point sources” into “navigable waters.” App.,

infra, 6-8.

The panel majority reasoned this case was like

Rybachek v. United States EPA, 904 F.2d 1276 (9th Cir.

1990), which held placer mining, i.e., extracting raw mate-

rials from a stream, processing them to remove gold, and

later returning the mining overburden to the stream at a

distance from the origina! location, constituted “addi-

tion” of a “pollutant” and hence a Section 404 “dis-

charge.” It also relied on United States v. Deaton, 209 F.3d

331 (4th Cir. 2000), which held “sidecasting” materials

from the digging with a backhoe of a 1240-foot drainage

ditch to drain wetlands for the purpose of residential

subdivision construction produced a regulated “discharge.”

App., infra, 6-8. It rejected Petitioners’ argument that

purely deep plowing to prepare land for new crops is

wholly unlike those unrelated activities and even less like

an “addition” of pollutants than the “incidental fallback”

the D.C. Circuit in National Mining, supra, 145 F.3d 1399

held unregulated under Section 404. It distinguished

National Mining in cursory fashion in a footnote, stating

that deep plowing “does not involve mere incidental

fallback, but constitutes environmental damage sufficient

to constitute a regulable redeposit.” App., infra, 8, fn. 2.

Rejecting Petitioners’ argument that plows are not

“discernible, confined and discrete conveyance[s]” so as

to constitute “point sources” under 33 U.S.C. Section

1326(14), the Ninth Circuit relied on a Fifth Circuit case

holding “bulldozers and backhoes” can constitute “point

sources” where they are not merely plowing to plant

crops but performing earthmoving, excavation and ditching

activities with engaged blades and shovels to dry out

water bodies. App., infra, 8-9; see Avoyelles Sportsmen's

League, Inc. v. Marsh, 715 F.2d 897, 901, 920-921, 926-927

(5th Cir. 1983). The court reached this conclusion notwith-

standing the undisputed fact that the bulldozers and

tractors (not backhoes) pulling deep plows on Borden

Ranch were not engaged in any such grading, excavation

or ditching, and were simply performing a normal farm-

ing operation by using their motive power to drag normal

farming implements - deep plow shanks - through soil to

prepare it for the planting of deeper rooted crops. App.,

infra, 2-3.

The Ninth Circuit also rejected Petitioners’ argument

that even if deep plowing could somehow constitute a

“point source” “discharge” it was exempt from regulation

(and not recaptured) under the CWA’s farmer exemptions

for “normal farming . . . and ranching activities such as

plowing|.]” App., infra, 210; National Mining, supra, 145

F.3d at 1405; see App., infra, 9-10.

Finally, in affirming the $1.5 million civil penalty, the

Ninth Circuit panel m. jority ignored conflicting authority

from the Fourth and Eleventh Circuit courts, and a pub-

lished Ninth Circuit district court decision, in interpret-

ing 33 U.S.C. Section 1319, App., infra, 209, to allow

assessment of the maximum daily penalty for each time a

plow shank crossed a drainage without regard to the

number of days on which the activity occurred. App.,

infra, 13-16.

Dissenting Judge Gould found Rybachek and Deaton

readily distinguishable and would have held plows are

not “point sources,” App., infra, 22, and “that the return

of soil in place after deep plowing” does not produce a

regulated “discharge” under National Mining, supra, 145

F.3d 1399, App., infra, 18, because “deep ripping does not

involve any significant removal or ‘addition’ of material

to the site.” App., infra, 19; see App., infra, 18-22. He

would have held the “farmer exemptions” applicable to

“deep plowing” even assuming, arguendo, that it pro-

duced regulated “discharges.” App., infra, 21. Judge

Gould stated the “crux of this case is that a farmer has

plowed deeply to improve his farm property to permit

farming of fruit crops ... more profitable than grazing”

and tnat farmers have engaged in such agricultural pur-

suits “from the beginning of our nation, and indeed in

colonial times.” App., infra, 18. In Judge Gould’s view, the

majority acted without clear or express Congressional

direction, and beyond Congress’ intent under the CWA,

in prohibiting “a traditional form of farming activity.”

App., infra, 20, 22. Judge Gould states the majority opin-

ion “makes new law by concluding that a plow is a point

source and that deep ripping includes discharge of pollu-

tants into protected waters,” and concludes that “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.” According to Judge Gould, the

majority's holding rests on “an agency power too

unbounded or judicial law making, which is worse.”

App., infra, 22.

REASONS FOR GRANTING THE PETITION

This Court should grant review because the circuits

are split over the fundamental jurisdictional reach of

CWA Section 404 as it pertains to “incidental fallback,”

and because the Ninth Circuit’s decision erroneously

interprets several key elements of the statute resulting in

expansive, intrusive and overreaching Federal regulatory

jurisdiction over normal farming activities, such as plow-

ing, which Congress emphatically never intended to regulate at

all under the CWA. National Mining, supra, 145 F.3d at 1405.

As underscored by Judge Gould’s dissent, App., infra,

18-22, the majority’s decision ignores Congressional

intent, eviscerates the Act’s jurisdictional requirements

and farmer exemptions, and substantially alters “the fed-

eral-state framework by permitting federal encroachment

upon a traditional state power” SWANCC, supra, 531 U.S.

at 173-174 , namely, the traditional state and local govern-

ment authority to regulate the use of land for farming

and agricultural activities.

I. THE CIRCUITS ARE SPLIT OVER THE CORPS’

AUTHORITY TO REGULATE “INCIDENTAL FALL-

BACK” AS A POINT SOURCE DISCHARGE OF

POLLUTANTS UNDER THE CWA

“Section 404(a) grants the Corps authority to issue

permits ‘for the discharge of dredged or fill material into

the navigable waters at specified disposal sites.’ ”

SWANCC, supra, 531 U.S. at 163; App., infra, 210. “Dis-

charge” is defined as “any addition of any pollutant tc

navigable waters from any point source.” National Min-

ing, supra, 145 F.3d at 1401; App., infra, 212. The issue

whether “redeposit” of native materials removed from

and then returned to jurisdictional waters in “substan-

tially the same spot” — referred to as “fallback” or “inci-

dental fallback”, National Mining, supra, 145 F.3d at 1401,

1403 - is a regulated “discharge” has produced disagree-

ments among the courts of appeals.

The Fourth Circuit in National Mining invalidated the

Corps’ and EPA’s so-called “Tulloch Rule,” purporting to

regulate any redeposit from any excavation activities, and

held: (1) “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,”

National Mining, supra, 145 F.3d at 1404; and (2) such

“incidental fallback” (which occurs when material is

dredged from a water, and some of it falls back off the

dredge bucket into the same general location) is not an

“addition” and thus not a regulated “discharge.” Id. at

1403. National Mining distinguished Rybachek v. EPA, 904

F.2d 1276 (9th Cir. 1990) - which it found was “the

strongest authority for the agencies’ position,” National

Mining, supra, 145 F.3d at 1406 — as involving a regulable

discharge which was the “discrete act of dumping left-

over material into the stream after it had been processed”

rather than the “incidental fallback of dirt and gravel” to

its original location. Id., at 1406. The statute’s use of the

word “addition,” as well as the phrase “specified dis-

posal sites,” shows “that Congress had in mind either a

temporal or geographic separation between excavation

and disposal which simply does not fit incidental fall-

back.” Id., at 1410, Silberman, J., concurring.

The Ninth Circuit gave short shrift to National Min-

ing, rejecting it in a three-sentence footnote and following

Rybachek, supra, 904 F.2d 1276 (9th Cir. 1990), which held

placer mining operations extracting, processing and

redepositing raw materials in a stream at considerable

distance from the original location, constituted “addi-

tion” of a “pollutant.” App., infra, 6. While Rybachek held

return of extracted, processed mining overburden was

addition of pollutants even though the overburden origi-

nated from the riverbed, the regulable “discharge” or

“addition” was the discrete act of dumping the leftover

material into the stream after it had been extracted, collected

and processed. App., infra, 6; Rybachek, supra, 904 F.2d at

1285. The majority purports to follow Rybachek in holding

the instantaneous turning in place by a plow of unex-

tracted, uncollected and unprocessed native soil consti-

tutes “addition” of a pollutant. App., infra, 8. This is, as

Judge Gould stated in dissent, “incremental judicial rea-

soning” by which the majority extends Rybachek - and

Section 404 - to an entirely different context where it is

simply inapposite. App., infra, 22.

The Ninth Circuit’s rejection of National Mining was

mistaken. Contrary to the majority’s reasoning in its foot-

note attempting to distinguish National Mining, the dis-

tinction between “regulable redeposit” and unregulated

“incidental fallback” depends on the existence of the

jurisdictional prerequisite of an addition of material, not

upon whether the involved activity supposedly “consti-

tutes environmental damage sufficient to constitute a reg-

ulable redeposit.” Compare App., infra, 8, fn. 2 with

National Mining, supra, 145 F.3d at 1402-1403. Nowhere

does the Ninth Circuit cite CWA or other authority for a

standard it apparently created of whole cloth.

Unlike regulated “point source” discharges, plowing

does not extract, hold, collect or remove native materials

such that “redeposit” could occur. Even “incidental fall-

back” could not occur from any significant distance.

Plows cut through, break up and turn soil in place while

adding nothing and redepositing nothing from any collecting

bucket, container, shovel, blade or other “confined” or

“discrete conveyance” designed to hold or redistribute

material. As Judge Gould stated, “[bJecause 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.” App.,

infra, 20. Judge Gould recognized National Mining could

not be distinguished and should control because plowing

produces, at most, “incidental fallback” of native soil

which cannot be held to be a “discharge.” He also recog-

nized plows are not “point sources.” App., infra, 22.

It is supremely ironic and significant that the Corps

and EPA themselves argued in National Mining that plow-

ing, among other exempt farming activities, produced noth-

ing more than “incidental fallback” in an effort to convince

the D.C. Court of Appeals in that case that such fallback

was regulated; the agencies reasoned that Congress must

have considered the “incidental fallback” from these

activities to be a regulated “discharge” or it would not

have needed to include an exemption in the Act. National

Mining, supra, 145 F.3d at 1405. In response to this argu-

ment, the National Mining Court stated:

We find the exemptions far less telling. Some of

the named activities - plowing, ditch mainte-

nance, and the like - may produce fallback, but

they may also produce actual discharges, i.e.,

addition of pollutants, so that § 404(f) accom-

plishes a useful purpose simply by exempting

them insofar as they produce the latter. . . . [W]e

are reluctant to draw any inference other than

that Congress emphatically did not want the law

to impede these bucolic pursuits.

National Mining, supra, 145 F.3d at 1405.

The Ninth Circuit’s decision also conflicts with appli-

cable Corps regulations, as interpreted by National Mining

and its own previous decision, in holding native soil

turned in place by a plow constitutes “fill” material,

because the “primary purpose” of plowing is to enhance

and revitalize farming soil, “not to replace an aquatic area

with dry land or to change the bottom elevation of a

water body[.]” See Resource Invs., supra, 151 F.3d at 1168

(9th Cir. 1998) (holding solid waste landfill leak detection

and collection system placed in wetlands were not “fill

material” under “primary purpose” test); National Min-

ing, supra, 145 F.3d at 1401, fn. 1 (noting “primary pur-

pose” requirement for defining “fill material”).

Had petitioners’ plowing occurred in the D.C. Cir-

cuit, the result in this case would have been different -

under National Mining deep plowing would not be held a

“discharg2” subject to Section 404’s permit requirements.

In the Ninth Circuit, under Borden Ranch, it is. These

issues are of national significance and fundamental

importance to the farming, ranching and mining indus-

tries, as underscored by amici briefs and participation of

California Farm Bureau Federation, California Cattle-

men’s Association, California Mining Association and

Pacific Legal Foundation, in support of Petitioners below

and on appeal. The existence of Federal CWA Section 404

jurisdiction over “incidental fallback” from normal farm-

ing activities, such as plowing, should not depend on the

happenstance of a farm’s or ranch’s location. Farmers and

ranchers throughout the nation are entitled to equal treat-

ment under the CWA, and the need for national unifor-

mity is particularly great because farming activity

completely unregulated in one jurisdiction could result in

a multi-million dollar fines — or even criminal liability — if

conducted in another. This case’s exceptional importance

warrants the granting of certiorari.

Il. THE NINTH CIRCUIT ERRED IN HOLDING

PLOWS ARE “POINT SOURCES”

An essential element of CWA Section 404 permitting

jurisdiction is that the “pollutant” be “discharged” or

“added” by a “point source,” defined as “any discernible,

confined and discrete conveyance.” App., infra, 212. Reg-

ulation of potential sources of non-point source pollution

is generally left to the States. E.g., 33 U.S.C.

§ 1288(b)(2)(F); see S. Rep. No. 95-370, at 76 (1977),

reprinted in 1977 U.S.C.C.A.N. 4326, 4401 (normal farm-

ing activities to be regulated as non-point sources by

State and local agencies). A plow is not a “point source,”

i.e., a “confined and discrete conveyance,” since it is

neither “confined” nor a “container,” nor does it function

as a “conveyance” of pollutants/materials from one loca-

tion to another. No prior case has ever held a plow is a

“point source.”

The Ninth Circuit’s reliance on a Fifth Circuit case

finding “bulldozers and backhoes” can constitute “point

sources” is misplaced since there the bulldozers and

backhoes were not used for merely plowing (by pulling

plow shanks) but for entirely different purposes and

activities including performing earthmoving, excavation

and ditching functions with engaged blades and shovels.

Avoyelles Sportsmen's League, Inc. v. Marsh, supra, 715 F.2d

at 901, 920-921, 926-927. In Avoyelles, the owner of a

20,000-acre tract leveled the property, cut down timber

and vegetation with bulldozers with shearing blades,

pushed, burned, raked and disked all these materials into

the land’s low spots to raise and level it, and further dug

a drainage ditch, for the express purpose of filling and

drying out a swampy Louisiana flood plain so that it

could thereafter be farmed for soybeans. Id., at passim,

926. The bulldozers and tractors (not backhoes) pulling

deep plows on the semi-arid Borden Ranch were indis-

putably not engaged in any such grading, excavation or

ditching, and were simply using their motive power to

drag normal farming implements - deep plow shanks -

through the soil to break it up, and turn it in place, i.e., to

plow. Neither Avoyelles nor any other reported decision,

until Borden Ranch, holds that plowing alone produces a

“point source” discharge.

The issue is critical to the nation’s farmers and not

limited to deep plowing, as the agencies are now going

beyond even their own unauthorized December 12, 1996

RGL and attempting to regulate even the shallowest forms

of plowing - including disking - under the authority of

the Borden Ranch decision. See, e.g., App., infra, 41, 48

(district court summary judgment order finds both deep

ripping and disking are regulated).

III. THE NINTH CIRCUIT ERRED IN HOLDING

THAT PLOWING RANCHLAND TO PLANT

CROPS IS A “CHANGE IN USE” NEGATING

THE CWA’S INTENDED BROAD EXEMPTION

OF PLOWING AS A “NORMAL FARMING

ACTIVITY”

It is wholly unnecessary to reach the issue of inter-

pretation of the CWA’s farmer exemptions if the Court

concludes that deep plowing produces no regulated point

source “discharge” so as to fall under the Corps’ CWA

Section 404 permitting jurisdiction. Congress’ 1977 CWA

amendments were intended to prevent regulatory over-

reaching and make clear that no permit is required in any

event for any alleged “discharge,” i.e., “addition” of a

pollutant:

(A) from normal farming, silviculture, and

ranching activities such as plowing, seeding,

cultivating, minor drainage, harvesting for the

production of food, fiber, and forest products, or

upland soil and water conservation prac-

tices;. ...

App., infra, 210.

Congress provided a narrow “recapture” provision

removing from the exemption:

Any discharge of dredged or fill material into

the navigable waters incidental to any activity

having as its purpose bringing an area of the naviga-

ble waters into a use to which it was not previ-

ously subject, where the flow or circulation of

navigable waters may be impaired or the reach

of such waters be reduced.

App., infra, 211, emph. added. This exception is not

concerned with any “discharges” from the isolated activ-

ity of plowing productive farm or ranchland in its natural

state, or with changes in agricultural use, such as from

pasture and forage crop to orchard/vineyard crop.

Rather, it addresses intentional conversion of unproductive

wetlands to drylands on a significant scale to enable normal

farming activities which could not otherwise occur. In re

Carsten, supra, 211 B.R. at 735.

Thus, where activities are done for the primary pur-

pose of draining and drying out significant water bodies

to convert them to farmable uplands - i.e., the Avoyelles

situation -— the exemption cannot be claimed on the

grounds that otherwise unregulated farming activities,

such as plowing, are later performed “incidental to,” i.e.,

as a “minor concomitant,” AMERICAN HERITAGE DIC-

TIONARY OF THE ENGLISH LANGUAGE, NEW COL-

LEGE ED. (1975), p. 665, of the primary conversion

project. This reasonable interpretation is compelled by

the plain language of the “farmer exemptions”, Congress’

clear intent to meaningfully exempt normal farming

activities from onerous federal regulation under the

CWA’s “point source” program, the lawful agency regula-

tions expressly exempting all forms of plowing, and

related statutes.*

The Ninth Circuit relied on the “recapture” provision

as interpreted by Avoyelles, supra, 715 F.2d at 925, and

another Ninth Circuit decision, United States v. Akers, 785

F.2d 814, 820 (9th Cir. 1986), to hold petitioners’ deep

plowing to plant vineyards and orchards was not exempt

and was “recaptured” because it supposedly “radically

altered the hydrological regime of protected wetlands.”

App., infra, 10. The Ninth Circuit confused the normal

activity of converting from one agricultural crop to

another with that of converting waters to uplands, and

erroneously reasoned, that “[cjonverting ranch land to

4 For example, Congress subsequently enacted

“Swampbuster” in the 1985 Food Security Act (“FSA”). Under

the FSA “there will be liability for conversion of a wetland if it is

manipulated ‘for the purpose or to have the effect of’ making the land

farmable.” Downer v. U.S. By And Through Dept. of Agriculture, 894

F.Supp. 1348, 1356 (D.S.D. 1995), emph. added, aff’d 97 F.3d 999

(8th Cir.). Statutes in pari materia are construed together.

BLACK’S LAW DICTIONARY (5th ed. 1979), p. 711. “Wetlands”

subject to being farmed by use of “normal cropping or ranching

practices” (i.e., plowing) as a result of their “natural condition”

(e.g., drought or, as here, regular dryness in a semi-arid region

throughout the long growing season) are not deemed converted

(i.e., brought into a use to which they were not already subject)

when so farmed. Merely plowing (without more) thus triggers

neither FSA farm subsidy ineligibility under “Swampbuster”

nor CWA Section 404’s recapture provision.

orchards and vineyards is clearly bringing the land into a

use to which it was not previously subject . . . ” Id. at 815.

If this were true, then any change in agricultural crop or

practice could subject plowing to federal regulation, and

CWA Section 404’s exemption for plowing ranchland to

plant crops, App., infra, 218, would be rendered meaning-

less. Indeed, under the Ninth Circuit’s interpretation,

Section 404(f)(1) is a mere “grandfather” clause which

would not apply at all to plowing historically ranched

land for the first time either to improve the forage or to

plant non-forage crops. The CWA’s legislative history

refutes this crabbed interpretation of the “farmer exemp-

tions” and shows Congress never intended to regulate

mere plowing at all under the CWA.

Senator Muskie, a primary CWA sponsor, Avoyelles,

supra, 715 F.2d at 915, explained “the bill [adding farmer

exemptions] tries to free from the threat of regulation

those kinds of man made activities which are sufficiently

de minimis as to merit general attention at the state and

local level and little or no attention at the national level.”

Vol. 3, A LEGISLATIVE HISTORY OF THE CLEAN

WATER ACT OF 1977 (1978) (hereafter “1977 LEG.

HIST.”) at 645 (CR36, ER489) (Senate Report on S. 1952,

95th Cong.); see also id. (Vol. 4) at 924 (ER 492) (Domenici

comments); 181 (ER482) (President’s comments); 289, 351,

524 (ER481, 483, 487) (Stafford comments). Where, as

here, plowing is a permitted farming activity under

locally-enacted agricultural zoning and other State and

local regulations, Congress intended the federal govern-

ment to have no role under the CWA.

During the December 15, 1977 Senate debate, Senator

Muskie recognized the 1972 CWA’s basic objective was

“to eliminate toxic pollutants in toxic amounts” id., 426,

ER484, and stated of the “farmer exemptions”:

The conferees agree to adopt the Senate amend-

ment that legislatively clarifies the exclusion of cer-

tain activities that do not typically involve point

source discharges of dredged or fill material .. .

plowing, seeding, cultivating, harvesting, minor

drainage, and soil and water conservation practices

performed on uplands were not intended to require

section 404 permits. . . . [{] . . . While it is under-

stood that some of these activities may necessarily

result in incidental filling and minor harm to

aquatic resources, the exemptions do not apply to

discharges that convert extensive areas of water into

dry land or impede circulation or reduce the reach or

size of the water body.

ER485, emph. added; see also 4 1977 LEG. HIST. at pp.

919-920 (ER490-491) (Chafee comments); see ER495, 493,

494. The legislative history shows Congress never

intended to regulate pure plowing under the CWA and

never even considered it to produce “discharges.”

The implementing agency regulations accordingly

exclude all plowing from CWA regulation. 33 CFR Section

323.2(f), for example, provides “fill” is addition of material

and never includes plowing. EPA’s regulations provide:

Plowing means all forms of primary tillage,

including moldboard, chisel, or wide-blade, disking,

harrowing, and similar physical means used 7:

farm, forest or ranch land for the breaking up,

cutting, turning over, or stirring of soil to pre-

pare it for the planting of crops... .

Plowing, as described above, will never involve

a discharge of dredged or fill material.

App., infra, 218, emph. added.

Nor does the case law support the Ninth Circuit's

unwarranted extension of Section 404 jurisdiction to

purely farming activities. In Akers, the farmer purchased

a 9,600 acre property which contained 2,889 acres of

wetlands - known as the “Big Swamp” - on which he

planned to “carry out extensive grading, leveling, drain-

age and water diversion to convert the wetlands to farm-

lands suitable for growing upland crops.” Akers, supra,

785 F.2d at 816-817. Toward this end, he constructed a

3-mile long dike and 50-foot wide ditch to drain the

wetlands. Id. Based on Akers’ extensive dike building, gra-

ding, leveling and water diversion activities, which were

specifically designed to convert the marshy Big Swamp

from non-farmable land into farmable land, the Ninth

Circuit “affirm[ed] the injunction [against Akers] as a

reasonable response to the peculiar facts before [it].” Id. at

820, emph. added. It did not endorse the Government's

more extreme arguments, including arguments that

“mere discing of soil” constituted a point source dis-

charge of pollutants and that farmers required CWA per-

mits to change from one wetland crop to another. Id. at

820; see id. at 819 (holding farmer exemptions inapplica-

ble because court “cannot view Akers’ plowing, discing

and seeding in isolation” from other activities). Akers

never held mere plowing of already-farmable land alone

was regulated. Petitioners’ plowing here must be viewed

in isolation, because that is undisputedly how it occurred,

on semi-arid ranchland already dry enough to plow and

plant in its natural state. No case has ever held the Corps’

CWA Section 404 jurisdiction extends to regulatiiig mere

plowing on land dry enough to farm in its natural state

without first undertaking extraordinary conversion activities.

To the extent the Ninth Circuit unduly deferred to

EPA’s unauthorized application and interpretation of the

CWA and its own regulations, its decision conflicts with

this Court’s SWANCC decision, which es clear that

the States retain traditional and primary power to regu-

late land and water use. SWANCC, supra, 531 U.S. at 174,

citing Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30,

44 (1994). As recognized by the CWA, farmers’ and

ranchers’ agricultural land uses, including activities like

plowing, are traditional matters of state and local, not

federal, control. 33 U.S.C. §§ 1288, 1329; App., infra, 210,

212. Where administrative statutory interpretation is not

only clearly erroneous but alters the federal-state frame-

work by permitting federal encroachment on traditional

state powers, courts do not apply the deferential standard

of Chevron U.S.A., Inc. v. Natural Resources Defense Council,

467 U.S. 837 (1984). SWANCC, supra, 531 U.S. at 173.

Rather, in such cases, Congress must “convey its purpose

clearly” or courts will deem it not to “have significantly

changed the federal state balance.” Id., quoting United

States v. Bass, 404 U.S. 336, 349 (1971).

The Ninth Circuit’s expansive definition of the terms

“discharge,” “addition,” “point source” and “pollutant”,

and narrow interpretation of the farmer exemptions, so as

to include the pure plowing done in this case within the

Corps’ CWA Section 404 jurisdiction, substantially

expands federal power to an unprecedented extent at the

expense of State and local authority. SWANCC forbids

this absent Congress’ clearly-expressed intent. As Judge

Gould stated, “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 prohibition of the [CWA] 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.” App., infra, 19-20.

IV. THE NINTH CIRCUIT ERRED IN CALCULATING

THE CIVIL PENALTY BY CALCULATING EACH

PASS OF THE PLOW THROUGH WATERS,

RATHER THAN EACH DAY OF PLOWING, AS A

SEPARATE VIOLATION UNIT

If one assumes, solely arguendo, that plowing alone is

a regulable activity under CWA Section 404, the Ninth

Circuit nevertheless erred as a matter of law when it held

the maximum CWA penalty was properly calculated by

multiplying the number of passes the district court found

were made by the plow, App., infra, 12-16, through each

jurisdictional feature by the statutory dollar amount

rather than multiplying the number of days during which

plowing “discharges” occurred in particular “waters” by

the statutory dollar amount.

33 U.S.C. Section 1319(d), App., infra, 209, authorizes

civil penalties “not to exceed $25,000 per day for each

violation” against persons violating Section 1311(a) by

discharging pollutants without a permit. This statute con-

templates maximum penalties will be calculated not in

terms of the total number of individual violations of the

same type, but, rather, in terms of daily violation units. The

“top-down” method of penalty assessment (employed

here) involves calculating the maximum statutory penalty

by first finding how many distinct categories of CWA

violations occurred, and then finding the number of days

during which each category occurred and multiplying the

number of days by $25,000. Chesapeake Bay Foundation v.

. Gwaltney of Smithfield, 791 F.2d 304, 314 (4th Cir. 1986)

vacated and remanded on other grounds, 484 U.S. 49

(§ 1319(d) speaks “in terms of penalties per day of viola-

tion, rather than per violation.”); Atlantic States Legal Foun-

dation v. Tyson Foods, 897 F.2d 1128, 113° (11th Cir. 1990)

(“each distinct violation is subject to a separate daily pen-

alty assessment of up to $25,000 . . . ”); Hawaii's Thousand

Friends v. City and County of Honolulu, 821 F.Supp. 1368,

1395 (D. Haw. 1993) (discussing top-down method of

calculating number of categories and “daily violations” to

arrive at maximum penalty).

The Gwaltney court rejected defendant's interpreta-

tion there as untenable because it impermissibly calcu-

lated the statutory maximum penalty “per violation,”

rather than “per day of violation.” Gwaltney, supra, 791

F.2d at 314. The Ninth Circuit and district courts here,

too, read the words “per day” out of the statute and

impermissibly divided daily soil discharges within a sin-

gle category of violation into hundreds of separate viola-

tions. App., infra, 12-16. Under Gwaltney, Tsakopoulos’

maximum penalty should have been limited to, at most,

the number of days during which the same type of “point

source discharges” of soil actually occurred in particular

waters. Counting as separate violation units the number

of times a single point source (i.e., a plow shank) crossed

a single jurisdictional feature during a single day imper-

missibly converts a single daily violation unit of the same

activity into numerous sub-daily violation units and ille-

gally establishes the maximum penalty “per violation,

rather than per day of violation” — a result “inconsistent

with the language of § 1319(d).” Gwaltney, supra, 791 F.2d

at 314.

Where the “violation unit” is measured by less than a

single day’s period of time - for example, an “hourly

maximum violation” occurring multiple times during the

same day - the CWA limits the maximum penalty to one

day for all such violations if they are of the same type. United

States v. Amoco Oil Co., 580 F.Supp. 1042, 1046, n. 1 (W.D.

Mo. 1984), cited with approval by Tyson Foods, supra, 897

F.2d at 1138, 1138-1139 (holding Congress amended

§ 1319(d)’s language to its current “per day for each

violation” to clarify the statute in accordance with

Amoco’s interpretation). .

Tsakopoulos’ alleged violations all fell within the sin-

gle distinct category of alleged discharge of a single “pollu-

tant” - “fill” from native soil turned in place ~ from a

“point source” without a permit. App., infra, 15. In per-

forming its “top-down” analysis, the court should have

added the number of daily violations of this category and

multiplied that total by $25,000. Hawaii's Thousand

Friends, supra, 821 F.Supp. at 1395. Despite extensive evi-

dence introduced by the Government in the form of daily

time records of the deep plow operators, the lower courts

failed to engage in any analysis of the number of days on

which such plowing occurred in either fall 1995 or fall

1996 on the Ranch’s San Joaquin side, and never even

estimated the number of daily violation units. CR189,

ER1042-1043.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

Timotny S. BisHop

Mayer, BRowN Rowe &

Maw

190 South LaSalle Street

Chicago, IL 60603

(312) 782-0600

EDMUND L. REGALIA

Miter, STARR & REGALIA

A Professional Law

Corporation

1331 N. California Blvd.,

5th Floor

Post Office Box 8177

Walnut Creek, CA 94596

(925) 935-9400

ARTHUR F. Coon

Counsel of Record

Miter, STARR & REGALIA

A Professional Law

Corporation

1331 N. California Blvd.,

5th Floor

Post Office Box 8177

Walnut Creek, CA 94596

(925) 935-9400

Counsel for Petitioner

February 2002

United States Court of A

Panel Opinion (08/15/01)............--0+00- App.

APPENDIX TABLE OF CONTENTS

for the Ninth Circuit

United States District Court for the Eastern Dis-

trict of California Proceedings

Joint Stipulation and Preliminary Injunction

Gallen GVM aa oc cnsccvcciscnvecesqseccs App.

Amended Order on cross-motions for summary

judgment (8/3/98)..........0ceeceeeeeeeeees App.

Order denying AKT’s motion for entry of final

judgment and certification of order on sum-

mary judgment (8/10/98)................54- App.

Findings of Fact and Conclusions of Law

RUA ens A ae a ci RS App.

Order Denying Borden Ranch’s motion to

amend findings of fact and conclusions of law

td tccekpewtdvetedsbededekeovsnens App.

Final Order directing entry of Judgment with

one change from jointly submitted proposed

final judgment (3/3/00) .......-...-..eeeeee App.

Judgment (3/3/00). ..........0eeee cece eeeeee App.

Relevant Administrative Orders and Companion

Case

Angelo K. Tsakopoulos v. American Manufac-

turer’s Mutual Insurance et al.: Order on cross-

motions for summary judgment (8-9-00)..... App.

May 1996 Administrative Order On Consent

i ditikintiee 6 dhdeiede bees enbdbedd inen App.

Page

122

127

134

135

165

APPENDIX TABLE OF CONTENTS - Continued

December 12, 1996 ACE/EPA Field Memeran-

dum Regarding Deep Plowing.............. App. 199

United States Court of Appeals for the Ninth Circuit

Order denying petition for rehearing en banc

RFEIP OED hs dc bude csonsasuhekhecgncsingndose App. 208

Relevant Statutes and Regulations set out verbatim with

citation

Statutes

1. 33 U.S.C. section 1311(a).................. App. 209

2. 33 U.S.C. section 1319(d).................. App. 209

S. 33 USC. auction 1960(e) .........ccccccece App. 210

4. FB UBA. GUGM TROBE) «cc cccccccccccns App. 210

5. 33 U.S.C. section 1344(f)(2)................ App. 211

6. 33 U.S.C. section 1362(6)..............0005 App. 211

Fe Be Dee GREE Fs hike cccccdécccces App. 212

8. 33 U.S.C. section 1362(14)................. App. 212

S WUBC. spctham WIG... cc cccccvscuses App. 213

Regulations

1. 33 C.FRR. section 323.2(d)(1)(iii)............ App. 213

2. 33 C.FR. sections 323.2(d)(2)(i), 323.2(d)(2){ii) App. 213

3. 33 C.ER. section 323.2(d)(3)(iii)............ App. 214

4. 33 C.FR. section 323.2(d)(4)(iii)............ App. 214

5. 33 CER. sections 323.4(a)(1)(i), 323.4(a)(1)(ii) App. 215

o oN

iii

APPENDIX TABLE OF CONTENTS - Continued

33 C.ER. section 323.4(a)(1)(iii)(D)......... App. 216

40 C.RR. section 232.2(4)(iii)............... App. 216

40 C.ER. sections 232.4(c)(1)(i), 232.3(c)(1)(ii) App. 217

40 C.RR. section 232.3(d)(4) ...........000. App. 218

App. 1

BORDEN RANCH PARTNERSHIP; Angelo K.

Tsakopoulos, Plaintiffs-Appellants,

Vv.

UNITED STATES ARMY CORPS OF ENGINEERS;

United States Environmental Protection Agency, an

agency of the United States, Defendants-Appellees.

No. 00-15700.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted July 9, 2001.

Filed Aug. 15, 2001

Arthur F. Coon (argued) and Edmund L. Regalia

(argued), Miller, Starr & Regalia, Walnut Creek, Califor-

nia, for the plaintiffs-appellants.

Sylvia Quast (argued), U.S. Department of Justice,

Environment and Natural Resources Division, Washing-

ton, D.C., for the defendants-appellees.

Appeal from the United States District Court for the

Eastern District of California Garland E. Burrell, District

Judge, Presiding. D.C. No. CV-97-00858-GEB (JFM).

Before: CANBY, HAWKINS, and GOULD, Circuit

Judges. -

MICHAEL DALY 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.

We conclude that the Clean Water Act applies to this

App. 2

activity and affirm the district court’s findings that Bor-

den Ranch violated the Act by deep ripping in protected

wetland swales. We reverse the district court’s findings of

liability with respect to isolated vernal pools in light of

Solid Waste Agency of N. Cook County v. United States Army

Corps of Eng’rs, 531 U.S. 159, 121 S.Ct. 675, 148 L.Ed.2d

576 (2001), and remand for a recalculation of the civil

penalties.

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 drain-

ages. 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 vine-

yards 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

App. 3

vineyards and orchards to grow on this land, the restric-

tive 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 dis-

agreed about the Corps’ authority to regulate deep rip-

ping 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 require-

ments. 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

App. 4

1368-acre preserve and agreed to refrain from further

violations.

In December of 1996, the Corps and the EPA issued a

regulatory guidance letter that distinguished deep rip-

ping from normal plowing activity. The letter stated that

deep-ripping in wetlands “destroy[s] 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 Admin-

istrative Order to Tsakopoulos.

Tsakopoulos responded by filing this lawsuit, chal-

lenging the authority of the Corps and the EPA to regu-

late deep ripping. The United States filed a counterclaim

seeking injunctive relief and civil penalties for

Tsakopoulos’s alleged violations of the Clean Water Act.

1 In the district court, Tsakopoulos argued that this letter

was invalid. The district court found that “it is unclear whether

the regulatory guidance letter has actually been applied to

Plaintiffs. Therefore decision is reached without reference to it.”

The district court also found that “any as-applied challenge to

the regulations that might also include a challenge to the

application of the [regulatory guidance letter] is not ripe.”

On appeal, Tsakopoulos again challenges the regulatory

guidance letter, arguing for the first time that the letter is a

substantive rule that required notjce-and-comment rule

making. Since this new argument was not presented to the

district court, we decline to consider it on appeal. See Nelson v.

City of Irvine, 143 F.3d 1196, 1205-06 (9th Cir.1998).

App. 5

Both parties filed motions for summary judgment.

The district court ruled that the Corps has jurisdiction

over deep ripping in jurisdictional waters. However, the

court found disputed facts with respect to whether such

deep ripping had actually occurred. These facts were

litigated in a bench trial that began on August 24, 1999,

and concluded on September 16, 1999. The district court

heard evidence from over twenty witnesses and received

hundreds of documentary exhibits.

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 drain-

ages, and 10 violations in a single vernal pool. The dis-

trict 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. We

have jurisdiction under 28 U.S.C. § 1291.

Analysis

I. Corps Jurisdiction over Deep Ripping

The Clean Water Act prohibits “the discharge of any

pollutant” into the nation’s waters. 33 U.S.C. § 1311(a).

The nation’s waters have been -interpreted-to include

wetlands adjacent to navigable waters. See United States v.

Riverside Bayview Homes, Inc., 474 U.S. 121, 133-35, 106

App. 6

S.Ct. 455, 88 L.Ed.2d 419 (1985). The Act defines dis-

charge as “any addition of any pollutant to navigable

waters from any point source.” 33 U.S.C. § 1362(12). A

point source is “any discernible, confined and discrete

conveyance ... from which pollutants are or

may be discharged.” 33 U.S.C. § 1362(14). A pollutant is

defined, inter alia, as “dredged spoil, . . . biological

materials, . . . rock, sand, [and] cellar dirt.” 33 U.S.C.

1362(6). It is unlawful to discharge pollutants into wet-

lands without a permit from the Army Corps of Engi-

neers. 33 U.S.C. § 1344(a),(d).

A. Discharge of a Pollutant

Tsakopoulos initially contends that deep ripping can-

not constitute the “addition” of a “pollutant” into wet-

lands, 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, 904 F.2d 1276 (9th

Cir.1990), considered a claim that placer mining activities

were exempt from the Act. We held that removing mate-

rial from a stream bed, sifting out the gold, and returning

the material to the stream bed was an “addition” of a

“pollutant.” Id. at 1285. The term “pollutant” encom-

passed “the materials segregated from gold in placer

mining.” Id.

Our reasoning in Rybachek is similar to that of the

Fourth Circuit in United States v. Deaton, 209 F.3d 331 (4th

App. 7

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 pollu-

tant.” 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 stat-

ute does not prohibit the addition of material; it

prohibits the “addition of any pollutant.” The

idea that there could be an addition of a pollu-

tant 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 mate-

rial that up until then was not present on the

Deaton property. It is of no consequence that

what is now dredged spoil was previously pre-

sent on the same property in the less threatening

form of dirt and vegetation in an undisturbed

state. What is important is that once that mate-

rial was excavated from the wetland, its

redeposit in that same wetland added a pollutant

where none had been before.

Id. at 335-36. As the court concluded, “Congress deter-

mined 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, 715 F.2d

App. 8

897, 923 (Sth 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 intro-

duction of material brought in from somewhere else. In

this case, the Corps alleges that Tsakopoulos has essen-

tially 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 “pollu-

tant” has certainly been “added.” Prior to the deep rip-

ping, 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 con-

text 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 dis-

charge must be from a point source. This argument has

no merit. The statutory definition of “point source” (“any

2 National Mining Assoc. v. U.S. Army Corps of Eng’rs, 145

F.3d 1399 (D.C.Cir.1998), upon which Tsakopoulos heavily

relies, does not persuade us to the contrary. That case

distinguished “regulable redeposits” from “incidental

fallback.” Id. at 1405. Here, the deep ripping does not involve

mere incidental fallback, but constitutes environmental damage

sufficient to constitute a regulable redeposit.

App. 9

discernible, confined, and discrete conveyance”) is

extremely broad, 33 U.S.C. § 1362(14), and courts have

found that “bulldozers and backhoes” can constitute

“point sources,” Avoyelles, 715 F.2d at 922. 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. 33 U.S.C. § 1344(f)(1)(A). The section

of the statute containing the farming exceptions, how-

ever, 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. See Avoyelles, 715 F.2d. at

925 (noting that § 1344(f)(2) can preclude the normal

farming exceptions).

App. 10

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 con-

clude 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, 785

F.2d 814, 820 (9th Cir.1986). As we have explained, “the

intent of Congress in enacting the Act was to prevent

conversion of wetlands to dry lands,” atic we have classi-

fied “as non-exempt those activities which change a wet-

land’s hydrological regime.” Akers, 785 F.2d at 822. In this

case, Tsakopoulos’s activities were not intended simply to

substitute one wetland crop for another; rather they radi-

cally 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. |

Il. The Vernal Pool

The district court found Clean Water Act violations in

one isolated vernal pool on Tsakopoulos’s property. Ear-

lier 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

App. 11

authority granted to the Corps under the Clean Water

Act. The government now concedes that Solid Waste pre-

cludes 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.

III. The District Court’s Factual Findings

Tsakopoulos challenges the district court’s factual

findings of violations of the Clean Water Act. We review

for clear error. Ambassador Hotel Co. v. Wei-Chuan Inv., 189

F.3cl 1017, 1024 (9th Cir.1999).

Tsakopoulos argues that “there was no substantial

evidence at all” to support the court’s factual findings of

deep ripping in protected swales. He argues that the

evidence can only demonstrate shallow ripping consis-

tent with the ripper in its uppermost position, which was

permitted under the government's direction.

“Where there are two permissible views of the evi-

dence, the factfinder’s choice between them cannot be

clearly erroneous.” Cree v. Flores, 157 F.3d 762, 768 (9th

Cir.1998). The district court here held a four-week bench

trial, examined numerous exhibits, and heard over

twenty witnesses. There is ample evidence to support the

district court’s findings. The court cited documentary

evidence showing deep ripping, eyewitness testimony of

deep ripping on the property, and Tsakopoulos’s own

concession that “mistakes had been made.” The court also

relied on the studies of Dr. Lyndon Lee, who conducted

extensive investigations at the site. Dr. Lee was able to

App. 12

dig soil pits as far as thirty inches into the soil. By

examining the composition of the soil in these pits, Dr.

Lee could determine whether the underlying clay layer

had been ripped up, consistent with deep ripping. The

district court chose to credit this evidence that deep rip-

ping had occurred, and we can find no clear error on this

record.

IV. The Civil Penalty

The district court found that Tsakopoulos had com-

mitted 358 violations of the Clean Water Act. It counted

each pass of the ripper through a protected wetland as a

separate violation. The statute provides for a maximum

penalty of “$25,000 per day for each violation.” 33 U.S.C.

§ 1319. The statutory maximum penalty was therefore

$8,950,000. The court then considered a variety of factors

in setting the penalty. The court found that Tsakopoulos

“risked damaging rare federal wetlands because of his

motivation to reap economic gain.” The court also found

an “absence of a good faith attempt to comply with the

Act.” The court accordingly set the penalty at $1,500,000,

which is $7,450,000 below the statutory maximum. The

court also allowed Tsakopoulos to suspend $1,000,000 of

the penalty if he performed various restoration measures.

Tsakopoulos now makes three challenges to the dis-

trict court’s calculation of the civil penalty. We conclude

that none of these arguments has merit.

App. 13

A. Penalty Calculation per Violation

Tsakopoulos first contends that the penalty should

have been based on the number of days in which illegal

ripping occurred, not on the number of individual passes

with the ripper. He argues that the statutory language

“per day for each violation” means that he can only be

assessed $25,000 for any day in which ripping violations

occurred, regardless of the total number of rippings in

that day. y

We disagree. The statute imposes a maximum penalty

“per day for each violation.” 33 U.S.C. § 1319(d). It does

not say “per each day in which violations occur” or “per

day in which a party pollutes.” The focus is clearly on

each violation, and courts have consistently rejected

attempts to limit civil penalties to the number of days in

which violations occur. A contrary rule would encourage

individuals to stack all their violations into one “Pollu-

tion Day,” in which innumerable offenses could occur,

subject only to the $25,000 maximum.

Tsakopoulos relies most heavily on Chesapeake Bay

Found., Inc. v. Gwaltney of Smithfield, Ltd., 791 F.2d 304 (4th

Cir.1986), vacated, 484 U.S. 49, 108 S.Ct. 376, 98 L.Ed.2d

306 (1987). In Gwaltney, the court considered a case of

continuous violations of monthly permits. The violator

argued that a monthly violation should be treated as a

single day of violation. Id. at 313. The court disagreed,

concluding “where a violation is defined in terms of a

time period longer than’ a day, the maximum penalty

assessable for that violation should be defined in terms of

the number of days in that time period.” [d. at 314. The

App. 14

court explicitly declined to reach the very different ques-

tion of “whether multiple violations attributable to a

single day may give rise to a maximum penalty in excess

of [the penalty amount] for that day.” Id. at 308.

This question was addressed in Atlantic States Legal

Found., Inc. v. Tyson Foods, Inc., 897 F.2d 1128 (11th

Cir.1990). The court found that the statutory provision

was “not a model of clarity,” but nonetheless found that it

was “capable of only a single reasonable interpretation:

the daily maximum penalty applies separately to each

violation of an express limitation.” Id. at 1137, 1138. The

court stated that “each excessive discharge of a pollutant

on a given day will subject the polluter to a $25,000

maximum fine.” Id. at 1139. This interpretation was con-

sistent with the legislative history, which stated that the

provision was intended “to clarify that each distinct vio-

lation is subject to a separate daily penalty assessment.”

Id. (citation omitted). |

The Fourth Circuit adopted similar reasoning in

United States v. Smithfield Foods, Inc., 191 F.3d 516, 528 (4th

Cir.1999). The court noted the serious incentive problems

of a contrary ruling: “[I)f the maximum penalty that

could be levied against a violator on a single day was

$25,000, no matter how many different Permit effluent

limitations were violated, the permittee would have a

strong disincentive to comply with the other permit lim-

itations.” Id. at 527-28. Accordingly, the court treated each

permit violation “as a separate and distinct infraction for

purposes of penalty calculation.” Id. at 528.

We recognize that these cases do not precisely resolve

the problem at issue here. These cases are concerned with

App. 15

emission of different types of pollutants in violation of

different permits. This case is about repeated iilling of

wetlands without a permit. Here, the landowner commit-

ted the same unlawful act repeatedly. Tsakopoulos argues

that treating each rip as a separate violation could lead to

nonsensical results in other cases. For example, a polluter .

who emitted 25,000 gallons of a pollutant into a stream

continuously over the course of a day would be subject to

a $25,000 maximum penalty, whereas a polluter who

made three separate discharges of one gallon each would

be subject to a $75,000 maximum penalty.

Tsakopoulos’s position, however, also leads to irra-

tional results. The incentive problems at issue in

Smithfield are equally strong here. Once a wetland viola-

tion has occurred in part of a swale, Tsakopoulos’s pro-

posed rule would allow the landowner to rip away at the

rest of the swale with impunity from that point forward,

because no additional penalty could be imposed.

Although neither approach is free from difficulty, we

believe the better rule is to treat each rip as a separate

violation. This approach is more consistent with the stat-

utory language, with prior judicial interpretations of the

statute, and with the general policy goal of discouraging

pollution. Tsakopoulos’s concern about the disparate

treatment of the polluter who emits several small

amounts and the serial continuous polluter is not without

remedy in the district courts. The district courts have

substantial discretion in imposing penalties, and, as the

Gwaltney court pointed out in response to a similar argu-

ment, the district court “could . . . impose a substantially

smaller penalty on [the] hypothetical polluter than on

[the larger polluter].” 791 F.2d at 315.

App. 16

In sum, we conclude that the district court correctly

included each pass of the ripper as a separate violation. A

limited remand for recalculation of the penalty is none-

theless in order. The district court included 10 passes

through the vernal pool in its total of 358 violations. Since

the government now concedes that it lacks jurisdiction

over these violations, we remand to the district court to

determine what, if any, reduction in the penalty is appro-

priate.

B. The Simpson Timber Consent Decree

Tsakopoulos argues that the penalty imposed here is

significantly disproportionate to the penalty imposed in

the settlement of violations by the Simpson Timber Com-

pany, which deep ripped 987 acres, but was subject only

to a $30,000 penalty and a restoration order. By contrast,

Tsakopoulos committed violations on only two acres. The

district court found that the Simpson Timber consent

decree had no relevance to the determination of the civil

penalty here, because consent decrees are different from

judgments reached after extensive litigation and because

that decree imposed significant restoration requirements.

The district court did not abuse its discretion.

Tsakopoulos knowingly assumed the risk that litigation

would result in a judgment more unfavorable than he

might have attained through settlement. Having assumed

that risk, Tsakopoulos cannot now be heard to complain

that his penalty should have been assessed as if he had

settled the case. In any event, the statute directs that

these disputes be evaluated on a case-by-case basis. Since

we know almost nothing about the facts of the Simpson

App. 17

Timber dispute, it is impossible to conclude that the

district court’s careful analysis of the penalty issue on the

facts of this case was an abuse of discretion.

C. Further Reductions in Penalty

Tsakopoulos finally argues that the district court

should have reduced the penalty further because of

Tsakopoulos’s good faith, the trivial nature of the viola-

tions, and the supposed uncertainty concerning the gov-

ernment’s regulatory authority. The district court

considered these arguments when setting the penalty (a

penalty that was significantly lower than the statutory

maximum). None of Tsakopoulos’s arguments rises to the

level necessary to demonstrate an abuse of discretion by

the district court. |

Conclusion

We affirm the district court’s holding that deep rip-

ping in this context is subject to the jurisdiction of the

Corps and the EPA. We also affirm the district court’s

factual findings except with respect to the vernal pools.

We remand for a recalculation of the civil penalties.

Finally, we deny Tsakopoulos’s request that this case be

assigned to a different district judge on remand.

AFFIRMED IN PART, REVERSED IN PART,

VACATED IN PART, AND REMANDED. Costs on

appeal to appellees.

App. 18

RONALD M. GOULD, Circuit Judge, dissenting:

I respectfully dissent. The crux of this case is that a

farmer! 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 trans-

forming 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 Nationai Mining Associa-

tion v. U.S. Army Corps of Engineers, 135 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

1 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.

App. 19

regulating the redeposit of dredged materials that inci-

dentally 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 con-

stitutes 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 mate-

rial when there is no addition of material.

Although the Act includes “dredged spoil” in its

list of pollutants, Congress could not have con-

templated that the attempted removal of 100

tons of that substance could constitute an addi-

tion 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,

App. 20

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 distin-

guishable. 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, dis-

charge 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 geo-

graphic 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., concur-

ring). 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 major-

ity, 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

App. 21

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 mate-

rials in a manner which changes any area of the

waters of the United States to dry land.” 33 C.F.R.

§ 323.4(a)(1)(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 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 appar-

ently unintentional, or at least there was no finding by

App. 22

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 interpreta-

tion here arises because Congress prohibited the dis-

charge 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 hydro-

logical character of their land. The majority opinion,

motivated perhaps by the purposes of the statute, makes

App. 23

EDMUND L. REGALIA (Bar No. 29017)

ARTHUR F. COON (Bar No. 124206)

ANTHONY M. LEONES (Bar No. 184499)

MILLER, STARR & REGALIA

A Professional Law Corporation

1331 N. California Blvd., Fifth Floor

Post Office Box 8177

Walnut Creek, California 94596

Telephone: (510) 935-9400

Attorneys for Plaintiffs

BORDEN RANCH ASSOCIATES and

ANGELO K. TSAKOPOULOS

UNITED STATES DISTRICT COURT

new law by concluding that a plow is a point source and

EASTERN DISTRICT OF CALIFORNIA

that deep ripping includes discharge of pollutants into

protected waters. The policy decision involved here BORDEN RANCH Case No. CIV-S-97-858

should be made by Congress, which has the ability to ASSOCIATES; GEB

ANGELO K. JFM

study and the power to make such fine distinctions. |

understand how the majority reaches its position based TSAKOPOULOS, (PROPOSED) JOINT

on Rybachek, and incremental judicial reasoning. Notwith- Plaintiffs, STIPULATION AND

standing, the judicial determination that a deep plowing v. PRELIMINARY

technique constitutes a pollution of navigable waters, Us. AD cones cs INJUNCTION ORDER

with no prior adequate guidance from Congress, goes ENGINEERS, an agency ) (Filed Oct. 20, 1997)

beyond mere statutory interpretation. It would be prefer- of the United States; and

able for the public, the regulators, and us were Congress UNITED STATES

to speak explicitly on the subjects of what normal farm- ENVIRONMENTAL

ing or ranching activities may include discharge of pollu- PROTECTION AGENCY,

tants and require permits under the Clean Water Act, and y—thecpsine of the United

whether it wishes to exempt any such activities and upon :

what terms. The alternatives are an agency power too Defendants.

unbounded or judicial law-making, which is worse. I AND RELATED CROSS-

respectfully dissent. ACTION

Nem me ee ee ee ee eee ee ee ee ee eet eee”

~_— ~—"

App. 24

The United States of America, having filed a Coun-

terclaim seeking injunctive relief and civil penalties

under the Clean Water Act, and a Motion for Temporary

Restraining Order and Preliminary Injunction against

plaintiff and counterdefendant Angelo K. Tsakopoulos;

the Court having on October 9, 1997, orally entered a

Temporary Restraining Order against Tsakopoulos for,

among other things, planned plowing and planting activ-

ities on already “deep-ripped” Borden Ranch parcels for

land preparation and the planting of winter wheat and/

or oat crops precluding any such activities from occurring

within swales (or other jurisdictional waters of the

United States) until a hearing on the United States’

Motion for Preliminary Injunction could be had; Mr.

Tsakopoulos having now determined, in light of the eco-

nomics of the matter and the delay occasioned by the

TRO, not to pursue said plowing operations in the

swales; and Mr. Tsakopoulos accordingly having agreed

to the entry of a preliminary injunction to preserve the

status quo with respect to the Borden Ranch delineated

waters and wetlands pending this Court’s decision on the

merits of this action, |

IT IS HEREBY STIPULATED BY THE PARTIES AND

ORDERED BY THE COURT that:

1. Pending the resolution of the parties’ action,

counterdefendant Angelo K. Tsakopoulos

(“Tsakopoulos”) shall not engage in any activities which

the United States has contended result in the discharge of

any dredged or fill material into those portions of Borden

Ranch designated as waters of the United States by the

jurisdictional delineation performed by Sugnet & Associ-

ates attached as Exhibit A hereto, except in those portions

App. 25

of Borden Ranch where the discharge of dredged or fill

materials has been authorized pursuant to a valid section

404 permit.

2. The prohibited activities in jurisdictional waters

shall include, by way of example and not limitation,

filling, dredging, deep plowing or deep ripping, discing,

floating, levelling, grading, clearing land, and casting

aside soil or other surface materials. This preliminary

injunction does not enjoin Tsakopoulos from engaging in

such activities outside of the delineated jurisdictional

waters and wetlands. The United States reserves the right

to take appropriate enforcement action against Mr.

Tsakopoulos if such activities are in violation of other

applicable laws and regulations.

3. Employees and authorized representatives

(including contractors) of the United States Environmen-

tal Protection Agency (“EPA”) and the United States

Army Corps of Engineers (the “Corps”) shall be permit-

ted reasonable entry into that certain property owned by

Tsakopoulos and more particularly identified in Exhibit

“D” to Tsakopoulos’ Complaint for Declaratory and

Injunctive Relief in this action (“Borden Ranch”), upon

reasonable written notice to Tsakopoulos of not less than

48 hours, for the purpose of monitoring compliance with

this Order. As part of monitoring compliance, EPA or the

Corps may take samples, measurements, photographs,

and videotapes or otherwise record or document infor-

mation regarding compliance with this Order. Any party

to this Order may ask the Court to resolve any disputes

regarding the reasonableness of notice or entry, or regard-

ing compliance with this paragraph.

App. 26

4. Tsakopoulos, his agents, servants, employees and

assigns, and all persons in active concert or participation

with them shall not unreasonably interfere in any manner

with the implementation of this Order. Mr. Tsakopoulos

reserves the right to file a motion with the Court for

modification or dissolution of this Order at any time.

5. This Order shall be binding on Tsakopoulos, his

agents, servants, employees and assigns, and all persons

in active concert or participation with them. By stipulat-

ing to this Order, Mr. Tsakopoulos merely agrees to pre-

serve the status quo as set forth herein, and makes no

concession or admission as to the facts, theories or merits

of this action.

IT IS SO STIPULATED.

Dated: 10/15, 1997

MILLER, STARR & REGALIA

By: /s/ Arthur F. Coon

Arthur F. Coon

Attorneys for Plaintiffs

BORDEN RANCH

ASSOCIATES and

ANGELO K.

TSAKOPOULOS

Dated: October 15, 1997

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY

By: /s/ Sylvia Quast

Sylvia Quast

Attorneys for Defendants and

Counterclaimant

IT IS SO ORDERED.

App. 27

Dated: October 20, 1997

/s/ Garland E. Burrell, Jr.

UNITED STATES DISTRICT

JUDGE

App. 28

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

CIV-S-97-0858 GEB JFM

AMENDED ORDER*

(Filed Aug. 3, 1998)

BORDEN RANCH

PARTNERSHIP; ANGELO

K. TSAKOPOULOS,

Plaintiffs,

Vv.

)

UNITED STATES ARMY?

CORPS OF ENGINEERS, ?

an Agency of the United )

States; and UNITED )

STATES )

ENVIRONMENTAL )

PROTECTION AGENCY, ?

an Agency of the United )

States

)

Defendants.

AND RELATED CROSS-

ACTION.

Pending are the parties’ cross-motion for summary

judgment on Plaintiffs’ challenge to Defendants’ applica-

tion of the Clean Water Act (“CWA” or “Act”) to activities

that Plaintiffs claim are not subject to regulation. For the

reasons stated below, Plaintiffs’ motion is denied and

Defendants’ motion is granted in part.

* Because text was inadvertently omitted from the order

filed June 9, 1998, this amended order is hereby filed.

App. 29

BACKGROUND

Section 404 of the CWA! establishes a permit pro-

gram to control the discharge of dredged and fill mate-

rial. See 33 U.S.C. § 1344. Section 301 prohibits discharge

of any pollutant without a permit into navigable waters

of the United States. See id. at § 1311. Unpermitted dis-

charges of dredged or fill material or pollutant may be

enforced pursuant to section 309. See id. at § 1319.

Congress delegated Defendant United States Army

Corps of Engineers (“Corps”) the authority to issue sec-

tion 404 permits. See 33 U.S.C. §§ 1344(a), 1344(d). While

the Corps retains enforcement authority over permit con-

ditions and limitations, Defendant Environmental Protec-

tion Agency (“EPA”) has direct enforcement authority

Over unpermitted discharges in violation of section 301.

See 33 U.S.C. §§ 1319, 1344. Both agencies are empowered

to issue regulations and guidance documents and thus

share in the administration of the Act. See, e.g., 33 U.S.C.

§ 1344(b)(1).

At issue is whether Plaintiffs Borden Ranch Partner-

ship and Angelo K. Tsakopoulos are required to obtain

section 404 permits from the Corps before engaging in

certain activities in “waters of the United States” on

Borden Ranch. Plaintiffs argue they are entitled to plow

these “waters” to plant orchards, vineyards, and other

deep-root crops without obtaining a permit. They further

contend that their deep slip plowing (“deep ripping”)

1 Unless otherwise indicated, all references to code sections

pertain to the CWA.

App. 30

and shallow plowing (“disking”) in areas of normally dry

but seasonally inundated “wetlands” constitute “normal”

plowing and farming activities, which are specifically

exempt from the permit requirements. Accordingly, Plain-

tiffs allege that Defendants have exceeded their delegated

authority by arbitrarily and capriciously preparing and

applying regulations to Plaintiffs’ activities.* Defendants

rejoin that Plaintiffs’ deep ripping and disking activities

are not exempt from section 404 permit requirements and

that Plaintiffs have violated the CWA by placing fill,

which alternatively constitutes pollutant, in protected

waters without a permit. Defendants additionally argue

that Plaintiffs’ facial challenges to defendants’ regulations

are time-barred and that both Plaintiffs’ due process and

2 In the Complaint, Plaintiffs pray for declaratory and

injunctive relief from application of both Defendants’

regulations and a Regulatory Guidance Letter (“RGL”) issued

by the Corps on December 12, 1996. See Compl. at 29-30.

However, based on the factual record presented on the cross

motions for summary judgment, it is unclear whether the RGL

has actually been applied to Plaintiffs. Therefore, decision is

reached without reference to it.

Furthermore, the ripeness of Plaintiffs’ challenge to the

RGL has not been established. Ohio Forestry Ass'n, Inc. v. Sierra

Club, 1998 WL 244192, at *5 (U.S. May 18, 1998). Therefore, any

dispute regarding the RGL has not been shown to be justiciable.

See Abbott Laboratories v. Gardner, 387 U.S. 136, 148-49 (1967)

(explaining that the ripeness requirement was designed “to

prevent the courts, through avoidance of premature

adjudication, from entangling themselves in abstract

disagreements over administrative policies, and also to protect

the agencies from judicial interference until an administrative

decision has been formalized and its effects felt in a concrete

way by the challenging parties”).

App. 31

commerce clause challenges to the regulations lack

merit.

II.

ANALYSIS

A. Standard of Review

Summary judgment is appropriate where the record

shows an absence of a genuine issue of material fact

entitling the movant to judgment as a matter of law. Fed.

R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986). The movant has the initial burden of establishing

the absence of genuine issues of material fact. Fed. R. Civ.

P. 56(c). Once the movant has met its burden, the nonmo-

vant must make a sufficient showing on matters on which

it will have the burden of going forward with evidence at

trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 585-87 (1986). “The inquiry involved in ruling

on a motion for summary judgment .. . necessarily impli-

cates the substantive evidentiary standard of proof that

would apply at the trial on the merits.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 252 (1986). Thus, “[o]n cross

motions for summary judgment, the burdens faced by the

opposing parties vary with the burden of proof they will

face at trial.” Cabo Distributing Co., Inc. v. Brady, 821 F.

Supp. 601, 607 (N.D. Cal. 1992).

3 Pacific Legal Foundation, California Farm Bureau

Federation, and California Cattlemen’s Association (collectively

“PCC”) and California Mining Association (“CMA”) each filed

amicus curiae briefs in support of Plaintiffs’ motion for

summary judgment. Both PCC and CMA principally contest

Defendants’ jurisdiction over “wetlands” on Borden Ranch.

App. 32

When cross motions for summary judgment are filed,

the ordinary implication is that no disputed issues of

material fact exist and that the dispute may be decided as

a matter of law. A & A Concrete, Inc. v. White Mountain

Apache Tribe, 781 F.2d 1411, 1417, n.1 (9th Cir. 1986).

Nevertheless, the Court must determine whether the par-

ties have raised issues of material fact that make sum-

mary judgment inappropriate. Id.

A “material” fact is one that is relevant to an

element of a claim or defense and whose exis-

tence might affect the outcome of the suit. The

materiality of a fact is thus determined by the

substantive law governing the claim or defense.

Disputes over irrelevant or unnecessary facts

will not preclude a grant of summary judgment.

T.W. Electrical Service, Inc. v. Pacific Electrical Contractors,

Ass'n, 809 F.2d 626, 630 (9th Cir. 1987).

Neither party seriously disputes the facts giving rise

to the issues in suit. Instead, the parties disagree over the

requirements of the CWA, and whether Plaintiffs’ activ-

ities fall within the CWA’s proscriptions. The motions

thus require construction of the Act in light of the undis-

puted facts.

B. Section 301 Violation

To establish that Plaintiffs violated section 301 of the

CWA, Defendants must show “(a) that [they have] juris-

diction over the subject waters, (b) that the [Plaintiffs]

discharged or placed fill [or pollutant] in those waters,

and (c) that the [Plaintiffs] did so without a permit from

App. 33

the Corps.” United States v. Zanger, 767 F. Supp. 1030, 1033

(N.D. Cal. 1991).

1. Jurisdiction over the Subject Waters

The Corps’ section 404 jurisdiction over “waters of

United States” includes navigable waters; interstate

waters and wetlands; all other waters, the use, degrada-

tion, or destruction of which could affect interstate or

foreign commerce;* tributaries of all above waters; and

wetlands adjacent to such waters. See 33 C.F.R. § 328.3; 40

C.F.R. § 232.2. See also United States v. Riverside Bayview

Homes, Inc., 474 U.S. 121, 139 (1985) (approving the

Corps’ interpretation of its CWA jurisdiction to include

wetlands adjacent to navigable waterways). Borden

Ranch supports primarily three types of waters of the

United States: vernal pools, sloped wetlands (also known

as swales), and intermittent drainages. See Undisputed

Material Fact (“UMF”) 45. Some intermittent streams on

Borden Ranch are tributaries to tributaries of the Sacra-

mento River, a water used in interstate commerce. Id. at

48-49.

Plaintiffs “do not dispute the accuracy of [the Corps’]

delineation of areas on Borden Ranch as wetlands” for

the purposes of their motion. Pls.. Mem. Supp. Mot.

Summ. J. at 1, n.1. Therefore, Defendants’ jurisdiction

over the subject waters is not at issue. However, the

* “Other waters” includes “intrastate lakes, river, streams

(including intermittent streams), mudflats, sandflats, wetlands,

sloughs, wet meadows, playa lakes, or natural ponds.” 33 C.F.R.

§ 328.3(a)(3); 40 C.F.R. § 232.2.

App. 34

parties vigorously dispute whether Plaintiffs’ deep rip-

ping and disking activities cause “discharge of any pollu-

tant” or “dredged or fill material into the navigable

waters,” which requires a permit. See 33 U.S.C. §§ 1311,

1344.

2. Discharge of Dredged or Fill Material and Addi-

tion of a Pollutant from a Point Source

Under the CWA, “dredged material” is defined as

“material that is excavated or dredged from the waters of

the United States.” 33 C.F.R. § 323.2(c); 40 C.F.R. § 232.2.

“Fill material” is “any material used for the primary

purpose of replacing an aquatic area with dry land or of

changing the bottom elevation of a water body.” 33 C.F.R.

§ 323.2(e); see also 40 C.F.R. § 232.2 (defining “fill mate-

rial” as “any pollutant which replaces portions of the

waters of the United States with dry land or which

changes the bottom elevation of a water body for any

purpose”). The definition of “pollutant” includes

“dredged spoil,. . . . rock, sand, cellar dirt, . . . and

agricultural waste discharged into water.” 33 U.S.C.

§ 1362(6).

“Discharge of dredged material” means “any addi-

tion of dredged material into, including any redeposit of

dredged material within, the waters of the United

States.” 33 C.F.R. § 323.2(d); 40 C.F.R. § 232.2. “Discharge

5 Section 404 authorization is not required for “any

incidental addition, including redeposit, of dredged material

associated with any activity that does not have or would not

have the effect of destroying or degrading the waters of the

App. 35

of fill material” is “the addition of fill material into

waters of the United States.” 33 C.F.R. § 323.2(f); 40

C.F.R. § 232.2. “Discharge of a pollutant” is “any addition

of any pollutant to navigable waters form any point

source.” 33 U.S.C. § 1362(12).

Here, the only question is whether Plaintiffs’ deep

ripping and disking activities are subject to section 404

permit requirements. UMF 31-33, 35-36. The answer

depends upon whether or not deep ripping and/or disk-

ing cause “discharge” of “fill or dredged material” or

“pollutant from a point source” into protected waters.

Deep ripping is a type or technique of plowing used by

farmers throughout the nation in preparation for the

planting of deep-root crops that require water to pene-

trate down into the root zone. UMF 36, 59. It is achieved

by running a four- to seven-foot deep plow through the

land to break up compacted soils in order to allow perco-

lation of water deeper into the soil. Id. at 31, 58. Disking

United States.” 33 C.F.R. § 323.2(d)(3)(i); see also 40 C.F.R.

§ 232.2. An activity associated with the discharge of dredged

material destroys the waters of the United States “if it alters the

area in such a way that it would no longer be a water of the

United States.” 33 C.F.R. § 323.2(d)(4); 40 C.F.R. § 232.2. An

activity associated with the discharge of dredged material

degrades the waters of the United States “if it has more than a

de minimis (i.e., inconsequential) effect on the area by causing

an identifiable individual or cumulative effect on any aquatic

function.” 33 C.F.R. § 323.2(d)(5); 40 C.F.R. § 232.2.

activities exempt from permit requirements, “[t)he term

(“discharge of fill material”) does not include plowing,

cultivating, seeding and harvesting for the production of food,

fiber, and forest products.” 33 C.F.R. § 323.2(f).

App. 36

penetrates approximately twelve inches into the soil. Id.

at 32. Deep ripping and disking break up, mix, homoge-

nize, loosen, aerate, and horizontally move soil. Id. at 33,

60. Plaintiffs use rippers, disks, and rollers attached to

tractors and bulldozers with blades raised to pull plows

through the soil on Borden Ranch, breaking up, mixing,

and turning over material already in the pools, swales,

and intermittent streams. Id. at 38, 62.

Plaintiffs argue that deep ripping and disking do not

produce “fill” since nothing is added to the soil as a

pollutant and any earth that is disturbed already exists on

the site. Pls.’ Mem. Supp. Mot. Summ. J. at 37-38. How-

ever, redeposit of earth can constitute “addition of a

pollutant.” See Rybachek v. EPA, 904 F.2d 1276, 1285-86

(9th Cir. 1990) (stating that “even if the material dis-

charged originally comes from the streambed itself, such

resuspension may be interpreted to be an addition of a

pollutant under the Act” and “ ‘the word “addition,” as

used in the definition of “discharge,” may reasonably be

understood to include “redeposit” ’”) (quoting Avoyelles

Sportsmen's League, Inc. v. Marsh, 715 F.2d 897, 923 (Sth

Cir. 1983)); In re Alameda County Assessor's Parcel. No.

537-801-2-4, 672 F. Supp. 1278, 1284-85 (N.D. Cal. 1987)

(stating that fill dirt is a pollutant). Earth can also consti-

tute “dredged or fill material” where it causes or contrib-

utes to degradation or destruction of the “waters.” See

Avoyelles, 715 F.2d at 923 (“If vegetation or other materials

are redeposited in the wetland, that activity is a dis-

charge”); United States v. Tilton, 705 F.2d 429, 430 (11th

Cir. 1983) (enjoining unpermitted discharge of fill mate-

rial “consisting of woodchips, pine bark, and soil”);

United States v. Sinclair Oil Co., 767 F.Supp 200, 204 (D.

App. 37

Mont. 1990) (“the regulation does not distinguish

between indigenous material and foreign materials”).

Plaintiffs attempt to distinguish their activities from

those requiring a section 404 permit. First, Plaintiffs

argue that their primary purpose for deep ripping and

disking is not to fill wetlands but to enhance the soil’s

agricultural viability. Pls.’ Mem. Supp. Mot. Summ. J. at

36. However, the purpose for which a discharge is made

is irrelevant to the determination of whether addition of a

particular substance is a “discharge” under the Act. See

Minnehaha Creek Watershed Dist. v. Hoffman, 597 F.2d 617,

627 (8th Cir. 1978) (finding “no justification in the Act for

the District Court’s determination that whether the dis-

charge of a particular substance . . . constitutes a dis-

charge of a ‘pollutant’ depends upon the purpose for

which the discharge is made”); 40 C.F.R. § 232.2 (defining

“fill material” as “any pollutant which replaces portions

of the waters of the United States with dry land or which

changes the bottom elevation of a water body for any

purpose”); see also United States v. Earth Sciences, Inc., 599

F.2d 368, 374 (10th Cir. 1979) (stating that liability under

the CWA is strict). Second, Plaintiffs argue that deep

ripping and disking move soil no more than a “de min-

imis” horizontal distance and, third, that the “fallback” of

soil from a plow is analogous to unregulated “incidental

fallback” that attends mechanized dredging operations.

Pls.’ Mem. Supp. Mot. Summ. J. at 18-21, 37, 38; Pls.’

Reply Mem. at 21. Neither of these arguments, however,

is relevant to the determination of whether Plaintiffs’

activities come within section 404 permit requirements.”

7? Plaintiffs’ reliance on the district court's invalidation of

the Tulloch Rule in American Mining Congress v. United States

App. 38

See Minnehaha, 597 F.2d at 626-27 (rejecting district court's

conclusion that “significant alteration in water quality

must be demonstrated before discharge of a particular

substance to navigable waters can be classified as the

discharge of a pollutant”).

In fact, Plaintiffs concede that what they have charac-

terized as “mistaken” deep ripping and disking of admit-

ted wetlands and other waters resulted in those waters’

losing the ability to hold and convey water. See UMF

78-79. This conversion of wetlands and other waters to

dry land alone proves that Plaintiffs’ plowing activities,

Army Corps of Engineers, 951 F.Supp. 267, 272 (D.D.C. 1997),

which is currently pending on appeal, is unavailing. Prior to the

Tulloch Rule, “the agencies did not regulate under § 404

excavation activities that involved the removal of materials

from waters, such as landclearing, ditching, and channelization,

even if those activities might have adversely impacted wetlands

or waters.” American Mining Congress, 951 F. Supp. at 269. Under

the Tullock Rule, however, the agencies regulate removal

activities “because they consider the ‘incidental fallback’ that

accompanies dredging to be a ‘discharge’ under § 404.” Id. The

Tulloch Rule applies only to dredging activities. See id. Plaintiffs

argue that their activities are limited to plowing land “in its

natural state and condition” and that the CWA does not apply to

their activities in the first instance. See Johas Decl. 12; Compl.

q 7. Contrary to Plaintiffs’ argument, American Mining Congress

does not apply to this case. That decision dealt with excavation

and mechanized landclearing and “de minimis (i.e.,

inconsequential) effect” and “incidental addition, including

redeposit,” concepts relevant only to dredging activities under

the Act. See 33 C.F.R. §§ 323.2(d)(3)(i), 323.2(d)(5); 40 C-F.R.

§ 232.2. These concepts are not part of the provisions governing

“discharge of fill material” or “addition of pollutants” at issue

here. See 33 U.S.C. § 1362(6), 33 C.F.R. § 323.2(e); 40 C.FR.

§ 232.2.

App. 39

without more, can cause the discharge of fill material,

which, in turn, causes the destruction of waters.®

Plaintiffs argue that plows cannot be characterized as

point sources.° See Pls.’ Reply Mem. at 10-11. The CWA

neither explicitly excludes nor includes plows from the

definition of “point source.”1° See 33 U.S.C. § 1362(14).

8 Plaintiffs object strenuously to defense expert Lyndon

Lee’s descriptions of deep ripping and disking on Borden

Ranch. See Pls.’ Reply Mem. at 19-27. Plaintiffs’ concern over Dr.

Lee’s alleged failure to describe soil movement “for any

significant distance,” however, is misplaced. See id. at 20.

Nothing in the CWA suggests tha‘ a quantitative minimum of a

particular substance’s movement is determinative of its

classification as fill. See Minnehaha, 597 F.2d at 627. The CWA

“was intended to control the degradation of aquatic resources

that results from any replacement of water with fill material, as

well as the degradation that results from the discharge of

dredged or fill material. . . . ” Id. (emphasis added).

Furthermore, that earth can constitute “fill material” or

“pollutant” within the meaning of the Act can be decided

without reliance on Dr. Lee’s declaration since Plaintiffs’ prior

plowing activities alone prove that fact. See UMF 78-79.

Accordingly, Plaintiffs’ specific objections to Dr. Lee’s

declaration need not be addressed.

9 Plaintiffs correctly state that a pollutant can only be

discharged from a point source. See 33 U.S.C. § 1362(12)

(defining “discharge of pollutant” as “any addition of any

pollutant to navigable waters from a point source”). Although

plows can constitute point sources, Plaintiffs’ liability under

section 404 is alternatively established without reference to

point sources by the fact that their plowing activities can cause

discharge of fill material.

10 “Point source” is “any discernible, confined and discrete

conveyance, including but not limited to any pipe, ditch,

channel, tunnel, conduit, well, discrete fissure, container, rolling

stock, concentrated animal feeding operation, or vessel or other

App. 40

However, where discharges of substances have threat-

ened protected waters, even items such as backhoes and

bulldozers have been found to be “point sources.”

Avoyelles, 715 F.2d at 929. See also Alameda County Asses-

sor’s Parcel, 671 F. Supp. at 1284-85 (“In situations where

an individual has been unlawfully dumping fill dirt on

wetlands, the courts have consistently found that dump

trucks, trailer trucks, bulldozers, and earth graders all

qualify as ‘point sources’ for purposes of the CWA”).

Accordingly, “the definition of a point source is to be

broadly interpreted” to encompass conveyances from

which pollutants might enter waters of the United States.

Concerned Area Residents for the Env’t v. Southview Farm, 34

F.3d 114, 118 (2d Cir. 1994). Under this definition, Plain-

tiffs’ plows could be “point sources.”

3. The Requirement of a Section 404 Permit

Having established that Plaintiffs could have “dis-

charged” “fill material” or “pollutant from a point

source” into “waters of the United States” by engaging in

deep ripping and disking activities, the remaining ques-

tion is whether Plaintiffs did so without a section 404

permit. Plaintiffs admit that “there are approximately

9.99 acres of delineated wetlands/waters on the Borden

Ranch parcels where [such] plowing activities have

occurred” without a section 404 permit. See Whitney

Reply Decl. { 8; UMF 27; Coe Decl. { 21, Exh. 8; Joint

Stip. & Prelim. Inj. Order filed 10/20/97 at 2.

floating craft, from which pollutants are or may be discharged.”

33 U.S.C. § 1362(14). Thus, the “point source” concept

incorporates both physical and functional characteristics.

App. 41

Since such activities may cause discharge of fill mate-

rial or pollutant into waters of the United States, they

may not occur prior to completion of the section 404

permit process. Cf. Public Interest Research Group of New

Jersey v. Powell Duffryn Terminals, Inc., 913 F.2d 64, 72-73

(3rd Cir. 1990) (stating that a CWA enforcement action

only requires showing that the offending discharge

“may” cause the alleged adverse effects). Therefore,

Defendants’ request for declaratory judgment that Plain-

tiffs’ deep ripping and disking violate section 301 is

granted. The existence of disputed facts, however, pre-

vents summary adjudication of whether Plaintiffs’ activ-

ities actually constitute a CWA violation.”

11 Although Defendants’ Cross complaint prays for other

forms of relief, including assessment of civil penalties for CWA

violations, their motion failed to place these requests at issue.

Furthermore, the existence of disputed facts concerning both

the extent and the effects of particular instances of Plaintiffs’

unpermitted deep ripping and disking activities on Borden

Ranch precludes assessment of any particular section 301

violation on summary judgment.

It should be noted that while Plaintiffs applied for a section

404 permit in February 1997 “for the balance of the Borden

Ranch owned by them,” Defendants ceased processing the

permit application. See UMF 26-27. Thus, this case comes before

the Court unaccompanied by the Corps’ decision on Plaintiffs’

application for a permit. Consequently, the Court lacks the

benefit of the agency’s findings on the same issues raised by this

lawsuit. In Avoyelles, the Fifth Circuit discussed the benefit of

establishing an administrative record in advance of seeking

judicial review where, as here, “(t]he question . . . is the extent,

not the existence, of agency jurisdiction”:

Basically speaking, since [defining wetlands] is a

responsibility which Congress has-designated the

Corps and two other Government agencies to

App. 42

C. Normal Farming Exemption

Next, Plaintiffs argue that they are exempt from the

permit requirement. Indeed, section 404 exempts certain

activities from coverage. See 33 U.S.C. § 1344(f).

“(Njormal farming, silvicultural, and ranching activities”

are generally exempted from permit requirements, and

“plowing”? is specifically exempted. Id.; 33 C.FR.

accomplish, it is their primary responsibility and they

have the expertise to handle the question. And since

in just about all cases that the Court has come into

contact with, these cases have been cases in which the

court has the benefit of the consideration given by the

agencies and is not called upon to be the agency of

first impression, or to use its own initiative in making

a definition or enforcing it. It has been asked to

review a definition made by persons who are experts

in that field and have accumulated expert

testimony. . . . [T]he Court ordinarily has the benefit

of this consideration. And I feel that the Court in this

instance should also have the benefit of this

consideration, if it is possible to do so.

Avoyelles, 715 F.2d at 904 (quoting Prel. Inj. Hr’g tr.). See also

infra, note 17.

12 “Plowing” is

all forms of primary tillage, including moldboard,

chisel, or wide-blade plowing, discing, harrowing

and similar physical means utilized on farm, forest or

ranch land for the breaking up, cutting, turning over,

or stirring of soil to prepare it for the planting of

crops. The term does not include the 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. For example, the

redistribution of surface materials by blading,

App. 43

§ 323.4; 40 C.RR. § 232.3. However, to fall within the

statutory exemptions, an activity must be part of an

“established (i.e., on-going) farming, silviculture, or

ranching operation.” 33 C.F.R. § 323.4(a)(1)(ii); 40 C.F.R.

§ 232.2(c)(1)(ii)(A); United States v. Akers, 785 F.2d 814, 819

(9th Cir. 1986). The exemption is not available either (1)

for “[a]ctivities which bring an area into farming . . . use”

or (2) where “modifications to the hydrological regime

are necessary to resume operations.” 33 C.F.R.

§ 323.4(a)(1)(ii); 40 C.F.R. § 232.3(c)(1)(ii)(B); United States

v. Brace, 41 F.3d 117, 123 (3rd. Cir. 1994). Plaintiffs bear

the burden of demonstrating that their activities are

exempt from the section 404 permit requirements of the

CWA. Akers, 785 F.2d at 819.

Plaintiffs fail to show that their activities qualify for

an exemption.!3 Plaintiffs’ exemption argument that

grading, or other means to fill in wetland areas is not

plowing. Rock crushing activities which result in the

loss of natural drainage characteristics, the reduction

of water storage and recharge capabilities, or the

overburden of natural water filtration capacities do

not constitute plowing. Plowing as described above

will never involve a discharge of dredged or fill

material.

33 C.RR. § 323.4(a)(1)(iii); 40 C.F.R. § 232.3(d)(4). Plaintiffs’

activities that cause “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” do not fall within the

definition of exempted “plowing.” ‘

13 Plaintiffs argue that “Defendants’ construction of

‘normal’ to mean ‘established and ongoing’ renders section

404(f)(1)(A) a mere ‘grandfather clause’ in direct contravention

of Congress’ intent.” Pls.’ Reply Mem. at 28. To the contrary, the

requirement that “normal” farming activities be “established

App. 44

Borden Ranch has historically been farmed and ranched

and that their specific activities comport with traditional

farming activities is similar to the argument rejected by

the Ninth Circuit in Akers. See Pls.’ Mem. Supp. Summ. J.

at 41; cf. Akers, 785 F.2d at 819 (claiming entitlement to

exemption on the bases of historic farming of land and

undertaking of traditional farming activities). Specifically,

the Akers court found that (1) upland crop production

had not occurred on Akers’ wetlands on a regular basis

and (2), by his own admission, Akers’ activities required

“hydrological alteration” to the land. Id. at 819-20. In the

instant case, while portions of Borden Ranch have been

used for vineyards and orchards since 1993, the ranch has

primarily been used as rangeland for the grazing of cat-

tle. See UMF 3, 56. Although portions of Borden Ranch

have also been used for the production of wheat, beets,

tomatoes, beans, and corn since approximately 1940,

upland crop production has not occurred on a regular

basis. Id.; cf. United States v. Larkins, 657 F. Supp. 76, 85-86,

n.23 (“even if the wetland had a history of farm use, that

use was no longer established at the time of [Plaintiffs’

activities]”). In fact, Plaintiffs admit that the land must be

deep ripped and disked before it will be suitable for

planting vineyards and orchards which “require water to

penetrate down into the root zone.” See UMF 58-59; cf.

Brace, 41 F.3d at 125 (stating that “activities which bring

an area into farming . . . use are not part of an established

and ongoing” simply effects Congress’ intent to exempt only

those “narrowly defined activities that cause little or no adverse

effects either individually or cumulatively.” Akers, 785 F.2d at

819 (quoting 3 Leg. Hist. of the CWA of 1977 at 474 (Sen.

Muskie)).

App. 45

operation”). In other words, even if the subject wetlands

and other waters on Borden Ranch were previously

farmed, “modifications to the hydrological regime are

necessary” to enable Plaintiffs to now plant orchards and

vineyards. This evinces that Plaintiffs’ activities are not

part of an established farming operation.

Plaintiffs also rely on the definition of “normal” in

Webster’s Dictionary and the definition of “wetlands” in

the Federal Agriculture Improvement and Reform Act to

preclude inquiry into whether their activities are estab-

lished and ongoing. See Pls.’ Mem. Supp. Summ. J. at 11,

n.4, 15, 35; Pls.’ Reply Mem. at 29. However, “the proper

question is whether the activities performed by [Plain-

tiffs] at this particular site, and at a time when the CWA

applied, were within the meaning of the statutory term

‘normal farming activities’ as defined by the regulations.”

Brace, 41 F.3d at 127. Furthermore, courts must defer to

“lajn agency's construction of a statute it is charged with

enforcing . . . if it is reasonable and not in conflict with

the expressed intent of Congress.” Riverside Bayview

Homes, 474 U.S. at 131. Courts must “especially defer

where the Agency’s decision on the meaning or reach of

the Clean Water Act involves reconciling conflicting poli-

cies committed to the Agency’s care and expertise under

the Act.” Rybachek, 904 F.2d at 1284.

The intent of Congress in passing the CWA was “to

restore and maintain the chemical, physical, and biolog-

ical integrity of the Nation’s waters.” 33 U.S.C. § 1251(a);

Riverside Bayview Homes, 474 U.S. at 132. To effectuate this

goal, Congress implemented the permit programs, which

are “the central enforcement tool[s}] of the Clean Water

App. 46

Act,” Brace, 41 F.3d at 123, and delegated broad regula-

tory authority to the Corps and EPA under the Act, see,

e.g., 33 U.S.C. § 1311.

Given Congress’ dual objectives of comprehensively

protecting waters of the United States and shielding cer-

tain, narrowly defined activities from regulation, the

agencies’ regulations are reasonable.’* See Riverside

Bayview Homes, 474 U.S. at 131 (limiting review of

agency’s construction of statute to “the question whether

it is reasonable, in light of the language, policies, and

" legislative history of the Act”); see also United States v.

Huebner, 752 F.2d 1235, 1240 (7th Cir. 1985) (“It is clear

that the amendments that created the subsection (f)

exceptions . . . were not intended to exempt all farming

operations from the permit requirements”). Plaintiffs’

activities must thus be examined in light of Defendants’

regulations.

4 The Legislative History of the Act shows the intended

breadth or its coverage:

There is a national and Federal interest in waterways

other than those on which a ship can be floated. . . .

The Congress can abandon the national interest. The

Congress can permit activities of a dredge-and-fill

nature to go forward on those small streams, marshes,

wetlands, and swamps which will make their way

into the bigger waterways of this country and have a

tremendous effect on the people of this country and

on their welfare, on their crops, on many of their

activities. Or we can establish a program of the sort

the committee has established, which will protect all

of those water systems, which will protect all of the

elements of those systems. . . .

3 Legis. Hist. of the CWA of 1977 at 908 (Sen. Hart).

App. 47

Because Plaintiffs’ activities are not part of an ongo-

ing farming operation, they are not exempt from section

404 permit requirements. Partial summary judgment is

accordingly granted in Defendants’ favor on the non-

exempt status of Plaintiffs’ deep ripping-and disking

activities that are not part of an established farming oper-

ation.

D. Recapture Provision

An activity otherwise exempt from section 404 permit

requirements may require a permit pursuant to the

“recapture provision.” See 33 U.S.C. § 1344(f)(2); Akers,

785 F.2d at 822. Under the “recapture” provision “[a}ny

discharge of dredged or fill material into the navigable

waters incidental to any activity having as its purpose

bringing an area into a use which it was not previously

subject, where the flow or circulation of navigable waters

may be impaired or the reach of such waters reduced,

shall be required to have a permit.” 33 U.S.C. § 1344(f)(2).

Plaintiffs bear the burden of demonstrating that their

activities are not “recaptured” and thus regulated under

33 U.S.C. § 1344(f)(2). Akers, 785 F.2d at 819.

Plaintiffs seek to convert use of their land from

ranching and grazing cattle to growing vineyards and

orchards.*5 See UMF 56. Cf. Akers, 785 F.2d at 822-23

15 Plaintiffs argue that the recapture provision is limited to

“extraorindary wetlands conversion activities.” Pls.’ Reply

Mem. at 32-33. Nothing in the CWA, however, restricts.

application of the recapture provision exclusively to

“extraordinary wetlands conversion activities.” See Akers, 785

F.2d at 822 (indicating that “the proper inquiry is not what could

App. 48

(stating that recapture provision applies where activities

“change a wetland’s hydrological regime”); accord Brace,

41 F.3d at 129. Plaintiffs’ plowing of other waters of the

United States for these purposes has impaired “the flow

or circulation of navigable waters” and reduced “the

reach of such waters,” thereby causing those waters to

cease to exist. See UMF 78-79. This is revealing evidence

of the effect Plaintiffs’ deep ripping and/or disking activ-

ities may have on other waters of the United States. Thus,

regardless of whether Plaintiffs’ plowing activities qual-

ify for an exemption under subsection 404(f)(1), they

would require a permit under subsection 404(f)(2).'

“Giving the recapture provision the appropriate common

sense reading,” Defendants are entitled to declaratory

judgment that Plaintiffs’ deep ripping and disking of

wetlands and other federal waters “are not exempt from

have been done but what was done in the past . . . ”) (emphasis

added).

16 Plaintiffs argue that “Defendants’ interpretation of

section 404(f)(2)’s recapture provision would entirely swallow

the section 404(f)(1)(A) ‘Farmer Exemptions.’ ” Pls.’ Reply

Mem. at 28. However, reinstating the permit requirement (via

section 404(f)(2)) for activities that would otherwise be exempt

but for change in use of the land reflects Congress’ intent to

allow exemption for activities only to the extent that they do not

degrade or destroy federal waters. The exemptions are confined

to certain, narrowly defined activities and do not work as a

wholesale exemption for all activities falling within certain

types of uses. See Akers, 785 F.2d at 822 (rejecting attempt to

distinguish “change within the farming use” from “change in

use” denoting a “major type of use”) (emphasis added); see

generally 40 C.F.R. § 230.1 (outlining policies underlying section

404 permit requirements).

App. 49

permit requirements due to the likely drying effect”’” on

waters of the United States. Akers, 785 F2d at 822-23.

E. Plaintiffs’ Challenges to Defendants’ Regulations and

Exercise of Jurisdiction

Plaintiffs also argue that Defendants’ regulations are

invalid because they are arbitrary and capricious and

contravene legislative intent. Further, Plaintiffs contend

that Defendants’ asserted basis for exercising jurisdiction

is unavailing. Plaintiffs rely on the arbitrary and capri-

cious standard because the CWA does not set forth stan-

dards for reviewing the Corps’ or EPA’s decisions, and

courts look for guidance to the Administrative Procedure

Act (“APA”), 5 U.S.C. § 701 et seq. See American Mining

Congress v. EPA, 965 F.2d 759, 763-64 (9th Cir. 1992). The

APA generally provides that a court shall set aside

agency findings, conclusions, and actions that are “arbi-

trary and capricious, an abuse of discretion, or otherwise

not in accordance with law,” or that fail to meet pro-

cedural, statutory, or constitutional requirements. 5

U.S.C. §§ 706(2)(A), (B), (C), (D).

17 This ruling merely requires Plaintiffs to exhaust the

section 404 permit procedure in advance of engaging in non-

exempt or “recaptured” activities. It does not decide the

propriety of granting or denying a permit. This is “precisely the

type of agency decision that is normally subject to limited

judicial review.” Avoyelles, 715 F.2d at 906. As observed supra,

note 11, since this litigation preceded completion of the

permitting process, the Court was deprived of the benefit of a

developed agency factual record on matters at issue. See Ohio

Forestry Ass'n, 1998 WL 244192, at °S.

App. 50

1. Facial Challenge to Validity

Pursuant to the APA, Plaintiffs challenge the “facial

validity” of Defendants’ regulations interpreting plowing

and “other normal farming activities as resulting in the

‘discharge of dredged or fill material.’ ”'* Compl.

{1 31-33. Actions brought pursuant to the APA are gov-

erned by a six-year statute of limitations. 28 U.S.C.

§ 2401(a); Sierra Club v. Penfold, 857 F.2d 1307, 1316 (9th

Cir. 1988). The six-year statute of limitations on facial

challenges to agency regulations commences on the date

the regulations are published in the Federal Register.

Wind River Mining Corp. v. United States, 946 F.2d 710, 715

(9th Cir. 1991). Because Plaintiffs’ Complaint, which was

filed in May 1997, contests regulations that were pub-

lished in November 1986, all facial challenges to the

validity of the regulations are time-barred and accord-

ingly dismissed.'*

18 Although a “facial validity” challenge is alleged in Count

I of the Complaint, any as-applied challenge to the regulations

that might also include a challenge to the application of the RGL

is not ripe. See Lujan v. Nat’! Wildlife Fed’n, 497 U.S. 871, 891

(1990) (stating that “a regulation is not ordinarily considered the

type of agency action ‘ripe’ for judicial review under the APA

until the scope of the controversy has been reduced to more

manageable proportions, and its factual components fleshed

out, by some concrete action applying the regulation to the

claimant's situation in a fashion that harms or threatens to harm

him”); Municipality of Anchorage v. United States, 980 F.2d 1320,

1324 (9th Cir. 1992) (withholding judicial review where the EPA —

and Corps had adopted a memorandum of agreement but had

not yet applied it to a specific permit); see also supra, note 2.

19 Plaintiffs contend that Defendants waived the statute of

limitations defense by failing to plead it in their Answer. Pls.’

Reply Mem. at 37. Defendants, however, may raise a statute of

App. 51

2. Due Process Challenge

In Count V of the Complaint, Plaintiffs attack Defen-

dants’ regulations for vagueness.20 Compl. 17 45-47.

Plaintiffs’ challenge fails because Plaintiffs had actual

notice that their activities might be subject to regulation.

See, e.g., Tsakopoulos Decl. [{ 3-5, Exh. D; Coe Decl. { 15.

Even absent actual notice, Plaintiffs’ due process chal-

lenge would fail.2! See Maynard v. Cartwright, 486 U.S.

limitations defense for the first time on a motion for summary

judgment where no prejudice to Plaintiffs is shown. Rivera v.

Anaya, 726 F.2d 564, 566 (9th Cir. 1984). Plaintiffs have not

shown prejudice.

20 Because final agency action is ordinarily prerequisite to

bringing a challenge under the APA, whether the APA provides

Plaintiffs with a cause of action to challenge the regulations on

constitutional grounds is unclear. See 5 U.S.C. § 704 (“Agency

action made reviewable by statute and final agency action for

which there is no other adequate remedy in a court are subject to

judicial review”); Dunn-McCampbell Royalty Interest, Inc. v.

National Park Service, 112 F.3d 1283, 1287 (Sth Cir. 1997) (“to

challenge a regulation after the limitations period [on a facial

challenge] has expired, provided the ground for that challenge

is that the issuing agency exceeded its constitutional or

statutory authority, . . . the claimant must show some direct,

final agency action involving the particular plaintiff within six

years of filing suit”). However, since Plaintiffs’ due process and

commerce clause challenges fail on the merits, there is no need

to determine the existence of final agency action here.

21 Plaintiffs also allege that De ‘ants violated Plaintiffs’

due process rights “by shifting the », >» of proof concerning

compliance with Section 404 to the reg. 'ated parties.” Compl.

4 47. Defendants correctly respond that the burden of proof in

the enforcement action remains with Defendants and Plaintiffs

bear only the burden of establishing the applicability of any

exemptions. Defs.’ Mem. Supp. Cross-mot. Summ. J. at 45. See

Akers, 785 F.2d at 819; Zanger, 767 F. Supp. at 1033.

App. 52

356, 361 (“objections to vagueness under the Due Process

Clause rest on lack of notice, and hence may be overcome

in any specific case where reasonable persons would

know that their conduct is at risk”); United States v.

Weitzenhoff, 35 F.3d 1275, 1289 (9th Cir. 1994) (upholding

CWA permit against vagueness challengé where terms

have meaning in the context of EPA regulatory scheme).

Therefore, summary adjudication on Plaintiffs’ due pro-

cess challenge to the regulations is granted in favor of

Defendants.

3. Commerce Clause Challenge

Plaintiffs argue that the Corps’ exercise of jurisdic-

tion based on EPA guidelines, which were adopted by the

Corps and are known as the migratory bird rule, exceeds

Defendants’ delegated commerce clause authority.

Compl. {1 48-52. Plaintiffs specifically contest Defen-

dants’ exercise of jurisdiction over four isolated vernal

pools on Borden Ranch that have been plowed. Pls’ Reply

Mem. at 47-50. The pertinent part of the guidelines at

issue defines waters as having sufficient ties to interstate

commerce as follows: “(a) [w]hich are or would be used

as habitat by birds protected by the Migratory Bird

Treaties; or (b) [wJhich are or would be used as habitat by

other migratory birds which cross state lines; or (c)

[w]hich are or would be used as habitat for endangered

species.”22 Definition of Waters of the United States, 51

Fed. Red. [sic] 41,217 (1986). Therefore, the issue is

22 Included in the Corps’ definition of “waters of the

United States” are “interstate waters and wetlands.” 33 C.F.R.

§ 328.3(a)(2).

App. 53

whether the commerce clause authorizes the federal gov-

ernment to exercise regulatory jurisdiction over isolated

intrastate waters that may serve as habitat for migratory

birds and endangered species.

In 1990, the Ninth Circuit decided this very issue,

holding that “[t]he commerce clause power, and thus the

Clean Water Act, is broad enough to extend the Corps’

jurisdiction to local waters which may provide habitat to

migratory birds and endangered species.” Leslie Salt Co. v.

United States (“Leslie Salt II”), 896 F.2d 354, 360 (9th Cir.

1990) (emphasis added). But Plaintiffs suggest that the

United States Supreme Court’s ruling in United States v.

Lopez, 514 U.S. 594 (1995), changed the law in this cir-

cuit.*4 Pls.’ Reply Mem. at 48. Plaintiffs argue under Lopez

23 The reterenced waters were artificially created,

seasonally wet, and non-adjacent to navigable waters. See Leslie

Salt II, 896 F.2d at 359-60.

24 Although Plaintiffs fail to address the entire Leslie Salt

line of cases, Amici attempt to distinguish Leslie Salt I] and Leslie

Salt III. See PCC’s Mem. Supp. Pls.’ Mot. Summ. J. at 15 (stating

that although the Ninth Circuit accepted the Corps’ migratory

bird argument, the court acknowledged that the Corps’

jurisdiction depended upon “the property’s specific

connections to interstate commerce due to migratory bird use”);

CMA’s Mem. Supp. Pls.’ Mot. Summ. j. at 9-10 (arguing that

Leslie Salt is not controlling because Leslie Salt II] “used the law

of the case to blindly follow Leslie Salt II”). Leslie Salt II's

holding, however, is not as limited as Amici suggest. See Leslie

Salt II, 896 F.2d at 360 (holding that the commerce clause

empowers the Corps’ broad CWA jurisdiction). Furthermore,

the commerce clause itself authorizes regulation of intrastate

migratory bird habitats. See Andrus v. Allard, 444 U.S. 51, 63 n.19

(1979) (stating that “the underlying assumption that the

App. 54

that Defendants must demonstrate that each subject iso-

lated wetland on Borden Ranch “substantially affect(s]

interstate commerce” before jurisdiction exists under the

migratory bird rule. Id. One month after Lopez was

decided, however, the Ninth Circuit affirmed its previous

holding on the validity of the migratory bird rule. Leslie

Salt Co. v. United States (“Leslie Salt III”), 55 F.3d 1388,

1392 (1995). Thus, in this Circuit, the migratory bird rule

remains a valid application of Defendants’ exercise of

jurisdiction under Congress’ commerce clause powers,

provided that the waters in question may provide habitat

to migratory birds and/or endangered species.

national commerce power does not reach migratory wildlife is

clearly flawed”).

Plaintiffs and Amici argue that United States v. Wilson, 133

F.3d 251 (4th Cir. 1997), controls the question of whether the

migratory bird rule is a valid application of Defendants’

commerce clause power. See Pls.” Reply Mem. at 49; CMA’s

Mem. Supp. Pls.’ Mot. Summ. J. at 7-9; PCC’s Mem. Supp. Pls.’

Mot. Summ. J. at 12-13. Although the Fourth Circuit invalidated

the migratory bird rule on the ground that it exceeded the

commerce clause power in Wilson, it also acknowledged that

“the power of Congress to regulate the discharge of pollutants

into at least some nonnavigable waters is indisputable, but the

limits of this power are far from clear.” Wilson, 133 F.3d at 256.

25 The Ninth Circuit is not alone in approving the

migratory bird rule as a valid application of commerce clause

power. See Hoffman Homes, Inc. v. EPA, 999 F.2d 256, 260-61 (7th

Cir. 1993) (stating that the EPA reasonably interpreted the

regulation both in regard to extending its jurisdiction to waters

with “potential rather than actual, minimal rather than

substantial” connection to interstate commerce and in “allowing

migratory birds to be that connection between a wetland and

interstate commerce”); United States v. Marsh, 740 F.2d 799, 804

(10th Cir. 1984) (finding proper the Corps’ exercise of

App. 55

The migratory bird rule certainly tests the limits

of Congress’s commerce powers and, some

would argue, the bounds of reason. In this case,

there is no evidence of human contact with the

seasonally ponded areas. The only humans that

hunt or photograph the birds using these ponds

apparently are doing so after they have reached

other locations. Nevertheless, given the broad

sweep of the Commerce Clause, the holding in

Leslie Salt II cannot be considered clearly erro-

neous on this ground.

Leslie Salt III at 1396.

Because Borden Ranch is within the Pacific Flyway,

an international migratory corridor for waterfowl and

other migratory birds, UMF 54, isolated vernal pools

located on Borden Ranch may serve as habitat for migra-

tory birds. The Corps thus may have jurisdiction under

the commerce clause. However, since the suitability of

certain waters on Borden Ranch as habitat for either

migratory birds or endangered species is in dispute, a

genuine issue of material fact exists as to which waters

may serve as habitat under the migratory bird rule.?®

jurisdiction over an intrastate lake that was “on the flyway of

several species of migratory waterfowl which are protected

under international treaties”); Solid Waste Agency of Northern

Cook County v. United States Army Corps of Engineers, 1998 WL

139523, at *5 (N.D. Ill. Mar. 25, 1998) (finding that the migratory

bird rule remains valid after Lopez and “authorizes the federal

government to regulate isolated intrastate waters that provide a

habitat for migratory birds even if the particular birds on the

site do not substantially affect interstate commerce”).

26 The parties dispute application of the mi

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