Amicus Curiae Brief — Borden Ranch Partnership v. United States Army Corps of Engineers

rma.‘ oon, BS

IIL eI

No. 01-1243 0g

In the ee

OFFIC? OF (ME CLARK

Supreme Court of the United States

°

BORDEN RANCH PARTNERSHIP:

ANGELO K. TSAKOPOULOS,

Petitioners,

!

V.

UNITED STATES ARMY CORPS OF ENGINEERS:

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY,

Respondents.

——

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

+

BRIEF AMICUS CURIAE OF

CALIFORNIA FARM BUREAU FEDERATION,

CALIFORNIA CATTLEMEN’S ASSOCIATION,

AND PACIFIC LEGAL FOUNDATION IN

SUPPORT OF PETITIONERS

—>

ROBIN L. RIVETT

Counsel of Record

M. REED HOPPER

Pacific Legal Foundation

10360 Old Placerville Road,

Suite 100

Sacramento, California 95827

Telephone: (916) 362-2833

Facsimile: (916) 362-2932

Counsel for Amici Curiae

California Farm Bureau

Federation, California

Cattlemen's Association, and

Pacific Legal Foundation

SS

i

QUESTIONS PRESENTED

1. Whether deep plowing ranch land to plant deep-rooted

crops constitutes the “addition” of a “pollutant” (the plowed

soil) from a “point source” (the plow) so as to fall within the

regulation of Section 404 of the Clean Water Act.

2. Whether deep plowing ranch land which is farmable in

its natural state to plant deep rooted crops is statutorily exempt

from regulation under Section 404(f)’s exemption for any

discharge from “normal farming . . . activities such as

plowing[.]”

3. Whether the Clean Water Act’s civil penalty section,

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

violation,” authorizes assessing the maximum daily penalty for

each time a plow crosses a seasonal drainage feature, without

regard to the number of days when such activity occurred.

ll

TABLE OF CONTENTS

Page

re cc ieee nek eevcesoeoeecocess i

Ne i cee ed ceeccecenesocees ili

INTERES! OF AMICICURIAE ...... cc ccccccccccceces l

ed cee cbe pede en eeoesececes 3

SUMMARY OF ARGUMENT ......cccccccccccccccecess 5

EE SELES SESE OST TESTE ET ETL ETET ET 6

I. THE PLAIN LANGUAGE OF THE 1977

AMENDMENTS TO THE CLEAN WATER

ACT SHOWS THAT PLOWING DOES NOT

CAUSE A “DISCHARGE” THAT IS SUBJECT

TO SECTION 404 REGULATION ................. 6

Il. THE NINTH CIRCUIT’S DECISION

IGNORED AN ADAMANT CONGRESSIONAL

COMMAND THAT PLOWING RANCH

AND FARM LAND IS AN ACTIVITY EXEMPT

FROM SECTION 404 REGULATION ............. 13

A. California Farmers and Ranchers

Depend on the Normal Farming and

Ranching Activity of Deep Plowing ............ 14

B. Congress Did Not Intend to Regulate Plowing

as a Discharge Under Section 404 .............. 18

C. The Ninth Circuit’s Reliance

on Akers Was Misplaced ............2-eeee00: 24

Ne cee e aces eeeeccusecoseccecs 27

il]

TABLE OF AUTHORITIES

Page

Cases

Avoyelles Sportsmen's League, Inc. v. Marsh,

Pe ee CED SUE ccecccecececssesouss 8-9

Association to Protect Hammersley, ELD, & Totten

Inlets v. Taylor Resources, No. 00-35667, 2002

U.S. App. LEXIS 15656 (9th Cir. Aug. 6, 2002) ...... 8

Borden Ranch Partnership v.

Army Corps of Engineers,

261 F.3d 810 (9th Cir. 2001).......... 12-13, 17-18, 24

Chevron v. NRDC, 467 U.S. 837 (1984) ..............4. 6

Christiensen v. Harris County,

DE cctsgapasteeceoesscvedeewes 23

General Electric Co. v. Gilbert,

RE OTT TTT TT TT TT Tee 23-24

Gwaltney of Smithfield, Ltd. v. Chesapeake Bay

Foundation, Inc., 484 U.S. 49 (1987) ............... 6

National Mining Association v. United States

Army Corps of Engineers,

145 F.3d 1399 (D.C. Cir. 1998) ........ 3, 5, 11-13, 19

Rice v. Harken Exploration Co.,

ee GE SUE oe cvccesececcooessoees 26

Rybachek v. United States Environmental Protection

Agency, 904 F.2d 1276 (9th Cir. 1990) .......... 12-13

Solid Waste Agency of Northern Cook County v.

United States Army Corps of Engineers,

BOO Was COP GUESS ccccccccccccesese 3, 7, 20, 25-26

United States v. Akers,

785 F.2d 814 (9th Cir. 1986) .................. 24-25

iV

TABLE OF AUTHORITIES—Continued

Page

United States v. Deaton,

rere 13

United States v. Mead Corp., 533 U.S. 218 (2001) ...... 23

United States v. Newdunn Associates,

195 F. Supp. 2d 751 (E.D. Va. 2002) .............. 26

United States v. Rapanos, 190 F. Supp. 2d 1011

Se ED ndcccednecccusheeseencass 26

United States v. Riverside Bayview Homes,

Ges PEED Stucussdncedeesdsncstccduets 7

United States v. Wilson, 133 F.3d 251 (4th Cir. 1997) .... 8

Statutes

Pee ED bc di canehenbksasdnedseaseaeeun 7

REDE 6cdcuibeadssgisanasededtectssdaressouane 5

DS EE henceuestbosdusasdédsscdiudedewersun 7

DEE 646cbteousdecnsstssnendceedasdeaener 5

REE stvexteccuncessusuansvesserisedkeds 5

DED oceccestucoesessbausuncncaundesakes 24

DEP sossctuseeneediennanes 17, 19, 22, 24

DE kn060e0dduseubeneseunensabeoiele 24-25

DEE ceneneudscocusensdeceesstanecsteuduns 7

DE Ciéencdcdanecuaeneseusddeduandctentuan 7

PURE b660b4cddcedosesncoonbesesseedtcneeds 8

DEED cdncadosddusbonsesduevesesenssenetey 8

Vv

TABLE OF AUTHORITIES—Continued

Page

Regulations

Pe EEE ctcteccectetoccecusies 7

DEE sch ceccesececscncucesésoeeesses 23

DED 600 6s6000cuscenscdsesecedecass 22

DPE caceveccesdccccenccences 5-6

§ 323.4(a)(1)(iii(D) (2002)........ Serer rer Te Ty. 12

GPG SUP NED cecicccsescccccccconcenses 5

DEED ccccecsccncsesecessonese 12, 23

REED cacccvtscecscencaccece 22-23

Supreme Court Rules

DIED snnsecssesbucdcbesecetedennsnisvisenawin l

DUE senvedcéisedecédkusaneeeedévecoeneeanees l

Miscellaneous

A Legislative History of the Clean Water

Act of 1977, Serial No. 95-14 (Oct. 1978) ...... passim

Becher, H.H., Penetration Resistance of

Pelosol Samples as Affected by Their

Moisture Status, | International Soil Tillage

Research Organization (8th ed. 1979) .............. 1]

California Department of Food and Agriculture,

Agricultural Resource Directory 2001 (2001) .... 14-16

California Farm Bureau Federation, Facts &

Stats About California Agriculture (2002) .......... 18

Free, George & Larson, Bill, Preparing the

Seedbed, Yearbook of Agriculture (1960) .......... 11

vi

TABLE OF AUTHORITIES—Continued

Page

Goode, Bernard & Albrecht, Virginia, Wetland

Regulation in the Real World, ALI-ABA

Course of Study Materials, Vol. 1 (Feb. 1994) ....... 18

Henning, Stanley, J., et al., Tillage with Tile Drainage

in Restored Soil, | international Soil Tillage

Research Organization (8th ed. 1979) .............. 11

http://www.calcattlemen.org/aboutcca.htm

ee CER ED eo ncccceedcaetoceasavess 2

Interview of Kevin Kester (Mar. 12, 2002) ............ 17

Interview with Hal Collin, President of

Agni-Struction (Mar. 15, 2002) ................ 14-15

Kumiroff, Nicolai V., Sumner, Daniel A. &

Goldman, George, The Measure of California

Agriculture 2000, University of California

Agricultural Issues Center, November, 2000 ..... 16-17

Lovely, W.G., Overview of Conservation

Tillage Systems, National Conservation

IEEE ko cavcdccscecdeussavces ll

McKyes, E., Soil Cutting and Tillage (1985)........... 11

Regulatory Guidance Letter No. 96-02, Applicability

of Exemptions Under Section 404(4) to “Deep

Ripping” Activities in Wetlands (Dec. 12, 1996) ...... 4

United States Department of Agriculture, National

Agricultural Service, 1997 Census of Agriculture,

AC 97-S-2, Ranking of States and Counties,

Wale Sp PUSS cccccccccescecceseces 14

University of California Cooperative Extension,

California Cotton Review (Sept. 1977) ............. 15

Vii

TABLE OF AUTHORITIES—Continued

University of California Cooperative Extension,

Managing and Modifying Problem Soils (1974) ...... 14

University of California Cooperative Extension,

Production Practices and Sample Costs to

Produce Loose Leaf Lettuce (1996) .............+.. 15

University of California Cooperative Extension,

Sample Costs to Establish a Fig Orchard and

ED voccceveauwindeeteneaeéuees 15

University of California Cooperative Extension,

Sample Costs to Establish a Manzanillo Olive

Orchard and Produce Olives (1997) ............... 15

University of California Cooperative Extension,

Sample Costs to Establish an Almond Orchard

and Produce Almonds (2001) ..............00405: 15

University of California Cooperative Extension,

Sample Costs to Establish an Apple Orchard

GG Fredsss BeBNe CIGD .o wc ccccccccsccscccess 15

University of California Cooperative Extension,

Sample Costs to Establish an Orange Orchard

and Produce Oranges (1999) ..........0.00eee0e- 15

University of California Cooperative Extension,

Sample Costs to Establish a Pecan Orchard

and Produce Pecans (1998) ............00eeeeeee 15

University of California Cooperative Extension,

Sample Costs to Establish a Prune Orchard

SCOP TUG «oc cecceceséccocesceses 15

University of California, Division of Agricultural

Sciences, Leaflet No. 2946, How to Appraise Soil

Physical Factors for Irrigated Vineyards (1977) ..... 15

l

INTEREST OF AMICI CURIAE

Pursuant to Supreme Court Rule 37.3, the California Farm

Bureau Federation, California Cattlemen’s Association, and

Pacific Legal Foundation respectfully submit this brief amicus

curiae in support of Petitioners.' Written consent for amici

curiae participation in this case was granted by counsel of

record for all parties and has been lodged with the Clerk of the

Court.

The California Farm Bureau Federation (CFBF) is a

nonprofit corporation and is California’s largest farm

organization. It has 53 county farm bureau affiliates located

throughout California through which it represents owners and

operators of farms and ranches. CFBF represents

approximately 43,000 California farm families who grow over

250 kinds of crops. California Farm Bureau Federation's farm

families contribute the majority of agricultural production in

California which saw its agricultural marketings reach $27.2

billion in 2000. Many of these families farm on lands that

contain the types of seasonally wet ranch land at issue in this

case.

The California Cattlemen’s Association is a nonprofit

corporation that was founded to represent California’s beef

cattle industry in legislative and regulatory affairs. Beef cattle

producers operate on over 38 million of California’s 100

million acres and contributed $1.32 billion to the state's

' Pursuant to Supreme Court Rule 37.6, Amici Curiae California

Farm Bureau Federation, California Cattlemen’s Association, and

Pacific Legal Foundation affirm that no counsel for any party in this

case authored this brief in whole or in part; furthermore, no person

or entity has made a monetary contribution specifically for the

preparation or submission of this brief.

2

multi-billion dollar agriculture economy as recently as 1997.’

The industry provides more than 26,000 jobs from the ranch

level to the processing level in the State of California alone.

The California Farm Bureau Federation and California

Cattlemen’s Association’s members conduct their operations on

lands that include swales, ditches, vernal pools, and man-made

stock ponds and watering holes. These lands, especially in

California’s Central Valley, are often covered with “hardpan,”

that is, clay soils through which rainwater does not easily

percolate.

Farming and ranching operations, especially small-scale

operations, often require changes in crops to take advantage of

favorable markets. But changing crops in the Central Valley

and elsewhere in California often requires deep plowing so that

hardpan or compacted soils will accommodate the irrigation

needs of the new crops. Cattlemen and farmers, much like the

Petitioners in this case, are increasingly encountering United

States Army Corps of Engineers’ personnel who assert Clean

Water Act section 404 permitting jurisdiction over these

plowing activities.

The California Farm Bureau Federation and California

Cattlemen’s Association believe that the Corps’ assertion of

jurisdiction over this plowing extends the Corps’ jurisdiction

far beyond what was intended under the Clean Water Act. The

ramifications of Corps jurisdiction are troubling, as they will

have severe economic consequences on the state’s agricultural

industry. Many CFBF and CCA members are deeply concerned

they may lose their ability to maintain viable agricultural

operations if the normal activity of deep plowing becomes

subject to the permitting discretion of federal bureaucrats.

* http://www.calcattlemen.org/aboutcca.htm (last visited Aug. 13,

2002).

3

Pacific Legal Foundation (PLF) is the largest and most

experienced nonprofit public interest law foundation of its kind

in America. Founded in 1973, PLF provides a voice in the

courts for mainstream Americans who believe in limited

government, private property rights, individual freedom, and

free enterprise. PLF litigates nationwide in state and federal

courts with the support of thousands of citizens from coast to

coast. PLF is headquartered in Sacramento, California, and has

offices in Miami, Florida; Honolulu, Hawaii; Bellevue,

Washington; and a liaison office in Anchorage, Alaska.

PLF has participated in numerous cases across the country

concerning the interpretation of the Clean Water Act and its

restrictions on landowners’ nghts to use their private property

in a reasonable, productive manner. For example, PLF

participated as amicus curiae before this Court in Solid Waste

Agency of Northern Cook County v. United States Army Corps

of Engineers, 531 U.S. 159 (2001) (SWANCC), and before the

United States Circuit Court of Appeals in National Mining

Association v. United States Army Corps of Engineers, 145

F.3d 1399 (D.C. Cir. 1998). PLF has many members who are

ranchers or farmers and PLF’s attorneys have represented the

agricultural industry on many occasions. PLF believes the

decision of the Ninth Circuit in this case may seriously impair

the ability of many California farmers and ranchers to make

profitable agricultural use of their lands.

STATEMENT OF FACTS

Borden Ranch Partnership acquired an 8,400-acre ranch in

the Central Valley of California in 1993. The Partnership’s

intent was to continue farming and introduce higher value

vineyard and orchard crops. Petition for a Writ of Certiorari

(Pet.) at 9. The ranch property had been used previously for

cattle grazing, irrigated pasture, and growing wheat, hay,

alfalfa, and some row crops. /d.

4

However, vineyard and orchard crops could not be grown

on some of the land without deep plowing because the soil

was too heavily compacted. Deep plowing loosens anu

mixes—virtually in place—the compacted soil to a depth of

four to six feet. It breaks through the hard pan soil to allow the

infiltration of irrigation water.’

The Corps objected to Borden Ranch’s deep plowing in

areas the Corps contends contain waters of the United States

(seasonal drainage swales).* The Corps charged that without a

permit, the deep plowing in these areas constitutes a discharge

of dredged or fill material prohibited by Section 404 of the

> The Corps describes deep plowing, which it calls deep-ripping, as

the mechanical manipulation of the soil to break up or pierce

highly compacted, impermeable or slowly permeable

subsurface soil layers, or other similar kinds of restrictive soil

layers. These practices are typically used to break up these

subsoil layers (e.g., impermeable soil layer, hardpan) as part

of the initial preparation of the soil to establish an agricultural

or silvicultural operation. Deep-ripping and related activities

are also used in established farming operations to break up

highly compacted soil. Although deep-ripping and related

activities may be required more than once, the activity is

typically not an annual practice. Deep-ripping and related

activities are undertaken to improve site drainage and

facilitate deep root growth, and often occur to depths greater

than 16 inches and, in some cases, exceeding 4 feet below the

surface ....

Regulatory Guidance Letter No. 96-02, Applicability of Exemptions

Under Section 404(4) to “Deep Ripping” Activities in Wetlands

(Dec. 12, 1996).

* Drainage swales are “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.” Pet. at 6.

5

Clean Water Act. The lower courts agreed with the Corps.

(See Pet. at 9-15, for a detailed explanation of the facts in this

case.)

SUMMARY OF ARGUMENT

Section 404 of the Clean Water Act, 33 U.S.C. § 1344,

authorizes the Corps’ to require permits for those activities that

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

navigable waters. Section 404 expressly exempts from this

permitting requirement “normal farming . . . and ranching

activities, such as plowing,” which do not convert an area of

water into a use to which it was not previously subject. 33

U.S.C. § 1344(f).

The Ninth Circuit’s decision conflicts with the express

limiting provisions of the statute. Plowing does not involve the

discharge of a pollutant from a point source. Specifically, a

plow is not a point source. Also, as explained in National

Mining Association v. United States Army Corps of Engineers,

145 F.3d at 1404, incidental fallback of dirt into wetlands

during dredging activities does not add a pollutant to the

nation’s waters and therefore is not subject to the Corps’ section

404 regulation. Deep plowing, like all forms of plowing, does

not remove soil from the ground as does dredging. It merely

breaks apart compacted soil to allow root penetration and does

not even involve fallback, much less incidental fallback. Deep

plowing, if anything, adds only air to the land being plowed

which is certainly not a pollutant.

The Ninth Circuit’s finding that the Corps has section 404

jurisdiction over deep plowing also contradicts the express

exemptions in the 1977 amendments to the Clean Water Act,

for normal farming and ranching activities, 33 U.S.C. § 1344(f),

the Corps’ own regulations, interpreting its jurisdiction, 33

5 EPA oversees the Corps’ enforcement of Section 404, 33 U.S.C.

§ 1344(c); 40 C.F.R. pt. 231 (2002).

6

C.F.R. § 323.4(a)(1)(1) (2002), and legislative history. When

Congress amended the Clean Water Act in 1977, it sought to

protect the normal agricultural activity of plowing from the

costly and often arbitrary section 404 permitting process. In

short, the Corps has no jurisdiction under the Clean Water Act

to regulate Borden Ranch’s plowing, whether it be shallow or

deep, because Congress never sought to have the federal

government control what crops a farmer may plant.

In summary, the language and legislative history of the

1977 amendments to the Clean Water Act, as well as the narrow

physical scope of deep plowing, provide an overwhelming basis

for this Court to overturn the Ninth Circuit and reject the Corps’

unauthorized exercise of section 404 jurisdiction over plowing.

ARGUMENT

I

THE PLAIN LANGUAGE OF THE

1977 AMENDMENTS TO THE CLEAN

WATER ACT SHOWS THAT PLOWING

DOES NOT CAUSE A “DISCHARGE” THAT

IS SUBJECT TO SECTION 404 REGULATION

The interpretation of section 404 of the Clean Water Act

applied by the Corps to Borden Ranch in this case is not a

permissible construction of the statute. Chevron v. NRDC, 467

U.S. 837, 842-43 (1984). Here the Corps has ruled that deep

plowing is a “discharge” subject to section 404 jurisdiction.

The Ninth Circuit upheld this interpretation. However, this

conclusion is not supported by the plain language of the statute,

its legislative history, or the principles of soil mechanics.

“(T]he starting point for interpreting a statute is the

language of the statute itself.” Gwaltney of Smithfield, Ltd. v.

Chesapeake Bay Foundation, Inc., 484 U.S. 49, 56 (1987). For

plowing to be controlled by Section 404, it must involve the

7

“discharge of dredged or fill material into the navigable waters®

....” 33 U.S.C. § 1344(a) (footnote added). This is a specific

requirement derived from Section 301(a) of the Act which

prohibits the “discharge of any pollutant” unless in compliance

with the permit (e.g., Section 404) requirements of the Act. 33

U.S.C. § 1311(a). The term “pollutant” (33 U.S.C. § 1362(6))

® The Clean Water Act defines navigable waters only as “the waters

of the United States, including the territorial seas,” § 1362(7). This

Court in SWANCC, 531 U.S. 159, addressed whether the Corps’

definition of “waters of the United States” in 33 C.F.R. § 323.2(a)(5)

(1978), was what Congress intended. This Court found that the

regulation read the term “navigable” out of the definition by

expanding “waters of the United States” to include “isolated

wetlands” and later, “intermittent streams, prairie potholes, and other

waters that are not part of a tributary system to interstate waters of

the United States, the degradation of which could affect interstate

commerce.” 33 C.F.R. § 323.2(a)(5). This Court earlier found

section 404 jurisdiction over nonnavigable wetlands located directly

adjacent to open waters, United States v. Riverside Bayview Homes,

474 U.S. 121, 134 (1985), but in SWANCC the Court refused to

expand jurisdiction per the Corps’ regulation to “isolated wetlands”

not adjacent to open water bodies. To do so would make a nullity of

the word “navigable” as used in the Clean Water Act. SWANCC, 531

U.S. at 172.

While this Court did not address jurisdiction over the types of

“wetlands” now involved in this case, Amici strongly believe that

this Court’s reasoning in SWANCC should also bring into question

the Corps’ Section 404 jurisdiction over the “widely dispersed

seasonal drainage swales and intermittent drainages” on the “semi-

arid Borden Ranch.” Pet. at 6. This Court recognized that Congress

may have intended Section 404 to cover only “waters adjacent to

‘navigable waters,’ such as nonnavigable tributaries and streams.”

SWANCC, 531 U.S. at 171. Borden Ranch did not enter any

tributaries or streams but confined its plowing to less than a

collective 2 acres of normally dry areas where rainwater collected or

flowed downhill. Thus, Amici believe the plowing in this case did

not involve any jurisdictional waters of the United States.

8

can include soil. United States v. Wilson, 133 F.3d 251, 259

(4th Cir. 1997), Avoyelles Sportsmen's League, Inc. v. Marsh,

715 F.2d 897, 922 (Sth Cir. 1983).’ Thus, soil can be a

pollutant and can be “dredged or fill material” subject to

Section 404. However, for “plowing” to be controlled by

Section 404, it must also involve the “discharge” of the soil

(dredged or fill material).

The Act defines the “discharge of a pollutant” as “any

addition of any pollutant [or pollutants] to navigable waters

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

added). Accordingly, for plowing to be a discharge, it must

“add” “soil” to the “waters” (dry drainage swales) from a “point

source” (plow). The clear and plain mearung of these terms

shows that plowing fields cannot be a “discharge of a pollutant”

as that phrase is defined in the Act.

First, a plow is not a “point source.” The Act defines

“point source” as any discernable, 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 floating craft, from which pollutants are or may be

discharged. 33 U.S.C. § 1362(14). The legislative history

rejects any interpretation that a plow meets this definition.

Senator Baker made it quite plain in debate over the conference

report that “conferees adopted the Senate amendments to

section 404 that clarifies the exclusion of activities that do not

involve point source discharges, such as plowing ....” See

Vol. 3, A Legislative History of the Clean Water Act of 1977,

Serial No. 95-14 (Oct. 1978) (1977 Leg. History) at 524. He

’ But see Association to Protect Hammersley, ELD, & Totten Inlets

v. Taylor Resources, No. 00-35667, 2002 U.S. App. LEXIS 15656

(9th Cir. Aug. 6, 2002), which restricts the term “pollutant” to a

“waste material of a human or industrial process.” /d. at *23-*24.

Soil used for growing crops is certainly not a waste material.

9

reiterated this later saying: “The conferees agreed to adopt the

approach taken by the Senate in the Senate-passed bill with

respect to activities performed by the farming . . . industries.

First, the conference bill clarifies the exclusion of activities that

do not involve point source discharges of dredged or fill

material, such as plowing, seeding, cultivating, harvesting, and

upland conservation and minor drainage practices.” Jd. Senator

Wallop also expressed the need to protect agriculture from the

reach of section 404 explaining that “certain activities that do

not involve point source discharge . . . will be adequately

controlled by [best] management practices” and that “normal

farming [and] ranching . . . activities such as plowing . . . were

not intended to require 404 permits.” 3 1977 Leg. History at

529.

Moreover, a plow is not a conveyance. The soil is broken

and turned in place. It is not carried to another location. As

noted by Petitioners, a plow has never been characterized before

as a “point source.” (Pet. at 20.) The majority decision failed

to follow the clear and plain meaning of the statutory terms and

instead analogized the plows used by Borden Ranch to

bulldozers and backhoes that have been found to constitute

point sources when used in a completely different manner to

convey soil from one location to another. Specifically, those

bulldozers and backhoes had been used for clearing land by

moving huge amounts of soil, leveling and filling sloughs. and

cutting brush and vegetation at ground level. See Avoyelles,

715 F.2d at 923. The bulldozers and backhoes were not used,

as was a plow in this case, just to turn over and break up soil.

The lower court failed to recognize the essential distinction

between machinery used to remove, redistribute, and pile dirt

in wetlands and machinery used in this case only to mix and

loosen the soil in place. Thus, the plow used by Borden Ranch

in this case is not a “point source” subject to section 404

jurisdiction.

10

Second, Borden Ranch’s deep plowing did not cause the

addition of a pollutant; rather, deep plowing includes picking up

the soil and putting it back in the same place without altering its

chemical composition or adding any other material than what

was originally there. From the technical perspective, deep

plowing is the alteration of the soil’s bulk density by

reorganizing the soil particles to allow more air into the soil.

This is depicted in the following illustration:

In the figure you see an illustration of pore size diversity

as the result of the structure formation. The right side of the

figure depicts the soil prior to deep plowing and the left side is

the soil after deep plowing. Both illustrations contain the same

amount of soil “particles,” but the figure on the left has more

porosity (air space). This addition of air space by reorganizing

the soil’s most basic building blocks is the result of deep

plowing. The soil’s particles are rearranged to allow more air

to enter the soil and thus affect the soil’s bulk density. This

decrease in bulk density is what allows the roots of various

11

crops to grow with fewer impediments.* The Corps’ conclusion

that deep plowing by Borden Ranch was adding a pollutant is

not supported by sound soil science. If anything was added, it

was air.

Borden Ranch’s deep plowing is similar to other soil

moving activities that have been found not to add any pollutant

to navigable waters. In National Mining Association v. Army

Corps of Engineers, 145 F.3d 1399, the Corps sought Section

404 jurisdiction over the removal of soil from a wetland area

because some of the dirt fell back onto the wetland during

removal. The court found 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

* See McKyes, E., Soil Cutting and Tillage 87-123 (1985) (detailed

discussion of soil loosening and manipulation including:

measurements of soil loosening, efficiency of soil loosening, soil

mixing and inversion, and tool spacing; detailed discussion of soil

physical properties and plant growth including: soil compaction,

mechanical and hydraulic properties of compacted soil, soil physical

properties, and plant growth and tillage of compacted soil). See also

Becher, H.H., Penetration Resistance of Pelosol Samples as Affected

by Their Moisture Status, | International Soil Tillage Research

Organization 97 (8th ed. 1979) (soil penetration resistance high

enough to impede root growth can only be reduced by decreasing the

bulk density of the soil); Henning, Stanley, J., et al., Tillage with Tile

Drainage in Restored Soil, | International Soil Tillage Research

Organization 106 (8th ed. 1979) (“[D]eep tillage may be necessary

in replaced soils where compacted horizons hinder root growth and

water movement.”); and Lovely, W.G., Overview of Conservation

Tillage Systems, National Conservation Tillage Conference 181

(1973) (“The soil is manipulated to promote movement of air, water,

and roots through the soil for better growth of plants and to control

runoff erosion.” (Citing Free, George & Larson, Bill, Preparing the

Seedbed, Yearbook of Agriculture (1960))).

12

back. Because incidental fallback represents a net

withdrawal, not an addition, of material, it cannot be

a discharge.

Id. at 1404. Of course, plowing also is not an act of discharge

or adding pollutants to a wetland. It is an act of reducing soil’s

bulk density, or “breaking up, cutting, turning over, or stirring

of soil to prepare it for the planting of crops.” 33 C.F.R.

§ 323.4(a)(1)(i1i(D); 40 C.F.R. § 232.3(d)(4) (2002). As with

the removal of soil from a wetland, plowing adds nothing to the

land. Since no soil is added or removed it does not even

involve the “incidental fall back” of soil that is being broken up

and turned over.

However, rather than recognize National Mining

Association as controlling, the Ninth Circuit’s decision below

instead found this case was governed by two completely

inapposite cases, one in the Ninth and one in the Fourth Circuit.

See Borden Ranch Partnership v. Army Corps of Engineers,

261 F.3d 810, 814 (9th Cir. 2001). In those cases, soils had

been removed by buckets from waters and wetlands and then

later redeposited into those areas. In Rybachek v. United States

Environmental Protection Agency, 904 F.2d 1276 (9th Cir.

1990), a placer miner excavated dirt and gravel from a stream

bed to an out of stream location, sifted out the gold, and later

disposed of the leftover waste material by redepositing it back

into the stream. This mining operation has no similarity to the

actions of Borden Ranch which did not remove the soil, change

its character, and redeposit the spoils. To the contrary, Borden

Ranch simply turned the dirt over in place without changing its

composition or adding any material to it. As Judge Gould

explained in his dissent in this case, deep plowing “does not

involve any significant removal or ‘addition’ of material to the

site.” Borden Ranch, 261 F.3d at 820. Moreover, “[b]Jecause

deep [plowing] does not move any material to a substantially

different geographic location and does not process such

13

material for any period of time, Rybacheck is not controlling.”

Id.

The second case relied on by the majority, United States

v. Deaton, 209 F.3d 331 (4th Cir. 2000), also involves a totally

different activity that includes the removal and redeposit of the

soil. In that case, a landowner excavated a drainage ditch in

wetlands and sidecast the dredged material onto the wetlands

bank alongside the ditch. The court adopted the position that

once material is removed from a wetland it becomes a pollutant,

and its redeposit becomes an addition of a pollutant subject to

Section 404. /d. at 335-36. Despite the fact that Borden Ranch

neither excavated nor redeposited the soil, the Ninth Circuit

majority in this case found deep plowing was analogous to

Deaton’s sidecasting. Borden Ranch, 261 F.3d at 814.

Dissenting Judge Gould did not agree and once again found

National Mining Association was more persuasive stating that

“{a] farmer who plows deeply is not, in my view, redepositing

dredged or excavated materials.” /d. at 820.

The reasoning of the Ninth Circuit and the Corps of

Engineers squarely conflicts with basic soils dynamics and the

correct analytical approach of the D.C. Circuit in National

Mining Association. Deep plowing normally dry, seasonally

wet ranch land does not add a pollutant to the nation’s waters

subjecting it to Section 404 regulation.

il

THE NINTH CIRCUIT’S DECISION

IGNORED AN ADAMANT CONGRESSIONAL

COMMAND THAT PLOWING RANCH AND

FARM LAND IS AN ACTIVITY EXEMPT

FROM SECTION 404 REGULATION

The Ninth Circuit ruled that the Corps has Section 404

permitting jurisdiction to regulate Borden Ranch’s deep

plowing of its seasonally damp ranch land. Borden Ranch

Partnership v. Army Corps of Engineers, 261 F.3d at 814-16.

14

It ruled this even though Borden Ranch has a long history of

uninterrupted agricultural use in these areas of the ranch and

even though its deep plowing was done solely to improve

agricultural operations by introducing different food crops that

require more porous soil. The Ninth Circuit's legal conclusion

flies in the face of congressional intent and if not overturned

can result in serious economic injuries to California’s farmers

and ranchers.

A. California Farmers and Ranchers

Depend on the Normal Farming and

Ranching Activity of Deep Plowing

California agriculture has a tremendous impact on the

lives of individuals throughout the world. It is home to eight of

the top ten United States farm counties’ and in every single one

of them deep plowing is a long practiced, normal farming

activity.'° California’s top four farm exports—almonds, wine,

cotton, and table grapes''—all require deep plowing prior to

® United States Department of Agriculture, National Agricultural

Service, 1997 Census of Agriculture, AC 97-S-2/ Ranking of States

and Counties, 27, Vol. 2, Subject Series Part 2.

© Interview with Hal Collin, President of Agri-Struction (Mar. 15,

2002), a family-owned agricultural land improvement company in

business since 1934. Deep plowing allows for better water

penetration which in turn allows the roots of the crop to grow deeper.

This provides for more stability in tree and vine crops. It also results

in better yields, better quality, more efficient use of the water applied

to the crop, recharging the ground water, and more efficient

utilization of fertilizers and agricultural chemicals that are applied to

the crop. Jd. See also University of California Cooperative

Extension, Managing and Modifying Problem Soils 4-6 (1974).

'! California Department of Food and Agriculture, Agricultural

Resource Directory 200] 34 (2001).

15

planting.’ Besides producing all of the nation’s almonds,

California is the nation’s sole producer (99% or more) of figs,

kiwi fruit, olives, persimmons, pistachios, prunes, raisins, and

walnuts,'’ each of which also often requires deep plowing prior

to planting particularly in areas like California’s Central Valley

that contain clay soils.'* Nectarines, peaches, plums, oranges,

apples, pears, gueros and jalapeno chili peppers, lettuce, all nut

crops, loose leaf lettuce, and alfalfa often require deep plowing

too."

Deep plowing occurs where a crop needs irrigation water \

to penetrate through the soil, but the soil is too highly

'2 See University of California Cooperative Extension, Sample Costs

to Establish an Almond Orchard and Produce Almonds 3 (2001);

University of California, Division of Agricultural Sciences, Leaflet

No. 2946, How to Appraise Soil Physical Factors for Irrigated

Vineyards (1977); University of California Cooperative Extension,

California Cotton Review 5-6 (Sept. 1977).

'> California Department of Food and Agriculture, Agricultural

Resource Directory 2001] at 33.

' Interview with Hal Collin, President of Agri-Struction (Mar. 15,

2002). See also University of California Cooperative Extension,

Sample Costs to Establish a Manzanillo Olive Orchard and Produce

Olives 4 (1997); University of California Cooperative Extension,

Sample Costs to Establish a Prune Orchard and Produce Prunes 4

(1997); University of California Cooperative Extension, Sample

Costs to Establish a Fig Orchard and Produce Figs 4 (1994).

'S See University of California Cooperative Extension, Sample Costs

to Establish an Orange Orchard and Produce Oranges 4 (1999);

University of California Cooperative Extension, Sample Costs to

Establish a Pecan Orchard and Produce Pecans 4 (1998);

University of California Cooperative Extension, Production

Practices and Sample Costs to Produce Loose Leaf Lettuce 3 (1996),

University of California Cooperative Extension, Sample Costs to

Establish an Apple Orchard and Produce Apples 3 (1994).

16

compacted to allow the water to reach the roots of the crop.

California’s farming families often need to plow deeply to

convert land from less productive agriculture, such as raising

forage, to more productive agriculture, such as orchards,

vineyards, alfalfa, and certain vegetable crops. This kind of

plowing is done at depths greater than 16 inches and can exceed

4 feet.'° However, under the Ninth Circuit’s decision below

federal government officials with little or no knowledge of

agricultural operations or soil science have the statutory power

to remove from these families the critically important decision

of which crops to grow and how to manage their agricultural

operations.

Ranchers and farmers are faced with formidable pressures

to maintain profitability or convert their lands from agriculture

to other uses. For instance, between 1964 and 1997, the amount

of land used for agriculture in this country dropped about 16%

to less than 932 million acres.'’ In California, the most

productive agricultural state in the country,'* agricultural land

use dropped by well over 9 million acres during the same

period—37 million to 27.7 million acres, a 25% reduction."

'© See Footnote 3, infra.

'? Kumiroff, Nicolai V., Sumner, Daniel A. & Goldman, George,

The Measure of California Agriculture 2000, University of

California Agricultural Issues Center, November, 2000, at 11.

'* California Department of Food and Agriculture, Agricultural

Resource Directory 2001 30.

- Over a quarter of California’s landmass is used for

agriculture (down from over a third as recently as

1964). Just over half of the 27.7 million acres of

agricultural land is pasture and range and about 39% is

cropland. Most California farms are small in terms of

cash receipts and total sales, and are family or

(continued...)

17

Between 1988 and 1998 over 420,240 acres in agricultural

production were converted to urban and built up uses.*” The

Central Valley, with about 64% of California’s cropland,

recorded 44% of statewide cropland conversion out of

agriculture between 1988 and 1998. Valley grazing land, about

44% of state total, contributed 27% of total grazing land

conversions.”'

As is evidenced by the facts of this case, decisions

imposed under section 404 can have devastating effects on the

usability and profitability of agricultural land. The Ninth

Circuit’s decision ignored the intent of Congress not to impede

normal farming activities with the Clean Water Act Section 404

program,” and sanctioned new burdens that will force more

farm land into nonagricultural uses. For example, if Parkfield,

California, rancher and farmer Kevin Kester had been unable to

convert 51 acres of his grazing land in 1998 to vineyards, he

would have been forced to sell some of his land for

nonagricultural uses.”> The conversion from rangeland to fully

planted vineyards enabled Mr. Kester to increase his cash flow

to pay estate taxes and avoid the last option of selling off part

of his property. However, if Mr. Kester had been subject to the

Ninth Circuit’s Borden Ranch decision, he would not have been

'? (...continued)

individually operated. California has a greater share of

female farm operators and farms with Hispanic, Asian

and Pacific Islander backgrounds than the United States

as a whole.

Kumiroff, et al., at 7.

© Kumiroff, ef al., at 16.

*! Kumiroff, et a/., at 19.

2 33 U.S.C. § 1344(f)(1(A).

3 Interview of Kevin Kester (Mar. 12, 2002).

18

able to convert to grapes in a timely manner, if at all. It could

have taken well over a year just to get the Section 404 permit

needed to make the conversion.** Because the Borden Ranch

decision did not apply to his operation, he was able to act

quickly and keep all his acres in agriculture.”

This pressure to sell off land is an all too frequent

occurrence. Estate taxes, property taxes, market conditions,

urban encroachment, changes in water availability,

environmental regulation, and a host of tensions work against

farming. Farmers must retain flexibility in their operations and

an ability to make decisions quickly so they can withstand these

difficult financial pressures. Congress recognized the need for

flexibility in agricultural operations and excluded normal

farming practices from the burdensome permitting requirements

of the Clean Water Act. The Ninth Circuit’s decision puts the

federal government at the controls of the farmer’s plow. Unless

overturned by this Court, that decision will present another in

a long list of adverse financial pressures working against

California’s family farmers.

B. Congress Did Not Intend to Regulate Plowing

as a Discharge Under Section 404

Ranchers and farmers regularly convert from one crop to

another as part of normal farming operations. Supra at 15-17.

Economic exigencies often call for it. Congress knew this and

passed the Clean Water Act in 1972 not intending section 404

* One study showed that the average amount of time necessary to

obtain a Section 404 permit was 373 days. Goode, Bernard &

Albrecht, Virginia, Wetland Regulation in the Real World, ALI-ABA

Course of Study Materials, Vol. 1 (Feb. 1994).

*° Farms provide significant open space and ecologically valuable

habitat for local flora and fauna. Indeed, 75% of the nation’s

wildlife lives on farms and ranches. California Farm Bureau

Federation, Facts & Stats About California Agriculture (2002).

19

to apply to such normal farming activities. However, the Corps

of Engineers did not always observe this intent, nor did the

courts. Consequently, after several years watching the courts

and Corps of Engineers inconsistently interpreting the law,

Congress passed amendments to the Clean Water Act in 1977

to eliminate unequivocally most applications of the section 404

permit program to farming as Congress “emphatically did not

want the law to impede these bucolic pursuits,” National

Mining Association, 145 F.3d at 1405.”° Specifically, section

404(f)(1)(A) was added to expressly eliminate any requirement

to obtain a permit for “discharge: (A) from normat farming... .

and ranching activities such as plowing.” 33 U.S.C.

§ 1344(f)(1 (A).

The legislative history of the 1977 Amendments to the

Clean Water Act provides a vivid road map of Congress’ efforts

to clarify what it intended in 1972. Unfortunately, the Ninth

Circuit took a wrong turn in its decision below giving this

history little notice. Congressman Roberts, one of the key

26 As expressed by Senator Muskie in debate over the Senate bill that

became the bill adopted in conference as the 1977 amendments to the

Clean Water Act:

The initial response to section 404 was to interpret it so as

to extend its potential jurisdiction over those normal activities

which would subject citizens to overregulation, and we all

began to get letters protesting that potential intrusion upon

their normal activities.

Every proposal before this Senate, every one, is designed

to exempt those normal activities from that kind of

overregulation by the Corps of Engineers or anybody else. .. .

What types of farming and forestry practices are exempt

from permit requirements under the committee bill? Let me

list them: Normal farming and forestry activities such as

plowing ....

4 1977 Leg. History at 928.

20

House managers of the 1977 Act’s conference committee,

provided a thorough explanation of the new amendments as

well as a short history lesson on the implementation problems

experienced with section 404 of the 1972 Act.

In 1972, when Congress passed _ the

comprehensive amendments to the Federal Water

Pollution Control Act, it established in section 404

of that act a new permitting authority for the

discharge of dredged or fill materials in navigable

waters, superseding the 1899 act for these two

activities. The Corps of Engineers, in implementing

section 404, applied it to the same waters as those

over which it exercised jurisdiction under the 1899

act—the navigable waters of the United states. A

suit was brought in the U.S. District Court for the

District of Columbia alleging that section 404 was

not being interpreted broadly enough and the court

agreed, ordering the corps to publish revised

regulations correctly interpreting the phrase

“navigable waters. N.R.D.C. v. Calloway (392 F.

Supp. 687 1975).””’

3 1977 Leg. History at 351.

As a result of the litigation, the Corps published

regulations on July 25, 1975, which were later amended on

July 19, 1977. Of particular significance to this case was

Congressman Roberts’ understanding that these regulations,

promulgated to expand the scope of areas and activities subject

to section 404, nevertheless “make it clear, as did the 1975

regulations, that plowing, seeding, cultivating, and harvesting

*” This Court revisited the term “navigable waters” in SWANCC, 531

U.S. 159, finding the regulations the Corps had published pursuant

to the NRDC litigation which interpreted the phrase “navigable

waters” to include “isolated waters” were unlawful because they read

“navigable” right out of the definition.

21

for the production of food, fiber, and forest products are not

included in the section 404 program.” /d. Yet Congress was

concerned after the NRDC litigation that the 404 program could

be interpreted by the courts to apply to normal farming since it

was not expressly stated to the contrary in the 1972 Act.”*

Congressman Roberts went on to explain that the 1977

Amendments were designed to obviate that concern by creating

express exemptions for normal farming activities like plowing.

As announced by the Congressman, “we will now have for the

first time statutory recognition that normal farming, ranching

and silviculture activities do not belong in this permit program.

These exemptions reemphasize that Congress never intended

these activities to be considered discharges of dredged or fill

material.” 3 1977 Leg. History at 351.”

** Conference Report manager, Senator Jennings Randolph

explained:

One of the most controversial of [the issues in the 1977

Amendments to the Act] relates to the regulation of disposal

of dredge and fill material, resulting from a judicial decision

as to the authority and responsibility of the Army Corps of

Engineers under section 404 of the 1972 act. That decision

resulted in widespread concern that many activities usually

considered routine would be prohibited or made extremely

difficult because of the complex regulatory procedure set up

by the corps unless there was a new statement of

congressional intent.

3 1977 Leg. History at 494.

?° Congressman Stump explained that “[t]he conferees have clarified

that plowing . . . [was] not intended to require Section 404 permits.”

3 1977 Leg. History at 420. Later in debate, Senator Stafford further

clarified the conference report explaining that

the bill includes the clarification that permits are not required

for certain normal farming activities such as plowing and

seeding which are not discharges of dredged or fill material.

(continued...)

22

Senator Muskie, in presenting the conference report to the

Senate, could not have made the point any more cogently

stating: “The conferees have adopted the Senate’s explicit

approach for clarifying that plowing, seeding, cultivating,

harvesting . .. were not intended to require section 404 permits.

Such exemptions were provided by the Corps of Engineers’

regulations under the current law.” 3 1977 Leg. History at 474.

Specifically, plowing was not intended to require section 404

permits, and the exemptions in the bill were explained as

emulating what was already found in the Corps’ own

regulations which expressly “make it clear that . . . plowing...

for the production of food . . . products [is] not included in the

section 404 program.” 3 1977 Leg. History at 348.”°

As vigorously and repetitiously explained in the legislative

history of the 1977 Clean Water Act Amendments, Section 404

was amended to allow, without a permit, normal farming and

ranching activities such as plowing, seeding, cultivating, and

harvesting for the production of food and fiber. 33 U.S.C.

§ 1344(f)(1)(A).”!

? (...continued)

3 1977 Leg. History at 485. He also explained that other farming

activity that would “connect water to dry land including, for

example, those occasional farm or forestry activities that involve

dikes, levees or other fills in wetland of other waters,” activities

unlike plowing, would still require a permit. /d.

*° Senator Wallop explained that section 404 as amended would

relieve agriculture “of irrelevant or unnecessary burdens,” referring

to a farmer not having to obtain a 404 permit to plow his fields. 3

1977 Leg. History at 530, 533.

*! Of particular importance to agriculture in California, this

subsection does not limit itself to certain types of plowing. In fact,

the government has never recognized any such limitations, or degrees

of plowing in its own regulations. See 33 C.F.R. § 323.2(f); 40

(continued...)

23

*! (continued)

C.F.R. § 232.3(c)(1)(i). When defining what the term “discharge of

fill material” means, the Corps of Engineers categorically states that

“the term does not include plowing.” 33 C.F.R. § 323.2(e). EPA’s

regulatory definition for plowing, 40 C.F.R. § 232.3(D)(4), expresses

the same conclusion:

Plowing means all forms of primary tillage, including

moldboard, chisel, or wide-blade plowing, discing, harrowing,

and similar physical means used 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.

Thus, all plowing, including deep plowing, must be a normal farming

activity within the meaning of Section 404(f)(1)(A), or it would not

be expressly excluded from the meaning of “discharge of dredged or

fill material” by the Corps’ and EPA’s own regulations.

However, the Corps unilaterally decided in a December 12, 1996,

joint Corps/EPA memorandum to the Field, without formal rule

making, that the deep plowing needed to prepare compacted soil for

vineyards or orchards does not constitute a “normal farming”

activity. (See Petitioner’s Appendix at 4, 199-207; RGL 96-02.)

This interpretation is not entitled to serious deference however as it

is not the result of “a formal adjudication or notice-and-comment

rulemaking,” Christiensen vy. Harris County, 529 U.S. 576, 587

(2000). But see United States v. Mead Corp., 533 U.S. 218, 230-31

(2001). Moreover, the Corps’ new informal interpretation is not of

long duration and is not even internally consistent as it contradicts a

previous Corps’ interpretation which came to the exact opposite

conclusion. See RGL 86-01, lodged with the Court by Petitioners,

which stated that any plowing for the production of a crop [vineyards

and orchards] is not a discharge and is not even subject to section

404(f) exemptions. See also General Electric Co. v. Gilbert, 429

U.S. 125, 142(1976) (discounting significance of agency interpretive

guideline promulgated eight years after statute’s enactment, although

(continued...)

24

C. The Ninth Circuit’s Reliance

on Akers Was Misplaced

Congress expressly established section 404 permitting

exemptions for plowing in 33 U.S.C. § 1344(f)(1)(A). That

section exempts any “discharge: (A) from normal farming, . . .

and ranching activities such as plowing.” In total disdain for

congressional will expressed in the 1977 amendments to the

Clean Water Act and their legislative history, the decision

below ruled that even if the deep plowing were exempt,

subsection (f)(2) provides an exception to any plowing

exemptions that could be applied to Borden Ranch. Borden

Ranch, 261 F.3d at 815. Subsection (f)(2) is known as the

recapture provision. It states:

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).

The Ninth Circuit interpreted this subsection to negate the

subsection (f)(1) plowing exemption if a farmer is changing his

crop, for example, from seasonal hay or pasture grass to

orchards or vineyards and the plowing causes “substantial

hydrological alterations.” Borden Ranch, 261 F.3d at 815-16

(citing United States v. Akers, 785 F.2d 814, 820 (9th Cir.

*! (continued)

fact that guideline contradicted agency’s earlier position deemed

“more importan(t]”).

25

1986)).* But the Akers decision did not hold that plowing

solely done for the purpose of changing crops for the production

of food constituted “bringing an area [of the farm] into a use to

which it was not previously subject.” Akers did not deal with

plowing. It addressed the conversion of part of the farm known

as the Big Swamp to uplands by massive dike building, grading,

leveling, and water diversion activities. Akers, 785 F.2d at 816.

Akers dealt with land conversion activities that truly sought to

turn land “into a use to which it was not previously subject.” 33

U.S.C. § 1344(f)(2).

The Ninth Circuit dismissed this distinction and gave little

credence to the strong legislative history that repeatedly

emphasized the importance of this distinction to ensure that

normal farming activities like plowing for the production of

food would not be subject to section 404. See infra at 22.

Instead, the lower court decided that under section 404 the

federal government could control what is grown on compacted

farm land like that found on Borden Ranch.” As this Court

*? Senator Muskie contradicted the court’s conclusion that the Corps

could dictate what crops a farmer plants if the new crops required

better draining soils. He stated specifically in response to concerns

from fellow Senators that farmers might not be able to change crops

under the amended law without a Corps permit, that “if the drainage

is being constructed in a field already in agricultural use for crops

such as soybeans or corn, the drainage activity would not be subject

to any permit under the provisions of the committee bill.” 4 1977

Leg. History at 928.

* The application of Section 404 is limited by its express terms to

“navigable waters.” Under SWANCC, 531 U.S. 159, waters of the

United States subject to Section 404 jurisdiction include wetlands

adjacent to traditional navigable waters, possibly including adjacent

nonnavigable tributaries and streams. /d. at 172. However, it is

undisputed that Borden Ranch did not conduct plowing activities in

wetlands adjacent to either traditional navigable waters or

(continued...)

26

recognized in SWANCC, in addressing the jurisdictional scope

of the Section 404 program, “[rjather than expressing a desire

to readjust the federal-state balance in this manner, Congress

chose to ‘recognize, preserve and protect the primary

responsibilities and rights of states . . . to plan the development

and use . . . of [their] land and water resources’... 33 U.S.C.

§ 1251(b).” SWANCC, 531 U.S. at 174. The Ninth Circuit

ignored this principle and as a consequence threatens the

livelihood of scores of family farmers in California as well as

across the nation.

+

* (...continued)

nonnavigable tributaries or streams. It was charged instead with

plowing heavily compacted soils in certain isolated seasonal drainage

swales. But, as indicated in Rice v. Harken Exploration Co., 250

F.3d 264, 271 (Sth Cir. 2001), it would be an unwarranted expansion

of the Clean Water Act to find that a discharge onto land that only

infrequently carries running water is a discharge into navigable

waters. The Ninth Circuit’s decision below sanctioned just such an

expansion. See also United States v. Newdunn Associates, 195 F. _

Supp. 2d 751, 765-66 (E.D. Va. 2002) (no Section 404 jurisdiction

over surface water that drains into a series of ditches that drain into

navigable water body); United States v. Rapanos, 190 F. Supp. 2d

1011, 1015 (E.D. M ich. $.D. 2002) (no Section 404 jurisdiction over

wetlands draining into nonnavigable creeks that drain into navigable

water body over 20 miles away).

~

27

CONCLUSION

For the foregoing reasons, Amici respectfully submit that

because plowing does not cause the “discharge of a pollutant,”

it is not subject to section 404 permitting jurisdiction. The

decision of the court below should be REVERSED.

DATED: August, 2002.

Respectfully submitted,

ROBIN L. RIVETT

Counsel of Record

M. REED HOPPER

Pacific Legal Foundation

10360 Old Placerville Road,

Suite 100

Sacramento, California 95827

Telephone: (916) 362-2833

Facsimile: (916) 362-2932

Counsel for Amici Curiae

California Farm Bureau

Federation, California

Cattlemen's Association, and

Pacific Legal Foundation