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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0547%3A12

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2002
- **Citation:** 536 U.S. 981

## Text

rma.‘ oon, BS
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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0547%3A12. Public record. Not legal advice.