Supreme Court to consider plow use

By David Cravets Associated Press Dec. 8, 2002

GALT, Calif. - Angelo Tsakopoulos surveys his crops, 900 acres of apples and wine grapes on gently rolling hills in California's Central Valley, and laments his treatment by the federal government.

"Johnny Appleseed would be in jail today for planting without a permit," said Tsakopoulos, who is challenging $500,000 in fines and orders to restore four acres of wetlands.

The demand is punishment for converting pasture, two acres of which were seasonal wetlands, into productive vineyards and orchards without obtaining a federal pollution permit.

The federal government says he violated the landmark Clean Water Act of 1972 in the same manner as a factory that dumps chemicals into a river without a permit.

In Tsakopoulos' case, the pollutant is churned dirt, and his factory is a large, "deep ripping" plow that punctures the soil about six feet under. Deep ripping is a common farming practice for preparing orchards for planting.

His challenge, which the U.S. Supreme Court will hear Tuesday, tests whether farmers need the same pollution permits to plow fields as developers need to build strip malls or factories.

"That's a sin to call God's gift, soil, a pollutant," Tsakopoulos said as he scanned the horizon on his property about 30 miles south of Sacramento.

Wetlands at issue

The Supreme Court has never ruled on whether a farmer's plow can be regulated, but lower courts have found that farmers using bulldozers and other heavy machinery to convert cropland need federal permits if wetlands are jeopardized.

Last year, the 9th U.S. Circuit Court of Appeals upheld the penalties imposed by the U.S. Army Corps of Engineers and the Environmental Protection Agency, which determined that Tsakopoulos' Borden Ranch had violated the Clean Water Act.

The government says deep plowing at the Borden Ranch throughout the 1990s punctured a patchwork of swales at the bottom of the area's hills and polluted them by churning up clay and soil.

Tsakopoulos maintains that he avoided plowing and planting over the seasonal wetlands, some of which are the size of a football field and hold about a foot of water after heavy rains. Other swales are much smaller and more shallow. They are all usually wet during the winter.

Clean Water Act permits, often necessary for developers and factories, require developers to pay for their pollution by setting up cleanup funds, or preserving or cleaning up other sites.

A precedent for mining

Environmental groups say a Supreme Court ruling favoring the ranch could snowball, allowing mining operations and commercial developers to skirt environmental review of their projects as well.

"Their assumption that only building strip mills is covered is a ridiculous argument," said Howard Fox, an attorney with Earthjustice.

Many farming interests are siding with Borden Ranch, saying deep plowing is a "normal farming" activity excluded from Clean Water Act rules, as are seeding, irrigating and building farmland roads.

The American Farm Bureau Federation has implored the court to overturn the 9th Circuit's ruling. The bureau says farmers, already subject to many state and federal rules regarding zoning, pesticides, fertilizers and endangered species protection, should not be treated like factories when it comes to plowing.

"This is not a case about a farmer indiscriminately discharging dredged or fill material into navigable waters," said John J. Rademacher, a farm bureau attorney. "This is a case of a farmer attempting to plant a different crop on his farmland, a very normal farming activity."

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