Supreme Court Upholds Ban on Farmers Plowing Wetlands

WASHINGTON —  An evenly divided Supreme Court, in a setback for a Central California rancher, upheld the government’s power to prohibit farmers from plowing up wetlands to convert the land to fruit orchards.

The justices split, 4 to 4, in a closely watched case that tested the line between a protected wetland and a farmer’s use of his own land.

Justice Anthony M. Kennedy, a Sacramento native, withdrew from the case because he knew Angelo Tsakopoulos, the rancher and developer who appealed the issue.

Last week, the eight justices heard a spirited argument on the case and then voted behind closed doors.

On Monday, the court issued a one-line order announcing that, by a tie vote, the ruling of the U.S. 9th Circuit Court of Appeals had been affirmed.

This means that, at least for now, the Army Corps of Engineers and the Environmental Protection Agency maintain their broad authority to prevent landowners from dredging or filling wetlands that drain into rivers and streams.

Environmentalists said they were relieved, but not reassured.

“This is good news for today, but I’m sure industry will try to bring this up again,” said Julie Sibbing of the National Wildlife Federation.

Millions of acres of wetlands would have been threatened, environmentalists said, if the court had allowed farmers to plow.

The lawyers who challenged the reach of the government’s regulatory power said they were disappointed, but not defeated.

“Obviously, the court is very divided. They will be looking for another case to decide this issue, and the environmentalists have to be worried,” said Chicago attorney Timothy Bishop, who represented Tsakopoulos in last week’s argument. “We think Justice Kennedy would have been on our side” had he voted. Last year, in a 5-4 decision, the court stripped federal regulators of their power over isolated ponds and seasonal pools of water that do not flow into navigable streams. Environmentalists said this left millions of acres of wetlands unprotected. In that case, Kennedy sided with the conservative majority.

In dispute in the California case was low-lying farmland that fills with water during the winter rains and drains into a stream.

In 1993, Tsakopoulos bought the 8,400-acre Borden Ranch along the border of Sacramento and San Joaquin counties. Cattle had grazed on the land, but the new owner decided to plow it and plant fruit trees or grapevines.

A bulldozer with a deep plow was used to break up the hard clay. This “deep ripper” cut seven-foot grooves into the ground and “had a dramatic effect on the character of the wetland,” federal officials said.

Tsakopoulos was repeatedly warned that he could not plow in the wetlands area without a permit. In 1999, a federal judge in Sacramento found that he had committed 348 violations and handed down a $1.5-million fine.

Wetlands are protected under the Clean Water Act, which forbids polluting, dredging or filling of these waters but makes an exception for “normal farming.”

In a 2-1 decision, the 9th Circuit upheld the federal regulators, ruling that the deep plowing had the effect of dredging and filling the wetlands.

The California Farm Bureau, American Farm Bureau and other agriculture groups supported Tsakopoulos, arguing that plowing a field is not the same as dredging and filling a wetland.

But Bush administration lawyers vigorously defended the environmental regulators in the case of Borden Ranch vs. U.S. Army Corps of Engineers.

“We are not talking about a yeoman’s plow here. We are talking about a 100,000-pound bulldozer,” said Assistant Solicitor General Jeffrey Minear.

His brief also noted that Tsakopoulos had sold 4,000 acres for $16.2 million after planting the orchards.

The landowner’s legal case was not a total loss. The 9th Circuit Court ordered the trial judge in Sacramento to reduce the fine because some of the violations involved isolated pools that are not protected wetlands.

“Obviously we are disappointed to lose on a tie vote, but outside the 9th Circuit, this issue remains wide open,” said Edmund L. Regalia, a Walnut Creek lawyer who represented Tsakopoulos.

In other action Monday, the court asked Bush administration lawyers for their view on whether antiabortion activists who had set up a Web site with “Wanted” posters of doctors who perform abortions engaged in illegal threats.

In 1999, a jury in Oregon handed down a $109-million verdict in favor of doctors who were the targets of these sites. Earlier this year, the 9th Circuit upheld that verdict on a 6-5 vote.

Antiabortion activists appealed to the high court on free-speech grounds. They also say that the Web site did not violate the Freedom of Access to Clinic Entrances Act, which makes it illegal to block abortion clinics. Monday’s order asks Solicitor General Theodore B. Olson to give the government’s view of that law. This will delay for several months a decision on whether to take up the appeal.