Great Lakes Article:

Tsakopoulos wetlands case goes to the top
Stuart Leavenworth
The Sacramento Bee
12/08/2002

Culminating nine years of feuds, fines and court rulings that have gone against him, Tsakopoulos and his lawyers will try to convince the Supreme Court on Tuesday that he acted legally in 1993 when he "deep ripped" wetlands on his Borden Ranch in south Sacramento County to convert ranchland into vineyards.

At issue is the how much latitude the federal government has in protecting wetlands under the Clean Water Act. The case is being watched closely by ranchers, farmers, developers and mining companies -- who think the government has too much power -- and environmentalists, who think it doesn't have enough.

Arthur Coon, a lawyer for Tsakopoulos, says the essential issue is whether a farmer needs a permit from the U.S. Environmental Protection Agency to plow his fields, either with a deep-ripper or any other device.

"The concern is that the agencies, the EPA and Corps of Engineers, aren't paying attention to the statutory language," said Coon, who expects a decision on the case by spring. "They are off making their own law, regulating what they want based on what they perceive the environmental effects to be."

Critics of Tsakopoulos' lawsuit, however, say the industry already has wide latitude to alter marshes and streams. They point to California having lost 90 percent of its wetlands, much of it through development.

"If the Supreme Court says deep ripping is normal farming practice, it will be true all over the country, whether it be the Everglades in Florida, or anywhere," said Patrick Parenteau, a Vermont Law School professor who has filed a brief with the court on behalf of State Wetlands Managers.

For Supreme Court watchers, the Tsakopoulos case offers intrigue on several fronts.

First, it represents another opportunity for the court to delve into the often-vague wording of the Clean Water Act of 1972, and to define when and where regulators may require permits. Two years ago, the court sharply limited the government's authority to regulate certain isolated wetlands in a case brought by local governments in Cook County, Ill.

In that case, regulators had blocked the municipalities from building a landfill on an expanse of artificially created marshes.

This time, however, the court will be missing a key justice -- Anthony M. Kennedy -- who sided with Chief Justice William Rehnquist and Justices Antonin Scalia, Clarence Thomas and Sandra Day O'Connor in the Cook County case.

Kennedy, a former McGeorge Law School professor, has announced he will not participate in the Borden Ranch ruling. Kennedy is known to be acquainted with Tsakopoulos and his family.

"That means it could be a 4-4 ruling, which would go to the government," said Parenteau. "It is going to be close."

The dispute started in 1993, when Tsakopoulos, one of the Sacramento region's largest developers, bought the 8,350-acre Borden Ranch for $8.3 million.

Both sides agree Tsakopoulos knew the ranch included vernal pools, swales and other drainage considered wetlands. But Tsakopoulos contends the U.S. Army Corps of Engineers told him he could deep-rip the land without a permit, an assertion the government disputes.

In a brief to the high court, Solicitor General Theodore Olson says Tsakopoulos "was informed by the Corps in mid-1993 that he would need to obtain a permit."

Deep ripping involves using 4-to 7-foot metal prongs to break open the clay layer in the soil, which "limits or destroys the ability of wetlands to retain water," according to Olson.

Despite warnings from regulators, Tsakopoulos continued to plow the ranch without a permit in 1995, 1996 and 1997, culminating in the EPA ordering him to stop in April of that year. Tsakopoulos then filed suit against the EPA. The EPA filed a countersuit.

In 1999, a U.S. District Court judge ruled in favor of the government, saying Tsakopoulos had violated the Clean Water Act 348 times by ripping through 29 drainages.

Tsakopoulos appealed the ruling and its $500,000 fine. Last year, a split three-judge panel of the U.S. Circuit Court of Appeals affirmed the lower court ruling, leading to the upcoming Supreme Court battle.

In its deliberations, the court is likely to focus on a key question -- whether deep plowing adds a pollutant to a wetland, constituting a regulated discharge under the Clean Water Act.

Tsakopoulos contends it doesn't, which is why he has fought this case for so long, Coon said. "Angelo feels very strongly about the rights of farmers, in particular family farmers," said Coon. "He feels farmers are stewards of the land and shouldn't be subject to this type of arbitrary and unauthorized interference."

Environmentalists say Congress clearly intended the Clean Water Act to restrict unusual farming activities that could degrade wetlands. Some fear that the court might go beyond that narrow issue and try to limit federal oversight in other areas.

Howard Fox, an attorney for Earthjustice legal defense fund, said Tsakopoulos' lawyers have framed his suit so the court will have an avenue to examine not only wetlands regulations, but wastewater programs administered by the EPA.

"The petitioners' arguments raise the specter of wholesale destruction of waters through mining, development of shopping malls and subdivisions, channelization and other infrastructure projects," wrote Fox in a court brief on behalf of four major environmental groups.

The case has created unlikely bedfellows out of environmentalists and the Bush administration, who find themselves on the same side, defending current federal jurisdiction. Tsakopoulos, meanwhile, has received support from the Farm Bureau, the California Cattlemen's Association, the Sacramento-based Pacific Legal Foundation and the National Homebuilders Association.

Parenteau, who represents wetlands regulators, says he is amused that Tsakopoulos represents himself as a rancher in his court filings, given what he did at Borden Ranch.

"He's trying to turn a working ranch into a bunch of hobby farms and orchards," said the law professor. "If he is a rancher, then I'm an astronaut."