Tsakopoulos wetlands case goes to the top
Sacramento developer Angelo Tsakopoulos will soon get his
final day in court -- the U.S. Supreme Court -- in a case
that will determine protections for wetlands across the
The Sacramento Bee
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
In that case, regulators had blocked the municipalities
from building a landfill on an expanse of artificially
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
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
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
"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
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
"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."