Home » Case Summaries » 2001 » Borden Ranch Partnership v. United States Army Corps of Engineers


Borden Ranch Partnership v. United States Army Corps of Engineers


Angelo K. Tsakopoulos (Tsakopoulos) appealed the district court’s ruling[1] that, as the owner of Borden Ranch, he had violated the Clean Water Act (CWA)[2] on 358 separate occasions. The district court had levied a $500,000 fine against Tsakapoulos and required him to restore four acres of wetlands. The Ninth Circuit affirmed the district court’s holding that Tsakopoulos had violated the CWA (except with respect to vernal pools) and remanded the case for a recalculation of civil penalties in light of the exclusion of the vernal pools.

Tsakopoulos purchased the 8400-acre Borden Ranch in California’s Central Valley in 1993. At the time the ranch was purchased, the property consisted largely of various types of wetlands: vernal pools, swales, and intermittent drainages. One common element of these various wetlands is a restrictive layer at their base that serves to contain the surface water within the area of the vernal pool, swale or drainage, and to prevent that water from percolating downwards through the soil. This restrictive layer also inhibits or prevents the downward growth of roots from crops.

To make his property amenable to orchard and vineyard farming, Tsakopoulos began deep ripping the wetlands on his property. Deep ripping is a process by which large prongs are dragged behind a bulldozer or tractor through the earth, perforating the restrictive layers at the bottom of the wetlands. Once these blades have perforated the restrictive layer in the wetlands, the water drains from beneath the restrictive layer. Any crop planted above the restrictive layer is thus able to send roots deep into the soil.

Tsakopoulos began deep ripping in the fall of 1993. After he began, the Army Corps of Engineers (Corps) issued him a retroactive permit in exchange for various mitigation measures. In the fall of 1994 and again in 1995, Tsakopoulos engaged in deep ripping in protected wetlands that he did not have a permit to alter. In response, the Corps issued cease and desist orders after both of these incidents, and in May of 1996 the Corps and the Environmental Protection Agency (EPA) entered into an administrative order on consent with Tsakopoulos by which Tsakopoulos would refrain from further wetlands violations and set aside a 1368-acre preserve.

Following these incidents, the Corps and EPA, in a regulatory guidance letter issued in late 1996, distinguished deep ripping from normal plowing activity. Subsequently, the Corps again determined that Tsakopoulos had continued deep ripping wetlands on his property and issued an administrative order. Tsakopoulos then filed a lawsuit challenging the authority of both the Corps and EPA to regulate deep ripping, and the United States counterclaimed for injunctive relief and civil penalties for CWA violations.

The district court held that Tsakopoulos violated the CWA by deep ripping vernal pools and drainages. The court assessed a $500,000 fine and ordered Tsakopoulos to restore four acres of wetlands. Following the district court’s final order, Tsakopoulos appealed.

The Ninth Circuit analyzed the appeal in four stages. First, the court considered whether the Corps had jurisdiction over deep ripping activity in wetlands. The court began by noting that the CWA prohibited the “discharge of any pollutant”[3] from any point source into the waters of the United States. The Ninth Circuit recognized that wetlands adjacent to navigable waters traditionally have been considered within the purview of the CWA, for these purposes. Furthermore, under the CWA pollutant includes “dredged spoil, . . . biological materials, . . . rock, [and] sand,”[4] and a discharge is “any addition of any pollutant to navigable waters from any point source.”[5] Finally, the Ninth Circuit noted that “[i]t is unlawful to discharge pollutants into wetlands without a permit from the Army Corps of Engineers.”[6]

The court disagreed with Tsakopoulos’s contention that a process such as deep ripping, which moves material already in the wetland without adding other materials, did not amount to the addition of a pollutant under the terms of the CWA. The court recalled Rybachek v. United States Environmental Protection Agency,[7] which held that removing material from a stream in a placer mining process and then returning the material to the stream constituted the addition of a pollutant.[8] The court also noted United States v. Deaton,[9] a Fourth Circuit decision holding that the process of “sidecasting,” whereby previously dredged material returned to the wetland of origin constitutes an addition of a pollutant under the CWA.[10] The court was unable to distinguish the instant case from Rybachek and Deaton, and thus it concluded that deep ripping as performed by Tsakapoulos qualified as a discharge of a pollutant under the CWA.

After establishing that redepositing material in a wetland through deep ripping is the discharging of a pollutant for the purposes of the CWA, the court briefly addressed whether the machinery used in the deep ripping process served as a point source. Noting that the CWA broadly defines point source[11] and that bulldozers and tractors are considered point sources,[12] the Ninth Circuit concluded that bulldozers and tractors pulling large metal prongs through the wetlands constituted a point source.

In its final examination of Corps jurisdiction over the deep ripping process, the Ninth Circuit examined the “normal farming” exception of the CWA.[13] While recognizing that activities such as plowing might qualify for this exemption, the court noted the “recapture” provision of the exemption, which requires permits for those activities that alter a navigable water body for a purpose to “which it was not previously subject.”[14] Because deep ripping functions to “bring[ ] an area of the navigable waters into a use to which it was not previously subject,”[15] that activity is governed by the recapture provision, and therefore a permit is required. With the normal farming exception dispatched, the Ninth Circuit concluded that the Corps and EPA had jurisdiction over Tsakapoulos’s deep ripping activities.

The Ninth Circuit then reversed the district court’s holding that CWA violations occurred in the vernal pools on the ranch. This reversal was based on Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers (SWANCC),[16] which had been announced after the district court issued its decision.[17] In SWANCC, the Supreme Court held that the Corps’ assertion of jurisdiction over intrastate waters used by migratory birds but not bordering navigable waterways exceeded the Corps’ authority as provided by the CWA.[18] By definition, vernal pools do not border navigable waterways; consequently, the vernal pools on Tsakapoulos’s ranch, as isolated bodies of water, were not within the Corps’ jurisdiction. Accordingly, the Ninth Circuit reversed this portion of the district court’s findings.

Next, the Ninth Circuit examined the district court’s factual findings. Tsakapoulos maintained that the United States offered no evidence that deep ripping had occurred on the ranch. The appellate court noted that in fact ample evidence had been provided, including eyewitness testimony, documentary evidence, Tsakopoulos’s own testimony, and expert testimony showing that the restrictive layer had been ripped up. The district court had considered sufficient evidence to warrant its decision, and the Ninth Circuit found no error by the district court.

The Ninth Circuit evaluated the civil penalties assessed against Tsakapoulos. Tsakapoulos challenged the penalties on three fronts, none of which swayed the Ninth Circuit. Tsakapoulos first argued that the language of the CWA, which allows for $25,000 penalties “per day for each violation”[19] capped the total penalties at $25,000 for any one day, regardless of how many violations occurred on that day. After examining slightly similar cases throughout the country,[20] the appellate court agreed with the district court that for each pass of the deep ripping mechanism, a separate and distinct CWA violation occurred. The Ninth Circuit then noted that because the deep ripping of vernal pools was no longer under Corps jurisdiction, the case would be remanded for a recalculation of damages, if necessary.

Tsakapoulos then argued that, in light of a previous consent decree between EPA and the Simpson Timber Company (which had deep ripped 987 acres but was subject only to a $30,000 penalty), the penalty assessed against Tsakapoulos was unfairly disproportionate. The Ninth Circuit agreed with the district court that consent decrees and judgments are distinct animals and thus the Simpson decree was irrelevant. Additionally, the appellate court noted that Tsakapoulos had knowingly assumed the risk inherent in litigation in lieu of settlement.

Finally, in response to Tsakapoulos’s argument that his good faith, the trivial nature of the violations, and uncertainty concerning governmental regulatory authority warranted a reduced penalty, the Ninth Circuit deferred to the discretion of the district court while also noting that the penalty assessed was significantly lower than that allowable under the CWA.

The dissent took issue with the majority’s conclusion that the return of deeply plowed material to the wetland constitutes an addition of a pollutant. Citing National Mining Ass’n v. United States Army Corps of Engineers,[21] the dissent argued that because Congress addressed in the CWA only the “discharge” or “addition” of pollutants, the Corps had no authority to regulate the redeposit of the dredged materials to the wetland. The dissent reasoned that Rybachek[22] was distinguishable from the case at bar because Rybachek‘s holding was premised on returning mining material to a different location in the river from which it was removed. Similarly, Deaton[23] did not apply because plowing is not equivalent to dredging and redepositing dredged spoil. Finally, the dissent added that those unintended deep ripping acts that occurred should have been exempt as normal farming activity because they fell outside the scope of the “recapture provision” of the CWA.[24]

2. Sierra Club v. Whitman, 268 F.3d 898 (9th Cir. 2001).

The Ninth Circuit held that the Environmental Protection Agency (EPA) did not have a mandatory duty to make findings when provided with information regarding violations of the Clean Water Act (CWA).[25] Furthermore, EPA does not have a mandatory enforcement duty even after a violation has been found.

The Grand Canyon chapter of the Sierra Club (the Club) sued EPA under the CWA for failure to take action against the City of Nogales and the International Boundary and Water Commission (Boundary Commission) for operating a wastewater treatment plant that was allegedly polluting the Santa Cruz River. The treatment plant is located in Arizona near the United States-Mexico border and serves nearly 200,000 people in Nogales, Arizona, and Nogales, Sonora, Mexico. At the time of suit the plant operated under an expired permit issued by EPA, and according to reports submitted by the Boundary Commission to EPA, had violated its permit limitations 128 times in the past five years.

The Club sought enforcement action from EPA under the citizen suit provision of the CWA.[26] Although the Club, Nogales and the Boundary Commission reached a settlement, the resulting consent decree was not binding on EPA. Thus the Club’s claim against the agency was preserved. The CWA citizen suit provision authorizes any citizen to sue EPA “where there is alleged a failure of the Administrator to perform any act or duty . . . which is not discretionary.”[27] EPA argued that its decision not to enforce was discretionary. The district court agreed and dismissed for lack of jurisdiction, and the Club appealed.

The Ninth Circuit separately addressed whether EPA had a duty to make findings and whether the agency had a duty to take enforcement action. As it did in Friends of the Cowlitz v. FERC,[28] the court cited Heckler v. Chaney[29] for the “traditional presumption” that an agency retains unreviewable prosecutorial discretion unless Congress has indicated otherwise.[30] Although this presumption of agency discretion can be overcome, the language of the CWA does not impose on EPA a mandatory duty to investigate alleged violations or to make findings. The Club based its claim on section 309(a)(3) of the CWA, which states that “[w]henever on the basis of any information available to him the Administrator finds that any person is in violation . . . he shall issue an order requiring such person to comply.” [31] However, the court concluded that this section concerns the duty of the Administrator only after a finding has been made; it does not create an initial duty to investigate. Furthermore, requiring EPA to investigate every complaint could interfere with the agency’s ability to investigate and enforce the most serious violations.

Likewise, regarding enforcement, the court was unwilling to intrude on EPA’s expertise in ordering agency priorities. Even when EPA finds a violation, the seemingly mandatory “shall”[32] in section 309 merely authorizes rather than commands EPA to take enforcement action. “Particularly when used in a statute that prospectively affects government action, ‘shall’ is sometimes the equivalent of ‘may.'”[33] The statutory structure of the CWA demonstrates that enforcement is at the discretion of the EPA. That is, by providing for citizen suits, Congress acknowledged that EPA would not always act. The court found further support for EPA’s prosecutorial discretion in the Act’s legislative history.[34]

Finding that EPA did not fail to perform any non-discretionary duty, the Ninth Circuit affirmed the district court in dismissing the Club’s citizen suit for lack of subject matter jurisdiction.

[1] Borden Ranch P’ship v. United States Army Corps of Eng’rs, No. CIV.S-97-0858, 1999 WL 1797329 (E.D. Cal. Nov. 8, 1999).

[2] Federal Water Pollution Control Act, 33 U.S.C. §§ 1251-1387 (2000).

[3] Id. § 1311(a).

[4] Id. § 1362(6).

[5] Id. § 1362(12).

[6] Borden Ranch P’ship v. United States Army Corps of Eng’rs, 261 F.3d 810, 814 (9th Cir. 2001) (citing 33 U.S.C. § 1344(a), (d) (2000)), cert. granted, 70 U.S.L.W. 3756 (U.S. June 10, 2002) (No. 01-1243).

[7] 904 F.2d 1276 (9th Cir. 1990).

[8] Id. at 1285.

[9] 209 F.3d 331 (4th Cir. 2000).

[10] Id. at 335-37.

[11] 33 U.S.C. § 1362(6) (2000).

[12] Borden Ranch P’ship, 261 F.3d at 815.

[13] 33 U.S.C. § 1344(f)(1)(A) (2000).

[14] Id. § 1344(f)(2).

[15] Id.

[16] 531 U.S. 159 (2001).

[17] Borden Ranch P’ship v. United States Army Corps of Eng’rs, No. CIV.S-97-0858, 1999 WL 1797329 (E.D. Cal. Nov. 8, 1999).

[18] SWANCC, 531 U.S. at 174.

[19] 33 U.S.C. § 1319(d) (2000).

[20] Chesapeake Bay Found., Inc. v. Gwaltney of Smithfield, Ltd., 791 F.2d 304, 308 n.8 (4th Cir. 1986) (declining to address “whether multiple violations attributable to a single day may give rise to a maximum penalty in excess of the [the penalty amount] for that day”), vacated on other grounds, 484 U.S. 49 (1987); Atlantic States Legal Found., Inc. v. Tyson Foods, Inc., 897 F.2d 1128, 1138 (11th Cir. 1990) (“the daily maximum penalty applies separately to each violation of an express limitation”); United States v. Smithfield Foods, Inc., 191 F.3d 516, 528 (4th Cir. 1999) (each permit violation “[is] a separate and distinct infraction for purposes of [the] penalty calculation”).

[21] 145 F.3d 1399 (D.C. Cir. 1998).

[22] Rybachek, 904 F.2d 1276 (9th Cir. 1990).

[23] Deaton, 209 F.3d 331 (4th Cir. 2000).

[24] “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, . . . shall be required to have a permit under this section.” 33 U.S.C. § 1344(f)(2) (2000) (emphasis added).

[25] Federal Water Pollution Control Act, 33 U.S.C. §§ 1251-1387 (2000).

[26] Id. § 1365(a)(2).

[27] Id.

[28] 253 F.3d 1161, 1167 (9th Cir. 2001), amended by 282 F.3d 609 (9th Cir. 2002).

[29] 470 U.S. 821 (1985).

[30] Sierra Club v. Whitman, 268 F.3d 898, 902 (9th Cir. 2001).

[31] 33 U.S.C. § 1319(a)(3) (2000).

[32] Id.

[33] Sierra Club v. Whitman, 268 F.3d at 904.

[34] The court noted that the Conference Committee rejected the Senate bill (which would have mandated the bringing of a civil action by the Administrator) in favor of the House version, which merely authorized civil proceedings.

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