June 18, 2002
FOUNDATION At Issue
10360 Old Placerville Road, Suite 100 Sacramento, California 95827 (916) 362-2833
GROUND ATTACKS ON FARMING
U.S. Supreme Court to Decide If Federal Bureaucrats
Who Want to Control Plowing Are Overstepping Their Authority
Once again, the right to own and reasonably use private property is at issue before the U.S.
Supreme Court. And once again, Pacific Legal Foundation is defending that precious right
against the actions of a federal agency that has lost all sense of self-restraint and shamelessly
adopts regulatory interpretations that go far beyond the plain meaning of federal law.
To many of us, the image of the farmer at his plow is right up there with motherhood and ice
cream as a symbol of all-American wholesomeness. But not to the bureaucrats at the Army
Corps of Engineers, one of the agencies that enforce the federal Clean Water Act. Incredible as it
might seem, the Corps has officially branded the plow as a polluter. As a result, the agency is
claiming the power to grant or deny farmers' requests to do deep-soil plowing on their own
Fortunately, the Supreme Court agreed on June 10 to review a sweeping U.S. Ninth Circuit Court
of Appeals decision that ratified this invasion of property rights. In Borden Ranch Partnership v.
United States Army Corps ofEngineers, the federal appeals court upheld the Corps' claim that
Angelo Tsakopoulos must seek federal approval to do a time-honored form of plowing to modify
his cropland. The court's decision has ominous implications not just for agriculture but for
everyone who values the freedom to make decisions about their own property without having to
answer to Uncle Sam.
Mr. Tsakopoulos, a prominent northern California landowner, is challenging the Army Corps'
hankering to regulate plowing. His case dates from the early 1990s, when he decided to turn the
pasture on his ranch near Sacramento into vineyards and orchards-land that has been in either
agricultural or ranching use for a century. He used deep plowing, or "deep ripping" as it is
traditionally known, to open the ground for fruit trees. Little did he know he would eventually
draw a fine of up to $1.5 million. His crime? Failing to ask federal regulators for permission to
Why should he need permission? Because the Clean Water Act says so, according to the Corps
of Engineers. But the Corps is distorting the law.
The agency ignores or twists three sections of the Clean Water Act to justify its power grab.
First, the Corps is supposed to have jurisdiction only over "navigable waters." Common sense
says this means lakes, rivers, and streams. Courts have also interpreted it to mean wetlands
adjacent to major bodies of water. Tsakopoulos' land only has drainage, nothing "navigable,"
and nothing near anything that's navigable. So the Corps shouldn't have any say over his
Moreover, the Corps is empowered to regulate land only if pollution is occurring on it. Again,
this should exclude Tsakopoulos. He used deep plowing to open grooves for the deep roots of
fruit trees. His tractors pulled prongs that cut a few feet into the earth. No pollutant was
introduced; nothing was added to the land. The deep plowing simply replaced hard-packed soil
with loosened soil.
Finally, the law allows the Corps to regulate a machine or tool only if it is a "point source" of
pollution. The idea that the plow is a polluter would have left generations of Americans
dumbfounded, because throughout our history it has been revered as a tool to advance
The Ninth Circuit panel's 2-1 ruling against Tsakopoulos highlights the dramatic increase in
federal power over land use. In many ways, by telling more and more people, in more and more
detail, what can and cannot be done on their supposedly private land, the federal government is
becoming a national zoning board.
The ruling also shows how courts often look the other way when bureaucrats give a law, here the
Clean Water Act, a creative spin in order to expand their power. As the judge who dissented
from the decision said, "[I]t is an undue stretch, absent a more clear directive from Congress, [for
the Army Corps] to ... prohibit the plowing done here, which seems to be a traditional form of
Mr. Tsakopoulos, who once vowed to make his fight "a national test case," successfully
petitioned the U.S. Supreme Court for review. And because of your continued support, PLF will
be urging the justices to seize this opportunity to reprimand arrogant bureaucrats and affirm the
importance of property rights and local control over land use, allowing farmers the freedom to
work their own land.