Borden Ranch Partnership v. U.S. Army Corps of Engineers

Court of Appeals for the Ninth Circuit

261 F.3d 810 (9th Cir. 2001)

Under the Clean Water Act, the disposition of soil located in a wetland and subsequent re-deposit of the soil back into the wetland may constitute a “discharge of pollutants.”

Relevant Facts

Tsakopolous (the plaintiff) owned a 8,400-acre ranch which included wetlands in California. The plaintiff sought to convert the ranch into vineyards and orchards, which required deep root systems. In order to have deep root systems, the plaintiff engaged in deep ripping, which is a process that tears up a layer of soil so that metal prongs can be placed into the hole. The soil is then placed back. The process requires use of heavy machinery. The U.S. Army Corps of Engineers and the Environmental Protection Agency (the defendants) issued a cease-and-desist order and an Administrative Order to the plaintiff based on the Clean Water Act, 33 U.S.C. § 1311(a), which prohibits the “discharge of pollutants” into the nation’s waters. The plaintiff responded by filing suit to challenge the authority of the defendants to regulate deep ripping, arguing that deep ripping did not constitute the “discharge of a pollutant” and instead fell under the Clean Water Act’s exception for normal farming. The United States filed a counterclaim for injunctive relief. The district court found for the United States, and the plaintiff appealed.

Issue

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Holding & Reasoning

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Concurrence

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Dissent

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Last updated:

December 12, 2020

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Procedural History

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Citations

261 F.3d 810 (9th Cir. 2001)