Sunday, December 08, 2002
The second case for Tuesday is an environmental case, Borden Ranch v. Army Corps of Engineers. It's yet another case from the Ninth Circuit; this makes three this week. Say "Ninth Circuit ruled in favor of wetlands and imposed a big fine on a farmer for plowing", and what does this make you think? "Wetlands, shmetlands – won't somebody think of the farmers – those darn meddling tree-hugging bureaucrats interfering with my property -- reverse," right? Well, it's a lot more complicated than that.
Here’s something interesting about the case: Justice Kennedy has apparently recused himself. I would never have noticed it except that one of the anonymous expert predictors at the Washington University site mentioned it. (They're running a great predicting competition between a computer and human experts. My fondest hope is that I don't end up getting trounced by the machine). And of course even if they hadn't mentioned it, Howard Bashman did this morning. (Howard notices everything.) So, in order to win, Borden Ranch has to win 5 out of 8 Justices.
Borden Ranch got fined for doing some "deep ripping" in wetlands. Deep ripping seems to be really really bad-ass plowing – we're not talking about mules, but bulldozers with long metal plows that dig several feet down, to turn grazing lands into land suitable for planting deep-rooted crops. This is generally fine, except (says the U.S.) you can't do it in wetlands. The Ninth Circuit upheld (pdf) the fines. Mostly, the case has to do with interpretation of section 404 of the Clean Water Act, 33 U.S.C. § 1344. Borden Ranch says that (a) plowing (the term it prefers over the nastier-sounding "deep ripping") can't constitute a point-source discharge for which a permit is required under section 404; (b) furthermore, "normal" farming activity of certain sorts is specifically exempted from permitting under section 404(f), and Borden says its activities fall within that exemption; and (c) anyway, even if it's wrong about the foregoing, the maximum fine should have been $25,000 because the whole episode of plowing should have been treated as one violation rather than many separate discharges under 33 U.S.C. § 1319(d). The Ninth Circuit's answers to these arguments are pretty good, I think – good enough to convince many people, and not far-out at all. And the Solicitor General has filed a pretty strong brief in favor of affirmance.
All in all, I say "AFFIRM" (including the possibility of "by an equally divided court") because I don't think that any of Borden's arguments are strong enough to get 5 out of 8 of the non-recused Justices. In general, the case should stand for the proposition that anti-environmentalists' rhetorical questions – like "how in the world could plowing constitute pollution????" – are not a good guide to interpretation of the precise and complicated provisions that the Congress enacted in the Clean Water Act.
posted by sam 3:53 PM
email: first name@last name dot net