Justice at Christmas

Last Monday, by an equally divided court, the Supreme Court affirmed a decision by the Ninth Circuit Court of Appeals upholding a $500,000 fine assessed by the U.S. Army Corps of Engineers and the Environmental Protection Agency against Angelo Tsakopoulos for turning some of his own Central Valley of California property into productive vineyards and orchards. Mr. Tsakopoulos’s "crime"? He plowed his land using a technique known as "deep-ripping"—essentially plowing with 4-foot metal prongs behind a tractor so as to make the land receptive to the deep root systems of grape vines and fruit tree orchards.

Because some of Mr. Tsakopoulos’s land gets wet when it rains(!)—creating "vernal pools" on isolated flatland, "swales" on slopes, and "intermittent drainages" where the rain briefly gathers into run-off streams—the U.S. Army Corps of Engineers believes it has jurisdiction to decide whether or not Mr. Tsakopoulos can plow his own land. The supposed statutory authority for this extraordinary assertion of federal jurisdiction is the Clean Water Act of 1972, enacted pursuant Congress’s power to regulate commerce among the states. The Act prohibits "the discharge of any pollutant" into the navigable waters of the United States, including fill dirt. Mr. Tsakopoulos’s plowing activities were held to constitute a "discharge" because, under prevailing Ninth Circuit precedent, the plow’s "moving around" of dirt was sufficient to qualify as a "discharge." The discharge was held to be of a "pollutant" because, again under prevailing Ninth Circuit precedent, material removed from a wetland qualifies as a "pollutant" if it is then returned to the wetland. This, despite the fact that the Act explicitly exempts discharges "from normal farming … and ranching activities, such as plowing."

Despite the fact that, under the common use of the terms, Mr. Tsakopoulos’s actions involved neither a "discharge" or a "pollutant," and despite the fact that treating rain puddles as "navigable waters" would be laughable if anyone other than the U.S. Government itself was making the argument, the district court felt obligated to uphold the Corps’ jurisdictional assertion under prevailing Ninth Circuit precedent, finding that Tsakopoulos committed 358 separate violations of the Clean Air Act (each pass of the plow across the field amounting to a separate violation). With a statutory maximum penalty of $25,000 per violation, Mr. Tsakopoulos was actually liable for civil penalties totaling $8,950,000, so the district court was apparently acting compassionately by reducing the fine to only $1/2 million.

When the Supreme Court granted the writ of certiorari last June, Mr. Tsakopoulos must have breathed a sigh of relief, thinking that some sanity was finally going to be brought to the Corps’ overly-aggressive interpretation of the Clean Water Act. The prior term, in the case of Solid Waste Agency v. U.S. Army Corps of Engineers, the high Court had struck down the Corps’ creative claim that it had jurisdiction over every puddle in the country that was visited by migratory birds, and the plowing-as-pollutant discharge arguments at issue in this case smacked of the same overreaching creativity.

The storm clouds that would ultimately rain on Mr. Tsakopoulos vineyards began to appear last August when the Court issued a preliminary procedural order in the case with the notation, "Justice Kennedy took no part in the consideration or decision of this motion." Justice Kennedy, it turns out, was an acquaintance of Mr. Tsakopoulos, so had recused himself, leaving the Court evenly divided on the merits (presumably with the four Solid Waste dissenters holding to their expansive interpretation of the Clean Water Act and the Commerce Clause itself, concerns of stare decisis notwithstanding). That gave counsel of record Ted Olson, Solicitor General of the United States, an undeserved victory and the Ninth Circuit an undeserved affirmance. It also left in place an unjust $1/2 million fine for Mr. Tsakopoulos, based on an assertion of federal power that is, by any objective measure, well beyond the bounds of the federal government’s commerce clause authority.

The Department of Justice should remedy this wrong by waiving the massive fine that has been imposed. Call it a Christmas present for Mr. Tsakopoulos, in the interest of justice. But the Department of Justice needs to remedy the larger wrong here by reigning in unconstitutionally expansive interpretations of federal law by the agencies it would defend. Unfortunately, the Department seems to think that its obligation to defend the statutes of the United States requires that it defend every expansive interpretation of them no matter how tenuous their constitutionality, and that anything less would amount to a failure to support the President in his constitutional duty to "take care that the laws be faithfully executed." What the Department has overlooked is the President’s overarching constitutional duty (and its own) "to preserve, protect, and defend the Constitution of the United States." One hopes that the injustice meted out to Mr. Tsakopoulos in this case will serve to remind the Department of that solemn duty. That may only be a Santa’s wish, but it would be a truly significant Christmas present for all defenders of constitutional government.

John C. Eastman is a professor of constitutional law at Chapman University School of Law and director of the Claremont Institute Center for Constitutional Jurisprudence in California.

"First Principles" is a monthly column that appears in the Los Angeles Daily Journal that addresses current legal issues in light of the principles of the American founding. Copyright 2002 Daily Journal Corp. Reprinted and/or posted with permission. This file cannot be downloaded from this page. The Daily Journal’s definition of reprint and posting permission does not include the downloading or any other type of transmission of any posted articles.