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Sam Heldman


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Monday, December 09, 2002
No. 01-1243 Borden Ranch Partnership v. United States Army Corps of Engineers

This is an evironmental case involving "deep ripping" in wetlands. "Deep ripping," it appears, is a particularly destructive form of plowing. The U.S. Army Corps of Engineers decided that deep ripping in wetlands constitutes an activity for which one needs a permit under the Clean Water Act. The petitioner here was told that repeatedly but went ahead with the deep ripping activities, even though at one point there was an agreement to cease and desist. The lower court found that the Corps can regulate the deep ripping, found a bunch of violations, and fined the petitioner $1.5 Million or $500 thousand plus restoring four acres of wetlands. Now I don't know how much it costs to restore one acre of wetlands. Maybe it's $250 thousand. It could be, but that was the option the petitioner chose, and I would bet that it was a wise decision. I'm probably skipping some procedure here, but the Ninth Circuit eventually affirmed the award. The dissent argued, essentially, that the Clean Water Act does not prohibit the deep ripping activity. I think the government will win this one and I therefore predict the Court will AFFIRM.

I almost forgot to mention that Justice Kennedy has recused himself from this case, indicating, if one were to place his or her bets based on perceived judicial philosophies, that it might be difficult to find a conservative majority to overturn the decision in favor of the Corps. Thus, my prediction also encompasses the possibility that the case will be affirmed by an equally divided court.

I promise that my analysis will be better for Wednesday's cases.