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Justices Let Wetlands Case Stand December 16, 2002 By LINDA GREENHOUSE WASHINGTON, Dec. 16 - A 4-to-4 tie at the Supreme Court today resulted in a victory, although quite likely only a temporary one, for federal regulators and environmental groups seeking to preserve the Clean Water Act as a tool against an increasingly common method of filling wetlands. The case was an appeal by a California developer who used a plowing method known as "deep ripping" to turn wetlands on his property from grazing land to development parcels suitable for sale as vineyards and orchards. Soil preparation for grape vines and fruit trees, which have deep roots, requires piercing the underlying layer of clay that enables wetlands to retain water. The developer, Angelo K. Tsakopoulos, did not obtain the permit that the Environmental Protection Agency and the United States Army Corps of Engineers said was required. He argued that deep ripping, which uses a bulldozer to pull a seven-foot metal shank, does not require a Clean Water Act permit because while it moves soil from place to place, it does not result in the "discharge" of "pollutants," central terms in the law that this case held the promise of defining. The federal appeals court in San Francisco ruled that the Clean Water Act did apply to deep ripping, upholding a $500,000 fine and an order to restore four acres of former wetlands that Mr. Tsakopoulos had plowed for his project. Justice Anthony M. Kennedy, a long-time acquaintance of Mr. Tsakopoulos, did not participate in the court's decision last June to hear the appeal and did not attend the argument last Tuesday. Under the court's rules, a tie vote affirms the lower court's decision in the particular case, but is not binding as a precedent for other cases. In effect, it is as if the case was never brought to the Supreme Court in the first place. The court does not identify the justices on either side of a tie vote. Presumably, the positions were so entrenched when the justices took a straw vote at their closed-door conference after the argument last week that there was no point in further discussion. Timothy S. Bishop, the lawyer who argued the case for Mr. Tsakopoulos and his Borden Ranch Partnership, said today that "we'll all be looking for a case to get up there and see if we can get five justices together." By "we," Mr. Bishop said, he meant "the regulated community" of developers, home builders, the forestry industry, farmers, and other commercial interests opposed to the government's view of the Clean Water Act's regulatory reach. "There is nothing that happens on the land that doesn't implicate" the questions raised by the case, Mr. Bishop said. Environmental advocates said they had dodged a bullet, at least for now, in a case they considered highly significant. Timothy D. Searchinger, senior attorney for Environmental Defense, said it was disturbing that the court had agreed to hear the appeal, considering that not only the United States Court of Appeals for the Ninth Circuit but five other federal appeals courts had previously agreed with the government that the Clean Water Act applied to deep ripping. "You only need one loophole" in order to destroy wetlands, Mr. Searchinger said. Howard Fox, a lawyer for Earthjustice, said that while the attack by industry on the Clean Water Act was "for the time being, deflected," other regulatory and legal battles over the scope of the law were imminent. The case was Borden Ranch Partnership v. United States Army Corps of Engineers, No. 01-1243. There were these other developments today as the court began its winter recess. Anti-Abortion Site The court asked Solicitor General Theodore B. Olson to file a brief expressing the government's views in a closely watched case on whether a group of anti-abortion activists were properly found liable for using a Web site and "wanted" and "guilty" posters to threaten injury and death to doctors who perform abortions. The group, the American Coalition of Life Activists, is appealing a $120 million verdict that was upheld earlier this year by a 6 to 5 vote of the Ninth Circuit. The Supreme Court has not yet decided whether to hear the case, American Coalition of Life Activists v. Planned Parenthood, No. 02-563. It raises not only First Amendment issues similar to those posed by the Virginia cross-burning case the Supreme Court heard last week, but also a definitional question under a 1994 federal law intended to protect abortion providers against violent protests. That law, the Freedom of Access to Clinic Entrances Act, known as FACE, authorizes private suits for damages against anyone who by "threat of force" intentionally intimidates a person who provides "reproductive health services." The question on which the Supreme Court wants the government's views is most likely the definition of "threat of force," which the court has not had occasion to address. The timing of the court's request makes it highly unlikely that this case can be heard during the current term. Equal Pay Without comment, the court turned down an appeal by Texas arguing that the states were constitutionally immune from suit under a federal anti-discrimination law, the Equal Pay Act. The state was challenging a verdict won by a female scientist, Theresa M. Siler-Khodr, against the University of Texas Health Science Center, which paid a salary nearly $20,000 a year higher to a newly hired man with similar qualifications. The United States Court of Appeals for the Fifth Circuit, in New Orleans, rejected the state's argument that while Congress deliberately extended the Equal Pay Act to the states in 1974, it lacked constitutional authority to do so. This case, University of Texas v. Siler-Khodr, No. 02-253, had been closely watched because the Supreme Court has been aggressive lately in expanding the states' immunity from suit under a variety of federal laws. http://www.nytimes.com/2002/12/16/national/16CND-SCOT.html?ex=1041082985&ei=1&en=09e238292f6ea95c HOW TO ADVERTISE --------------------------------- For information on advertising in e-mail newsletters or other creative advertising opportunities with The New York Times on the Web, please contact [EMAIL PROTECTED] or visit our online media kit at http://www.nytimes.com/adinfo For general information about NYTimes.com, write to [EMAIL PROTECTED] Copyright 2002 The New York Times Company <A HREF="http://www.ctrl.org/";>www.ctrl.org</A> DECLARATION & DISCLAIMER ========== CTRL is a discussion & informational exchange list. Proselytizing propagandic screeds are unwelcomed. Substance�not soap-boxing�please! 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