Federal regulators try to tell farmers when they can or can't bust sod.

Harold Johnson, a member of California Political Review’s editorial board, is an attorney with Pacific Legal Foundation (www.pacificlegal.org).

To many of us, the image of the farmer at his plow is right up there with motherhood and ice cream as a symbol of all-American wholesomeness. But not to bureaucrats at the Army Corps of Engineers, one of the agencies that enforce the federal Clean Water Act. Startling as it might seem, the Corps seems officially to have branded the plow as a polluter.

This is a credible way to read the agency’s incredible insistence in recent years that farmers need its okay if they want to use a traditional form of “deep plowing” to modify their cropland. The Corps can pull rank on property owners only to stop water pollution, so its claim of authority over deep plowing implies that plows large enough to give the land new contours are an environmental hazard. Such an indictment of a venerable farm instrument would have dumbfounded generations of Americans who revered the plow as a tool to give the land new life, and society, new prosperity.

Unfortunately, the Ninth U.S. Circuit Court of Appeals recently upheld the Corps’ suggestion that it has broad power to tell farmers when not to plow. The ruling reverberates beyond the agricultural community; it marks new erosion of the once-hallowed rule that land-use regulation should be left to states and localities, not functionaries of distant D.C.

The immediate loser was the plaintiff, prominent Northern California landowner Angelo Tsakopoulos. He is perhaps the first person to challenge the Army Corps’ desire to regulate plowing. His case dates from the early 1990s, when he decided to turn pasture on his ranch near Sacramento into vineyards and orchards. When he used deep plowing, or “deep ripping” as it is historically known, to open the ground for fruit trees, little did he know he was setting himself up for a fine of up to $1.5 million for not asking federal permission to bust sod.

The Corps says its authority over Tsakopoulos comes from the Clean Water Act, but the law’s text doesn’t back that up. The Act gives the Corps jurisdiction only over “navigable waters,” defined by court precedents as lakes, rivers, streams, and wetlands near major bodies of water. On Tsakopoulos’ land there’s only drainage, nothing “navigable,” and nothing near anything that is navigable.

Moreover, the Corps can regulate land only if pollution is occurring on it. Again, this should exclude Tsakopoulos. He used “deep” plowing to open grooves for the deep roots of fruit trees. His tractors pulled prongs that cut seven feet into the earth. No pollutant was introduced; nothing was added to the land. The soil was loosened; that’s all.

Finally, the Clean Water Act permits the Corps to regulate a machine or tool only if it is a “point source” of pollution — something with an exhaust pipe or drain pipe, for instance. The plow, of course, doesn’t produce emissions of any kind — no residue to foul land or water. It doesn’t qualify as a “source” of anything but the kinetic energy it conducts as it opens ground for planting.

The Ninth Circuit panel’s 2-1 ruling against Tsakopoulos was unremarkable in one sense: it followed the long-term trend of a dramatic increase in federal power over land use. By telling more and more people, in more and more detail, what can and can’t be done on supposedly private land, the national government bids to become a national zoning board.

The ruling also shows how courts often close their eyes as bureaucrats give a law an artful spin in order to expand their power. As the judge who dissented observed, “[I]t is an undue stretch, absent a more clear directive from Congress, [for the Army Corps] to ... prohibit the plowing done here, which seems to be a traditional form of farming activity.”

Saying he hopes to create “a national test case,” Tsakopoulos has petitioned the U.S. Supreme Court for review. The justices should accept the invitation to prune a bureaucracy’s excesses and reassert principles of property rights and local control that are at the root of our freedoms.

Isn't contour plowing supposed to be good because it stops erosion? Any farmers out there who know more about this?

Without private property rights, there's no real freedom. It must be a sign of progress the U.S Army Corps Of Engineers wants to bring back serfdom long after Russia abolished it. Let's hope the U.S Supreme Court bitch slaps them down here and preserves the freedom of the family farmer to decide when and how best to till his land.

As much as we are paying farmers in subsidies, they have no claim to bitch about anything the fedguv does. Money has strings.

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