Borden Ranch Partnership v. U.S. Army Corps of Engineers
December 10, 2002 (01-1243)
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Case Summary
Petitioner, a real estate developer, brought suit against Respondents challenging their authority to regulate deep ripping of wetlands. Respondents counterclaimed seeking injunctive relief and civil penalties for developer's alleged violations of the Clean Water Act (CWA). "Deep ripping" is an agricultural process whereby four to seven foot long metal prongs are dragged through the soil behind a tractor. The ripper gouges through the restrictive layer, disgorging soil that is then dragged behind the ripper. Under the CWA, a party seeking to fill protected wetlands must first obtain a permit from Respondents. Petitioner did not seek the proper permit before deep ripping wetlands. The district court held that Respondents may properly regulate deep ripping and found that Petitioner had violated the CWA. The U.S. Court of Appeals for the Ninth Circuit affirmed and held that deep ripping can discharge a pollutant into wetlands which makes CWA regulation and Corps supervision proper. The Ninth Circuit opinion is found at 261 F.3d 810.

To see the opinion of the lower court, click here.


PREDICTED OUTCOME ACTUAL
OUTCOME
Forecasting
Model
Expert
One
Expert
Two
Expert
Three
8-1 to Reverse 4-4 to Affirm 5-4 to Reverse 6-3 to Affirm
VOTING TO REVERSE
Rehnquist
O'Connor
Scalia
Kennedy
Souter
Thomas
Ginsburg
Breyer
Rehnquist
O'Connor
Scalia
Thomas
(Kennedy is predicted to recuse himself)
Rehnquist
O'Connor
Scalia
Kennedy
Thomas
Rehnquist
Scalia
Thomas
Affirmed per curiam by an equally divided (4-4) Court. Justice Kennedy did not participate in the decision.
VOTING TO AFFIRM
Stevens Stevens
Souter
Ginsburg
Breyer
Stevens
Souter
Ginsburg
Breyer
Stevens
O'Connor
Kennedy
Souter
Ginsburg
Breyer
 

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