Who Safeguards CA Farm Workers’ Rights? Part 5

Post-Labor Day, Forced Unionization Hearing at CA Supreme Court

 

By Laurie Greene, Founding Editor

 

Forced Unionization Hearing

On Tuesday, Sept. 5, one day after Labor Day, busloads of concerned farmers and farm workers will arrive at the Supreme Court of California in San Francisco to support Gerawan Farming and farm workers—and quite possibly 80,000 family farms in the state—against forced unionization in the first case on the Court’s agenda:  Gerawan Farming, Inc. v. Agricultural Labor Relations Board (United Farm Workers of America, Real Party in Interest) and Consolidated Case, S227243 (Kline, P. J., assigned justice pro tempore).

 

Gerawan Case History

Explaining the case history, David Schwarz, attorney for Gerawan Farming, Inc. from the Los Angeles-based law firm of Irell & Manella LLP, said, “This case began almost five years ago in mid-October of 2012. The United Farm Workers (UFW) sent a letter to Gerawan Farming demanding that the company resume bargaining over a collective bargaining agreement. The UFW had won an election at Gerawan in 1990 and was certified to represent the workers by the California Agricultural Labor Relations Board (ALRB) in 1992. After one preliminary negotiating session in early 1995, the union disappeared and wasn’t heard from by Gerawan for nearly 20 years.”

 

“The UFW resurfaced in late 2012 demanding negotiations,” Schwarz stated, “but after ten bargaining sessions, the union abandoned the bargaining table.” This scenario was similar to UFW’s behavior after having won several certification elections by California farm workers employed on separately-owned farms but was unable to obtain first contracts with many growers on behalf of these farm workers.

 

Farm Worker Rights under the Agricultural Labor Relations Act 

According to the ALRB website, all agricultural employees in California, whether or not they are represented by a labor organization (union), have certain rights under the Agricultural Labor Relations Act (ALRA or Act). The purpose of the Act is to ensure peace in the agricultural fields by guaranteeing justice for all agricultural workers and stability in labor relations. The ALRA became law in 1975.

The Act describes and protects the rights of agricultural employees to make their own decisions about whether or not they want a union to negotiate with their employer about their wages, hours, and other working conditions. Where the employees, through a secret ballot election, have selected a union to represent them, the Act requires that the employer bargain in good faith with the union concerning wages, hours, and other working conditions.

The Agricultural Labor Relations Board (ALRB) is the state agency established to enforce the Act.

 

Mandatory Mediation and Conciliation (MMC)

“At this juncture, UFW invoked a process known as “Mandatory Mediation and Conciliation (MMC), a euphemism for forced-contracting, passed by the legislature in 2002 at the behest of UFW,” Schwarz explained. “Through MMC, the State of California imposes a contract on the employer and its farm workers at the union’s request. In Gerawan’s case, the failure to reach a contract can be explained by the failure of the UFW to show up and attempt to negotiate; however, that failure to bargain—or for that matter, the union’s complete abandonment of the Gerawan farm workers—was deemed irrelevant in the eyes of the ALRB.”

Count our votes Farm workers' rights UFW Endorsement

“The ALRB argued that the union certification in 1992 means the UFW remains the perpetual representative of Gerawan workers now and forever,” said Schwarz, “and until such time as the workers vote the union out through a petitioned election process known as decertification.” The ALRB disregarded both UFW’s failure to represent Gerawan farm workers in any successful contract negotiation and the UFW’s failure to qualify to collect union dues from Gerawan farm workers. Most significantly, the ALRB disregarded the legally-sanctioned and ALRB-supervised election on November 5, 2013, in which Gerawan farm workers had the opportunity to vote to decertify the UFW or not—the ballots of which have never been counted and are believed to be stored in an unknown, unsecured location.

 

“Let’s be clear,” Schwarz explained, “at no point after this union was certified until this union invoked the MMC process, was there an allegation that Gerawan refused to show up or refused to negotiate the terms of the contract. So this is not a case about a grower refusing to show up at the bargaining table or a grower inserting that the abandonment forfeits the right of the union to bargain.”

 

“Rather, this is a case about whether or not the union’s abandonment means that it forfeits the right to compel the State of California to force a contracting process on the workers. And that’s the key difference: between duty to bargain, which is a continuous bargain, and the right, as the union claims, to impose a state-ordered contract.”

 

What is at Stake for Farm Workers?

 

Tal Cloud, president and co-founder of Fresno-based family-owned Paper Pulp & Film, Inc., a converter of printing and industrial papers, including raisin (drying) trays, is part of the team that organized the trip. Cloud said, “The UFW and the California ALRB are hoping the California Supreme Court will rule in their favor by forcing unionization on California farms and farm workers—the next flash point in the two-decade long battle between Gerawan Farming and the UFW.”

 

“People don’t understand that this is incrementalism,” Cloud said. “If the California Supreme Court rules against Gerawan, it literally puts every agricultural operation of any size in the state right in the “bulls-eye” for mandatory UFW unionization, and that is what is so concerning. And although people do not understand it, the laws are already all there; they just need to be formalized. So, yes, it is really scary.”

 

“The ALRB has power in these courts due to California legislators who have given the ALRB all these powers, but without checks or balances,” said Cloud. “So, you have an agency that basically plays god with people’s lives and there are no legitimate governmental organizations or courts looking at it, until now that [the forced unionization case] has come to the California Supreme Court.”

 

The upcoming California Supreme Court hearing follows the UFW’s appeal of a lower court ruling in favor of Gerawan on the same issue in 2015. “We are hoping that the Court goes by the law, and does not give [the ALRB and UFW] this kind of opportunity to really put all of our operations in California at risk for forced unionization and forced contracts,” Cloud said.

 

“The bus trip on Tuesday is to make a statement and not sit by silently. The hearing is at 9:00 A.M., and more than 300 people from the Valley are going. We are leaving at 3:30 AM, providing food for our passengers and protesting outside the Supreme Court. The UFW also will be rallying at the Supreme Court.

 

It remains uncertain if farm workers will be allowed inside the courtroom. Cloud said, “There has already been a lot of back and forth about not allowing any farm workers, or Silvia Lopez (the Gerawan farm worker spokesperson) into the courtroom. The attorneys are still fighting on that. But there will be a big protest, so to speak, outside.”

 

“There are public areas for us to be in, and we will be peaceful like all the other demonstrations that we have done,” Cloud said. “My hope is that everyone stays safe and we do not have extremists or rabble-rousers there who try to cause problems.”

 

Cloud said there is a glimmer of hope for the farming industry because the UFW lost to the lower courts. “But, you just don’t know. We are hoping these farmers, farm workers and protesters will bring attention to this issue,” he said.

 

Once the California Supreme Court hearing is completed, the court will have 90 days to make its ruling. “The reality is:  If agriculture does not get behind the effort against MMC now, and the California Supreme Court reverses the lower court’s decision, literally every farming organization in California could face unionization. And that is a scary thought,” said Cloud.

 

“Likewise, if the ruling goes against the UFW,” Cloud said, “I am sure the case will go to United States Supreme Court, which would certainly be a do-or-die point for agriculture.”


Who Safeguards CA Farm Workers’ Rights? Part 6 – Facts vs. PR


 

2019-12-25T15:36:31-08:00September 4th, 2017|

Embattled Farmer John Duarte Defends Farming in Federal Court

Farmer Must Defend Plowing His Wheat Field

By Patrick Cavanaugh, Farm News Director

John Duarte, a California farmer who gained national attention after the United States Army Corps of Engineers (USACE or Army Corps) sued him for plowing his Tehama County wheat field, will defend himself in a federal courthouse in Sacramento on Tuesday, August 15.

“Agriculture is at a very dire crossroads right now,” said Duarte, imploring all farming stakeholders and food consumers across the country “to get loud with their Senators, Representatives and USACE. And if you know how to get ahold of President Trump, give him a call.”

In February 2013, with no warning or opportunity to discuss the matter, USACE sent Duarte a cease and desist letter to suspend farming operations, claiming that he had illegally filled wetlands on his wheat field simply by plowing it.

“I am being prosecuted for planting wheat in a wheat field during a global food crisis,” Duarte said. “They’re claiming I should have pulled a [Clean Water Act] permit that nobody has ever pulled and conducted practices that nobody has ever conducted to grow wheat.”

Duarte who is also the owner of Duarte Nursery, argues that the Army Corps violated his constitutional right to due process. He said the agency came down on him hard and never gave him an opportunity to defend himself against the accusations before levying the fine. Duarte now faces $2.8 million in government fines.

“The Army Corps of Engineers is prosecuting us,” Duarte said, “and the Army Corps does not even have subject matter jurisdiction to conduct this prosecution.”

In a June 14, 2017, news release, Tony Francois, senior attorney for Pacific Legal Foundation, explained, “Prosecutors and bureaucrats are seeking to establish, for the first time, that farmers with seasonal puddles need a federal wetlands permit in order to plow their own private land—even though plowing is exempt from Clean Water Act (CWA) coverage.”

Duarte believes if he were to lose the upcoming trial, it would change the way farmers in America farm. “This battle may never be resurrected in court. Taking this battle to the Supreme Court on several fronts is the only way to give farmers the long-term security they need, the right to farm and property rights protections, to deliver food security to America.”

The American Farm Bureau Federation, the California Farm Bureau Federation, the farm bureau in Duarte’s backyard and farm bureaus across the country are behind him.

“The Butte County Farm Bureau has 1065 members,” Duarte stated, “and they donated a check for $10,650 to the Duarte Defense Fund at California Farm Bureau Federation. That’s $10 a member! Thanks to the challenge from Biggs, CA, farmer, Clark Becker (President of the Butte County Farm Bureau) that defense fund has already collected over $100,000 in support of our lawsuit. We are hoping to collect hundreds of thousands more.”

Duarte said, “Although this lawsuit for planting wheat in a wheat field has gained a lot of attention, we need more help to fight it.”

While Duarte is grateful for the political support in favor of Duarte Nursery’s position in this wetlands prosecution, he wants to settle this case before trial. “We need complete rights to appeal, and if necessary, to take it to the Supreme Court of the United States. We must protect food security as well as farmers’ right to farm.”

“My greatest nightmare is if Duarte Nursery is forced into settling this case without the right to appeal. If we cannot get such a release, American farming could be oppressed by federal agencies into the future, and there won’t be another fool to follow us and stand up to them again.”

“Any farmer can see the kind of abuse—the misstatements, the falsehoods, the misquoting of laws that the Department of Justice is using in this case against us—and the $2.5 to $3 million we’re spending to fight this battle. There won’t be another family to come along and fight like this in the future.”

2017-09-02T23:46:02-07:00August 12th, 2017|

Senate Tells Gov. Agencies to Back Off WOTUS Rule

U.S. Senate Tells EPA/Army Corps to Back Off Farmers re: WOTUS Clean Water Act

 

Edited by California Ag Today Staff

 

A report issued TODAY by a U.S. Senate committee documents how federal agencies overreach their authority to regulate farmland, according to the California Farm Bureau Federation (CFBF), which said the report underlines the need for congressional action to reform the agencies’ practices, particularly regarding the WOTUS Rule.

The report from the Senate Environment and Public Works Committee describes numerous incidents in which the U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency have tried to expand their authority to regulate what crops farmers grow and how they grow them, based on the agencies’ interpretation of the Clean Water Act.

“A disturbing number of the cases described in the Senate report came from California,” CFBF President Paul Wenger said. “Farmers and ranchers here have seen firsthand that the abuses outlined in this report aren’t theoretical—they’re real.”

One case in California is particularly troublesome. The U.S. Army Corps of Engineers (Corps) ordered John Duarte, a farmer and nurseryman to cease farming his land after he plowed 4-7 inches deep to plant a wheat crop in his field. Duarte, in turn, filed a lawsuit to vindicate his right to farm his land. The U.S. Department of Justice fired back with a countersuit.John Duarte WOTUS

Duarte has spent over $1 million in legal fees to date, yet the government is seeking $6-8 million in fines and “wetland credits.” Duarte now faces a costly appeal and legal battle, the outcome of which will set precedence on important issues affecting farmers and ranchers nationwide.

Landowners’ concerns stem from a rule the agencies finalized last year, known as the “Waters of the United States” or WOTUS rule, which would bring more waterways under the jurisdiction of the Clean Water Act. Although a federal court has temporarily halted enforcement of the WOTUS rule, landowners and their representatives say the Corps continues to enforce the act so narrowly that, as a practical matter, its actions mirror the intent of the new rule.

“We’re grateful the Senate committee has highlighted the impact on farmers and ranchers caused by overzealous interpretation of the Clean Water Act,” Wenger said. “Farmers and ranchers want to do the right thing and protect the environment as they farm. But they shouldn’t be tied up in knots by regulators for simply plowing their ground or considering a new crop on their land, and they shouldn’t have their land declared off limits if they must leave it idle due to drought or other conditions beyond their control.”

Wenger called on California Senators Barbara Boxer and Dianne Feinstein to join efforts to clarify Clean Water Act enforcement and reform agency practices. “Congress has the ability to restore balance to Clean Water Act enforcement,” said Wenger. “We urge our California members to help farmers grow food and protect the environment, free from fear of overreaching regulation.”

Details of Senate Statement

epa-logo-wotusU.S. Senator Jim Inhofe (R-Okla.), chairman of the Senate Environment and Public Works (EPW) Committee, released an EPW Majority Committee report titled “From Preventing Pollution of Navigable and Interstate Waters to Regulating Farm Fields, Puddles and Dry Land: A Senate Report on the Expansion of Jurisdiction Claimed by the Army Corps of Engineers and the U.S. Environmental Protection Agency under the Clean Water Act.”

The report releases findings from the majority staff’s investigation into how the Environmental Protection Agency (EPA) and the Army Corps of Engineers are interpreting and implementing their authority under the Clean Water Act.

“This new majority committee report demonstrates in detail that the EPA and the Army Corps of Engineers, under the Obama administration, are running rogue,” Inhofe said. “Case studies in this report show that the Obama administration is already asserting federal control over land and water based on the concepts they are trying to codify in the WOTUS rule, even though the courts have put that rule on hold. Congress shouldn’t wait on the Supreme Court to make the inevitable decision that this agency overreach is illegal.

“This report should be evidence enough that it’s time for Democrats and Republicans to work together rein in EPA and the Corps. Over the course of the past year, 69 Senators – a veto proof majority – have gone on the record about their grave concerns regarding the WOTUS rule. It’s time to come together to protect farmers, ranchers, water utilities, local governments, and contractors by giving them the clarity and certainty they deserve and stopping EPA and the Corps from eroding traditional exemptions.”

The report summarizes case studies that demonstrate the following:

EPA and the Corps have and will continue to advance very broad claims of jurisdiction based on discretionary authority to define their own jurisdiction.

The WOTUS rule would codify the agencies’ broadest theories of jurisdiction, which Justice Kennedy recently called “ominous.”

Landowners will not be able to rely on current statutory exemptions or the new regulatory exemptions because the agencies have narrowed the exemptions in practice and simply regulate under another name.

For example, the report highlights instances where if activity takes place on land that is wet: Plowing to shallow depths is not exempt when the Corps calls the soil between furrows “mini mountain ranges,” “uplands,” and “dry land;”

Disking is regulated even though it is a type of plowing:

Changing from one agricultural commodity constitutes a new use that eliminates the exemption; and puddles, tire ruts, sheet flow, and standing water all can be renamed “disturbed wetlands” and regulated.

On Tuesday, Inhofe delivered a copy of the report with a letter to 11 Senate Democrats who, in a letter on Nov. 3, 2015 to Gina McCarthy, administrator of the Environmental Protection Agency, and Jo-Ellen Darcy, assistant Secretary of the Army (Civil Works) on WOTUS, stated that: “Farmers, ranchers, water utilities, local governments, and contractors deserve clarity and certainty. Should the EPA not provide this clarity or enforce this rule in a way that erodes traditional exemptions, we reserve the right to support efforts in the future to revise the rule.”

In Inhofe’s letter to the 11 Senators, he said the new committee report should meet the test set forth in their Nov. 3 letter, and he called on the members to live up to their commitment and work with the committee on tailored legislation to end agency overreach.

2021-05-12T11:05:47-07:00September 20th, 2016|

WGA Conflicted on SCOTUS DACA Decision

Western Growers Association has Mixed Feelings on Recent Supreme Court DACA Decision

By Patrick Cavanaugh, Farm News Director

The 4-4 ruling on immigration reform last month by the Supreme Court of the United State’s (SCOTUS) affirmed the lower court’s injunction against President Obama’s executive order, which would have granted deportation deferrals and temporary legal work status to about five million undocumented immigrants. Tom Nassif, president and CEO of Western Growers Association (WGA), has been vocal about the need to establish some type of immigration reform.

Nassif compared the recent SCOTUS ruling to what happened when a 2013 U.S. Senate-endorsed bill that supported a pathway to citizenship was never passed in the U.S. House of Representatives. “The House did not want a pathway to citizenship,” said Nassif. “They were not even sure if they wanted a pathway to legalization. Most Republicans did not even want a border security bill in the House coming to the floor for a vote because they didn’t want any immigration reform—whatsoever.”

Western Growers logoNassif said, “The House was part of that Send-them-home! crowd that considered anything you did—even if it was putting them on probation—as amnesty. It is interesting that with the House doing nothing about immigration, what we have today is amnesty, because we’re not doing anything about it.”

Nassif expressed mixed feelings about the SCOTUS decision. “In a way, it disappointed us; in a way, it didn’t. It didn’t disappoint us because there was no requirement that people working in agriculture who might qualify for this Deferred Action For Childhood Arrivals (DACA) or Deferred Action for Parents of Americans (DAPA) would actually remain working in agriculture.”

To get a pathway under the Senate bill, farmworkers would have to stay in agriculture for a certain number of years, but they could eventually work in other industries. So if you have a choice of working in any industry, why would you go to work on the farm? But, in this instance, you would adversely affect other American jobs,” said Nassif.

Nassif said the motivation of the Obama administration is understandable due to the inability of Congress to compromise on immigration reform, yet Nassif maintains the Immigration Reform should not be done with Executive Orders as the President has done. Instead, Nassif stressed that Congress should take up Immigration Reform and pass it.

2016-08-04T15:40:15-07:00August 1st, 2016|

Pushing for Immigration Reform

The Unrelenting Push for Immigration Reform

By Laurie Greene, Editor

 

Tom Nassif, president and CEO of Western Growers Association is frustrated with the lack of immigration reform. “In 2013, we finally got a bill passed in the United States Senate. The reason we got it passed in the Senate is because we supported the pathway to citizenship; the other things we could work out,” Nassif said.

Tom Nassif

Tom Nassif, president and CEO of Western Growers Association

“However, in the United States House of Representatives,” Nassif continued, “they didn’t want a pathway to citizenship. They weren’t even sure if they wanted a pathway to legalization,” he noted.

“Most people didn’t even want a border security bill coming to the floor for a vote in the House because they didn’t want any immigration reform—whatsoever,” said Nassif. “They were part of that ‘send them home crowd.’ Anything you did, even if it was putting them on probation or fining themwhatever we didwas still considered amnesty. That is not amnesty. What we have today is amnesty because we’re not doing anything about it,” he argued.

Nassif had a mixed opinion on the recent Supreme Court of the United States’ 4-4 ruling against President Obama regarding his expansion of the Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). “In a way, it disappointed us; in a way, it didn’t,” Nassif commented.

Western Growers logo“The reason it didn’t disappoint us is because there was no requirement that the people working in agriculture who might qualify for DACA or DAPA would remain in agriculture. Under the Senate bill, to get a pathway, you had to stay in agriculture for a certain number of years. In this case, they could have gone to work in any industry. If you have the choice of working in industry, why would you work on the farm? The choice adds adversity and affects other American jobs,” said Nassif.

Immigration reform should not be done by executive order, according to Nassif, as President Obama was trying to do. “It should be done by the legislature. They have the responsibility and the duty to pass immigration reform,” he said.

2016-07-24T15:22:12-07:00July 20th, 2016|

Duarte Nursery Loses Battle Against Army Corps Of Engineers

Ruling in Favor of Army Corps is Game Changer for Agriculture

By Patrick Cavanaugh, Farm News Director and Laurie Greene, Editor

 

Startling California family farmer, John Duarte, president of Duarte Nursery, Inc., his attorneys, and others who have also kept a close watch on the case, Duarte was dealt a serious blow recently in the biggest fight of his life—the right to farm his own property. This legal outcome may portend a game changer for American agriculture as a whole.

 

Background

Duarte Nursery and the U.S. Army Corps of Engineers (Army Corps) have been engaged in a long legal dispute over private property rights since the family purchased a 450-acre agricultural property in Tehama County in 2012 and planted wheat that fall.

As reported in, “Duarte Farmland Under Siege,” (California Ag Today, March 11, 2016), John Duarte recalled, “The property is in some slightly rolling grasslands, and has some minor wetlands on it, vernal pools, vernal swales. Like most grasslands, wheat areas and wheat plantings, we had a local contractor go out and plow the field for us, 4-7 inches deep, and we flew on some wheat seed for a winter wheat crop in 2012.”

The U.S. Army Corp of Engineers accused the farm of “deep ripping” the property (three feet deep), “which we were not,” Duarte said. Legal action ensued with the Army Corps issuing a cease and desist notice in early 2013, according to Duarte, without evidence or basis for their accusation. Duarte Nursery attorneys, under the Freedom of Information Act, requested evidence of deep ripping, the assumption that apparently warranted a cease and desist notice.

Without responding, according to Duarte, the Army Corps sustained the cease-and-desist notice without a hearing and without evidence. “They obstructed our farming operations indefinitely,” Duarte said in March 2016.

 

Current Scenario

Duarte’s attorneys are now scrambling to prepare and file appeals to Eastern District Federal Court Judge Kimberly Muller’s June 10 ruling that by plowing his land to grow wheat, Duarte could pollute vernal pools on his land, violating the Clean Water Act.

Pacific Legal FoundationOn behalf of Duarte Nursery, Pacific Legal Foundation attorneys have moved for reconsideration or certification for immediate appeal on several Clean Water Act issues. “We expect a decision from the court any day on this motion, which will determine whether Duarte Nursery can immediately address the trial court’s legal errors in the appellate court, or will have to go through a trial first on whether the government is entitled to a penalty.” (Source: “Duarte Nursery seeks immediate appeals in Clean Water Act case,” Tony Francois, Pacific Legal Foundation, June 30, 2016)

 

Reaction to the Ruling

California Farm Bureau Federation and Pacific Legal Foundation attorneys had great confidence that Duarte would be vindicated in the action brought by the Army Corps several years ago. “They are just astounded,” Duarte said. “I thought we might have to go to trial on some of our issues, but I did not think we would lose our issues and have the judge rule against us on the other side,” he said.

Duarte clarified, “We are talking about farming activity that only occurred on rolling land—land with dismal vernal pools and flails.” Duarte noted there is no controversy as to whether this tillage was four to six inches deep. “Both sides agreed this is four to six inch deep tillage. Both sides agree that this property had farmed wheat before,” he said.

 

Legal Implications

“The Army Corps’ position is they don’t know how long is too long, but at some point if you haven’t farmed wheat, you lose your ability to continue farming wheat,” Duarte continued. “As it is a rangeland, you cannot plow your ground without a permit from the Army Corps, which they’re not going to grant because there are wetlands,” he said.

John Duarte, president of Duarte Nursery.

John Duarte, president of Duarte Nursery.

“All of the Food Security Act protections for farming—our ability to idle ground and then bring it back into production—to ensure available food production resources—are gone,” Duarte said. “This is a very extreme ruling. It’s extreme of the law in a lot of different ways. It’s a game changer for agriculture. We’re meeting with Paul Wenger, the president of the California Farm Bureau and seeing what they want to do. I think it’s on a lot of folks’ radar,” said Duarte.

“According to the Clean Water Rule definition of “Waters of the United States” (WOTUS), everything is a wetland and farmers are not exempt,” Duarte stated. “Any tillage that the Army Corps, by their own standards, does not deem to be an ongoing agricultural operation, farmers have liability. Their settlement discussions were in the $5 million to $6 million range, and we’re talking about shallow tillage through vernal pools that covered maybe fourteen or sixteen acres over this property. We can show that those vernal pools are completely intact,” noted Duarte.

Duarte noted that consultants have been at the land to inspect the vernal pool wetlands that concern the Army Corps of Engineers, and have confirmed that all the biology has been restored. “It’s all wetland plants across the vernal pools. They’re not topographically damaged,” said Duarte. “We didn’t re-contour them, we didn’t till them, we didn’t grade them, we didn’t deep rip them such that the restrictive layers of soil no longer perched water—none of that,” he emphasized.

 

A Game Changer for Ag

“Every property owner should be concerned,” Duarte warned. “Basically, what they’re saying is if wheat is profitable for a window of time because of whatever market or geopolitical reasons, you can farm wheat. If you stop farming wheat for a decade because it’s not profitable, or because you have a lease with a cattleman who’s paying you decent money, or you just don’t have the capital to plant wheat, or you just don’t want to plant wheat, then you will lose the right to farm it in the future. You cannot adjust your farming enterprises to the markets or to your business plans or you will lose your right to farm.”

Duarte believes that the ultimate goal of the Army Corps of Engineers is to be able to tell you what you can and can’t do with your land on any given day. “They want simple control over how you use your property and discretion over what property is put into permanent habitat and what property remains rangeland. They do not believe that private landowners have any inherent right to farm their property to meet market demands.”

As for the ruling, Duarte said he plans to appeal it. “This ruling is in many ways right in the face of several completions that have come down in court last week,” he said. “A lot of this ruling hinges on the opinion in Rapanos v. United States, where senior Associate Justice of the Supreme Court of the United States Anthony Kennedy said wetlands either have to be navigable waters of the United States or tributaries or related.

As summarized in, “The Practical Application of the Significant Nexus Test: The Final Waters of the US Rule,” (by Lowell M. Rothschild, National Law Review, June 8, 2015):

The significant nexus test requires a determination of whether the water in question – alone or in aggregation with other similarly situated waters in the region – significantly affects the chemical, physical or biological integrity of a traditionally navigable or interstate water or the territorial sea (with “significant” meaning “more than speculative or insubstantial.”). The “region” is the watershed that drains to the nearest traditionally navigable or interstate water or the territorial sea, and waters are “similarly situated” when they function alike and are sufficiently close to function together in affecting downstream waters.
supreme court building

“That was one judge, who had none of the other eight judges agreeing with him,” said Duarte. Nevertheless, Duarte said Justice Kennedy was not correct. “We had four judges that said navigable is navigable. If the Clean Water Act says it exempts, it defines what jurisdictional waters are navigable waters in the United States, and then it defines what jurisdictional waters are. If you look in the Clean Water Act, it says that plowing shall never result in a discharge into waters of the United States,”  said Duarte.

“The language in the exclusion of the Clean Water Act is very clear. What this case tells us is that no regulatory legislation can be created with language that is durable to give private parties any protection with the government,” Duarte explained. “There’s no language clear enough that over time will be undermined by agency rule making and judges that give American public any protection against the government.”

“I don’t know how we will solve problems legislatively in the future,” he remarked. “I don’t know that any responsible Congress can pass a law that restricts activity, no matter what the protections,” Duarte said, clearly frustrated. “The Clean Water Act’s protections are incredibly clear. It is not badly worded. The protections are in there. The protections are careful; they’re clearly articulated; they’re very strong, and they’re completely obliterated,” he said.

Duarte is disappointed and has a long way to go in the appeals process. “All I can say is: Warning to all farmers across the land—this is what can happen. We’re just not strong enough, nor is it right for us to carry this entire thing; my family has already spent $1.5 million defending this case, and it’s likely to go to $2 million. We are going to be looking for help.”

___________________

2016-07-23T17:16:17-07:00July 7th, 2016|

Supreme Court Ruling on Immigration

Manuel Cunha Jr. Fires Off Letter RE:  Supreme Court Ruling on Immigration 

The following is a letter that Manuel Cunha, president of the Nisei Farmers League sent out about the Supreme Court ruling on immigration TODAY:

“As the president of the Nisei Farmers League, board member of the National Immigration Forum in Washington, D.C., chair of the Insure America Project, and as a farmer myself, I am deeply disappointed in the Supreme Court ruling that was announced TODAY. Their ruling provided no guidance nor direction to this Congress and ignored the safety of those affected by the ruling.

The 4-4 deadlock leaves in place an appeals court ruling blocking President Obama’s immigration plan. His plan would have allowed parents of citizens or of lawful permanent residents to apply for a program that would spare them from deportation and provide them with work permits.

Dignity, integrity and justice is what this country believes in and has made this country great. This country was built and strengthened by immigrants. Many of us today realize it was our parents and ancestors from other countries that brought us here. However, there are those that have forgotten, many of which are currently members of Congress.

This decision does not move us closer to immigration reform, but allows Congress to repeatedly refuse to support bipartisan legislation to update immigration laws. Congress continues to not deal with Immigration, but rather deal with their own party politics.

Millions of families will remain in limbo, and our system remains broken. The attention now turns to Senate and House Republicans to provide leadership on this issue. What is their solution to our broken immigration system? This escalates many of the problems that currently exist. Drug and human trafficking will continue, U.S. Immigration and Customs Enforcement (ICE) raids will not go away. Millions of immigrants living in the shadows is not the answer. Deportation of the people that clothe and feed us is shameful and not the answer.DACA Dreamers logo_2016

We must remember that the “Deferred Action for Childhood Arrivals,” DACA (Dreamers), is untouched. We need to focus on providing alternatives to the children who were brought here and have grown up here as Americans and identify themselves as Americans. The DACA program is still in play and we need to encourage those that are eligible to apply.”

2016-06-24T19:48:29-07:00June 23rd, 2016|

Water Rally Calls for Action

Water Rally Calls for Action, More Voices

By Brian German, Associate Broadcaster

At the recent “Take Back our Water Rally” in Mendota, hundreds gathered to call on Governor Brown to recognize the impact of not just the drought, but the bureaucratic decisions that have had devastating consequences for California farmers. Leadership at the water rally called for action and more voices in the plea for change.

Aubrey Bettencourt, executive director of California Water Alliance, shared some points she made a the rally, “My challenge to this audience was to understand there is a void of leadership. We have a governor who says he is handling this, and he is not. We have no recovery plan for how to get out of this drought. How do we get out of the crisis?  There has been no pathway to recovery, neither from the federal government, nor the state government.” Finally, last month, a group of 47 legislators, both Republican and Democratic, called for a special legislative session.

Bettencourt pointed out the Ag industry is not alone in having been adversely affected by the water constraints. “We all need to communicate to our elected officials,” she said, “that we need a path to relief. My challenge to the audience was to help them realize that because the drought is now statewide and regulatory constraints have drastically cut the regular water supply, we are all—ag and urban communities—even the environmental conservation community—feeling the effects. While we’ve been in this situation for years, and years, and years, we need to expand our base and build our army.”

Many attendees are concerned about the use of the Endangered Species Act to cut water supplies that Central Valley farmers depend on in order to increase populations of a fish that can just as easily be grown by the thousands in hatcheries.

Calling to educate those outside of agriculture to advocate for change in water policies, Bettencourt remarked, “Help those who are unfamiliar with the importance of supply, or more importantly, the lack of supply, to understand why they are frustrated, what is really going on, and how California’s water supply really works. Let’s activate them to being an additional voice to ours; encouraging many voices from diverse locations saying the same thing is the only way the agricultural community, and all stakeholders in California, will ever be heard,” she said.

While forecasters are still optimistic El Niño will deliver heavy rainfall, Bettencourt says California’s water issues will continue unless there is a change in the legislature. She emphasized it would take a big push from more than just the agricultural sector to demand the change that is needed. “It is a numbers game,” she explained. “When you look at the population in California, the bulk of the voters are in the Bay Area, along the Coast and in Southern California. If you add up the registered voters of all the agricultural counties in California, the total is not enough to offset even one of those three heavily populated areas. So the sole hope we have to maximize the only two opportunities for input we can control—our voice and our vote—is to get new voices and new votes,” Bettencourt said.

2016-05-31T19:27:08-07:00October 7th, 2015|

SCOTUS Raisin Reserve Decision

Grower Reflects on SCOTUS Raisin Reserve Decision

By Charmayne Hefley, Associate Editor

The Supreme Court of the United States (SCOTUS) recently decided that California raisins held in reserve during heavy crop years belong to the government (under the Fresno-based Raisin Administrative Committee (RAC), a federal marketing order), and the government should pay growers for these raisins. Directly overseen by the United States Department of Agriculture (USDA), the RAC, created in 1949, is led by 47 growers and a public member.

Monte Schutz, a Fresno County raisin grower, as well as chairman of the executive committee of the RAC, said the recent decision by SCOTUS doesn’t make any sense. “The biggest problem I had with the decision is when Justice Roberts stated very clearly that the government took ownership of the raisins, and that was just not true—growers maintained ownership throughout,” Schutz noted. “And the committee, which is made up of growers and handlers, had complete control over when they sold the raisins and for how much. So I think they were mistaken that the government took control; while the government oversees our federal marketing order, we as a committee had control.”

Explaining how he thinks the Supreme Court got it wrong, Schutz said, “Personally I think it may have been the USDA lawyers who just didn’t explain it. The system is a little complicated, and I wasn’t in the courtroom, but I’m afraid they did not explain it properly. How they could conclude the government owned the raisins–is just completely wrong.”

“For the last five years, we haven’t used the reserve program at all because we are in a better balance right now than we were 13 years ago. At that time, the reserve was a tool to take care of the excess supply. We haven’t had to use it for the last five years, and we don’t intend on using it any time in the future. Although I would still like to keep that tool available, unfortunately, the Supreme Court has taken it away from us,” Schutz said.

“Now when we need to put the raisins in reserve, we have to consider, I assume, that the grower has to be compensated for them. But I do not know how the government can tell you at what price; the market dictates the price. That was the problem back then; the market was in a tough situation due to the oversupply, so we had to take less for those reserve raisins,” Schutz said. “Those raisin growers were paid less, but raisin prices did not spiral downward and the industry was kept in balance.”

“Without the reserve program, the raisin price would have crashed, ending in a bigger disaster than what occurred.”

The Supreme Court reached its decision at the end of a long fight by raisin grower Marvin Horne, who held that he did not have to give his raisins to the reserve without fair compensation.

2016-05-31T19:28:07-07:00August 12th, 2015|

PLF On 9th Circuit Biological Opinion

PLF statement on 9th Circuit Upholding Delta Smelt Biological Opinion

Last Week, a panel of the Ninth Circuit largely upheld the federal government’s 2008 “biological opinion” for the delta smelt, a regulation under the Endangered Species Act has that triggered draconian restrictions on water deliveries from the federal and state water projects to the San Joaquin Valley and Southern California.

Pacific Legal Foundation (PLF) attorneys represent some of the farmers in the case who are challenging the biological opinion as an abuse of federal power based on questionable science and shoddy regulatory procedures.

Damien Schiff, a principal attorney with PLF who represents farmers in the case, issued this statement today, in response to the Ninth Circuit’s ruling:

“The Ninth Circuit has done a reverse rain dance for California, practically guaranteeing that the impacts of our current drought will be more devastating,” said PLF Principal Attorney Damien Schiff.   

“The ruling gives judicial blessing to regulations that impose real punishment on people with only speculative benefits for a declining fish species.   Under these draconian regulations, water is withheld from farms, businesses and communities from the Central Valley to San Diego based on sloppy science and ideological agendas.    

“There’s a drought of common sense in the bureaucracies that impose these regulations – and in the perverse legal precedents that lead courts to uphold them.  In one notorious precedent, TVA v. Hill, the U.S. Supreme Court said the Endangered Species Act gives absolute priority to species over everything else, including the general welfare of the human community.    

We must all hope that California’s water crisis – made worse today by the Ninth Circuit – can prod the U.S. Supreme Court to reconsider its past decisions that are leaving us so parched.    

Indeed, the one hopeful aspect of today’s ruling is there’s a possibility the smelt case could get to the Supreme Court.  There, it might result in a decision that turns the tide of environmental law away from imbalance and zealotry, and back toward sanity.”

2021-05-12T11:06:02-07:00March 17th, 2014|
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