Duarte Nursery v. U.S. Army Corps of Engineers Update

PLF Attorney Reports Duarte Appeals Court Decision—Once Again

By Patrick Cavanaugh, Farm News Director

 

Damien Schiff, principal attorney at Pacific Legal Foundation (PLF) who has been representing the Duarte family in their legal battle with the U. S. Army Corps of Engineers (Corps), provided this update after Judge Kimberly J. Mueller, U.S. District Court for the Eastern District of California dismissed their summary judgment motions on June 10, 2016, and ruled the Corps’ February 23, 2013 cease and desist order did not deprive Duarte of liberty or property. Schiff said his client’s next course of action is filing for an appeal of the judgment.

“It’s disappointing, in particular, because earlier in the case, we had received a very favorable decision from U.S. District Judge Lawrence K. Karlton, the original Federal Judge assigned to our case who ruled in our favor on our due process challenge to the Army Corps’ cease and desist order.” Judge Karlton retired from the bench in 2014 and passed away in 2015. “It was particularly disappointing to see Judge Mueller reverse Judge Karlton’s decision.”

“Launching the appeals process will take some time,” Schiff explained. “Unfortunately, the case is complicated because there are a lot of claims going on and not all of them have been resolved by Judge Mueller’s decisions. The general rule in Federal Court is that you cannot appeal until a final decision has been made that decides all the claims against all the parties.”

Damien M. Schiff

Damien M. Schiff, Principal Attorney, Pacific Legal Foundation’s National Litigation Center

Considering the preponderance of hills and valleys across the United States, the magnitude of this case has growers—not just from California, but nationwide—concerned about the outcome and precedents resulting from this case, as well as the significance of future Army Corps-issued cease and assist orders.  “It is an amazing assertion of power by the United States Environmental Protection Agency (EPA) and the Corps,” Schiff said, “and I think that’s why we see not just farming groups and property rights groups, but also a majority of the states, challenging the Agency’s Waters of the U.S. (WOTUS) Rule.”

EPA Fact Sheet Clean Water Rule_Page_1A significant point of contention in the case, Schiff explained, stems from Judge Mueller’s ruling that because the Duarte property had not seen any farming activity since 1998, the Clean Water Act’s farming exemption was no longer applicable. “That’s, in part, why we challenged the cease and assist orders,” said Schiff, “because the Corps issued this directive without giving any prior notice, much less any opportunity to present contrary information. The reality is, this property, and the other properties in the entire area, have traditionally been used for agriculture, and are, in fact, zoned for agricultural use.” EPA Fact Sheet Clean Water Rule_Page_2

The Duarte case is so multifaceted,” Schiff said. “The land was always agricultural, and what was done on the property is consistent with normal agricultural farming practices; there is really nothing exceptional about what went on. What’s particularly problematic for the Corps here is that Duarte went above and beyond the call of duty by having a wetlands consultant ensure that all of the areas assessed to have vernal pool or wetlands characteristics were marked and avoided entirely.”

Whatever the outcome, the Duarte case will have far reaching effects on legal precedent throughout the agricultural community as well as on the cease and assist orders issued by the Army Corps to families throughout the country. “Surprisingly, there isn’t very much case law on what process, if any, is owed to the landowner before the agency issues these orders,” Schiff remarked. “However the Duarte case ends up, I think that will have to be litigated in other parts of the country.”

2021-05-12T11:05:50-07:00August 2nd, 2016|

Poultry Industry Doing Well, for Now

Poultry Industry Shines, Like a Canary in a Coal Mine

By Patrick Cavanaugh, Farm News Director

 

Bill Mattos, president of the California Poultry Federation, based in Modesto, reported the state’s poultry industry is doing well despite new regulations and wage increases. “First of all,” he explained, “it looks like chicken has taken over as the [category of] highest meat consumption now in the United States. It’s getting more and more popular, so that’s good,” Mattos noted.

“Also, the best thing is the industry seems to be weathering the Highly Pathogenic Avian Flu (HPAI) A (H5N1) storm,” he continued. “In California, we’re doing our due diligence with biosecurity. We don’t have any Avian Influenza. We’ll knock on wood for that.”

California Poultry Federation logo“The industry is also enjoying lower feed costs. That’s 60% of our cost, so that’s good news,” he added.

And, poultry industry employees have job security. “It doesn’t look like there will be fewer employees in the industry over the next few years, and we’d like to have more,” he said.

Notwithstanding the good news, challenges loom on the near horizon. “The Air Quality and Water Quality Control Boards are regulating a lot of different industries,” Mattos observed. “They’re starting to look at the poultry industry now that they have completed the dairy rules. We’re very concerned about those issues, so we are trying to work with the boards to explain to them what we do and how our business runs,” noted Mattos.

The updated minimum wage requirement may hurt the California poultry industry, another big concern of Mattos. “We supply half the chicken consumed in California. The other half comes from out of state. Without the same minimum wage requirements, we’re going to be at a disadvantage. We’re looking into the different possibilities—what we can do—to offset that.”

“You will be seeing some new things coming out from the poultry industry as we look at the ramifications of the new minimum wage,” explained Mattos. “We can’t compete with that. They are going to be taking a lot more percentage away from us, which may cost us some jobs if we don’t work this out.”

“With the minimum wage hike, California lawmakers are trying to appease workers. But it really affects businesses. Ours happen to be mostly in the Central Valley, which is the hardest-pressed area for unemployment. It isn’t a good place to have to follow wage requirements like you’re seeing in San Francisco and Los Angeles. It frankly makes no sense in the Central Valley,” said Mattos.

2021-05-12T11:17:13-07:00July 21st, 2016|

Breaking News: Contracted Contractual Water Deliveries Could Plummet

Breaking News: 

Promised Water Deliveries Could Plummet

Delta Smelt Among Many Reasons for Pumping Constraints

By Emily McKay Johnson, Associate Editor

Farmers in the federal water districts of Fresno and Kings Counties were granted only five percent of their contracted water this year; yet they are at risk of getting even less due to pumping constraints. Jason Peltier, executive director of the San Luis & Delta-Mendota Water Authority, a Los Banos-based federal water district explained, “The original forecast had full pumping in June, July, August, and September.

“Because of the temperature constraints and because of the water quality standards,” Peltier stated, “we’ve been operating only one or two pumps. There’s just not enough water flowing south to meet the U.S. Bureau of Reclamation’s (Reclamation) obligations to the exchange contractors, the [wildlife] refuges and the urban agencies, along with the 5% allocation to the ag services contractors,” he noted.

SLDMWAPeltier is concerned for those in the Central Valley, and water agencies are working frantically to find answers. “We’re working on it,” Peltier affirmed. “We’ve got a lot of engineers and operators preparing spreadsheets and analyzing both the variables and what changes could be made to avoid lower water levels at San Luis Reservoir.”

Commenting on this year’s deliveries, Peltier stated, “No doubt we’re in an unprecedented operating environment. Here we are, eight months into the water year, and we just got a temperature plan for Lake Shasta—that is driving the whole operation—the project. Limiting releases like they are in the temperature plan [designed keep the water cold to protect winter-run salmon eggs]—at least we thought—would allow Reclamation to hold the commitments they made. But we’re on razor’s edge right now,” Peltier explained.

Peltier described how the process is holding up water release, “The National Marine Fisheries Service wants to keep as much water in storage as possible, in order to keep the cold water cool as long as they can. This is all to protect the winter-run salmon eggs that are in the gravel right now, protect them until the weather turns cool and things naturally cool down. Then they can release water. Shasta’s been effectively trumped by another million-acre feed because of this temperature plan.”

Peltier further noted that the Lake Shasta temperature plan has not allowed water to flow into the Sacramento River. It has severely impacted growers in Northern California on a year when the northern part of the state received above average rain and snowfall during the winter.

“People diverting off the river in the Sacramento Valley have had their own water level issues. There hasn’t been enough water coming down the river to get elevation enough adequate for their pumps. There’s been a lot of ground water pumping,” he said.

The nearly extinct Delta Smelt has been a longstanding issue for those affected by California’s drought. After the past five years of sacrifice, even more water is being taken from agriculture and cities to help save the fish from extinction.

“We’ve got the California Department of Fish and Wildlife wanting significant increases in delta outflow over the summer, supposedly for the benefit of delta smelt, another operational complexity that is sadly not based on any science that we could see. The agencies have their beliefs, and they have the power,” said Peltier.

Featured photo: Jason Peltier, executive director of the San Luis & Delta-Mendota Water Authority.

California Ag Today will update readers on Bureau of Reclamation announcements about the 5% contracted water delivery federal water district growers were expecting.

2021-05-12T11:05:53-07:00July 12th, 2016|

CULTIVATING COMMON GROUND: The State of the Wealthy Class in California

CULTIVATING COMMON GROUND:

The State is Sinking, and Its Wealthy Class Is Full of Hypocrites

Editor’s note: We thank Victor Davis Hanson for his contribution to California Ag Today’ CULTIVATING COMMON GROUND.

By Victor Davis Hanson

There was more of the same-old, same-old California news recently. Some 62 percent of state roads have been rated poor or mediocre. There were more predications of huge cost overruns and yearly losses on high-speed rail—before the first mile of track has been laid. One-third of Bay Area residents were polled as hoping to leave the area soon.

Such pessimism is daily fare, and for good reason.

The basket of California state taxes—sales, income, and gasoline—rate among the highest in the U.S. Yet California roads and K-12 education rank near the bottom.

After years of drought, California has not built a single new reservoir. Instead, scarce fresh aqueduct water is still being diverted to sea. Thousands of rural central-California homes, in Dust Bowl fashion, have been abandoned because of a sinking aquifer and dry wells.

One in three American welfare recipients resides in California. Almost a quarter of the state population lives below or near the poverty line. Yet the state’s gas and electricity prices are among the nation’s highest.

Finally by Victor Davis Hanson

– Victor Davis Hanson

One in four state residents was not born in the U.S. Current state-funded pension programs are not sustainable.

California depends on a tiny elite class for about half of its income-tax revenue. Yet many of these wealthy taxpayers are fleeing the 40-million-person state, angry over paying 12 percent of their income for lousy public services.

Public-health costs have soared as one-third of California residents admitted to state hospitals for any causes suffer from diabetes, a sometimes-lethal disease often predicated on poor diet, lack of exercise, and excessive weight.

Nearly half of all traffic accidents in the Los Angeles area are classified as hit-and-run collisions.

Grass-roots voter pushbacks are seen as pointless. Progressive state and federal courts have overturned a multitude of reform measures of the last 20 years that had passed with ample majorities.

In impoverished central-California towns such as Mendota, where thousands of acres were idled due to water cutoffs, once-busy farmworkers live in shacks. But even in opulent San Francisco, the sidewalks full of homeless people do not look much different.

What caused the California paradise to squander its rich natural inheritance?

Excessive state regulations and expanding government, massive illegal immigration from impoverished nations, and the rise of unimaginable wealth in the tech industry and coastal retirement communities created two antithetical Californias.

One is an elite, out-of-touch caste along the fashionable Pacific Ocean corridor that runs the state and has the money to escape the real-life consequences of its own unworkable agendas.

The other is a huge underclass in central, rural, and foothill California that cannot flee to the coast and suffers the bulk of the fallout from Byzantine state regulations, poor schools, and the failure to assimilate recent immigrants from some of the poorest areas in the world.

The result is Connecticut and Alabama combined in one state. A house in Menlo Park may sell for more than $1,000 a square foot. In Madera, three hours away, the cost is about one-tenth of that.

In response, state government practices escapism, haggling over transgender-restroom and locker-room issues and the aquatic environment of a three-inch baitfish rather than dealing with a sinking state.

What could save California?

Blue-ribbon committees for years have offered bipartisan plans to simplify and reduce the state tax code, prune burdensome regulations, reform schools, encourage assimilation and unity of culture, and offer incentives to build reasonably priced housing.

Instead, hypocrisy abounds in the two Californias.

If Facebook billionaire Mark Zuckerberg wants to continue lecturing Californians about their xenophobia, he at least should stop turning his estates into sanctuaries with walls and security patrols. And if faculty economists at the University of California at Berkeley keep hectoring the state about fixing income inequality, they might first acknowledge that the state pays them more than $300,000 per year — putting them among the top 2 percent of the university’s salaried employees.

Immigrants to a diverse state where there is no ethnic majority should welcome assimilation into a culture and a political matrix that is usually the direct opposite of what they fled from.

More unity and integration would help. So why not encourage liberal Google to move some of its operations inland to needy Fresno, or lobby the wealthy Silicon Valley to encourage affordable housing in the near-wide-open spaces along the nearby I-280 corridor north to San Francisco?

Finally, state bureaucrats should remember that even cool Californians cannot drink Facebook, eat Google, drive on Oracle, or live in Apple. The distant people who make and grow things still matter. 

Elites need to go back and restudy the state’s can-do confidence of the 1950s and 1960s to rediscover good state government — at least if everyday Californians are ever again to have affordable gas, electricity, and homes; safe roads; and competitive schools.

Victor Davis Hanson, as described on his website, is the Martin and Illie Anderson Senior Fellow in Residence in Classics and Military History at the Hoover Institution, Stanford University, a professor of Classics Emeritus at California State University, Fresno, and a nationally syndicated columnist for Tribune Media Services.

He is also the Wayne & Marcia Buske Distinguished Fellow in History, Hillsdale College, where he teaches each fall semester courses in military history and classical culture.

Hanson was awarded the National Humanities Medal in 2007, the Bradley Prize in 2008, as well as the William F. Buckley Prize (2015), the Claremont Institute’s Statesmanship Award (2006), and the Eric Breindel Award for opinion journalism (2002).

Hanson, who was the fifth successive generation to live in the same house on his family’s farm, was a full-time orchard and vineyard grower from 1980-1984, before joining the nearby CSU Fresno campus in 1984 to initiate a classical languages program. In 1991, he was awarded an American Philological Association Excellence in Teaching Award, which is given yearly to the country’s top undergraduate teachers of Greek and Latin.

The opinions, beliefs and viewpoints expressed by the various participants on CaliforniaAgToday.com do not necessarily reflect the opinions, beliefs, viewpoints or official policies of the California Ag Today, Inc.

2016-08-09T15:32:36-07:00July 12th, 2016|

Jasieniuk on Weed Evolution

Tracking Herbicide Resistance in Weed Evolution  

By Emily McKay Johnson, Associate Editor

 

Marie Jasieniuk, professor and weed scientist at UC Davis College of Agricultural and Environmental Sciences, discussed her groundbreaking research, “I work on the population genetics and evolution of agricultural weeds and invasive plants,” she said. “We use molecular tools to look at the origins and spread of weeds. We also use molecular tools and genetic studies to understand the evolution of herbicide resistance in weeds,” Jasieniuk added, “to be able to propose management approaches that reduce the likelihood of further evolution and spread of resistant weeds.”

UC Davis Annual Weed Day 2016

UC Davis Annual Weed Day 2016

Jasieniuk and her team identify the origins of invasive plants, and determine how they were introduced. “We study how they were introduced, how they have spread and whether they have been introduced multiple times. Again, if we understand how they’re spreading, we can do something to try to stop the spread,” she said.

Italian rye grass, a weed Jasieniuk is currently studying, is problematic because it is resistant to Roundup, a popularly used weed and grass killer by growers. “UC ANR Cooperative Extension specialist, now emeritus, Tom Lanini, and I sampled over 100 locations of Italian rye grass and tested them for resistance to Roundup ten years ago,” she said about the project, funded by USDA. “Last year, we re-sampled all of those sites, and we’re re-testing to see if there’s been an increase or a decrease or no change in resistance to glyphosate, to Roundup,” she said.

Roundup isn’t the only weed and grass killer available on the market. “We’re looking at resistance to three other herbicides,” she said. Working with growers to determine the most efficacious weed treatments that also reduce the likelihood of wood resistance to herbicides,” Jasieniuk explained, “We interview growers about their herbicide use, non-chemical approaches, and integrated management techniques to identify management practices that correlate highly with low or no resistance,” she explained.

Resistance management is found to be more effective with a rotation of various herbicides. “What you want to do is rotate different types of herbicides with different modes of action,” Jasieniuk said. “Perhaps do tank mixes and incorporate non-chemical approaches as well,” she added.

Eliminating weeds can be as simple as disking and digging them out with a shovel when there are only a few. “I think, in many cases, this would have done a lot to prevent new weeds from coming in and certainly resistant weeds from spreading,” she noted.

2021-05-12T11:05:53-07:00July 11th, 2016|

BREAKING NEWS: California Water Authorities Sue U.S. Bureau of Reclamation

The following is a joint statement by Jason Peltier, executive director of the San Luis & Delta-Mendota Water Authority and Tom Birmingham, general manager of the Westlands Water District on today’s filing of a lawsuit to compel the U.S. Department of the Interior, Bureau of Reclamation to reassess its Endangered Species Act (ESA)-related actions.

U.S. Bureau of Reclamation Fails to Consider the Environmental Impacts of Biological Opinions Which Have Been Devastating Communities

FRESNO, CA-TODAY the San Luis & Delta-Mendota Water Authority (SLDMWA) and Westlands Water District (WWD) filed a lawsuit in federal court to compel the U.S. Bureau of Reclamation (“Reclamation”) to examine the effectiveness of the existing measures intended to protect endangered species, the environmental impacts of those measures, and whether there are alternatives to those measures that would better protect both endangered fish species and California’s vital water supplies.

San Luis & Delta-Mendota Water Authority The existing measures, adopted in 2008 and 2009, are based on biological opinions issued under the Endangered Species Act.  The measures are responsible for the largest redistribution of Central Valley Project and State Water Project (water supplies away from urban and agricultural uses and have jeopardized the water supply for waterfowl and wildlife refuges.  Since 2008 and 2009, the farms, families, cities and wildlife that depend upon Central Valley Project and State Water Project water supplies have suffered substantial environmental and socio-economic harm from the reduced water deliveries caused by the existing measures, with little apparent benefit for fish.

Reclamation adopted the existing measures without any review under the National Environmental Policy Act (NEPA).  Federal courts, including the United States Court of Appeals for the Ninth Circuit, held this action violated NEPA, and Reclamation was ordered to perform environmental review.  The Ninth Circuit Court of Appeals wrote:

It is beyond dispute that Reclamation’s implementation of the Biological Opinions (BiOp) has important effects on human interaction with the natural environment.  We know that millions of people and vast areas of some of America’s most productive farmland will be impacted by Reclamation’s actions.  Those impacts were not the focus of the BiOp….  We recognize that the preparation of an Environmental Impact Assessment (EIS) will not alter Reclamation’s obligations under the ESA.  But the EIS may well inform Reclamation of the overall costs – including the human costs – of furthering the ESA.

The court-ordered review provided Reclamation a rare opportunity to reexamine the necessity for and the benefits of the existing measures, as well as the resulting impacts on the environment and water supplies, potential alternative measures, and new information and studies developed since 2008 and 2009.  It provided Reclamation an opportunity to make a new and better-informed choice.

Unfortunately, Reclamation neglected to take advantage of that opportunity. In November 2015 Reclamation completed an EIS that did not examine whether the measures are necessary or effective for protecting endangered fish populations.  Instead of analyzing the existing measures, Reclamation accepted them as the status quo.U.S. Bureau of Reclamation

The EIS did not identify any mitigation for the water supply lost to these measures, despite current modeling that estimated how the existing measures would reduce the annual water delivery capabilities of the Central Valley Project and State Water Project. Loss was estimated to be over 1 million acre-feet on a long-term average and in spite of years of harm caused by implementing the measures.

Nor did the EIS try to identify alternatives that could lessen these impacts.  Reclamation attempted to minimize the impacts of lost surface water supply by unreasonably assuming the lost supply would be made up from increased pumping of already stressed groundwater supplies.  In its Record of Decision issued January 11, 2016 Reclamation announced that it would continue on with the existing measures, and provide no mitigation.

It is inexplicable that Reclamation would pass up the opportunity to reassess the existing measures and make a much more careful and robust analysis than what is found in the EIS.  NEPA requires no less.

The lawsuit filed today seeks to compel Reclamation to do the right thing and perform the analysis it should have.  If successful, the lawsuit may ultimately result in measures that actually help fish, and identify mitigation activities or alternatives that lessen or avoid water supply impacts that millions of Californians in the Central Valley Project and the State Water Project depend on.

Many of those affected reside in disadvantaged communities and are already struggling to pay for a water supply made scarce by layers of other, yet equally ill-advised bureaucratic regulations.  California’s water supply is too precious for Reclamation not to make the best informed decision it can.

2021-05-12T11:00:52-07:00July 8th, 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|

Historic Temperance Flat MOU Signing

Assemblymember Bigelow on Historic July 1 MOU Signing

By Patrick Cavanaugh, Farm News Director

East of Fresno at Friant Dam last Friday, July 1, the San Joaquin Valley Water Infrastructure Authority (SJVWIA) and the United States Department of the Interior, Bureau of Reclamation signed an historic Memorandum of Understanding to coordinate and complete feasibility studies of the proposed Temperance Flat Dam. 

Historic July 1, 2016 MOU Signing for Temperance Flat Dam

Historic July 1, 2016 MOU Signing for Temperance Flat Dam

State Assemblymember Frank Bigelow, 5th Assembly District (serving a large portion of Madera County, along with all the foothill and mountain communities north of Madera to the Sacramento area) noted the critical importance of getting Temperance Flat Dam built to store freshwater for the citizens and farmers of California.

Bigelow, a Madera rancher and farmer of pistachios, figs, and persimmons, said, “This is a huge event to enable us to have additional [water] storage. I just am so thankful to the people who put the water bond forward. Without the money that the people have made possible by voting to support the water bond, none of this would be possible; that’s a clear message.”

Friant Dam and Millerton Lake State Recreation Area

Friant Dam and Millerton Lake State Recreation Area (Source: U.S. Bureau of Reclamation)

“Without water,” Bigelow explained, “none of our communities would continue to survive in the way they have for years and years. Much of the water we see is being used in different ways; it is not all going to agriculture, and it is not all going to residential. It is going to the environment. So we’ve got to divide that up by the law now, and in equal proportional value.”

“Right now,” he detailed, “Millerton Lake captures 526,000 acre-feet of [fresh] water, but we have millions of lost acre-feet that flow past every year into the Delta, then ultimately to the ocean.” Upon completion, the Temperance Flat Dam would hold more than twice the amount of water that Friant Dam holds—”especially important for capturing freshwater during heavy rain and snow years,” noted Bigelow.

 

2016-07-07T10:05:08-07:00July 7th, 2016|

Timorex Gold, Broad-spectrum Biofungicide

Biofungicide Timorex Gold to Help Western Vegetable Growers Fight Disease Pressure

By Patrick Cavanaugh, Farm News Director

The U.S. EPA has approved Timorex Gold, a new broad-spectrum reduced-risk biopesticide that is already a leading biofungicide in Latin America to control black sigatoka, a leaf-spot fungal disease on bananas, for various domestic crops such as tomatoes, strawberries, as well as other berries, cucurbits, grapes, tree nuts, and lettuce.

Stockton photo Strawberries & Blueberries beautiful!Timorex Gold is well positioned for American crops because it is known to be effective on powdery mildew and Botrytis on strawberries and tomatoes, plus bacterial blight on tomatoes.

Sarah Reiter, country manager of STK Stockton, an innovative Israeli company that opened its U.S. headquarters in Davis, CA. “We are very excited about the products performance we are seeing in areas where it is registered,” said Reiter. “We are happy with the label the EPA granted us. We still await registration in California and anticipate it next year or possibly late this season.”

Reiter noted the highly effective active ingredient in Timorex Gold, the plant extract Meluleuca alternifolia, or tea tree oil, gives growers a powerful new tool to control both bacteria and fungi diseases. “We know growers do not have a lot of choices for bacterial control,” said Reiter, “so any new active ingredient is a good thing. This product has the added bonus of being a fungicide too.”

“Timorex Gold has been established as a primary control product for sigatoka because it performs so well,” Reiter commented. “Growers use it because of its profile, and it’s easy to use. And while the product is a biopesticide, once the growers get it in their hands, they tend to forget it’s a biopesticide because it performs as if it is a synthetic material.”

timorexgold STK Stockton Group“As an industry we have been looking for this for quite a long time,” Reiter reflected. “While biologics have been around for a century, historically, growers would have to give up some levels of control in order to implement them into a conventional program. We do not see that loss when using Timorex Gold against sigatoka disease.”

“Our expectation in the U.S. is that growers will see that same high level of performance when they use the product here,” Reiter said. “And since Timorex Gold is a biological, there is no concern for Maximum Residue Level (MRL) data because there is no residue on the crop. The product will have very short re-entry intervals (REIs) and preharvest intervals (PHIs), as well as flexible application intervals, a strength that growers like because it gives them a lot of flexibility to implement the product into their program when they need to instead of having to manage REIs and PHIs.”

In addition, Timorex Gold has a very low designation of FRAC 7¹, which means the product has a unique mode of action that can be used in alternate succession with other fungicide modes of action to prevent the development of resistance.

Concurrently, STK Stockton continues to invest heavily in its new technology pipeline with the intention of bringing more innovative biopesticides into different markets. As part of these efforts, the company has recently announced the appointment of Shay Shaanan as the new vice president R&D, leading the company’s activities. The former global development manager of the fungicides division at ADAMA (formerly Makhteshim Agan), Shaanan has over 15 years of experience in research and commercialization of crop protection products.

“Having Shay join our team marks another significant milestone in our growth strategy. It reflects our commitment to advance our technologies and provide the agriculture industry with new solutions for sustainable agriculture.” explained Guy Elitzur, CEO of STK Stockton. “Shay will lead our R&D and will be of enormous value in moving our company forward. Additionally, we will be looking for in-licensing partners, including bio companies in the U.S. to broaden our product offerings.” said Elitzur.

The products of Stockton will be sold under the Syngenta brand for Botrytis and Powdery Mildew in ornamentals globally. The biofungicide technology complements the comprehensive fungicide portfolio of Syngenta and will help to provide its customers with innovative sustainable tools for disease resistance management.

“We are very excited about this agreement,” Elitzur commented, “as Syngenta is the perfect partner for our new products in ornamentals.”

________________________________

¹FRAC is a Specialist Technical Group of CropLife International (CLI) that provides fungicide resistance management guidelines to prolong the effectiveness of “at risk” fungicides and to limit crop losses should resistance occur.

The main aims of FRAC are to:

  1. Identify existing and potential resistance problems.
  2. Identify existing and potential resistance problems.
  3. Collate information and distribute it to those involved with
    fungicide research, distribution, registration and use.
  4. Provide guidelines and advice on the use of fungicides to reduce the risk of resistance developing, and to manage it should it occur
  5. Recommend procedures for use in fungicide resistance studies.
  6. Stimulate open liaison and collaboration with universities, government agencies, advisors, extension workers, distributors and farmers.
2021-05-12T11:05:54-07:00June 28th, 2016|

VIDEO: Other Stressors, Not Pumps, Leading to Delta Smelt Decline

VIDEO: Wasted Freshwater in Failed Attempt to Save Delta Smelt and Salmon

By Laurie Greene, Editor

“Other Stressors, Not Pumps, Leading to Delta Smelt Decline,” a video produced by Western Growers, explains why the communities, business, and farmland in the Central Valley and southward still experience regulatory water cutbacks that are extreme in some cases, while 3 billion gallons of extra freshwater flow out to sea in the failing effort to save the Delta Smelt from extinction.Western Growers logo

The VIDEO addresses this loss of freshwater unused by California residents and businesses still suffering from both drought conditions and environmental water cutbacks and that could have gone into water storage.

Decline in California Fish Population and Delta Smelt, Salmon

Western Growers accuses government agencies in charge of managing California’s water of restricting the Delta pumps far beyond what is required by the law. “As a result,” the association said, “billions of gallons of El Niño water have been flushed out to sea. Shutting down the pumps has not helped the Delta smelt and salmon recover, and government regulators are ignoring other stressors such as predation, invasive species and wastewater discharges.”

Delta Smelt Troll 2016

Delta Smelt Troll, Survey 6, 2016: “There were no Delta Smelt collected.”

______________________

Western Growers, founded in 1926, is a trade association of California, Arizona and Colorado farmers who grow, pack and ship almost 50% of our nation’s produce. Their mission is to enhance members’ competitiveness and profitability by providing products and services with agriculture in mind. Services include Affordable Care Act (ACA) compliant health benefits for farmworkers, cost-saving and environmentally-focused logistics, food safety initiatives and advocacy for members. 

They ask, “If you enjoy fruits, vegetables and nuts, support our members and the produce industry.”

Featured Photo: Delta smelt by metric ruler (Source: USFWS)

2021-05-12T11:05:55-07:00June 10th, 2016|

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