Duarte Farmland Under Seige By Army Corps of Engineers
By Brian German, Associate Editor
The Duarte family has been in a lengthy court battle with the federal government regarding the right to farm their own property.
John Duarte, a fourth generation California farmer and president of the family-owned nursery in Hughson, commented on how this dispute began, “My family owns a piece of property up in Tehama County that we purchased in 2012 and planted wheat that fall. 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 called us and told us we were deep-ripping the property. I think they were under the misunderstanding that we were getting ready to plant orchards or vineyards there. They looked at it and assumed we were deep-ripping, three feet deep, which we were not,” Duarte said.
“They sent us a cease and desist notice in early 2013, then refused to tell us what their evidence was or how they had drawn their conclusion that we were deep-ripping. We sent two letters from an attorney, under the Freedom of Information Act, requesting evidence we had deep-ripped, the assumption that apparently warranting a cease and desist notice.”
“They refused to answer the first letter. They kicked the matter up to enforcement and then sustained the cease-and-desist notice without ever giving us a hearing and without ever giving us specific cause for their action. They obstructed our farming operations indefinitely,” Duarte noted.
As their request for the evidence against them continued to be ignored, Duarte said, “We went to the Pacific Legal Foundation, where they filed a due process suit against the Army Corps of Engineers on behalf of a farmer’s right to farm their ground. The Army Corps of Engineers now claims that our 4-7 inch tillage through ground that has been tilled 18-24 inches in the past destroyed wetlands.”
“They are making extremely spurious claims that the small plowing furrows through some of the minor vernal pools are now mini mountain ranges and the valleys of those furrows are still wetlands. But the top of the furrow, maybe five inches higher than the bottom of the valley, is now a converted upland and therefore we have destroyed wetlands across the property and are subject to a destruction of wetlands lawsuit filed by the Army Corps of Engineers against Duarte Nursery.”
Nevertheless, Duarte doesn’t think this was strictly in the interest of habitat preservation, “We believe this lawsuit is completely vindictive and retaliatory because we are challenging the Army Corps of Engineers’ ability to simply drive by farms and send cease and desist notices to farmers for very little cause, and then refuse to give any information as to what their cause for the cease-and-desist notice was.”
Duarte believes the lawsuit filed by the Army Corp of Engineers is a somewhat arbitrary enforcement of wetland destruction laws, “Lately, under the new WOTUS Rule, federal administrations [designate that] everything we farm as a wetland. We’ve had experts on both sides out in the field. Everyone agrees that wetlands are still there; the wetlands are still the same size; the wetlands have the same hydrology; the wetlands still have the same pocket water when it rains; the wetlands still have wetland vegetation; the wetlands are all still there by all the parameters one would measure a wetland’s presence by.”
Duarte noted where they are in the process, and why they chose to standup for their rights, “We filed motions for summary judgement, had a motion for summary judgement hearing back in, I think it was early December, we are waiting for the judges rulings on those, so we can proceed to trial on any unsettled matters in the case. We see these types of things happening to our customers all over the state, and that is one reason we wanted to bring this suit. We’re willing to bring this suit and defend our customers, our growers’ ability to take our products and farm their land. Duarte Nursery cannot exist without our growers being able to farm.”
This situation has come at a heavy price for the Duarte family. “This has cost our company over $1 million just to stand up for everyone’s right to farm their property. In a number of important ways, there is a noose tightening around the neck of agriculture everyday, and unless we stand up and fight back, in the courts, where it is appropriate, we are going to lose our ability to farm without federal government permission to do so,” Duarte said.
Pacific Legal Foundation
U.S. Army Corp of Engineers