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.”

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Pacific Legal Foundation Appeals to U.S. Supreme Court Over Water Cutbacks Based on Delta Smelt Biological Opinion

On behalf of San Joaquin Valley almond, walnut, and pistachio growers, Pacific Legal Foundation (PLF) filed an appeal TODAY, asking the U.S. Supreme Court to review a Ninth Circuit decision this past March that upheld the Delta smelt “biological opinion” — an Endangered Species Act regulation that has caused devastating water cutbacks in Central and Southern California, worsening the effects of the current drought.

PLF’s petition for certiorari asks the High Court to reconsider — and reverse — the controversial precedent on which the Ninth Circuit relied:  the Supreme Court’s 1978 decision in TVA v. Hill, which gives a blank check for onerous species regulations, “whatever the cost.”

PLF’s appeal:  Regulators broke their own rules by ignoring economic impacts

Listed as “threatened” under the ESA, the smelt is a three-inch fish in the Sacramento-San Joaquin Delta.  In a controversial strategy to help the smelt, regulations under the 2008 “biop” send vast quantities of fresh water directly to the ocean — instead of storing it behind dams or pumping south for use in cities and towns and on farms.  However, the smelt hasn’t improved — but the economy has suffered, with even more severe effects as the natural drought has set in.

PLF has been battling the Delta smelt water cutbacks for many years, and once before sought Supreme Court review, in our separate challenge based on the Commerce Clause.

PLF’s current case is based on the fact that the U.S. Fish and Wildlife Service violated its own regulations in drafting the Delta smelt biop.  Specifically, the biop’s drafters ignored the potential harms — even though they were supposed to take economic considerations into account.

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

“Under the U.S. Fish and Wildlife Service’s own rules, officials must consider economic impacts of proposed ESA regulations,” said PLF Principal Attorney Damien Schiff.  “But with the smelt biop they bypassed this requirement.  We’re asking the Supreme Court to call them out for not making good on their legal duty — and on their duty to the public interest.

“The economic impacts that regulators ignored have been tremendous — and tremendously negative,” Schiff continued.  “Even before the drought, pumping restrictions fallowed hundreds of thousands of acres of farmland, contributing to unemployment of 40 percent in some rural communities.  In Southern California, we saw what amounts to a Delta smelt tax, with water rates hiked by 17 percent or more in some areas.

“The biop has also worsened the impacts of the drought,” he added.  “It reduced the amount of water that was stored when we had ample rainfall and should have been saving for the dry times.”

PLF asks Supreme Court to help drought-stricken Californiaby rejecting the Delta smelt biop — and the “anti-human” TVA v. Hill

In 2010, then-U.S. District Court Judge Oliver W. Wanger, of Fresno, struck down the Delta smelt biop, holding that it had been drafted “arbitrarily and capriciously,” with “sloppy science and uni-directional prescriptions that ignore California’s water needs.”

However, this past March, a divided Ninth Circuit panel reversed Wanger’s order that the biop be rewritten.  Although the Ninth Circuit acknowledged that the biop is a “chaotic document,” poorly reasoned and written, the court cited TVA v. Hill in upholding it.

“The Ninth Circuit’s ruling was another example of the anti-human bias of TVA v. Hill and its staggering assertion that species protection takes absolute precedence over all other considerations,” said Schiff.  “As California suffers a third year of drought, we are asking the Supreme Court for relief from illegal regulatory cutbacks on water — and from the pernicious judicial precedent that is used to justify them.

TVA’s indifference to the welfare of human beings was a misreading of the Endangered Species Act from the first, but it’s more incorrect than ever today,” Schiff said.  “Ironically, the Ninth Circuit’s decision undercuts Congress’ attempts to temper TVA’s extremism.  Congress added a framework to the ESA requiring ‘reasonable and prudent alternative[s]’ when protecting species.  The FWS’s rule for considering economic impacts furthers this purpose of bringing balance to the process.  Yet the Ninth Circuit has permitted the agency to violate that rule and ignore the devastating impact of water cutbacks on families, farms, businesses, and the California economy.

“In recent years the U.S. Supreme Court has begun to back away from TVA,” Schiff noted.  “The Delta smelt case offers the court an opportunity to help drought-scorched California — and to finally overturn this radical and harmful precedent.”

PLF represents Central Valley farmers

In all of PLF’s legal efforts against the Delta smelt regulations, PLF attorneys represent three farms in California’s San Joaquin Valley that have been seriously affected, since 2008, by the water cutbacks:  Stewart & Jasper Orchards (an almond and walnut farm); Arroyo Farms (an almond farm); and King Pistachio Grove (a pistachio farm).  PLF represents the clients in this case — as in all our cases — free of charge.

The case is Stewart & Jasper Orchards v. Jewell.  PLF’s petition for certiorari, a video, a blog post, and a podcast, are available at:  www.pacificlegal.org.

 

About Pacific Legal Foundation

Donor-supported Pacific Legal Foundation (www.pacificlegal.org) is a nonprofit public interest watchdog organization that litigates for limited government, property rights, and a balanced approach to environmental regulation, in courts across the country.  PLF represents all clients free of charge.

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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.”

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