Question: Why is the President Trump Administration Prosecuting Another California Wheat Farmer?
By Patrick Cavanaugh, Editor
In February 2013, with no warning or opportunity to discuss the matter, U.S. Army Corp of Engineers sent wheat farmer John Duarte a cease and desist letter to suspend farming operations. They claimed that he had illegally filled wetlands on his wheat field by merely plowing it. Duarte spent millions to defend himself and to prevent personal financial ruin with legal fees and fines.
He settled just before his trial was set to start August 2017 in U.S. District Court in Sacramento, Duarte settled, admitting no liability, but agreeing to pay $330,000 in civil penalty fines and another $770,000 for “compensatory mitigation,” in vernal pool mitigation credits.
Now another wheat farmer Jack LaPant, owner of J and J farms in Chico, is facing the same pressure from the Corp of Army Engineers that Duarte faced. In fact, in 2011, LaPant sold that property Durate was trying to farm wheat that led to his prosecution.
Now, the Army Corps of Engineers is suing Jack LaPant for plowing a wheat field to grow wheat on land that he formerly owned in northern California.
“What I don’t understand is why the Trump administration is doing this. It is William Barr’s Department of Justice, not Jeff Sessions’s, not Obama’s,” said Duarte.
“Why are they prosecuting farmer Jack LaPant with the same absurd interpretations of the [Clean Water Act] that they prosecuted me and my family?” noted Duarte.
“What is Donald Trump doing and what can agriculture expect from his administration if they are going forward with this prosecution on these facts today?” asked Duarte.
Tony Francois is an attorney for the Pacific Legal Foundation. He represented John Duarte, and he now is representing Jack LaPant. “Jack’s being sued for growing a wheat crop on another portion of the same property the year before, in 2011, so it was a package deal for the Army here.
LaPant was embroiled with the U.S. Army Corps of Engineers before Duarte.
“The Army’s investigation extended over several years. So they knew about Jack’s wheat crop in March of 2011,” said Francois. “They didn’t take any action regarding him until December or so of 2012, at which point they decided that growing wheat was also a violation of the Clean Water Act.”
In reality, although the CWA does require a permit for the discharge of dredged or fill material into “navigable waters,” LaPant’s wheat-planting did not fall into that category. According to Congress, under the CWA, normal farming activities — such as LaPant ’s — are exempt from the permit requirement.
Francois explained: “Then the investigation and threats from the Army and the justice department continued for about three years after that. And then when the government won their liability ruling on the Duarte case, they pretty quickly filed this lawsuit against Jack. I assume thinking that they were going to sweep him into it, claiming that he can afford to pay millions of dollars in fines, so it appears to be part of the same pattern.”
Mostly that’s how they approached the Duarte case. They saw that he was not only a farmer, but he also operates a major Northern California nursery, Duarte Nursery, thinking he had plenty of money to pay the fine, but Duarte did settle for less than what they were trying to get from him. And Francois sees a significant problem here since the Army Corps of Engineers is the Army.
“I think it’s important for people to recognize what we’re talking about here—the United States Army is regulating how farmers grow food for America. I think we’re accustomed to thinking of the Army Corps as not part of the military,” Francois said. “Of course, I served in the Army and knew a lot of excellent engineer officers who served in the Army Corps, and even some that served as the district engineers that oversee this work that goes on domestically,” Francois said.
“But what’s gone on here is that that important traditional role that the Army has played has morphed, or you could call it mission creep, into a much more questionable, at a policy level, legal authority to regulate farming.”
That happens because of the Clean Water Act authority that the Army Corps has. In that, it deals directly with a deposit of soil into navigable rivers and lakes. If someone needs to build a pier in a lake, they are going to have to dump a bunch of fill to do that. And fairly reasonably, the Army Corp of Engineers is the agency that regulates that.
“The problem is when you start thinking of soil, not dumped into a river, but soil that makes up a farm, and is moved and broken up and tilled when you plow and farm. The EPA and the Army Corps view that soil on a farm as a pollutant. And when you, in their view, move it a few feet or a few inches, from point A to point B, you’ve dredged it from point A, and you’ve filled point B, thereby polluting it,” Francois said.