Tony Francois Suggested Duarte Settle

Judge Refused to See New Evidence in John Duarte Trial, Forcing Him to Settle

By Patrick Cavanaugh Farm News Director

Duarte Nursery, its president John Duarte, and legal counsel, Pacific Legal Foundation, agreed to a settlement with the federal government over the Army Corps of Engineers’ nearly five-year enforcement action for Duarte’s routine plowing of his wheat field in late 2012, said PLF senior attorney Tony Francois, who represents Duarte, gratis.

PLF Attorney Tony Francois

Among the main reasons for Duarte’s settlement is the judge’s refusal to consider new evidence regarding the restored condition of the vernal pools on Duarte’s land, which were at the nucleus of the controversy.

“Vernal pools are wet six to eight weeks out of the year due to rainfall,” according to Francois. “They have a kind of hard pan underneath them, so the water stays in place for a bit.”

“On August, 15, the morning of the trial, we intended to provide the judge with current evidence of the good condition of the vernal pools to show there was no significant harm to the environment from plowing the property,” Francois said.

“However, the government persuaded the judge to exclude that evidence,” Francois explained. “The government claimed that vernal pool-specific vegetation would not recover from being plowed.”

“We also were prepared to show how any significant penalty would affect Duarte Nursery and its ability to maintain its workforce. The judge allowed some older evidence, but excluded the most current evidence, basically, of the company’s ability to pay,” he said.

“Both rulings were significant because the court was supposed to consider those two factors in imposing their penalty,” Francois explained. “The judge actually acknowledged that excluding evidence of the current condition of the vernal pools would make a material difference on how large a penalty would be imposed.”

“Nonetheless, the judge excluded evidence on the legal grounds that it would be unfair to the government because they had not asked for or taken any steps to update their own information,” Francois said.

Francois explained how easily they could have demonstrated the vernal pools were undamaged.

“First, the vernal pools themselves are all still there. Second, the government’s own evidence shows that all the vernal pools still exist,” he said. “Our experts went out there last year and this year and showed that, with normal rainfall, the vernal pools are doing fine. The vegetation is healthy and fairly abundant, with all the right types of plants present. Basically, our evidence showed there was no harm done to the vernal pool from plowing.”

“Now, some of the scars to the vernal pools from government’s excavation may still be there,” he continued. “That, I have not seen, myself. But, as far as the plowing, our evidence that it had not harmed the vernal pools, is what the court excluded.”

According to Francois, the government claimed that Duarte’s current evidence was unfair to them because they had not taken any opportunities to update their own experts’ view of the property or to request access for inspection. “The result of the ruling was to cut off consideration of how plowing affected the vernal pools to the time period when California was in the midst of a multi-year drought,” he said.

“We think there were a number of ways the government could have looked at the evidence, if it were admissible, and responded to it, including driving to the property and observing several of the vernal pools from the road. In fact, seeing the vernal pools from the roadside is what lead the Army Corps to claim the violation in the first place,” Francios noted.

Duarte did not get a permit, according to the Clean Water Act, to plow the land, but Francois explained, “That is not really the problem. The problem is, a farmer reads the Clean Water Act that says ‘normal farming practices’ do not require a permit. The farmer knows what normal farming practices are; I would think that everybody knows that plowing is a normal farming practice.”

“You read a little further, and the regulations actually say that plowing to produce a crop is never even a discharge under the Clean Water Act. Plowing, in a very wide general sense, is not even regulated by the Army Corps of Engineers. It’s not a question of the type of plowing or if plowing in this location requires a permit. The law speaks clearly and broadly and says that you do not need a permit.”

“Nevertheless, the U.S. Army Corps of Engineers, backed up by the Justice Department, has reinterpreted what plowing and normal farming practices are in a way that is very unclear as to when they will think you need a permit and when they will think you don’t. So, if they think you needed a permit, and it never occurred to you that you would need one, this is what can happen to you. We deposed several employees and even officials with the Army Corps of Engineers about their understanding of all this. They were pretty clear; there is no way for a farmer to know without asking the Army Corps in advance what a normal farming practice is.”

“The entire U.S. agricultural industry is up against this scenario right now. One of the interesting things about the Army Corps’ approach—‘Just come and ask us’—is what how their press release announced the settlement,” according to Francois. “Anybody who wants to is welcome to come and ask us and we’ll tell you what you have to do.”

“Here is how that works in practice,” Francois explained. “You can go and ask the Army Corps. They are going to say you need to prepare an expensive study on whether there are any navigable waters on your property, and then we’ll tell you whether we agree with it or not. Then, you have to tell us everything you’ve done in the past and everything you plan on doing, and we will tell you whether what you plan to do is normal.”

“They way they view it, ‘normal’ does not mean ‘something that farmers normally do.’ They reinterpret ‘normal’ to mean something done routinely done on this property. If you have not done the particular practice on this property routinely in the past, they think of the practice in terms of conversions, changes in use and zoning. Their view is if you are changing things, you probably need a permit if there is anything they consider navigable waters on the property,” he said.

“So, for example, this property was in the Conservation Reserve Program for a number of years under a prior owner. The Army Corps convinced the judge in this case that because it had not been plowed in several years, plowing was no longer normal on this property. How many farmers who have their land enrolled in the Conservation Reserve Program are aware that the Corps of Engineers is going to expect to get their permission to resume plowing it?”

The United States Department of Agriculture (USDA) Farm Service Agency (FSA) oversees the Conservation Reserve Program (CRP). According to the CRP website, “In exchange for a yearly rental payment, farmers enrolled in the program agree to remove environmentally sensitive land from agricultural production and plant species that will improve environmental health and quality. Contracts for land enrolled in CRP are 10-15 years in length. The long-term goal of the program is to re-establish valuable land cover to help improve water quality, prevent soil erosion, and reduce loss of wildlife habitat,” Francois said.

“Or, let’s say, you have been through a business reorganization, an estate process, or just for market reasons, your land has been fallow for a few years,” Francois said. “Perhaps you have not built something or put the land to grazing. After all those scenarios, the Corps of Engineers told us there is probably a permit required.”

Farmers may view these activities as normal farming practices that do not need a permit, only to learn at the end of this process, a permit was warranted.

Francois believes, “In essence, the Army Corps has taken a protection from permitting in the Clean Water Act and turned it into a permit application in which, randomly, they will tell you, ‘Thanks for filing this expensive and time-consuming permit application. You don’t need a permit.’ ”

“We are optimistic that even though these issues are not properly resolved in this case, we will continue litigating these issues until the courts clearly reinforce and enforce the clear protection for farming in the Clean Water Act. We believe that farmers, and really all citizens, all regulated parties, should be able to rely on the clear text of the law rather than be subject to all this after-the-fact rewriting, reinterpreting and explaining away that the Corps has done in cases like this.”

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BREAKING NEWS: John Duarte Settles TODAY Prior to Court Proceedings

By Patrick Cavanaugh, Farm News Director

 

Northern California farmer John Duarte spent years fighting the federal government after being fined for routine plowing on his wheat field which included protected wetlands. He attracted a nationwide army of conservative supporters who saw it as government overreach and hoped the Trump administration would order federal officials to back off.

But just before his trial was set to start Tuesday 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.  

In a press release TODAY by John Duarte and Pacific Legal Foundation (PLF), John Duarte said, “This has been a difficult decision for me, my family, and the entire company, and we have come to it reluctantly. But given the risks posed by further trial on the government’s request for up to $45 million in penalties, and the catastrophic impact that any significant fraction of that would have on our business, our hundreds of employees, our customers and suppliers, and all the members of my family, this was the best action I could take to protect those for whom I am responsible.”

“John would have preferred to see this case through to trial and appealed the court’s liability ruling, which holds that plowing a field requires federal permission — despite the clear text of the Clean Water Act and regulations to the contrary,” said Tony Francois, senior attorney, PLF.  “John and his counsel remain concerned that legal liability for farming without federal permission undermines the clear protections that the Clean Water Act affords to farming and poses a significant ongoing threat to farmers across the nation.”

The court will hold a hearing in approximately 45 days to approve the settlement.  In the meantime, the trial that was to begin today has been canceled.

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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.”

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Ag Unite Addresses Critical Ag Issues

Ag Unite Brings Stanislaus County Together

By Jessica Theisman, Associate Editor

The Stanislaus County Farm Bureau was recently recognized with a Program of Excellence Award from the American Farm Bureau for its Ag Unite program.

One of the big goals of Ag Unite is gathering money for political action. “We raised money for political action, and we also raised money for legal defense funds because there’s a lot of lawsuits that are happening, where a lot of people have had issues with government overreaching,” said Wayne Zipser, Executive Director of the Stanislaus County Farm Bureau.

Wayne Zipser

An example of government overreach is with John Duarte of Duarte Nursery in Stanislaus County. That case involves Duarte Nursery versus the Army Corps. of Engineers. The court ruled that the company violated the Clean Water Act by plowing its property, even though the Act exempts normal farming practices.

“We’re looking to raise money for that and for a variety of other things that we know that are going to come along. We know that it’s not the last thing that’s going to happen, certainly not the first. We need to get elected people in the legislature who understand. We must have people that have more of a moderate and an understanding of what agriculture is, what it’s based with, and how we can be able to survive in California,” Zipser said. “The farmers and I today field calls constantly. We’ve got some new legislation that has come along, and it’s costing them a lot of money. It’s costing them a lot of things, and they’re fed up. We need to get more involved, and that’s what Ag Unite was all about. Getting more people involved and trying to bridge everyone together, not only if you’re a farmer, but the tractor salesmen, the seed sales folks, the car dealerships, the insurance companies.”

Zipser explained that these ancillary companies are involved when agriculture is attacked.  “They, our consumers, and the very people that rely on the farmers and ranchers are attacked. [Those] who not only provide jobs, but also provide food in a safe and reliable food supply.”

Stanislaus-area farmers truly wanted to see Ag Unite happen, according to Zipser. They are pushing to get other farm bureaus to get involved and participate in events to keep the discussions going.  “Again, we only represent 1 percent of the population of the producers, so we have to speak with a loud voice,” he said.

One of the major, potentially devastating regulations for Stanislaus County farmers is the California Water Resources Control Board’s plan to take 40 percent of the water from the Tuolumne, Stanislaus and Merced rivers to increase flows in the Sacramento Delta for salmon.

Those who attended the meeting about the plan in December were not just farmers. They were teachers, public safety folks and the district attorney. According to Zipser, they all talked about what the potential devastation if 40 percent of the flow from the Tuolumne, Merced and Stanislaus rivers was diverted, and the impact to not only local economies, but even crime and school children.

“This is what unification is. It’s uniting and protecting our industry because it is our number one industry here in Stanislaus County. We have some of the biggest food processors in the world that reside right here in our county. It is vital for the health of our communities to push back and to fight this,” Zipser said.

Another regulation that passed last year was the overtime bill, which forces farmers to pay more overtime for the extra hours that Zipser said farm workers wanted to work to earn more money. Now, they’re going to get paid less.

“Sometimes, there is unintended consequences to legislation. It may be the very same people who wanted to protect those that they thought they were protecting … they’re hurting them because it’s going to reduce their hours, and it’s going to reduce money in their pocket,” Zipser said. “We don’t like that, because we want to make sure that our folks who are working for us in this industry are protected. Our farmers and ranchers do that without question. They are part of the family. Unintended consequences are what I believe that this overtime bill was going to create.”

Of course, the farm industry wants everyone to thrive: the pruners, the tractor drivers, the welders, the harvester, the irrigators, and the mechanics.

According to Zipser, farmers were talking about how some of these workers have been employed with them for 20 to 40 years, have bought homes and put their kids through college and have thrived.

“This is the way they did business in the past, and somebody comes along and they want to change it all up. Again, an unintended consequence. That farm worker who could send their child through college might not be able to now or won’t be able to buy that home, and that is the American dream. We want to buy a home and we want to make a better life for our kids. Sometimes things step in the way of that,” Zipser said.

“The farmers contribute so much, if you take everything into consideration. They are truly our folks who are heroes.”

 

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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.

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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.”

Clean Water Rule, EPA
Clean Water Rule, EPA

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.”

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Duarte Farmland Under Siege

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 evidePacific Legal Foundationnce 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.

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Links:

Duarte Nursery

Pacific Legal Foundation

U.S. Army Corp of Engineers

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