EPA Sued for Relying on Illegal Rules Following WOTUS Repeal
Albuquerque, New Mexico; October 22, 2019: A lawsuit filed today on behalf of the New Mexico Cattle Growers’ Association challenges the Trump Administration’s decision to rely on old, unconstitutional rules in the wake of the 2015 Waters of the United States rule’s repeal.
Last month, the Environmental Protection Agency announced the repeal of thecontroversial 2015 Waters of the United States rule. The 2015 rule was the subject to numerous lawsuits, and five federal courts found that the 2015 rule was illegal.However, the EPA reverted toolder rules that are similarly unconstitutional.
Represented by Pacific Legal Foundation, the New Mexico Cattle Growers’ Association is challenging this reversion to the pre-2015 rules.
“The old rules that EPA is using now have been ruled unconstitutional by the Supreme Court,” said PLF Senior Attorney Tony Francois. “While it is good that EPA is repealing the 2015 rule, the older rules the agency is now enforcing have many of the same legal defects. The problem here is that for decades, not just since 2015, EPA has sought to use its Clean Water Act authority over navigable lakes and rivers to regulate puddles and dry arroyos on private property all over the country. This is the trend that has to be turned back.”
PLF has represented numerous people who were unfairly prosecuted under the rules on which EPA will now rely, including Andy Johnson, whose case President Trump discussed when he ordered the EPA to review the WOTUS rule in 2017.
Jack LaPant, A Wheat Farmer Sued for Plowing his Land
When most people think about preventing water pollution, they probably picture sewage plants and factories, spilling gunk into a river or lake right? But according to the Environmental Protection Agency (EPA) and the Clean Water Act (CWA), overturned dirt in a farmer’s field is technically the same thing as that noxious gunk: pollution.
Yet one major side effect of considering dirt a pollutant is that doing so allows the government to regulate a farmer’s field in the same way that it would regulate chemicals being dumped in a river. This means that many farmers across the country have been forced to pay exorbitant fines and go through years of court battles simply for plowing their fields.
For example, Northern California farmer Jack LaPant is currently being sued by the EPA for plowing his property to grow wheat on it. He faces millions in penalties for plowing the dirt on his farm. His neighbor John Duarte had to pay $1.1 million to settle similar charges for which EPA officials threatened him with over $40 million in liability.
All in the name of “fighting pollution.”
The EPA treats small family farmers or someone building a home the same as massive cases of pollution. The reality is that they’re not the same, and treating them as such violates people’s property rights while harming the mission of protecting the environment. Yet there are solutions to this problem. Federal courts can clarify that plowing a farm does not pollute that farm, such as in Jack LaPant’s case. For its part, Congress could clarify that plowing dirt to make it grow plants better is not “pollution.” And the Trump administration could live up to its reputation for regulatory reform by not suing farmers for millions of dollars for plowing their farms.
We all want clean water. The EPA should stick to preventing actual water pollution, stop pretending that farm dirt pollutes farms, and leave the farmers alone. This is a national problem.
Pacific Legal Foundation is representing Farmer Jack LaPant
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 tofarmingand 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 beencanceled.
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.”
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.”
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.”
A 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.”
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.”
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.
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.
On behalf of Duarte Nursery, Pacific Legal Foundation attorneys havemoved 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.
“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.
“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.
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.
“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.”
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.
Washington, D.C.; January 12, 2015: The U.S. Supreme Court announced TODAY that it will not hear Pacific Legal Foundation’s (PLF’s) challenge to the Delta smelt “biological opinion,” a harsh and unjustified Endangered Species Act (ESA) regulation that has led to dramatic water cutbacks for tens of millions of people — including thousands of farms and businesses — in Central and Southern California.
In appealing the case — Stewart & Jasper Orchards v. Jewell — to the Supreme Court, PLF represented San Joaquin Valley farmers who grow almonds, walnuts, and pistachios, and who have been hit hard by the water cutbacks mandated by the Delta smelt “biop.” PLF represents these clients — as with all PLF clients — without charge.
Statement by PLF Director of Litigation James S. Burling
“We are disappointed that the Court declined to review the federal government’s damaging and unjustified Delta smelt regulations,” said James S. Burling, PLF’s Director of Litigation. “These regulations have harmed farmers and farm workers in the Central Valley, along with tens of millions of Southern Californians, by diverting vast quantities of water away from human use and out to the Pacific Ocean — all to try to improve the habitat of the Delta smelt, a three-inch fish on the Endangered Species Act list. As a result, hundreds of thousands of acres of once-productive farmland have been idled, farm workers have lost their jobs, and farmers are losing their farms. Water users in Southern California have seen rates rise significantly. And the impacts of the state’s record-level drought have been much worse.
“The feds broke their own rules when they concocted these destructive Endangered Species Act regulations, because they ignored the punishing economic impact,” Burling continued. “And the Ninth Circuit was wrong to uphold the water cutbacks, because it relied on an old interpretation of the ESA that gave short shrift to the interests of human beings. If that anti-human interpretation — in the 1978 Supreme Court case of TVA v. Hill — was ever correct, it is obsolete now, after subsequent changes in the ESA. It is high time to formally reverse that ruling.”
“Unfortunately, the High Court will not hear the challenge to the Delta smelt water cutoffs,” Burling said. “But Pacific Legal Foundation is not giving up. We will return again and again to ask the Court to review — and reverse — the perverse and outmoded TVA precedent that is being used to justify policies that are literally anti-human. The protection of imperiled species is important, but so is the protection of jobs and the economy. PLF will continue to fight for that principle until it is fully embraced by the courts and fully implemented by the bureaucracy.”
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, federal regulations under the 2008 “biop” sent vast quantities of water to the ocean — instead of storing it behind dams or pumping south for cities, towns, and farms. However, the smelt hasn’t improved — but the economy has suffered, and the effects of the drought have been made worse.
PLF’s legal challenge was based on the fact that the U.S. Fish and Wildlife Service violated its own regulations in drafting the Delta smelt biop. The agency ignored the potential harms — even though it was supposed to take economic considerations into account. “The economic impacts have been devastating,” noted Burling. “Pumping restrictions have fallowed hundreds of thousands of acres of farmland, and Southern Californians have seen water rates rise by as much as 20 percent. And once the drought set in, the impacts were more severe because of the Delta smelt regulations. By sending vast amounts of water directly to the ocean, the smelt regulations meant there was less water saved in reservoirs for the dry times.”
PLF’s case asked the Supreme Court to help drought-stricken California by rejecting the Delta smelt biop — and reversing 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 upheld it by citing TVA v. Hill, a controversial 1978 Supreme Court ruling.
TVA v. Hill interpreted the ESA as giving a blank check for onerous species-protection regulations, “whatever the cost” for the interests of human beings. “TVA was always an extreme reading of the ESA,” said Burling. “But it is clearly obsolete now. After TVA, Congress made it crystal clear that regulators must take a balanced approach to ESA regulations, by requiring that any species-protection rules to restrict government projects must be ‘reasonable and prudent.’ The Supreme Court needs to reconsider TVA’s outdated perspective. Unfortunately, the justices declined to use the Delta smelt case as an opportunity to do so. But PLF will continue to litigate, on various fronts, until TVA is reconsidered, and the courts insist on balance and common sense in ESA regulations.”
PLF represents Central Valley farmers
In challenging the Delta smelt biop, PLF attorneys represented 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, 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.
This year the Endangered Species Act turns 40. President Richard Nixon, on December 28, 1973, signed into law one of the nation’s most powerful environmental laws. The law vested authority in the U.S. Fish and Wildlife Service and the National Oceanic and Atmospheric Administration to enforce a wave of new regulations, and create a new relationship between homo sapiens and other species.
Soon after its passage, the U.S. Supreme Court declared it the most comprehensive law ever passed for the protection of species and that ESA enforcement must occur “whatever the cost.” Federal officials have used their power under the Act to regulate private property as if it were public land.
The degree to which the ESA has been successful is a matter of debate. Of the estimated $3 billion of taxpayer funds necessary to fund the annual operation of the ESA, less than 1 percent of the species in North America have been recovered out of more than 1,400 that have been listed. One undebatable fact is the law has created a flood of lawsuits, those filed to seek government acts, and those filed to limit them.
Since its founding in 1973 — the same year the Endangered Species Act (ESA) was enacted — Pacific Legal Foundation has been America’s watchdog in the courts to check and reverse government abuse of this and other environmental laws.
PLF has enough experience with the ESA to know that a well-intentioned law can completely turn the tables on common sense, sound science, and the fundamental freedoms of people. PLF believes in responsible stewardship of our land, water, and air for the benefit of people, the environment, and the species that inhabit it. The trouble comes when a law designed to help species harms the people who care for the environment — including farmers, ranchers, and foresters — those living and working in America’s “environment.”
The protection of the environment is only one of many competing and important social values in America. In an orderly society, no single value can be exalted “whatever the cost.” Environmental laws can and must be administered so as to safeguard, and not thwart, fundamental human needs and rights. Therefore, Pacific Legal Foundation has assumed a leading role in protecting constitutionally established limits on governmental power and ensuring individual freedom.
Nearly 40 years after its enactment, the Federal Endangered Species Act remains one of the nation’s most potent threats to our constitutionally protected property rights. Crafted by the Congress with the noble goal of saving species from extinction, and helping them to return to health, the law today has led to controversy and regulatory creep across our nation’s landscape.
Because Pacific Legal Foundation supports a balanced approach to environmental regulations — like the ESA, we’re taking the opportunity in 2013 to examine aspects of the law, with particular emphasis on past and current cases we’ve litigated.
During the course of the year, this landing page will feature PLF opinion articles, videos, podcasts, and news and information about current PLF cases. Whether you are part of the “regulated community” or just a concerned citizen who values liberty and a thriving environment, I invite you to check in regularly on this page to see our latest postings and to give us your feedback.
Of course, as a nonprofit legal charity, Pacific Legal Foundation welcomes your charitable donations.
If you believe, as we do, that in protecting our nation’s environment, our constitutional rights should not be threatened or endangered by government agencies and activist groups, I invite you to become a supporter of PLF’s legal program.