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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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.

________________________________

Links:

Duarte Nursery

Pacific Legal Foundation

U.S. Army Corp of Engineers

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Prather Ranch Receives 2015 California Leopold Conservation Award

Prather Ranch Named 2015 California Leopold Conservation Award® Recipient

 

SACRAMENTO, Calif. – (November 18, 2015) Sand County Foundation, the California Farm Bureau Federation and Sustainable Conservation are proud to announce Prather Ranch as the recipient of the prestigious 2015 California Leopold Conservation Award®. The award honors private landowner achievement in the voluntary stewardship and management of natural resources.

Prather Ranch, owned and managed by Jim and Mary Rickert, is a working cattle ranch headquartered in Macdoel, and stretches across five counties. Under the Rickerts’ management, Prather Ranch has grown in size, implemented conservation enhancements and established several permanent conservation easements. Over the last 35 years, Prather Ranch has continually collaborated with diverse partners to enhance the land and promote land stewardship in the community.

One of the ranch’s first efforts to promote biodiversity was taking an unusual approach to managing the wild rice fields on their land near Mt. Shasta. After rice harvest, they began tilling the stubble into the soil and keeping their fields covered in water year-round. The practice not only benefited common species of waterfowl such as Canada Geese and Snow Geese, but it also attracted shore birds like plovers and terns, previously found only on the coast.

Through conservation easements in cooperation with the Shasta Land Trust, the Rickerts have preserved some of the state’s most spectacular wildflowers and protected sensitive vernal pools and riparian areas. Prather Ranch has also planted several miles of riparian habitat along streams and irrigation canals to benefit a wide range of animals such as the California Quail and the endangered Shasta crayfish.

Jim and Mary Rickert provide community leadership, working with 4-H, Future Farmers of America, and local schools for ranch field trips and other activities.

Given in honor of renowned conservationist Aldo Leopold, the Leopold Conservation Award recognizes extraordinary achievement in voluntary conservation. In his influential 1949 book, A Sand County Almanac, Leopold called for an ethical relationship between people and the land they own and manage, which he called “an evolutionary possibility and an ecological necessity.”

“Because more than half of all land in California is privately owned, how landowners manage their properties has a dramatic and lasting effect on the environment and quality of life for all Californians,” said Ashley Boren, executive director of Sustainable Conservation. “Since the 70s, Jim and Mary have demonstrated an above-and-beyond commitment to enhancing the land, water and wildlife across a large swath of the state. And, they’ve done it in true Leopold fashion, regarding their land not simply as a commodity that belongs to them, but rather seeing their land as a community to which they belong.”

“The Leopold Conservation Award recognizes unique yet replicable strategies a farmer or rancher has developed in managing their land, to be the best steward of the natural resources,” said Paul Wenger, California Farm Bureau President. “We are honored to join Sand County Foundation and Sustainable Conservation to recognize the extraordinary efforts of California farmers and ranchers who go above and beyond in managing and enhancing our natural resources.”

The Leopold Conservation Award program inspires other landowners through these examples and provides a visible forum where farmers, ranchers and other private landowners are recognized as conservation leaders.

The 2015 California Leopold Conservation Award will be presented December 7 at the California Farm Bureau Federation’s Annual Meeting in Reno, NV. Each finalist will be recognized at the event, and Prather Ranch will be presented with a crystal depicting Aldo Leopold and $10,000.

The award sponsors also wish to congratulate the 2015 finalists for their outstanding contributions to agriculture and conservation: Bruce and Sylvia Hafenfeld, who own Hafenfeld Ranch and manage public lands in eastern Kern County, and Ken and Matt Altman, who own and manage Altman Specialty Plants in Riverside and San Diego Counties.

The California Leopold Conservation Award is made possible thanks to generous contributions from American Ag Credit, The Harvey L. & Maud S. Sorenson Foundation, The Nature Conservancy, Environmental Defense Fund, The Mosaic Company, DuPont Pioneer, and The Lynde and Harry Bradley Foundation.

 

ABOUT THE LEOPOLD CONSERVATION AWARD®
The Leopold Conservation Award is a competitive award that recognizes landowner achievement in voluntary conservation. The award consists of $10,000 and a crystal depicting Aldo Leopold. Sand County Foundation presents Leopold Conservation Awards in California, Colorado, Kansas, Kentucky, Nebraska, South Dakota, Texas, Utah, Wisconsin and Wyoming.

ABOUT SAND COUNTY FOUNDATION
Sand County Foundation is a non-profit conservation organization dedicated to working with private landowners across North America to advance ethical and scientifically sound land management practices that benefit the environment.

ABOUT SUSTAINABLE CONSERVATION

Sustainable Conservation helps California thrive by uniting people to solve the toughest challenges facing our land, air and water. Since 1993, it has brought together business, landowners and government to steward the resources that we all depend on in ways that make economic sense. Sustainable Conservation believes common ground is California’s most important resource. 

 

ABOUT CALIFORNIA FARM BUREAU FEDERATION

The California Farm Bureau Federation works to protect family farms and ranches on behalf of over 53,000 members statewide and as part of a nationwide network of more than 6.2 million Farm Bureau members. 

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