Grower Vows To Fight Clean Water Act Violation Suit
October 31, 2016 The story of John Duarte and 450 acres in Northern California is a complicated matter. The U.S. Army Corps of Engineers says it’s a tale of a clear violation of the Clean Water Act. Duarte, on the other hand, says the real story is about assumptions and overreach by the government.“I call it peeling the onion because this thing goes so many layers deep,” he says.
John Duarte
Duarte is owner of Duarte Nursery, one of the largest grapevine and nut tree suppliers on the West Coast.
In 2012, he purchased 450 acres in Tehama County that, according to Duarte, had been in the USDA’s Conservation Reserve Program under previous owners.
In 2012, he purchased 450 acres in Tehama County that, according to Duarte, had been in the USDA’s Conservation Reserve Program under previous owners.
The land had been planted with wheat many times, Duarte says. And a portion of adjoining land was farmed as late as 2011. As part of the land purchase, NorthStar Engineering, an environmental consulting firm, mapped buffers around the wetlands that were a part of the property.
“We consider ourselves accomplished ecologists when it comes to agricultural production,” Duarte says. “This land is over-farmed wetland. It has been planted to wheat before and had been used as grazing ground for a few decades.”
NorthStar found vernal pools, vernal swales, seasonal wetlands, seasonal swales and other waters which are considered pre-jurisdictional waters of the U.S., and would fall under the Clean Water Act
Tilling Or Ripping?
In 2012 Duarte decided to plant wheat on the 450 acres. He contracted with an equipment operator to prepare the land for planting.
In November 2012 a representative from the U.S. Army Corps of Engineers drove past Duarte’s property and saw what he believed were Clean Water Act violations. The representative returned to the property the following month to observe what he believed to be deep ripping.
Duarte suspects the Corps of Engineers representative assumed the equipment operator was deep ripping to prepare to plant trees or vines. However, Duarte says the operator was just plowing the field.
The Army Corps of Engineers would not comment on this particular case, however provided a statement from the EPA on the Clean Water Act litigation.
“The agencies look forward to vigorously defending the merits of the Clean Water Rule, which the agencies continue to believe is fully consistent with the law and based on the best available peer-reviewed science,” the EPA says.
Duarte received a formal cease and desist letter in February 2013 stating he had discharged dredged or fill material into the seasonal wetlands, vernal pools, vernal swales, and other waters without a permit.
Duarte’s attorney sent letter a letter to the U.S. Corps of Engineers requesting the Corps provide copies of all the information it gathered on the farm to back up the claims it was making. He also requested a hearing on the claims.Instead, he received another letter in March 2013 stating the case was transferred to the EPA for enforcement.
Due Process Claim
Duarte then sought help from the Pacific Legal Foundation, a conservative nonprofit, which said the case was a due process case. Duarte filed a due process claim against the U.S. Corps of Engineers.
“The government can’t just tell you to stop farming your land because they thought they saw something without giving you an opportunity to share facts; this is a due process issue,” Duarte said.
Duarte says the U.S. Department of Justice filed a destruction of wetlands countersuit against Duarte Nursey, and against John Duarte. Duarte says they allege that the land was deep-ripped or tilled 36 inches deep or more.
“We filed a counterclaim that the destruction of wetland suit was a retaliatory suit based on our due process claim,” Duarte says. “We simply planted wheat in the dark spots where wheat had been planted before.”
Soil experts from the Department of Justice visited the parcel to examine and measure the land. Duarte says the experts asserted the tillage was 4-7 inches deep and left plow furrows 24 inches apart peak to peak and a gully of 5 inches, and was not deep ripping. Even worse, the department’s employees dug up the vernal pools in question. The Corps of Engineers contends the raised part of these furrows created constitute mini mountain ranges. Duarte jokingly calls them the Sierra Minimas.
“[They said] the bottom of the furrow is still a wetland, but the top of the furrow is now a converted upland,” Duarte says.
Duarte is being prosecuted under the Clean Water Act, however, he says if he was being charged under the new Waters of the U.S. Rule (WOTUS), 95% of the Tehama County property would be considered a wetland.
He also says the exemptions within the Clean Water Act permit farmers to plow in wetlands without a permit and that moving the soil in the act of plowing does not cause a discharge. However, a federal judge said that because the plow lifted the soil a few inches and moved it a few inches to create the furrows, the soil moved is a pollutant and therefore does not fall under the plowing protection. He also says the government claimed sovereign immunity to protect itself and countersue against his first amendment claim.
“There is no protection for farming, and according to this judge there never has been,” Duarte says.
Says He’s Taking It To The Mat
Duarte vows to fight the charges.
“One reason we brought this [suit] is Duarte Nursery is a large tree and vine nursery, we sell trees all over the California and the West Coast, we hear farmer after farmer tell us about these horror stories,” he says. “Nobody wants to stand up. This is not new. The only new aspect is that we’re taking it to the mat and trying to get it cleaned up.”
The lawsuit is not only against Duarte Nursery but also against John Duarte himself. John Duarte’s brother, Jeff, has created a GoFundMe page to help his brother to raise funds to fight it out in the courts. John Duarte estimates he needs about $2 million to help pay the legal fees to fight the case.
“I have a millions of dollar penalty liened against my family because a field agent thought that I was deep ripping 36 inches deep,” John Duarte says.
Duarte says he’s appealing the trial court decisions from the Eastern District of California. However, he says the EPA wants to assess penalties in court before the appeals are decided on so he would be bonded to the judgments before the appeal claims are heard.
“If we lose this case, the prosecution against us for simply farming wetlands that had been farmed before, irrespective of the Clean Water Act’s protection for agriculture, this will allow the Army Corps of Engineers and federal agencies to go door to door and extract the net worth of farmers nationwide,” he says. “We’re fighting for all agriculture nationwide.”
What This Case Means For Growers
Tree fruit and nut growers may be vulnerable to extra scrutiny in light of John Duarte’s case, say American Farm Bureau’s Don Parrish, senior director of regulatory relations, and Danielle Quist, senior counsel for public policy.
“The Corps sees the planting of those types of commodities as something that’s going to deep rip into the ground,” Quist says. “They are so sensitive to the expansion of orchard and nut crops. They’re going to take a look at the land, even if you’re not planting those. If you’re a grower and that’s your general business, they’re going to be out there, looking to see what you’re doing on the land.”
Quist and Parrish say the trouble with this case is it could happen to any grower in the country.
“This isn’t an exemption issue, this is them saying it’s not plowing — it’s something else — sidecasting, moving soil out of a wetland and creating hills inside of a wetland,” Quist says. “You’re not allowed to turn a wetland into an upland, but he didn’t do that. He just created the furrow and ridges that every plow in America does.”
Parrish also wonders how growers will navigate the WOTUS rule in light of these rulings.
“Almost all plowing creates the furrows and ridges that the government now says are mini-mountain ranges,” he says. “How can any farmer plow through a wetland or ephemeral drain (under the new WOTUS rule) if doing so will always create a mini-mountain range?”
Parrish and Quist also say the difficult part of the case is that John Duarte himself, not just Duarte Nursery, is being sued for a violation of the Clean Water Act.
“It’s his own personal finances – not his company – that are on the line,” Quist says. “It’s not a criminal case, but the fact that our government is personally going after farmers makes it harder for farmers to fight back.
They don’t have that corporate shield.”
Above all Parrish and Quist say growers need to come together to bring attention to this issue.
“They can’t be an island. They can’t sit back and say ‘This isn’t going to happen to me,’” Parrish says. “If they sit back and don’t act, they are going to lose more of their property and lose more use of their land. If we’re not working together as farmers and ranchers to push back on the agencies, we’re just going to get steamrolled.”
They also say growers should also not keep silent if they find themselves in trouble with the Corps of Engineers and the EPA. Anthony Francois, senior staff attorney, of the Pacific Legal Foundation agrees.
“If the Army Corps threatens any enforcement action, growers should consult with a knowledgeable Clean Water Act attorney, he says. “They can always submit inquiries to Pacific Legal Foundation.”
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