Poor Farmer John

Submitted: Jun 10, 2017
By: 
Badlands Journal editorial board

 Farmers are exempt from needing permits to plow their lands under the Clean Water Act. But the Waters of the United States (WOTUS) rule, implemented by Obama in 2015, prohibits plowing below the clay beneath the topsoil that keeps vernal pools, which count as wetlands, from draining. Duarte’s land does, indeed, include some vernal pools. He said the field was plowed only from 4 to 7 inches in depth, and maybe a foot deep in one place. And farmers can till land with vernal pools as long as they don’t destroy the pool’s existence, he said.

An Army Corps inspector saw the plowing, told Duarte to stop and followed up with a cease-and-desist order. The inspector said Duarte’s hired hand was “deep ripping,” going three feet deep in some places ...

 

The Army Corps would not have won this case if it had not had solid evidence. In fact, without solid evidence they would not have pursued the case at all. They did what they were charged to do, they enforced the federal Clean Water Act.

When our public institutions work for the public, the environment and the species -- even if to the detriment of a rich, powerful local agribusinessman -- the event should be celebrated by the media.  In this case, even Farmer John's friends and customers wouldn't contribute much to his legal defense fund. It's like maybe they knew...

We suspect the problem the Modesto Bee columnist and the Redding Searchlight reporter faced may have been that they were spun by Duarte's lawyers with vague language about "plowing," and that they have never seen what a field underlain with hardpan looks like when it's been deep-ripped. If the investigator can get there before the farmer has disked and rolled the field, she will see the hard pan that had been ripped up. It looks like broken slabs of pavement. It may only be when you actually see it that you can understand how deep ripping destroys wetlands and vernal pools.

In any event, it is very difficult for mainstream journalists to get beyond a certain cultural myth about the virtue of farmers because they are bombarded by propaganda from farm bureaus, commodity groups, the US Department of Agriculture and the land-grant universities like the University of California and its extensive network of UC Cooperative Extension offices. It is like criticizing your mother and her apple pie right to her face on her 75th birthday, or something.

So, when in doubt, kick the old Army Corps for trying to protect wetlands. At least your editor won't get an earful from the local farm bureau flack. -- blj

 

 

5-24-17

Modesto Bee

Duarte hopes Trump’s order will ease harrowing experience against feds in court

Jeff Jardine

 

http://www.modbee.com/news/local/news-columns-blogs/jeff-jardine/article152495064.html

 

 

When President Trump signed an executive order in February to review President Obama’s “Waters of the United States” rule, Hughson farmer John Duarte finally felt like the government’s case against him could be, well, plowed under.

I wrote about Duarte in January 2016 as his legal fight with the U.S. Army Corps of Engineers intensified and headed into federal court. But the feds won that round. A judge in June 2016 sided with the Army Corps, and now the case will proceed to the penalty phase in August. The government wants Duarte to pay $2.8 million in fines and up to $32 million in wetlands mitigation.

“That is ruinous,” Duarte, owner of the giant Duarte Nursery in Hughson, told me Wednesday. “That threatens our family and all the jobs we have here in Stanislaus County.”

And what was this heinous crime?

“Planting wheat in a wheat field,” Duarte said. “It was farmed for wheat many times before, and the permit they wanted me to get had never been issued to a farmer before.”

Here’s what got him to this point: Duarte in 2012 bought 450 acres of land in Tehama County and hired someone to turn the soil with the intention getting one crop of winter wheat before planting an almond orchard.

Farmers are exempt from needing permits to plow their lands under the Clean Water Act. But the Waters of the United States (WOTUS) rule, implemented by Obama in 2015, prohibits plowing below the clay beneath the topsoil that keeps vernal pools, which count as wetlands, from draining. Duarte’s land does, indeed, include some vernal pools. He said the field was plowed only from 4 to 7 inches in depth, and maybe a foot deep in one place. And farmers can till land with vernal pools as long as they don’t destroy the pool’s existence, he said.

An Army Corps inspector saw the plowing, told Duarte to stop and followed up with a cease-and-desist order. The inspector said Duarte’s hired hand was “deep ripping,” going three feet deep in some places, but refused to provide him documentation to support that claim. Nor did the government provide Duarte with the chance to explain himself at a hearing, and refused to give him documentation that led them to make the decree. And the feds said he failed to get a permit to turn the soil even though the Clean Water Act said he didn’t need one. The land had been farmed for decades, but left fallow since the 1970s, when the price of wheat fell to the point where it wasn’t profitable. The government decided it no longer qualified as active farmland and claimed Duarte needed a permit to farm it as a wetland.

Duarte sued the government in 2014, the Environmental Protection Agency fired back, and they’ve been in court ever since. He felt he would prevail, but then U.S. District Court Judge Kimberly J. Mueller issued a summary judgment in the Army Corps’ favor last year.

The hearing scheduled for August won’t overturn her decision. But how the government handles his case going forward could change, he said.

“The Trump administration made it very clear that the WOTUS rule was dead under his administration,” Duarte told California Ag Today in a podcast shortly after Trump issued the executive order. “Our prosecution is under the old WOTUS rule, under the old WOTUS interpretation.”

Which means the Justice Department might opt to drop the case entirely or settle for lesser amounts. If it’s the latter, Duarte plans take the case to a higher court in an attempt to prevent more of these same kinds of lawsuits against farmers in the future. Virtually every farmer in the country could face similar litigation by the government, he said, equating it to business owners getting hit with lawsuits filed under the Americans with Disabilities Act by attorneys who threaten litigation to get quick settlements.

Duarte said he has received support from the American and California farm bureaus, but surprisingly little from other farmers who stand to face the same kinds of claims by the government. He told me a year ago he expected to spend $1 million in legal fees to fight the feds. The farm bureaus established Duarte Defense Funds and there is a GoFundMe account as well.

“But they have yet to raise $100,000 between them,” Duarte said. Every farmer in America, he said, could be “shaken down by government agencies.”

And for high crimes like planting wheat in a wheat field without a permit they aren’t supposed to need in the first place.

 

 

 

 

 

 

 

 

5-22-17

Redding Searchlight

Farmer faces $2.8 million fine after plowing field

DamonArthur 

http://www.redding.com/story/news/2017/05/23/farmer-faces-2-8-million-fine-plowing-field/336407001/

A farmer faces trial in federal court this summer and a $2.8 million fine for failing to get a permit to plow his field and plant wheat in Tehama County.

A lawyer for Duarte Nursery said the case is important because it could set a precedent requiring other farmers to obtain costly, time-consuming permits just to plow their fields.

“The case is the first time that we’re aware of that says you need to get a (U.S. Army Corps of Engineers) permit to plow to grow crops,” said Anthony Francois, an attorney for the Pacific Legal Foundation.

“We’re not going to produce much food under those kinds of regulations,” he said.

However, U.S. District Judge Kimberly J. Mueller agreed with the Army Corps in a judgment issued in June 2016. A penalty trial, in which the U.S. Attorney’s Office asks for $2.8 million in civil penalties, is set for August.

The case began in 2012 when John Duarte, who owns Duarte Nursery near Modesto, bought 450 acres south of Red Bluff at Paskenta Road and Dusty Way west of Interstate 5.

According to Francois and court documents, Duarte planned to grow wheat there.

Because the property has numerous swales and wetlands, Duarte hired a consulting firm to map out areas on the property that were not to be plowed because they were part of the drainage for Coyote and Oat creeks and were considered “waters of the United States.”

Francois conceded that some of the wetlands were plowed, but they were not significantly damaged. He said the ground was plowed to a depth of 4 inches to 7 inches.

The Army did not claim Duarte violated the Endangered Species Act by destroying fairy shrimp or their habitat, Francois said.

The wheat was planted but not harvested because in February 2013 the Army Corps of Engineers and the California Central Valley Regional Water Quality Control Board issued orders to stop work at the site because Duarte had violated the Clean Water Act by not obtaining a permit to discharge dredged or fill material into seasonal wetlands considered waters of the United States.

Duarte sued the Army Corps and the state, alleging they violated his constitutional right of due process under the law by issuing the cease and desist orders without a hearing. The U.S. Attorney’s Office counter-sued Duarte Nursery to enforce the Clean Water Act violation.

Farmers plowing their fields are specifically exempt from the Clean Water Act rules forbidding discharging material into U.S. waters, Francois said.

However, according court documents filed by the U.S. Attorney’s Office in Sacramento, the tractor was not plowing the field. Rather, it was equipped with a ripper, with seven 36-inch ripper shanks that dug an average of 10 inches deep into the soil.

Also, the U.S. Attorney alleges, Duarte ripped portions of the property that included wetland areas.

The ripping deposited dirt into wetlands and streams on the property, in violation of the Clean Water Act, according to documents filed by the U.S. Attorney.

Assistant U.S. Attorney Gregory Broderick said he could not comment on the case and referred questions to his office’s public affairs department, which did not call back Monday.

However, documents filed in court explain some of the rationale behind the government’s case.

“Even under the farming exemption, a discharge of dredged or fill material incidental to the farming activities that impairs the flow of the waters of the United States still requires a permit, because it changes the chemical, physical and biological integrity of the waters,” the U.S. Attorney said in court filings.

The creeks also flow into the Sacramento River, home to endangered salmon.

In addition to civil penalties, the attorney’s office is also asking the judge to order Duarte to repair the damage to the wetlands, including smoothing out the soil and replanting native plants in the wetlands.

He may also be required to purchase other wetlands to compensate for the alleged damage to the property south of Red Bluff, according to the U.S. Attorney’s proposed penalties.

Francois said he thought the proposed penalties were unfair because his client thought the plowing exemption allowed him to till the soil.

“A plain reading of the rules says you don’t need a permit to do what he did,” Francois said. “How do you impose a multimillion penalty on someone for thinking the law says what it says.”

 

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