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Plow Field, Go To Jail? Feds Threaten John Duarte. He Slugs Back

August 31, 2015 | Filed under Featured Articles | Posted by Lewis Perdue

By Lewis Perdue, Publisher & Executive Editor
Copyright 2015, Wine Industry Insight

California nursery owner John Duarte planted winter wheat on 445 acres of his land in Tehama County in November 2012 with no idea that the federal government would shut his farm down three months later.
He would lose that first wheat crop.
To this day, he has been prevented from planting, cultivating, harvesting, recovering his costs or producing food from his field.
In the process, Duarte has landed at the epicenter of a national controversy over the expansion of the “Waters of the United States” and of the current conflict between Congress and the White House over efforts to restrict normal agricultural practices.
Those involved with the litigation and others following similar actions around the United States say that every American farmer will be at similar risk if the Corps succeeds in this case.
The Corps and their lawyers refused to comment on this or any other issue and have refused to provide any information or even to reply on multiple requests.

Right-click image to view a larger version

Nightmare, Lawsuit Spurred by Cease and Desist Order

For Duarte, the unthinkable began in early 2013 when the U.S. Army Corps of Engineers (CoE) presented him with a “Cease and Desist” Order (CDO) against him and and Duarte Nursery alleging that the act of plowing his field was an illegal “discharge of dredged or fill material.” (Premium Wine Executive News subscribers can obtain the full Cease and Desist Order letter at this link.)
Further, the CoE order claimed that Duarte’s illegal discharge was under their jurisdiction because his wheat field was part of the “waters of the United States.”

WIDE VIEW: Duarte wheat field south of Red Bluff in Tehama County. Right-click map to view larger image. For a very large (4MB), but also very detailed image click this link. You will also be able to enlarge the downloaded image further.

Because of that, Duarte — and his co-plaintiff Duarte Nursery — have sued the Corps of Engineers in U.S. District Court. Because of the immense obstacles faced by an individual in suing a federal agency, the Pacific Legal Foundation Duarte is being represented by the Pacific Legal Foundation.

“Something is really rotten here.” — Duarte attorney

Duarte’s lead attorney, Peter Prows of Briscoe, Ivester and Bazel of San Francisco said: “As if the cease-and-desist order without due process weren’t bad enough: now, the government is spending a fortune in taxpayer dollars trying to build a case that plowing a field, that’s been plowed many times before, a few inches deep to plant dry land wheat can violate the Clean Water Act–even when the government’s own data shows that all the wetlands are still there, and both Congress and the Corps have made plowing perfectly legal.
“The government’s position would threaten nearly every farmer across the country with massive fines or prison just for working the ground to feed America. Something is really rotten here.”

Duarte wheat field south of Red Bluff in Tehama County showing multiple, highly developed and frequently plowed fields between his farm and the Sacramento River. Right-click map to view larger image For a very large (4MB), but also very detailed image click this link. You will also be able to enlarge the downloaded image further.

Premium Wine Executive News Subscribers can obtain the assessors parcel map at this link.

Ordinary path leads to an extraordinary ordeal

According to court records, Duarte’s farm is on Paskenta Road eight miles south of the city of Red Bluff and 3 miles west of I-5. Court documents indicate that the land has been repeatedly farmed for wheat and plowed for several decades. It has a USDA Farm Service Agency wheat base of 430.7 acres.
Court records also indicate that the nearest body of water — the Sacramento River — is seven to eight miles away, and connected by Coyote Creek — a usually dry stream bed that only flows seasonally with winter rain runoff.
Duarte Nursery bought the land in April 2012 and later that year hired environmental consultant Northstar Environmental to create a new wetlands delineation rather than rely on an older one mapped in 1994.
Duarte Nursery, Inc is a family-owned and operated nursery located near Modesto in the Central Valley of California. According to the company, it is the largest permanent crops nursery in the United States producing rootstock for wine and table grapes, citrus, almond, avocado and many other crop trees.

Gotcha!

According to the Duarte complaint filed in U.S. District Court:

“In November of 2012, staff of the Corps contacted plaintiff John Duarte by telephone, and inquired about the intended use of the Property. John Duarte explained that Duarte Nursery intended to farm the Property.
“At no time during this conversation did staff of the Corps state that the intended use of the property would require a permit from the Corps, that farming the Property would result in a determination that the Clean Water Act had been violated, that Plaintiffs or either of them were suspected of violating the Clean Water Act, or that Plaintiffs or either of them had the opportunity to submit information on the subject of whether any such violation existed.”

Corps Cease & Desist based on old map, sketchy data

The Duarte complaint states that on April 18, 2013 — approximately a month after the CDO was served — the Corps admitted that its actions to that point were based on the old 1994 wetlands delineation.
“The 2012 Delineation is more recent and more accurate than the 1994 Delineation relied upon by the Corps,” said the Duarte complaint. [It] “uses the currently applicable legal standard, and is based on the current physical condition of the Property.”

Depth of plowing one central issue

In addition, the Corps for the first time asserted that Duarte had the property “deep ripped.” This contention is disputed by Duarte, his contractor, expert witnesses and even a photo on the cover of one of the government expert witness reports. Most of the experts have determined that the depth of the furrows were 6 to 12 inches.

Feds unclear on sustainablity of dry-farming

According to Prows, “My client’s dry-farming practice is an enormously sustainable activity because it dies not require irrigation water. Instead, it relies on natural winter rains that accumulate beneath the surface and are trapped in a bowl-like layer of impermeable soil called duripan. The government has falsely accused Duarte Nursery of plowing so deeply that it penetrated that vital, water-retaining layer.”

Image from the cover of an export report prepared for the Corps of engineers shows a man standing at the bottom of a furrow in the Duarte wheat field that the Corps alleges was deep ripped. Right click photo to view a larger image.

Finally, the Duarte complaint stated that the Corps categorized Duarte’s actions as not “on-going, normal farming activities” and thus requiring a permit from the Corps. In future articles we will examine expert testimony that refutes this.
These issues will be covered in more detail in future articles in this series.

Could embarrassment lie at the core of the Corps’ continued confrontation?

Wine Industry Insight editor Lewis Perdue interviewed two current ranking field executives with the Corps of Engineers. Contact with those sources was facilitated by former Corps scientists who had helped Perdue with articles when he was an investigative reporter in Washington D.C.
“Given the circumstances that they dropped a bomb on this farmer based on an old delineation and what looks like very little data to start, it seems to me that they are in a helluva mess if they don’t win this case,” said one of the sources.
“I’ve seen this happen before — not just with the Corps,” said the other source. “They have their tails in a crack and will try to bully their way out.”
Premium Wine Executive News Subscribers can obtain the full complaint document at this link.

The Corps’ “Gun to the head” threat

One sentence in the Corps letter would later be called a “gun to the head” by a federal judge. The letter threatened that, unless Duarte immediately ceased operations, he could face “fines, penalties and imprisonment”

The Corps of Engineers language a federal judge termed “a gun to the head” of Duarte.

No specific environmental harms confirmed

Future installments in this article series will cover how expert reports conducted for the Corps of Engineer have been unable to confirm specific environmental harm caused by the plowing.
Wine Industry Insight emailed both the Corps and Duarte’s attorneys an identical set of questions requesting documentation of harm. Duarte’s attorneys responded with an unequivocal “no harm proven.”
The U.S. Department of Justice attorneys contacted did not provide any verification of harms to the water quality, water flow, to species diversity or population or contribution to Sacramento River water quality, sedimentation or turbidity.

Feds alert Calif water regulators

As a result of the CoE’s actions, the California Water Board issued a notice of violation and demanded a plan for mitigation of the “discharged dredge or fill material” within 30 days.

Premium Wine Executive News Subscribers can obtain the full Notice of Violation letter at this link.

Neither Corps or Water Board respond to Duarte request for facts behind sanctions

In March of 2013, Duarte asked both the Corps of Engineers and the Water Board to explain the facts behind their sanctions.
In a subsequent lawsuit filed later that year by Duarte (and his nursery as co-plaintiff) a federal judge noted that, “Neither side has provided either plaintiff’s request or the response.”

Duarte Sues Corps and Water Board for lack of due process

Because neither the CoE or the Water Board offered any sort of hearing or factual explanation for their determinations of illegal discharges into the waters of the U.S., Duarte his nursery sued them both on Oct. 10, 2013 alleging denial of due process.

Judge rules that Corps violated Duarte’s rights, lets Water Board off hook

Duarte and Duarte Nursery, Inc., sued the Corps of Engineers, the Water Board and its individual members alleging that the CDO and state Notice of Violation (NoV) deprived them of property or property rights protected by the Due Process clauses of the Fifth and Fourteenth Amendments.
The Duarte complaint says the Cease & Desist Order forced them to abandon the wheat crop which cost $50,000 to plant and that they were deprived of the rewards of the harvest. Duarte and his nursery have also been unable to plant or harvest crops in 2013-2015.
The Duarte complaint also alleges that the CDO effectively lowers the value of the land because Duarte would have to disclose the presence of the threatened government action to potential buyers.
Duarte’s lawsuit asks for declaratory judgments by the court ruling that the failure to provide hearings was unconstitutional, and an injunction against further enforcement proceedings. In addition Duarte asked the court for an injunction requiring the Corps and Water Board a to notify anyone who were notified of the CDO and NoV were sent, that they are invalid.
Finally, Duarte has asked the court for a declaratory judgment that the regulations on which the Corps based its CDO are unconstitutional.
Both the Corps and the Water Board moved to dismiss the complaints.
The judge dismissed the case against the Water Board, saying that, “The NoV does not order plaintiffs to stop their violations, but it does notify them that the cited violations subject them to civil liability, and tells them to submit a plan for mitigation of the violation.”
Premium Wine Executive News Subscribers can obtain a full copy of the court order at this link.

Judge cites “Gun to the head” & “burned plaintiffs’ nursery to the ground” in decision to continue case.

The judge rejected the Corps’ argument that a CDO is not enforceable on its own, that there are no separate penalties for violating it, and it can only be enforced through a separate enforcement action.
“The Corps argues, the CDO ‘is merely a mechanism to notify an alleged violator of the legal obligations imposed by the CWA, the Corps belief that those obligations have been violated, and of the potential consequences of such violations.’
In his order keeping the Corps as a defendant, Senior Judge Lawrence K. Karlton of the United States District Court for the Eastern District of California, wrote:

“The court cannot agree.
“Even assuming that the CDO does not impose any legal ‘obligations’ or ‘liabilities,’ the Corps’ argument underestimates the force of a command from the United States or its agency, the Army Corps of Engineers, and the injury it can cause.
“If the Corps, instead of issuing the CDO, had burned plaintiffs’ nursery to the ground in an effort to protect the waters of the U.S., plaintiffs surely would have suffered an injury, even though the Corps still would not have imposed any legal ‘obligation’ or ‘liability’ on plaintiffs. [emphasis added]
“Having been commanded by the U.S. Government to stop their activities, plaintiffs reasonably believed that they were required to stop their farming activities, and thereby lost their crop.
“Plaintiffs reasonably interpreted the CDO to be an order issued by the United States Government, not merely a suggested course of conduct, nor a request for a voluntary cessation of activities.
“The Corps asserts that plaintiffs did not have to obey the order it issued.
“If plaintiffs were free to ignore an unconditional command of the U.S. Government, or its agency, the Corps, then the CDO should have said so. [emphasis added]
“Conversely, if the CDO were simply a ‘notification’ to plaintiffs, then it should have said so, rather than clothing itself as an ‘order’ which carried with it the authority to ‘prohibit’ plaintiffs from continuing their activities.
“In essence, the government argues that although it (figuratively) held a gun to plaintiff’s head and ordered him to stop farming, plaintiff should have relied on the unstated fact that the gun could not be fired.” [Emphasis added]

Judge: Lost crop & right to farm a result of Corps’ CDO

In deciding that the issue must go to trial, the judge wrote:

“The Corps ordered plaintiffs to stop their activities, and plaintiffs complied with the order, reasonably believing that they were not free to ignore a command of the United States Government, or its agency, the Army Corps of Engineers.
“In so complying, plaintiffs lost their crop, and to the degree they are still complying, they have lost their right to farm or use their land.”

Since the judge’s order on April 24, 2014 to continue the lawsuit, the docket has been filled with various legal maneuvering and the production of massive amounts of expert studies by both sides. A deadline for discovery has been set for October 2.

Article series to continue

This series of articles will continue as we dig deeper into the expert testimony. Among the forthcoming topics:

• How does a wheat field become “waters of the United States?”
• How is plowing a field a “discharge of dredged or fill material?”
• What does the expert testimony say about confirmed harm?

NOTE: In preparing this article, Wine Industry Insight contacted the U.S. Army Corps of Engineers, attorneys at the U.S. Department of Justice, John Duarte and his attorneys.

How Was This Article Prepared?

The U.S. Army Corps of Engineers never returned phone calls or email. Attorneys at the U.S. Department of Justice shuttled my first request for info to a department PR person who never responded to my inquiry. A second email to the DoJ regarding that and expressing the need for information and the desire to include their viewpointss was never returned.

The majority of this article was written from public documents including federal court filings an expert testimony submitted by both sides. Duarte’s attorneys were helpful in pointing out specific information in the documents which were used for this article and will be used for subsequent articles to follow.

The communication, above, included identical emails to both sides asking for help in locating sections of the expert testimony that detailed specific data on environmental, ecological or hydrological harms caused by wheat field plowing. The DoJ did not respond. Information from Duarte’s legal and expert teams — which they say prove that no harm was done — will be included in future articles.

http://vip.wineindustryinsight.com/vip/datacellar/Duarte/FILE.pdf

http://wineindustryinsight.com/?p=62892