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Judge rules PLF’s lawsuit over wheat field can proceed

Tim Hearden
A judge denied the U.S. Army Corps of Engineers' motion to dismiss the Pacific Legal Foundation's lawsuit on behalf of a nursery which the agency ordered to stop farming a wheat field in Tehama County, Calif.

Capital Press

RED BLUFF, Calif. — A federal judge will let a lawsuit proceed against the U.S. Army Corps of Engineers after the agency ordered a nursery last year not to farm a wheat field just south of here.

U.S. District Court senior Judge Lawrence Karlton pointedly denied the agency’s motion to dismiss the suit filed by the Pacific Legal Foundation, a property rights group, on the behalf of Modesto, Calif.-based Duarte Nursery and its president, John Duarte.

The Corps issued a cease-and-desist letter in February 2013 that accused Duarte of illegally filling wetlands. While Duarte disputes the accusation, the PLF also argued in its suit in Sacramento’s federal court that the government violated the business’ Fifth Amendment right in not allowing it to answer the charge.

In his April 23 ruling, Karlton rejected the Corps’ argument that Duarte had no basis to sue because no enforcement actions had yet been taken against the nursery.

“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,” Karlton wrote. “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.”

Karlton did excuse the Central Valley Regional Water Quality Control Board as a co-defendant in the lawsuit, arguing it wasn’t the board’s notice of violation that caused Duarte to stop farming and that they had taken no other action against the nursery.

Nonetheless, PLF attorney Tony Francois said he was happy with the ruling.

“The fundamental takeaway is that we’re really pleased the judge made clear that environmental enforcement is not exempted from constitutional due process requirements,” Francois said.

“We’re not approaching this as a technical foul or a technicality,” he added. “We’re not aware of any Clean Water Act violations that … have taken place on the property. It’s not just that they didn’t get a hearing, it’s that a hearing would have set the Corps straight on the facts.”

Corps spokeswoman Torrie McAllister said the agency doesn’t comment on active litigation.

Founded in 1989, Duarte Nursery and its subsidiary, Dry Creek Farms, produce rootstock for a variety of agricultural products, including prunes, almonds, pistachios, walnuts and citrus, according to its website.

The PLF maintains a federal hearing before a shutdown order could have shown that Duarte hired a consultant to identify wetlands on its 430-acre property on Paskenta Road in rural Tehama County and that no plowing took place in those areas.

As a result of the enforcement action, Duarte Nursery lost the $50,000 it cost to plant the wheat and has lost the ability to farm the property, Francois said. He does not know how much revenue the business has lost from not being able to produce wheat from the field, he said.

Now that the case is going forward, the Corps has until May 7 to answer the complaint, Francois said. A status conference will be held in June, when a schedule for trial will likely be set, he said.

Online

Ruling by U.S. District Court senior judge Lawrence Karlton: http://blog.pacificlegal.org/wp/wp-content/uploads/2014/02/Order-on-COE-Motions-Duarte.pdf

Pacific Legal Foundation: http://www.pacificlegal.org

Duarte Nursery: http://www.duartenursery.com

U.S. Army Corps of Engineers: http://www.usace.army.mil/Home.aspx



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