Farmer seeks settlement in Clean Water Act case

An attorney for farmer John Duarte says he has been in talks with senior U.S. Justice Department officials about resolving a case in which the government claims Duarte deep-ripped wetlands to plant wheat and is seeking $2.8 million in fines.
Tim Hearden

Capital Press

Published on June 19, 2017 2:59PM

Pacific Legal Foundation attorney Tony Francois, left, stands with John Duarte, president of Duarte Nursery. A federal lawsuit to enforce $2.8 million in fines imposed on Duarte for work he did in a wheat field in Tehama County, Calif., is set to go to trial in August.

Courtesy Pacific Legal Foundation

Pacific Legal Foundation attorney Tony Francois, left, stands with John Duarte, president of Duarte Nursery. A federal lawsuit to enforce $2.8 million in fines imposed on Duarte for work he did in a wheat field in Tehama County, Calif., is set to go to trial in August.

SACRAMENTO — A California farmer is in settlement talks with officials of President Donald Trump’s administration as a lawsuit to enforce $2.8 million in fines against him is set to go to trial in August, his attorney said.

The U.S. Army Corps of Engineers claims Modesto, Calif., nursery owner John Duarte illegally filled wetlands while planting a wheat field in Tehama County, Calif. The agency ordered him to stop work in the field in 2013.

In a pretrial hearing June 16, U.S. District Judge Kimberly Mueller set a trial date of Aug. 15, denying — at least for now — Duarte’s motion to move it to next spring so that the judge could visit his wheat farm at the same time of year as it was inspected, said Tony Francois, senior attorney for Pacific Legal Foundation, which is representing Duarte.

In the meantime, Duarte’s attorneys have had meetings with senior Justice Department officials to urge them to intervene, Francois said.

“We’re still hoping to hear whether and to what extent they are willing to either accept our view of the case or … agree that this $2.8 million penalty as well as mitigation is simply unjustifiable and instead agree to resolve the penalty for something much closer to nominal,” Francois told the Capital Press.

Justice Department officials did not immediately respond to Capital Press requests for comment.

The talks come as Duarte has asked Mueller to reconsider her ruling last year that he should have obtained a Clean Water Act permit to run shanks through wetlands at a depth of 4 to 6 inches, creating furrows before planting wheat in a 450-acre pasture.

Because the judge hasn’t yet determined a penalty for Duarte, the litigation isn’t finished, so he couldn’t appeal to the 9th Circuit Court of Appeals without her permission.

Duarte has maintained he hired a consultant in 2012 to identify wetlands on the property off Paskenta Road south of Red Bluff and that no plowing took place in those areas.

The PLF contends that areas where plowing occurred do not meet tests the U.S. Supreme Court has set for wetlands subject to Clean Water Act oversight. Francois has argued the Corps relied on a wetlands map created in 1994, when the legal definition of a wetland was much more widely applied.

As a result of the order to stop, Duarte Nursery lost the $50,000 it cost to plant the wheat and has lost the ability to farm the property, Francois said. The PLF filed suit on Duarte’s behalf in 2013, disputing the Corps’ allegations and arguing the government violated the business’ Fifth Amendment due-process right in not allowing it to answer the charge. The Corps responded with a counterclaim alleging the Clean Water Act violation.

The Corps claims the tillage operation on Duarte’s property doesn’t qualify as plowing because it “relocated earthen material into ridges,” unlawfully raising the elevation of the soil in the wetlands with “fill material.”

The PLF’s hopes for a resolution were raised in February, when Trump issued an executive order directing U.S. Environmental Protection Agency administrator Scott Pruitt to review the “Waters of the United States” rule and ask Attorney General Jeff Sessions to consider the review as it pursues litigation initiated under then-President Barack Obama.

In May, House Agriculture Committee chairman Michael Conaway and House Judiciary Committee chairman Bob Goodlatte sent a letter to Sessions arguing that Duarte’s field work should qualify as “normal” farming practices under a Clean Water Act exemption previously passed by Congress.

In the pre-trial hearing, Mueller tentatively denied Francois’ request to have Pruitt testify, the attorney said.

“We think that this is the unusual case where a senior official’s testimony would be helpful to the court in deciding how to assess whether any real penalty” should be imposed, Francois said.

As it stands now, in addition to the $2.8 million in fines, the government wants him to purchase up to 132 acres of wetland mitigation credits, which could cost tens of millions of dollars, Francois said.

“One of the things the government said … is the reason they want mitigation credits is that’s what the Corps of Engineers would require any farmer to get as part of a permit to plow their property,” the attorney said. “That’s just a complete misreading of the Clean Water Act.

“We do think it would be a wise move for the administration to look at the legal issues and the facts of this case and its implications, to reassess what is really a holdover prosecution from the last administration, and frankly abandon it,” he said. “We think that’s what should have been done in the first place.”


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