Courtesy of Pacific Legal Foundation
SACRAMENTO — Agriculture advocates say they are mildly disappointed by the $1.1 million legal settlement farmer John Duarte reached with the federal government over his alleged violation of the Clean Water Act.
Under the agreement, which is pending a judge’s approval, Duarte would admit no liability but pay the government $330,000 in civil penalties, purchase $770,000 worth of vernal pool mitigation credits, and do additional work on his property in Tehama County, his attorneys said.
The U.S. Army Corps of Engineers had sought $2.8 millions in fines as well as mitigation credits after accusing Duarte of plowing through wetlands while planting a wheat field on his property in Tehama County, Calif., in 2013.
Paul Wenger, president of the California Farm Bureau Federation, said he understands Duarte’s desire not to risk losing millions more by continuing to fight. But he said the agreement just illustrates that the government has too much leverage when they’re backed by sympathetic courts.
“It’s unfortunate that we see this time and time again with a number of cases,” Wenger told the Capital Press. “The government will ask for, and the court will say, they’re going to put these huge penalties out there and you could be tied up in court for 10 or 12 years. ... It’s unfortunate.
“It’s no longer a government of the people, by the people,” he said. “It’s almost that the government agencies are above reproach.”
Rep. Doug LaMalfa, R-Calif., a rice farmer and House Agriculture Committee member, said he’s “bitterly disappointed” by the settlement, arguing it means land that is left fallow for too long essentially belongs to the government.
LaMalfa, whose district includes Duarte’s land, had urged Attorney General Jeff Sessions to “call off the dogs.”
Duarte, who also owns Duarte Nursery in Modesto, Calif., said in a statement that agreeing to the terms “was a difficult decision” that he reached reluctantly.
“But given the risks posed by further trial on the government’s request for up to $45 million in penalties, and the catastrophic impact that any significant fraction of that would have ... this was the best action I could take to protect those for whom I am responsible,” he said.
Jeffrey Wood, an acting assistant attorney general for the U.S. Justice Department’s Environment and Natural Resources Division, said in a statement that the agreement “serves the public interest in enforcement of the Clean Water Act and deterrent of future violations.”
Political pressure had been mounting on President Donald Trump’s administration to resolve the case, which was set to go to trial to enforce $2.8 million in fines and up to tens of millions of dollars more in mitigation credits sought by the Corps.
In 2013, the Corps notified Duarte that he had “filled” wetlands in his field south of Red Bluff, Calif., by plowing it and ordered him to stop work.
The Pacific Legal Foundation filed suit on Duarte’s behalf in 2013, disputing the Corps’ allegations and arguing the government violated his Fifth Amendment due-process right by not allowing him to answer the charge in a hearing. The Corps responded with a counterclaim alleging the Clean Water Act violation.
Last year, U.S. District Judge Kimberly Mueller sided with the government, ruling that Duarte should have obtained a permit to run shanks through wetlands at a depth of 4 to 6 inches, creating furrows.
In May, House Agriculture Committee Chairman Michael Conaway and House Judiciary Committee chairman Bob Goodlatte sent a letter to Attorney General Jeff Sessions arguing that Duarte’s field work should qualify as “normal” farming practices under the Clean Water Act exemption.
Duarte had an ally in U.S. Agriculture Secretary Sonny Perdue, who last week told the Capital Press he planned to talk to Sessions and Environmental Protection Agency administrator Scott Pruitt about the government’s continued pursuit of the case.
“I’m hoping that the U.S. Justice Department will see fit to hold off on that until a better definition of Waters of the U.S. appears,” Perdue said.
The agreement announced Aug. 15 follows several months of talks involving Tony Francois, a PLF attorney handling the case, and Justice Department officials.
Duarte would have preferred to see the case through and appeal the court’s liability ruling to try to set a precedent that was favorable to growers, Francois said.
Duarte and the PLF remain concerned about the case’s implications for legal liability for farming without federal permission, which they believe undermine protections the Clean Water Act affords to normal farming practices, Francois said.
In a recent pre-trial brief, U.S. attorneys said the case would not be used as a pretext for federal prosecution of growers who engage in normal plowing on their farms. No federal dredge-or-fill permit is required for plowing as long as it is not for the purpose of converting federally protected waters to new uses, the government contended.
Landowners should check with the Corps about permit requirements, wetland delineations and other aspects before doing activities that could be regulated under the Clean Water Act, said Michael Jewell, chief of the regulatory division for the Corps’ Sacramento District.
The U.S. District Court will hold a hearing in about 45 days to approve the settlement, which is subject to a 30-day comment period. The consent decree can be viewed at https://www.justice.gov/enrd/consent-decrees .