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Feds sued over shutdown order at wheat farm

Tim Hearden

Capital Press

The Pacific Legal Foundation is suing the U.S. Army Corps of Engineers for ordering a nursery to stop farming a wheat field in Tehama County, Calif., because of concerns over wetlands. Duarte Nursery lost the $50,000 it cost to plant the field and lost the ability to farm it this season.

RED BLUFF, Calif. — A property rights group is suing the U.S. Army Corps of Engineers on behalf of a family-owned nursery that was ordered to stop farming a wheat field south of here without being given a hearing.

The Pacific Legal Foundation filed the suit Oct. 10 in U.S. District Court in Sacramento on behalf of Duarte Nursery and its president, John Duarte, who say they were deprived of a crop this year.

In February, the Corps issued a cease-and-desist letter and a notice of violation that accused Duarte of illegally filling wetlands. While Duarte disputes the accusation, the PLF also argues the government violated the business’ Fifth Amendment due-process right in not allowing it to answer the charge.

PLF attorney Tony Francois called the stop order an example of “dictatorial behavior” by federal officials, and said the suit will enable the Duarte family to “get their day in court.”

“They’re entitled, just like anyone else who’s accused by the government of breaking the law, to an opportunity to present their case and set the record straight,” Francois told the Capital Press. “In this case it’s clear that they didn’t do what the Corps said they did.”

A Corps spokesman in Washington, D.C., did not immediately return a call and email seeking comment.

The suit also names members of the Central Valley Regional Water Quality Control Board, which also claimed Duarte violated the Clean Water Act, Francois said. State water board spokesman George Kostyrko said the agency could not comment on the litigation.

The PLF asserts the agencies should have advised Duarte before taking an enforcement action and given him a reasonable opportunity to “set the record straight.”

Founded in 1989 near Modesto, Calif., Duarte Nursery and its subsidiary, Dry Creek Farms, produces 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.

The organization contends that areas where plowing occurred did not meet tests the U.S. Supreme Court has set for wetlands subject to Clean Water Act oversight. Francois said 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 enforcement action, Duarte Nursery lost the $50,000 it cost to plant the wheat and has lost the ability to farm its property, Francois said. In a statement, John Duarte said the family was “blindsided” by the stop order.

“We have always been careful to conserve and protect the land, and the Corps is wrong to suggest we’ve harmed any wetlands,” he said. “But beyond that, the Corps is wrong to deny us our constitutional right to answer their allegations in a hearing prior to enforcement.”

Francois asserts the stop order is part of a larger pattern of federal officials failing to recognize that Congress exempted normal farming practices from requiring wetlands permits from the Corps.

“All the Duarte Nursery did was use a tractor to plow and plant a winter wheat field,” he said. “So if the Corps is going to now be going around issuing violation notices basically for farming, this is a serious problem. This is something Congress has told the Corps they have no authority over.”

Online

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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