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Feds’ shutdown of a California farm threatens all farmers’ rights

By Tony Francois

For the Capital Press

Pacific Legal Foundation lawyer Tony Francois discusses a keystone case being heard in California in which a farmer has allegedly been denied his due process right.

Every Spring, farmers plant; every Fall, they harvest. In so doing, they make their land productive and feed the nation. So important is the bedrock role of farming in our culture that even Congress, when it established the onerous wetland permitting requirements of the federal Clean Water Act, expressly and clearly exempted farming. The reason is clear: a nation that would require its farmers to spend, on average, two years and $270,000 to get a federal permit to plant and harvest crops would not long be able to feed itself.

But despite that clear exemption, and without a hearing, the Army Corps of Engineers has shut down a farm in Northern California’s Tehama County, on false charges that it should have applied for a wetlands permit.

In late 2012, Duarte Nursery planted a winter wheat crop on farm ground south of Red Bluff. Then, a year ago, with no prior notice, the Army Corps issued a cease and desist order to Duarte Nursery and its president, John Duarte, finding them both in violation of the Clean Water Act for farming without a wetlands permit, and ordering them to halt further farming.

The stop order is based on the Army Corps’ false assertion that Duarte deep-ripped the property, which in California requires a Corps permit. But the farm has not been deep-ripped, and if the Corps had provided Duarte a hearing before shutting the farm down, it could have learned that fact and there likely would not have been a stop order.

But now the Corps says that Duarte is obliged to live with the error, and leave the property fallow. According to the federal bureaucrats, the only way to lift the stop order now is for Duarte to go through the long and costly process of applying for a permit (which it does not need), so that it can then legally contest the need for the permit. As a not-so-helpful alternative, Duarte can wait for the Corps to take further enforcement action (for something that never happened), which could give Duarte an opportunity to contest the need for a permit.

If it sounds like the Corps forgot something, it did. In America, we call it due process. Under our Constitution, the government cannot deprive you of your property or liberty without first giving you a hearing. One reason for that, among many, is that bureaucrats sometimes make mistakes. Hearings allow property owners to provide information that can correct the government’s mistakes before regulators issue orders, property is taken, and the damage is done.

Duarte is suing the Army Corps in federal court in Sacramento for violating its due process rights and to get the stop order set aside. The first hearing in the case is Feb. 10, on the federal government’s attempt to get the case dismissed — which would leave Duarte in a regulatory maze with no exit. Farmers throughout the West, and indeed, nationwide, will want to watch this case; if a federal bureaucracy can shut down one farm on a false basis without a hearing, it can do it to all of them.

Tony Francois is an attorney with Pacific Legal Foundation and represents Duarte Nursery and its president, John Duarte, in challenging the federal government’s denial of their due process rights.



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