The case goes back to 2012 where John Duarte, who owns the Duarte Nursery near Modesto, California bought 450 acres south of Red Bluff at Paskenta Road and Dusty Way west of Interstate 5.
Because the property has numerous swales and wetlands, Duarte hired a consulting firm to map out areas on the property that were not to be plowed because they were part of the drainage for Coyote and Oat creeks and were considered “waters of the United States.” says Anthony Francois, an attorney for the Pacific Legal Foundation. Francois conceded that some of the wetlands were plowed, but they were not significantly damaged. He also said the ground was plowed to a depth of 4 inches to 7 inches. The Core of Engineers did not claim Duarte violated the Endangered Species Act by destroying fairy shrimp or their habitat, according to Francois.
The wheat was planted but not harvested because in February of 2013 the Army Corps of Engineers and the California Central Valley Regional Water Quality Control Board issued orders to stop work at the site because Duarte had violated the Clean Water Act by not obtaining a permit to discharge dredged or fill material into seasonal wetlands considered waters of the United States.
Duarte then sued the Army Corps and the state, alleging they violated his constitutional right to due process under the law by issuing the cease and desist orders without a hearing. The U.S. Attorney’s Office, however, counter-sued Duarte Nursery to enforce the Clean Water Act violation. The government also said that discharge from Duarte Nursery goes into “the creeks that flow into the Sacramento River, a home to endangered salmon.” Farmers plowing their fields are specifically exempt from the Clean Water Act rules forbidding discharging material into U.S. waters, Francois countered.
In addition to civil penalties, the U.S. Attorney’s office is also asking the judge to order Duarte to repair the damage to the wetlands, including smoothing out the soil and replanting native plants in the wetlands. He (Duarte) may also be required to purchase other wetlands to compensate for the alleged damage to the property south of Red Bluff, according to the U.S. Attorney’s proposed penalties. Francois says he “thought the proposed penalties were unfair because his client thought the plowing exemption allowed him to till the soil.”
“A plain reading of the rules says you don’t need a permit to do what he did,” and “How do you impose a multi-million penalty on someone for thinking the law says what it says,” Francois concludes.
Congressman Doug LaMalfa who represents the 1st Congressional District where John Duarte resides said on his Facebook page back on May 23rd “we are working to correct this vast overreach.”
UPDATE: Following the posting of this article Attorney Anthony Francois of Pacific Legal Foundation who is representing John Duarte contacted The Miller News Service in regards to this article. Francois said “through Congressman LaMalfa’s efforts the House Committee on Agriculture and House Committee on Judiciary have sent a joint letter to U.S. Attorney General Jeff Sessions that says in part “The prosecution of Mr. Duarte raises concerns that the Congressional intent behind the farming exemptions in the statue is misunderstood. Specifically, it is the Agriculture Committee’s view that even occasional farm activities, including grazing, qualify as “normal” farming under the statutory exemption, and also are part of an established operation for purposes of the exemption. Further, it is the Committee’s view that the activity at issue, in this case, constitute plowing for the purposes of the exemption. See PDF of letter: Joint Letter to U.S. Attorney General Jeff Sessions on the Duarte Nursery Case
The Miller News Service contacted the Department of Justice for comment on the Duarte Nursery Case on Friday, May 26th; an official representing the DOJ responded Tuesday, May 29th saying “DOJ declines to comment.”
Francois also provided The Miller News Service with current Plowing Regulations which he says “have not been updated since the 1970’s” the regulation address’s Duarte’s case “Plowing means all forms of primary tillage” “not include” and “Plowing as described above will never involve a discharge of dredged or fill material”. See Highlighted Page 417 of Plowing Regulation
We also received a statement from Congress Doug LaMalfa’s office regarding the Duarte Case and the letter to Attorney General Jeff Sessions which says “I’ve met with Mr. Duarte and personally visited the farmland in question. To classify his five-inch furrows as ‘miniature mountain ranges’ is laughable. Unfortunately, this is no laughing matter for John Duarte and the many other farmers who face similar fines and penalties around the country. Under the previous Administration, the EPA severely overstepped their authority and their regulations are preventing farmers from simply plowing their fields and using their land. If WOTUS goes into full effect, this will be the new normal. I urged the Chairmen to take action, and I appreciate their swift response in doing so. The Administration needs to look into this matter and help protect property owners from these excessive regulations.”
Francois says there will be a Federal Court case on August 14th, 2017 in Sacramento, CA. regarding Duarte Nursery.
Keep reading The Miller News Service for updates on the developing story.
Source: Damon Record Searchlight
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