When President Trump signed an executive order in February to review President Obama’s “Waters of the United States” rule, Hughson farmer John Duarte finally felt like the government’s case against him could be, well, plowed under.
I wrote about Duarte in January 2016 as his legal fight with the U.S. Army Corps of Engineers intensified and headed into federal court. But the feds won that round. A judge in June 2016 sided with the Army Corps, and now the case will proceed to the penalty phase in August. The government wants Duarte to pay $2.8 million in fines and up to $32 million in wetlands mitigation.
“That is ruinous,” Duarte, owner of the giant Duarte Nursery in Hughson, told me Wednesday. “That threatens our family and all the jobs we have here in Stanislaus County.”
And what was this heinous crime?
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“Planting wheat in a wheat field,” Duarte said. “It was farmed for wheat many times before, and the permit they wanted me to get had never been issued to a farmer before.”
Here’s what got him to this point: Duarte in 2012 bought 450 acres of land in Tehama County and hired someone to turn the soil with the intention getting one crop of winter wheat before planting an almond orchard.
Farmers are exempt from needing permits to plow their lands under the Clean Water Act. But the Waters of the United States (WOTUS) rule, implemented by Obama in 2015, prohibits plowing below the clay beneath the topsoil that keeps vernal pools, which count as wetlands, from draining. Duarte’s land does, indeed, include some vernal pools. He said the field was plowed only from 4 to 7 inches in depth, and maybe a foot deep in one place. And farmers can till land with vernal pools as long as they don’t destroy the pool’s existence, he said.
An Army Corps inspector saw the plowing, told Duarte to stop and followed up with a cease-and-desist order. The inspector said Duarte’s hired hand was “deep ripping,” going three feet deep in some places, but refused to provide him documentation to support that claim. Nor did the government provide Duarte with the chance to explain himself at a hearing, and refused to give him documentation that led them to make the decree. And the feds said he failed to get a permit to turn the soil even though the Clean Water Act said he didn’t need one. The land had been farmed for decades, but left fallow since the 1970s, when the price of wheat fell to the point where it wasn’t profitable. The government decided it no longer qualified as active farmland and claimed Duarte needed a permit to farm it as a wetland.
Duarte sued the government in 2014, the Environmental Protection Agency fired back, and they’ve been in court ever since. He felt he would prevail, but then U.S. District Court Judge Kimberly J. Mueller issued a summary judgment in the Army Corps’ favor last year.
The hearing scheduled for August won’t overturn her decision. But how the government handles his case going forward could change, he said.
“The Trump administration made it very clear that the WOTUS rule was dead under his administration,” Duarte told California Ag Today in a podcast shortly after Trump issued the executive order. “Our prosecution is under the old WOTUS rule, under the old WOTUS interpretation.”
Which means the Justice Department might opt to drop the case entirely or settle for lesser amounts. If it’s the latter, Duarte plans take the case to a higher court in an attempt to prevent more of these same kinds of lawsuits against farmers in the future. Virtually every farmer in the country could face similar litigation by the government, he said, equating it to business owners getting hit with lawsuits filed under the Americans with Disabilities Act by attorneys who threaten litigation to get quick settlements.
Duarte said he has received support from the American and California farm bureaus, but surprisingly little from other farmers who stand to face the same kinds of claims by the government. He told me a year ago he expected to spend $1 million in legal fees to fight the feds. The farm bureaus established Duarte Defense Funds and there is a GoFundMe account as well.
“But they have yet to raise $100,000 between them,” Duarte said. Every farmer in America, he said, could be “shaken down by government agencies.”
And for high crimes like planting wheat in a wheat field without a permit they aren’t supposed to need in the first place.