Jeff Jardine

Hughson’s Duarte, feds fighting it out in court over farmland

John Duarte, here at Duarte Nursery in Hughson on May, 7, 2015, is embroiled in lawsuits against and by the federal government over use of land he owns in Tehama County.
John Duarte, here at Duarte Nursery in Hughson on May, 7, 2015, is embroiled in lawsuits against and by the federal government over use of land he owns in Tehama County. Modesto Bee file

You’re a farmer embroiled in a dispute with the federal government over land use.

Do you gun-up, seize a wildlife refuge and ask for snacks? Or do you take the government to court because that is the right and sane way to handle it?

John Duarte, owner of Duarte Nursery in Hughson, intelligently chose the latter and is headed back to federal court in March.

Duarte Nursery is a state-of-the-art facility that draws farmers and scientists from around the world. It produces grapevines, and fruit and nut trees known worldwide. But that doesn’t exempt him from the wrath of what California Farm Bureau President Paul Wenger calls “overzealous regulators who utilize their authority and their power to put down growers who maybe want to speak up and disagree with their viewpoints.”

When Duarte became one of those growers by filing a lawsuit against the government a couple of years ago, he found himself knee-deep in legal retribution from the Environmental Protection Agency. He enlisted the help of the Pacific Legal Foundation, a conservative group that protects the rights of private property owners.

“Once Duarte brought that lawsuit, the (U.S. Army Corps of Engineers) elevated what we consider to be a completely meritless bureaucratic enforcement investigation,” attorney Tony Francois said in a video interview.

Now the story of Duarte’s legal battle with the feds is gaining traction after it surfaced on agriculture websites including AgNetWest.com and ProtecttheHarvest.com, and in a story in Friday’s Los Angeles Times.

The background, per Duarte and the various publications: In 2012, he bought 450 acres of land in Tehama County, a county that includes Red Bluff, and hired someone to till the ground. He planned to get a winter’s worth of wheat before converting it to a walnut orchard.

The Waters of the United States rule prohibits plowing below the clay underneath the topsoil that keeps vernal pools, which count as wetlands, from draining, but also it supposedly exempts farmers from needing permits.

Duarte’s land includes some vernal pools. He said the hired hand plowed only 4 to 7 inches – “maybe a foot deep” in one place – and for the most part avoided the vernal pools. But when a U.S. Army Corps of Engineers inspector saw the plowing, he told Duarte to stop and the government sent a cease-and-desist order to that effect. Duarte received no hearing, nor would the feds provide any documentation of the findings that led to their order.

He sued the government for denying his due process. The government filed a motion to dismiss. The judge denied their motion. They filed another and it was denied as well. Soon thereafter, the government filed a lawsuit charging him with the destruction of wetlands. When he finally did receive discovery, the inspector claimed the ground had been ripped 3 feet deep. No way, Duarte said.

If fact, in trying to settle the issue, he allowed the government to send a team of “experts,” Duarte called them, to his property. They brought a dozen backhoes and dug roughly 20 pits, doing far more damage to the land than anything he was accused of doing, Duarte told me.

The feds also contended that because the land had not been farmed for many years before he bought it, it had lost its status as farmland and reverted to wetlands habitat.

“They grew wheat there,” he said, referring to previous farming operations in the 1970s and well into the 1980s. “But the price of wheat fell to where it wasn’t profitable. Do they want us to farm in a glut?”

Around 2008, wheat prices began to rebound, and “the price merited it again,” Duarte said.

“The corps and the EPA aren’t trying to micromanage. They are trying to stop farmers from farming their fields. They try to turn our farmland into habitat preservation.”

According to the Times, Duarte expects to spend $1 million to fight the government. And he’s doing it the right way, with money, lawyers and paperwork.

No need for guns, bluster or snacks.

“We’ve been congenial with the government attorneys and field agents,” Duarte said. “We’re not taking it to any level of personal acrimony, other than in court.”

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