Congress weighs in on farmer facing $2.8 million fine
Damon Arthur , Record Searchlight Published 5:37 p.m. PT May 28, 2017 | Updated 6:18 p.m. PT May 28, 2017
Congress has weighed in on a case in which a farmer faces a $2.8 million fine for allegedly plowing wetlands in his Tehama County field.
Chairmen of the House judiciary and agriculture committees sent a letter last week to Attorney General Jeff Sessions asking for clarification on the department’s reasoning behind the case against John Duarte Nursery.
“The prosecution of Mr. Duarte raises concerns that the Congressional intent behind the farming exemptions in the statute is misunderstood,” the letter says.
U.S. Rep. Doug LaMalfa, who represents Tehama County, said he asked for the letter to be sent because he was worried about the case setting a new precedent that would put farmers at risk of high fines.
“Unfortunately, this is no laughing matter for John Duarte and the many other farmers who face similar fines and penalties around the country,” LaMalfa said in a statement.
“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, LaMalfa said.
The letter from the two chairmen, judiciary’s Bob Goodlatte and agriculture’s K. Michael Conaway, questioned the reasoning behind the case against Duarte.
“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,” the letter says.
A federal judge ruled last year that John Duarte violated the Clean Water Act when portions of wetlands on his 450 acres south of Red Bluff were plowed in 2012. He faces trial this summer in Sacramento to determine a fine in the case.
The property contains numerous swales and vernal pools, some of which are connected to nearby creeks.
The U.S. Attorney’s Office is asking the judge to approve $2.8 million in civil penalties against Duarte and his business, which is based near Modesto.
Farmers plowing their fields are specifically exempt from the Clean Water Act rules that forbid discharging material into U.S. waters, said Duarte’s lawyer, Anthony Francois, an attorney for the Pacific Legal Foundation.
However, according court documents filed by the U.S. Attorney’s Office in Sacramento, the tractor was not plowing the field. Rather, it was equipped with a ripper, with seven 36-inch ripper shanks that dug an average of 10 inches deep into the soil.
Also, the U.S. Attorney alleges, Duarte ripped portions of the property that included wetland areas.
The ripping deposited dirt into wetlands and streams on the property, in violation of the Clean Water Act, according to documents filed by the U.S. Attorney.
The letter from Congress also asks several questions to determine whether “legislation is required to correct potential misinterpretations of the law.”
- What does the Department of Justice consider when deciding to prosecute a violation of the Clean Water Act?
- Would the DOJ consider reduced penalties when the violation is based on a strained or novel interpretation of the law?
- Has the DOJ considered entering into contingent settlements pending an appeal of a CWA case?
- “Has DOJ ever declined on appeal to advance CWA arguments that were successful at the district court level? If so, please describe the circumstances of those cases.
