Ag Today August 16, 2017

Settlement reached in federal case of Modesto-area farmer fined $2.8 million for plowing his field


AUGUST 15, 2017 10:03 AM

Northern California farmer John Duarte spent years fighting the federal government after being fined for plowing over protected wetlands on his property. He attracted a nationwide army of conservative supporters who saw it as government overreach and hoped the Trump administration would order federal officials to back off.

But just before his trial was set to start Tuesday, Duarte settled.

Duarte agreed to pay $330,000 in fines and another $770,000 on “compensatory mitigation,” according to a settlement agreement reached shortly before proceedings were to begin in U.S. District Court in Sacramento.

A judge already had ruled that Duarte broke the law; the trial was going to establish the penalties. The government had sought a $2.8 million fine and tens of millions of dollars in mitigation expenses.

Duarte said he settled reluctantly but feared a big penalty would jeopardize his family and his main business, a Modesto-area nursery that employs hundreds of workers.

“Given the risks posed by further trial on the government’s request for up to $45 million in penalties … this was the best action I could take to protect those for whom I am responsible,” he said in a statement released by the Pacific Legal Foundation in Sacramento, a nonprofit law firm that takes up conservative causes.

Duarte became a cause célèbre among property-rights activists, farmers and other conservatives after running afoul of environmental laws in 2012. A judge ruled in 2016 that he violated the “Waters of the United States” provision of the Clean Water Act by “deep ripping” a Tehama County field without a permit. Duarte said he just planted winter wheat, as the previous property owners had done. But government officials said the field hadn’t been plowed in more than two decades, and he needed a permit before tearing up seasonal wetlands known as vernal pools that serve as habitat for plants and animals.

Duarte and his allies, including the leader of the American Farm Bureau and Republican members of Congress, called it a classic case of government meddling with agriculture. The Trump administration already has moved to relax the WOTUS rules that the Obama administration had sought to expand, and the congressmen were pressing Attorney General Jeff Sessions to drop the case against Duarte altogether.

Despite settling for far less than they were seeking, federal officials said the agreement shows the law must be obeyed.

“Today’s agreement affirms the Department of Justice’s commitment to the rule of law, results in meaningful environmental restoration, and brings to an end protracted litigation,” said Jeffrey Wood, acting assistant attorney general, in a prepared statement.

Farm advocates said the rules covering agriculture and the environment remain muddled. “We’re still looking at the same kinds of risks going forward that (Duarte) was facing,” said Mike Wade of the California Farm Water Coalition. “It would have been nice knowing … where we are in terms of federal regulatory oversight.”

Wade, however, said he doesn’t fault Duarte for settling. “There comes a point in time when you take the practical route as a businessman,” he said.

Environmentalists said Duarte’s case illustrated the perils of President Donald Trump’s efforts to roll back the Obama-era rules that expanded what types of wetlands are protected under federal law.

“This case definitely shows that we need things like the Clean Water Rule to make sure our water is protected and to make sure everybody knows what is covered and what isn’t covered,” said Michael Kelly of Clean Water Action, a Washington, D.C.-based environmental group.

The WOTUS rules are designed to protect navigable rivers, streams and other waterways. In recent years, the government had been expanding the rules to include wetlands that feed into rivers, to the growing outrage of farmers.

The rules exempt ordinary farming activities that are considered “established and ongoing,” but U.S. District Judge Kimberly Mueller ruled that Duarte’s actions weren’t allowed because the Tehama field had been idle for more than 20 years.

Environmental Protection Agency chief Scott Pruitt was asked about the Duarte case at his Senate confirmation hearing in January and Pruitt signaled that he was sympathetic to Duarte’s cause. Duarte’s lawyers had sought to have Pruitt testify at the trial. U.S. District judge Kimberly Mueller overruled that. An EPA spokeswoman referred inquiries to the Justice Department.

Duarte had insisted he did nothing wrong and his plowing activities caused no harm to the wetlands on the Tehama property.

The settlement forbids Duarte from dredging or farming the 44 acres that had been disturbed, with the exception of “moderate non-irrigated cattle grazing,” for 10 years. In addition to the $330,000 fine, Duarte will spend $770,000 on “compensatory mitigation,” such as purchasing wetlands credits. The money will be spent restoring wetlands on Sacramento Valley properties other than his.