Ag Today July 26, 2017

California farmer tries new strategy in fight with federal government over $2.8 million plowing fine

By Dale Kasler and Ryan Sabalow, Sacramento Bee

Northern California farmer John Duarte, facing millions of dollars in fines for plowing a Sacramento Valley wheat field, previously sought help from President Donald Trump’s attorney general and EPA chief to get the government off his back.

Now Duarte is making an 11th-hour bid for a dismissal of the federal government’s high-profile case against him.

In papers filed over the weekend, Duarte’s lawyers said the case should be tossed out because they say the Army Corps of Engineers didn’t have the authority to sue him in the first place. Only the U.S. Environmental Protection Agency can bring such a case, and the EPA chose not to do so, the lawyers said.

“This prosecution should have been derailed long ago for a whole host of reasons,” Duarte said Tuesday.

The filing comes barely three weeks before the case is scheduled to come to trial in U.S. District Court in Sacramento. A federal judge has already ruled that Duarte violated the federal Clean Water Act by plowing his Tehama County wheat field without a permit. The trial will be held to decide on the government’s demand that Duarte pay a $2.8 million fine and pay millions in additional penalties as compensation for the damage allegedly done to vernal pools that served as seasonal habitat for plants and animals.

Duarte, who owns a major nursery near Modesto, has been fighting with the government since 2012 over his plowing activities in Tehama, but his lawyer Anthony François said the legal team only recently discovered the issue of the Army Corps’ authority.

“This is basically a late-breaking issue,” said François, of the Pacific Legal Foundation, a conservative nonprofit law firm in Sacramento. “It’s one that we hadn’t spotted before.”

Mark Abueg, a spokesman for the Justice Department in Washington, declined comment.

The Duarte case has already become a national issue for farmers and property-rights activists who accuse the government of overreach. In May, members of Congress asked Attorney General Jeff Sessions to drop the case. In June, the judge hearing the case denied Duarte’s request to call Scott Pruitt, administrator of the Environmental Protection Agency, to testify for him at next month’s trial. Pruitt signaled that he was sympathetic to Duarte’s cause when the issue came up at his Senate confirmation hearing in January.

Just last week, the president of the American Farm Bureau Federation, Zippy Duvall, urged Agriculture Secretary Sonny Perdue to “be a strong advocate at the cabinet level” on Duarte’s behalf. The California Farm Bureau has helped raise $100,000 for Duarte’s defense, and a GoFundMe account has raised nearly $50,000, according to Duarte.

The case revolves around a controversial provision of the Clean Water Act known as “Waters of the United States,” or WOTUS. The rule is supposed to protect “navigable” rivers and streams, but the government has been expanding the rule to cover wetlands that feed into rivers. Former President Barack Obama expanded the rule in 2015 to cover more territory, although the Trump administration began a formal process last month to roll back Obama’s decision.

“We are taking significant action to return power to the states and provide regulatory certainty to our nation’s farmers and businesses,” Pruitt said in June.

The WOTUS rule exempts ordinary farming activities that are “established and ongoing.” However, U.S. District Judge Kimberly Mueller ruled last year that Duarte violated the rules because the Tehama County property hadn’t been farmed in 24 years.

The Obama administration’s WOTUS expansion sought to limit pollution running into larger waterways and to protect critical wetland habitat. Such habitat includes vernal pools, seasonal wetlands that fill with wildflowers in the spring and provide habitat for a wide variety of animals and plants. Nearly all of California’s traditional wetlands have been plowed under for agriculture and urban development.

In court documents, Duarte acknowledges vernal pools were on his property, but insisted his furrows dug by the plowing were small enough they posed no harm.


Dale Kasler: 916-321-1066, @dakasler,