Ag Today June 16, 2017

How Trump’s EPA chief got caught up in farm fight in Sacramento


California farmer John Duarte, facing a hefty fine over water-law violations for plowing a field, wants to call in a big gun in his high-profile court case in Sacramento: Scott Pruitt, the administrator of the U.S. Environmental Protection Agency.

Duarte has listed Pruitt as a potential witness in his case, in which he’s fighting a $2.8 million fine he received for harming wetlands while planting a wheat crop in Tehama County five years ago. Pruitt briefly mentioned the Duarte case during his Senate confirmation hearing in January as an example of what he described as the government wrongly punishing farmers for doing their jobs.

The U.S. Justice Department, however, is arguing that Pruitt shouldn’t be allowed to testify, saying the EPA chief isn’t truly knowledgeable about the case and top officials of a major government agency generally can’t be called to testify in court cases.

“This is untenable,” federal lawyers wrote in papers filed in U.S. District Court in Sacramento earlier this month. A pretrial hearing on the matter is scheduled for Friday.

The prospect of Pruitt testifying adds another bit of intrigue to a case that has become a national cause among farmers, conservatives and property-rights advocates. Duarte and his lawyers at the Pacific Legal Foundation in Sacramento say Pruitt’s testimony would be helpful in proving their case.

“He’s familiar with at least some aspects of this case, he knows how ridiculous this is, and his comments may be important to us,” Duarte said in an interview Thursday.

At Pruitt’s confirmation hearing, Republican Sen. Joni Ernst of Iowa had aides hold up a picture of Duarte’s farm while she asked him whether he’d make the government “stop trying to regulate ordinary farming practices.”

Pruitt replied, “Yes, Senator.”

In a court filing Wednesday, lawyers at the Pacific Legal Foundation wrote that Pruitt “directly inserted himself into this case by testifying, during his Senate confirmation hearing, that he would make it part of his job to halt this prosecution and others like it.”

Duarte’s case began when the U.S. Army Corps of Engineers accused him of illegally tearing through fragile wetlands, a process known as “deep ripping,” in violation of a the Clean Water Act in 2012.

After Duarte sued, a federal judge agreed with the government in a ruling last summer, saying Duarte acted without getting a required permit. Federal officials then asked the judge to fine him $2.8 million and force him to restore the wetlands, a task that he says could cost him another $20 million.

The ultimate punishment is to be decided at trial, probably later this summer. Duarte’s lawyers have said the fine should be limited to $1 because his actions “caused no material harm to the environment.”

This isn’t the first time that Duarte and his allies have tried to elicit support from the Trump administration. Last month the Republican chairmen of the House agriculture and judiciary committees asked Attorney General Jeff Sessions to reconsider the Justice Department’s pursuit of financial penalties against Duarte. The Duarte case has also drawn the attention of groups like the American Farm Bureau, whose president visited the Tehama County site in a show of support.

Duarte’s case involves a provision of the Clean Water Act called “Waters of the United States,” or WOTUS, which is designed to protect wetland habitat – much of which has been plowed under in California for farming and urban development. Vernal pools and other wetlands provide crucial habitat for a wide variety of plants and animals.

Former President Barack Obama expanded the WOTUS rule significantly in 2015, although the case against Duarte was already underway. Trump reversed course and dialed back implementation of the rule.

Duarte says he is being punished for simply doing something – plowing his field – which is permitted under the Clean Water Act.

“We’re hoping that the Trump Administration – all parts of the Trump administration – take a look at the facts of this case and understand that the Clean Water Act has a very clear plowing exemption, and that our activities were exempt under the plowing exemption,” he said Thursday. “What we were doing was clearly normal farming practices.”

The law exempts ordinary farming activities. But Judge Kimberly Mueller, in ruling against Duarte last year, said the plowing didn’t qualify because the Tehama land hadn’t been farmed in 24 years.