Ag Today May 12, 2017

Farming advocates visit embattled property Wednesday

By Julie Zeeb, Daily News

POSTED: 05/11/17, 6:19 PM PDT |

Red Bluff >> American Farm Bureau Federation President Zippy Duvall visited Red Bluff Wednesday on his tour of California to visit the Paskenta Road property belonging to John Duarte, which has been involved in litigation with the Army Corps of Engineers since a visit in 2012.

Duvall was accompanied by California Farm Bureau President Paul Wenger, First Vice President Jamie Johansson, District Director Brandon Fawaz and Field Representative Ned Coe along with Tehama County Farm Bureau First Vice President Tyler Christensen and manager Kari Dodd, Butte County Farm Bureau President Clark Becker and Rep. Doug LaMalfa.

“This case has been the poster child for the farm bureau and property rights,” said Duarte.

The family-owned Duarte Nursery Inc., founded by Jim and Anita Duarte and their sons John and Jeff, is headquartered outside of Modesto but owns land southwest of Red Bluff on Paskenta Road near Flores Avenue.

In 2012, the property was in the process of being planted for wheat when it was visited by a representative of the Army Corps of Engineers who was in the area. This visit led to a cease and desist order being served regarding the planting. The property had been used for grazing and plans were to change it to high-value agriculture with a grape orchard and nursery crops, Duarte said.

In 2014, a US District Court judge denied the US Army Corps of Engineers’ motion to dismiss a lawsuit alleging due process rights were violated by a government agency. The suit was filed by Pacific Legal Foundation on behalf of Duarte in October 2013, according to an April 2014 Daily News article.

“The property was purchased in 2012 and eventually the family wanted to plant an orchard vineyard to expand their Modesto nursery, but it was decided at the time to plant wheat, which only scratches the top of the ground,” said Tony Francois, the senior attorney for Pacific Legal Foundation. “An Army Corps representative from the office in Redding drove by and saw the tillage and presumed it was deep ripping, which goes down about three feet and that it would destroy the vernal pool, so he issued a cease and desist notice that there was a violation of the Clean Water Act.”

The result of the incident was a “complex legal battle to defend due process,” Francois said. Following the cease and desist letter in February 2013 that led to the loss of a wheat crop valued at $50,000, a suit was filed on Duarte’s behalf accusing the Corps of violating Duarte’s 5th Amendment due process rights by not allowing him to answer to the accusation before ordering the shutdown of the wheat operation.

While the judge ruled against the due process case in summer 2016, there is still a trial to be held for the penalties, which are at about $2.8 million. Along with the fines, there is a requirement to purchase 132 acres worth of mitigation credits for the restoration or creation of a wetland, stream or habitat conservation area.

“The government is asking for astronomical penalties in this case,” Francois said.

With $1.8 million already invested in the case by the Duarte family, the cost of mitigation, at roughly $250,000 per acre or $25-30 million, is staggering, Francois said.

“The judge found that the plowing of the property was only five to seven inches deep and that the vernal pools are still there and meet all three of the wetland criteria,” Francois said. “We go to trial in August with pretrial in May to request they postpone until a case in the ninth circuit court of appeals resolves.”

Even a team of Department of Justice experts examined the location and ruled after two weeks of digging with an excavator the area had only been plowed four to seven inches deep, Francois said.

The case cannot be appealed until the pending fines are finalized, but plans are to take the case to appeals and all the way up to the US Supreme Court, Francois said. The decision could affect not just the ability of the traditional farmer to farm without a permitting process, but impact back yard gardeners.

Plowing has traditionally been protected since the 1970s when the Environmental Protection Agency objected to a proposed regulation regarding the waters of the US that would have required farmers to file for permits that led to the determination that plowing does not constitute discharge. Congress passed legislation at the time, Francois said.

LaMalfa said he and his colleagues plan to partner with the Trump administration and are fully committed to the repeal of the Waters of the US definition that falls under the Clean Water Act.

Duvall said it will take time first to overturn existing rules and create new ones.

“I was in the room for a round table with the president when the executive order (regarding the Waters of the US) was signed and the inter-government task force to look into agricultural and rural prosperity was formed,” Duvall said. “The aim is to identify barriers that keep rural farmers from being successful and creating jobs. That task force will be a part of it.”