Update: Landowner settles wetlands case


Issue Date: August 16, 2017
By Kevin Hecteman

Landowner John Duarte, who had been accused of federal wetlands violations after plowing a Tehama County wheat field, settled the government's Clean Water Act case against him Tuesday, just before the penalty phase of his trial was to begin.

Duarte had been accused of significant Clean Water Act violations on land the Stanislaus County nurseryman owns in Tehama County. A judge previously sided with the government on that claim.

Under the agreement, Duarte will admit no liability; pay a $330,000 fine; buy $770,000 in vernal pool mitigation credits; and do more work on the Tehama County property, according to a statement from the Pacific Legal Foundation, which is representing Duarte.

"This has been a difficult decision for me, my family and the entire company, and we have come to it reluctantly," Duarte said in the statement. "But given the risks posed by further trial on the government's request for up to $45 million in penalties, and the catastrophic impact that any significant fraction of that would have on our business, our hundreds of employees, our customers and suppliers, and all the members of my family, this was the best action I could take to protect those for whom I am responsible."

At a news conference in Sacramento Monday, Duarte warned, "If this can happen to us, on this set of facts, you can almost take the limits off your imagination as to what can happen to any farming company in America."

Several Duarte Nursery employees also spoke, discussing what losing their jobs would mean to them.

"John would have preferred to see this case through to trial and appealed the court's liability ruling, which holds that plowing a field requires federal permission—despite the clear text of the Clean Water Act and regulations to the contrary," Tony Francois, a Pacific Legal Foundation attorney representing Duarte, said in a statement. "John and his counsel remain concerned that legal liability for farming without federal permission undermines the clear protections that the Clean Water Act affords to farming and poses a significant ongoing threat to farmers across the nation."

The case goes back to 2012, when Duarte, president of Duarte Nursery in Hughson, bought the property in Tehama County. He decided to plant wheat because the commodity was in global demand and hired a family friend to make it happen, according to a legal brief filed in the case.

The land was being tilled in preparation for planting when an Army Corps of Engineers field representative saw what was happening. He accused Duarte of deep-ripping the land to a depth of 5 to 6 feet, as though it were being prepared for an orchard or vineyard – and destroying federally protected vernal pools without a permit. The property borders a seasonal creek.

"What the Corps is claiming is that all those vernal pools are federally protected navigable waters," Francois said Monday. "This is an example of the very broad scope that the federal government interprets their authority under the Clean Water Act."

Vernal pools, Francois said, are formed by rainfall and exist for only four to eight weeks per year before evaporating.

Based on the Army Corps representatives' report—which claims deep ripping took place despite evidence that the field was tilled only 12 inches deep for wheat planting—Duarte was ordered to cease farming the land in February 2013. He sued the Corps over the matter that October; the Corps countersued in May 2014, alleging significant environmental damage. A judge found in favor of the government, setting the stage for this week's scheduled penalty phase.

(Kevin Hecteman is an assistant editor of Ag Alert. He may be contacted at khecteman@cfbf.com.)

 

Permission for use is granted, however, credit must be made to the California Farm Bureau Federation when reprinting this item.