Duarte Nursery and its president John Duarte joined with Senior Attorney Tony Francois of the Pacific Legal Foundation to announce that they had reached a settlement with the federal government in Army Corps of Engineers v. Duarte Nursery: a case with far-reaching implications for farmers and landowners across the country. Following a federal enforcement action by the Army Corps of Engineers that lasted nearly five years over Duarte’s routine plowing its property in California to plant wheat, Duarte agreed to pay the federal government $330,000 in a civil penalty, purchase $770,000 worth of vernal pool mitigation credits, and perform additional work on the site of the plowing to mitigate damages. As part of the agreement, Duarte admits to no guilt.
In a statement, John Duarte said, “This has been a difficult decision for me, my family, and the entire company, and we have come to it reluctantly.” Duarte added, “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.”
Commenting on the case in response to an email query from Spero News, Francois warned that the settlement has implications for farmers and landowners far beyond California: “It means that a significant ambiguity remains as to when farming practices require permission from the Army and when they don’t. We had hoped to resolve that issue on appeal, but now do not have the opportunity to in this case. PLF will continue looking for opportunities to resolve that ambiguity in appropriate cases, and John Duarte remains interested in that clarification being reached.” PLF is a nonprofit law firm that provides counsel free of charge. PLF focuses on cases involving government overreach, and has won numerous cases in the US Supreme Court and other federal and state courts to defend rights of landowners, farmers, and others.
PLF attorneys representing Duarte Nursery and John Duarte argued that the right of due process had been denied to them by the U.S. Army Corps of Engineers and the Central Valley Regional Water Quality Control Board. In 2013, the Corps sent a cease and desist letter to Duarte, ordering suspension of farming operations on land in Tehama County, California, based on alleged violations of the Clean Water Act during farming. The Corps had not notified Duarte of the allegations in the letter prior to issuing the letter, or provide Duarte any opportunity to comment on the allegations or the requirements of the letter prior to issuing it.
On April 18, 2013, the Corps sent another letter to Duarte’s counsel, providing an erroneous factual basis for the cease and desist letter, according to Francois, and also asked Duarte for several items of information, which Francois stated that the Corps should have inquired into and given him an opportunity to comment on prior to issuing the February 25, 2013, letter. Then, just five days later, the Central Valley Regional Water Quality Control Board issued a notice of violation, evidently based on the same factual allegations, and also without prior notice or an opportunity to comment afforded to Duarte. The notice of violation appears to be based largely, if not entirely, on receipt of the Corps’ February 25 letter.
The lawsuit argued that Duarte’s right to due process has been violated by these communications and commands, because they were issued with prior notice of alleged illegal activity, and with no opportunity to comment.
In statement on the PLF website, Francois said, “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.” Francois added that Duarte and PLF farmers who farm without federal permission are exposed to significant legal liability, while undermining “the clear protections that the Clean Water Act affords to farming and poses a significant ongoing threat to farmers across the nation.”
PLF President and CEO Steven D. Anderson said in a statement: “Our defense of John Duarte, his co-owners at Duarte Nursery, and their hundreds of employees demonstrates once again that all Americans have a stake in the fight against overreaching government.”
According to the Department of Justice, the settlement thus resolves what the department said were violations of the Clean Water Act on Duarte’s property located in Tehama County, California. DOJ declared that Duarte had engaged in illegal "ripping" of federally-protected streams and wetlands.
Acting Assistant Attorney General for DOJ’s Environment and Natural Resource Division Jeffrey H. Wood said that the department is pleased with the result, as is Michael Jewell, who serves as Chief of the Regulatory Division for the U.S. Army Corps of Engineers’ Sacramento District. “We encourage members of the public to contact the Corps prior to engaging in activities that are regulated under the Clean Water Act. The Corps is always willing to talk to the public about the Regulatory Program and to provide information on permit requirements, jurisdictional determinations, wetland delineations, and any other aspects of the Program.”
According to a statement by DOJ, the case stems from activities Duarte conducted after he purchased property that had laid fallow and unfarmed for more than 20 years. Duarte bought the property in 2012 for $5 million and shortly thereafter sold most of it for approximately $8 million, retaining 450 acres for his own use. Duarte was accused of “ripping” 450 acres, including streams and wetlands. In 2016, a federal court rejected Duarte's defense, deciding that no plowing had occurred anywhere on the site for at least 24 years and that the “ripping” converted areas of water to dry land.
In a pre-trial brief, the federal government gave promises that the case will not be used as a pretext for federal prosecution of farmers who engage in normal plowing on their farms.
The settlement is subject to a 30-day comment period and final court approval in September.