Duarte case has potential to set dangerous precedent nationwide

By Sherry Bunting, reprinted from Farmshine, June 2, 2017

OMAHA, Neb. — “Farming is under fire,” said John Duarte, a fourth-generation farmer with a family nursery business outside of Modesto, California as he recounted the timeline of his 4-year battle with the federal government over — of all things — plowing and planting wheat on agricultural land.

Duarte was a speaker during the Range Rights and Resource Symposium at Bellevue University near Omaha May 19-20. The two-day event was sponsored in part by Protect the Harvest and moderated by Loos Tales radio host and seventh generation farmer Trent Loos.

Duarte is working with the Pacific Legal Defense Fund and the American Farm Bureau is now involved. But it’s not enough. The problem is that the case needs a huge outcry by rural folk across the nation to get the attention it deserves from Congress and the Trump administration to stop this next penalty phase of the case in August.

This week, Mike Conaway (R-Tex), chairman of the House Ag Committee and Bob Goodlatte (R-Va), chairman of the House Judiciary Committee sent a letter of inquiry to Attorney General Jeff Sessions about the Department of Justice’s role in the prosecution of the Duarte case. They want to know why the DOJ is still pursuing a Clean Water Act case against Duarte. If the penalty phase in August upholds the summary judgment in District Court a year ago, this case will set a chilling precedent that has the potential to make it a crime for a farmer to plow his own agricultural land without a permit.

Duarte started a GoFundMe site (https://www.gofundme.com/Duartestandsup) in part to raise funds for his defense and the defense of agriculture and in part to raise public awareness as the penalty phase of the trial heads to court in August.

At the core

The Obama Administration interpretation of Waters of the United States (WOTUS) is at the root of the Duarte case; however, EPA is not the agency Duarte is battling, but rather the Army Corps of Engineers (ACE) and the Department of Justice (DOJ), perhaps because he dared to exercise his Fifth Amendment rights to due process under the Constitution when ACE ordered a cease-and-desist on agricultural land he had purchased on which he plowed and planted a wheat crop.

Indeed, the federal prosecution of Duarte threatens his multigenerational family business as well as his personal home, with over $2 million in legal expenses, and the government seeking nearly $3 million in fines and $15 to $30 million in required purchases of “private wetlands bank credits” to offset his ‘egregious’ act of creating “small mountain ranges,” which were in reality plow furrows that by the government’s own report measured 5-inches from the top of ‘deep ripping’ mound to the bottom of the furrow. Sounds like normal plowing that in reality did not destroy the vernal pools (spring mud puddle) in Duarte’s fields that the federal government deems Waters of the United States (WOTUS). This case clearly threatens American Agriculture to its core.

Private beneficiaries?

These private entities that would receive said wetlands bank credits that the government wants Duarte to pay ($15 to $30 million) are funds paid to private organizations like the Sierra Club that do wetlands restoration and habitat, which said organizations can then freely use this payment to donate to campaign funds of congressional and presidential candidates. This was explained by additional symposium panelists and is a piece of the issue that, alone, should furrow the brows of not just farmers and ranchers, but all Americans.

There is also the concern that other intentions are at play to devalue agricultural land that organizations have their sights set on for cheaper easement purchases if taken out of production.

And then there is the concern that this case puts an even bigger target on the backs of farmers taking land out of the CRP in the future.

The Duarte land involved in the lawsuit was not CRP land; however, the previous owner had not planted wheat there for six years prior to Duarte’s planting, instead leaving it go fallow and grazing cattle — an agricultural choice that reflected the price of wheat over that time, which Duarte showed clearly on a graph.

Furrowed brows

What is astounding is that after Duarte’s tillage, the vernal pools are still there. He had mapped them when he bought the land and can show that they are the same today.

What should raise hairs on the back of every farmer’s neck is that the San Francisco Bay Area California District Court judge agreed with the federal government last August by ruling, in effect, that “if you plow through any depression in America and if some dirt goes from the ‘upland’ to the wetland, you are liable for these penalties,” Duarte said.

The uplands, you ask? That would be the dryland top of the 5-inch high plow furrows (as measured by the government) that created what court documents refer to as “small mountain ranges,” “uplands,” and “drylands” creating debris that could fall into the WOTUS (vernal pool or spring muddle puddle in a poor drainage depression in a field).

Yes, these were plow furrows that ACE came out and measured to be 5-inches tall. In fact, when ACE came out for the measurements, they dug down 23 feet with an excavator – far more egregious than the plowing by Duarte.

They excavated and brought in a specialist to do “pebble distribution counts” to be sure the depressions still drained poorly to hold water in a wet season. These vernal pools, or mud puddles, evaporate, but until they do, they are a home to grassland fairy shrimp (aka sea monkeys) that live and die with the sudden appearance of water, leaving behind eggs for the next temporary rain fill.

Duarte’s slides and maps demonstrated he did his due-diligence, mapping all the pools and swales on the property he had purchased and asking the plowing contractor to plow around them. Some he did, others he didn’t. But the bottom line is that none of those depressions or future mud puddles were destroyed. When they fill with water in a future wet season, the fairy shrimp will have a temporary home. Nothing has changed.

Even the ACE report acknowledged that, so they had to come up with a different ‘crime,’ that of compromising a Waters of the United States (WOTUS) by debris (dirt) falling from the ‘dryland uplands’ (plow furrow) into the WOTUS (dry future mud puddle).

How did the case against Duarte get to this point? Duarte recounted for the Land Rights attendees the sordid details that began in 2012, when he planted wheat in agricultural land he purchased in Tehama County, California.

He went to the county FSA office looking to buy agricultural land, and the land he purchased was identified as such. Its history included both wheat planting and grazing.

In 2012, the price of wheat was profitable unlike the years before it, so Duarte planted wheat in the fall. Four months later in February 2013, Duarte received letters from ACE to cease and desist operations in WOTUS.

Duarte answered this letter with an inquiry of the facts and received a second letter from the enforcement division of ACE.

Duarte filed in October 2013 a due-process lawsuit, exercising his Fifth Amendment Right.

In May of 2014 ACE filed a counterclaim, bringing the DOJ into the act. In August 2016, the District Court summary judgment went against Duarte, and upcoming in August 2017 will be the penalty phase of this case.

One of the findings in the case is that Duarte’s Fifth Amendment right to due process is not deemed to be “a practical expectation” in this case. He was told that the federal government would have to give up its sovereignty on this issue of WOTUS for Duarte’s Fifth Amendment rights to apply.

Meanwhile, “they are valuing the assets of my family’s company, and my personal home, because I was the chief executive of the family business at the time that the field was plowed,” said Duarte, adding that the DOJ prosecution team in this case “is part of the swamp” that needs to be drained.

But it’s not just about Duarte. It’s about every farmer out there with land that can be controlled and rights that can be taken by the administrative interpretation of the federal Clean Water Act, which Congress specifically said will not regulate normal farming. There is a land grab underway and plenty of alligators in the D.C. swamp.

If plowing is not an ordinary farming practice, what is?

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PHOTO CAPTION

Photo caption:

John Duarte and his family have an agricultural nursery business and are well respected for a variety of environmentally-friendly, forward-looking practices and generations of care for the land and water. But their family business, jobs in the community, and John’s personal home, and more, are all at risk because he plowed wheat without a permit on agricultural land he purchased. This precedent-setting case has already cost over $2 million in legal expenses. He continues to pay a mortgage on 450 acres of California farmland that a court has ordered him not to farm. The federal government is seeking $2.8 million in fines and another $15 to $30 million in required payments to ‘private entities’ for wetland bank credits when the case goes to the penalty phase in August. There’s just 60 days left to stop this train from defining a WOTUS impact that can be used against farmers, nationwide, in the future. Photos by Sherry Bunting

Photo caption #2

From Duarte’s slides, this picture may be familiar to farmers, a poor-draining area where water pools until it evaporates. The Duarte case sets precedent for this WOTUS to be used to not only control land, but also rake in funds that can in turn be used by private entities like the Sierra Club in the form of private wetland bank credits. These required payments by landowners to the private entities can then be donated by these private entities to election campaigns.