‘Farming is under fire’

Duarte case has potential to set dangerous precedent nationwide

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

Duarte9983OMAHA, 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.

Duarte4747.jpgEven 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.

 

 

 

The people have spoken, let the healing begin

 

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By Sherry Bunting, Market Moos, Farmshine, Nov. 9, 2016

In the words of Speaker of the House Paul Ryan (R-Wisconsin) just moments before President-Elect Donald J. Trump gave his acceptance speech in the wee hours of Wednesday morning after Tuesday’s stunning presidential election: “This is the most incredible political feat I have seen in my lifetime. Donald Trump heard a voice out in this country that no one else heard. He connected in ways with people no one else did. He turned politics on its head.”

“This is unlike anything we have seen in our lifetime,” said CNN news anchor Wolf Blitzer.

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As election results came closer to finalizing Trump as the winner Tuesday night, along with evidence that the Republican majority would remain in the U.S. House and Senate — the global financial market futures tumbled lower in overnight trading.

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But as the sun came up Wednesday morning, four hours after Trump’s acceptance speech, the reality of a President-Elect Donald J. Trump began to set in, and traders began to realize the positive things such as job-stimulating corporate tax cuts, reversal of burdensome executive-branch regulations, and the repeal and replacement of Obamacare.

Just 13 hours after the election was called, Wednesday’s Stock Market rose steadily, and the Dow Jones hit a brand new record high at +310 settling +256 on the day.

Business news analysts started the morning reminding the public that 2000 new regulations had been formulated and implemented during the Barrack Obama administration — most aggregious may be the Waters of the U.S. (WOTUS).

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In addition, analysts referred to Trump’s pro-economic growth plan as “very solid,” and with a Republican Congress, can be put into play. This, along with re-evaluation of trade agreements, has U.S.-based businesses thinking positively about a different future from the status-quo future they had braced for and which was built into the pre-Election levels in the financial markets.

As one business analyst put it: “Small businesses have been hungry for Trump-economics, and small businesses have been feeling the full weight of the 2000-plus new regulations and Obamacare.”

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That includes farmers and ranchers, who — together with the ‘rust belt’ blue collar workers — helped swing states and formerly Democratic states add to the Republican candidate’s lead.

On ABC News, commentators noted “Rural America is more important than we thought.” On other news stations, the term “flyover land” was used to describe locations of folks who voted in-force and why the pre-Election polls were so wrong.

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Yes, Rural and Middle America voted, and the demographics showed those votes for Trump came from a more diverse demographic than one might imagine in terms of race, gender and other factors with which the media and political pundits attempt to pigeon-hole We the People, as voters.

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Most telling were the exit polls, that 89% of Americans interviewed after voting said the need for change was their most important election issue and that led to decisions of more people than expected voting for Donald Trump.

Political analysts note that the election was very decisive as even in the urban areas, core constituencies consolidated around Rural America and the blue collar workers of our country.

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Still, as they examine “what happened” to their wrong pre-Election predictions, the mainstream media characterize Rural and Middle America repeatedly using the condescending term of “uneducated.” They will have to think some more to grasp what the people have said, as they have spoken at the ballot box in this historic election.

In fact, much of the weight for healing rests with the mainstream media and their persistent focus on our differences and demographic ‘slots,’ that tend to incite unrest.

Looking at the election results, take for example my home state of Pennsylvania. The Keystone State’s diverse people rejected the status quo and voted for a change. It was the first time Pennsylvania has voted for a Republican candidate since the senior George H. W. Bush in 1988. In fact, the map of results depicts it.

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In the wee hours of Wednesday morning, a humbled President-Elect Trump said: “ It is time for us to come together as one united people… I pledge to every citizen of our land that I will be President for all Americans. This is so important to me.

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“For those who have chosen not to support me … I’m reaching out to you for your guidance and your help so that we can work together and unify our great country,” said Trump.

“As I’ve said from the beginning, ours was not a campaign but rather an incredible and great movement, made up of millions of hard-working men and women who love their country and want a better, brighter future for themselves and for their family.

“It is a movement comprised of Americans from all races, religions, backgrounds, and beliefs, who want and expect our government to serve the people — and serve the people it will. Working together, we will begin the urgent task of rebuilding our nation and renewing the American dream…

“The forgotten men and women of our country will be forgotten no longer,” Trump said.

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In her concession speech, Secretary Hillary Clinton encouraged her supporters to “keep and open mind” and “give him a chance to lead.”

President Obama encouraged the nation to come together because “we are all on the same team as Americans.” He said his administration would follow the professional example set by his predecessor George W. Bush in the “peaceful transition of power that is the hallmark of our democracy and which we will show the world in a few months.”

Among the first orders of business for the Trump administration appear to be the repeal and replacement of Obamacare and to deal with executive orders such as WOTUS, along with work on current and future trade agreements and incentives to keep jobs in the U.S.

But even more important will be the necessary work to heal this land, that the exchange of ideas is healthy and as the pendulum swings between them, we realize what drove this election was the desire to look inward and resist to some degree the push for globalization and the global structure in which Americans lose autonomy, identity, independence.

A few personal thoughts:

My grandparents, Ace and Dot Jacobs were married nearly 70 years until in death they did part. My grandfather, a WWII veteran, was a devout Republican, my grandmother, a seamstress, was a dyed-in-the-wool Democrat.

Papap knew better than to discuss politics, and yet he did not make his votes or views a secret.

Gramma would have been upset by this election outcome because she longed to see the first woman president and she detested Donald Trump. She was here to vote for Hillary Clinton in the Democratic primary. And she knew where I stood on the Republican side, ultimately supporting Donald Trump. We talked of it a few times, rationally, before she died in July.

If two people — who would view yesterday’s outcome so differently — can be happily and lovingly married nearly 70 years or be loving grandmother and granddaughter for over 50 years, there is hope that we as Americans can come together and solve our problems despite our differing political views.

It is crucial that we stop slapping labels on each other’s points of view before hearing where it truly comes from and what is being said. And in articulating views and courses of actions, we can take greater care to get to the issue and avoid the hyperbole that fuels this divisive labeling.

In short, this election was not about all of the negative labels the press list for us… It represented how the little folk of all races, religions and creeds did exercise their vote to make substantive change in the course of this country and in repudiating the elitism that has persisted for so long.

It would help if the media and the pollsters stop criticizing folks without college educations. Granted, I never did achieve my college degree, but I got two-thirds of the way there, and I — like many who voted for Trump with or without a college degree — work hard every day with integrity and compassion and should not be characterized as uneducated and angry as main traits.

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I am hopeful at Trump’s words that he will reach out to those who supported Hillary Clinton for their guidance on the healing course of the future. I am hopeful that our nation’s leaders will never again take the little folk who work quietly in the background for granted.

We all need each other.

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Like the differences in our American landscape from sea to sea, and everything in between, each of us have differing backgrounds, perspectives, experiences, hopes, dreams, aspirations, and other context for our lives.

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We may be surprised by the positives that can come after what has been such a negative election process this year. Can this catharsis be the point from which to move forward?

Together, we make America great. Together, we make America good. Together, we make America home.

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Leaving boots in the mud to seek new ground on Tuesday

 

Editorial Comments by Sherry Bunting, Farmshine, Friday, Nov. 4, 2016

flag19Agriculture is at a crossroads, and so is America. But the choice of paths that lie before us are neither clear nor direct.

When we go to the polls on Tuesday, it will be with mixed thoughts and emotions.

As the mainstream media analyze and over analyze every breaking news story, every “narrative,” every campaign “spin,” every poll, every issue that they deem important, there is much that gets left on the cutting room floor — important issues that no one really talks about, and yet they are harbingers of our future.

What they don’t talk about – of course – is agriculture. What they don’t talk about is the backbone of our economy, the original resource from which all other facets of the economy are made possible.

Take, for example, Hillary Clinton’s speech to financial institutions, where she said she dreams of one world, one economy, without borders. When pressed on that issue, her response was to say that, ‘Oh, that speech! I was talking about the energy economy, a worldwide energy grid. I want the U.S. to be the renewable energy super-power of the world.’

A convenient response to a concept that should give us all pause — in and outside of agriculture.

In talking with farm folk who volunteer for missions or projects in third-world countries where helping to establish indigenous agriculture practices and infrastructure is deemed so important, it hit me: We will be that third-world country — maybe not in my lifetime – but nevertheless that is one path on this crossroads if we do not take care to protect our farms and our farmers. Not only is their stewardship of the land vital to regional food security, but they are the place-holders for the essence of our liberty as a nation. Private property rights and ownership are the keys to our freedom as a nation, as a people.

Globalization is happening at a rapid pace. Running parallel to globalization is market concentration as mergers and acquisitions put more and more power into the hands of the few when it comes to food and agriculture. And then those ‘too big to fail’ entities are being sold off to foreign nations, like China, who already owns, according to the Department of the Treasury, $1.24 trillion in bills, notes and bonds (about 30%) of the over $4 trillion in Treasury bills, notes and bonds held by foreign countries.

That, my friends, is the auctioneer’s gavel on our national debt. True to form as a businessman, Donald Trump is talking about the national debt. Hillary Clinton is not.

Exports are said to be necessary for all agriculture commodity markets, especially dairy, and while I believe exports are important, they are not the end-all, be-all – except to the multi-national companies that view us as though they are on a satellite in space counting their dots on the globe: production units or consumption units, bars on a graph, slices on a pie-chart, numbers on a sales report, quarterly statements to shareholders.

In these third world countries I referenced earlier — where the good folk of the USA help farmers establish themselves — one of the first realizations is that when we throw cheap food at them, through exports, they have difficulty getting their own agriculture established to have the food security we Americans enjoy and truly take for granted.

Think about that for a moment. Are we not in danger, ourselves, of going down a path that could leave us food insecure?

The trade agreements that give our farmers market access to foreign markets also give our domestic market away to foreign imports. The give and the take are contrived and uneven. Winners and losers are made, created.

There is nothing fair or free about world trade because nations are losing the ability to care for and protect their own – particularly the U.S. – and we don’t even realize it. We are focused on the tantalizing allure of what we can sell … so that we are blinded to being sold-out.

The magician’s trick. Watch the elaborate thing I am doing with my left hand while I fool you with my right.

Many of these trade agreements are not free and fair trade, but rather a march forward to globalization, where the World Trade Organization and the United Nations become a higher power than our own Congress, our own President.

We saw just a tiny inkling of this, firsthand, when Congress quickly repealed the Country of Origin Labeling (COOL) last March, and when the administration lifted the ban on Brazilian beef in August, and when the first boatload of beef hit Philadelphia, via JBS, just three weeks ago, followed by a rapid downturn in cattle prices here at home.

We’ve already seen foreign interests, namely China, purchase Smithfield and Syngenta, to name a few. This week, the Dallas News reported that a team of Chinese bankers and a Chinese dairy are considering a possible takeover bid for Dean Foods, our nation’s largest milk bottler that handles 35% of the raw farm milk produced in this country.

What does this have to do with Tuesday’s presidential and congressional election? Plenty.

You won’t hear Hillary Clinton or Donald Trump talk about agriculture, specifically, but listening to their differing outlooks, overall, a few things are clear and have helped me make my choice for next Tuesday.

For me, voting for a third party candidate or writing in a name like John McCain (as previous candidate and Ohio governor John Kasich did) is not an option. Neither is it an option to write in Mickey Mouse or to leave that part of the ballot blank.

Folks, this is serious. This presidential election – for all of its circus acts – is no circus. This is our future. This is the future we are handing to our children and grandchildren. I, for one, cannot trust it to a candidate who has spent the past 30 years in the political realm as a profitable public servant, and has wasted so much of that time on her own agenda with such disregard for the rules others live by as to again be under investigation.

I will vote between the two major party candidates based on what I know about their outlook on the future along with what my gut tells me about the investigations into their pasts and what it says about what they could or would do with the power of the Presidency in the future.

Neither candidate lives like we do out here in middle and rural America. But, at least one of the two candidates lives outside of the political realm.

We are governed by career politicians embroiled in endless self-perpetuation. The more paralyzed they are in their elected offices, the more power is diverted to the longstanding and quite powerful bureaucracy whom are elected by no one.

Everyone complains about the gridlock inside the beltway, like nothing ever gets done.

Wrong.

Plenty of work is getting done in Washington D.C., it is just mainly the work of career bureaucrats that exercise more control and make us weaker, tearing at our moral fabric, eating away at the base of our economy, ripping through our roots, and chipping away at our freedoms.

There is a power- and land-grab underway in this country. Most all agriculture commodities are at prolonged below-breakeven prices while the political elite is poised to push yet another trade agreement, the Trans Pacific Partnership, into the mix.

Meanwhile, we have a hammer of political correctness keeping us in our place, not daring to be free thinkers. Many voices are silenced as the economic and moral decay are inextricably linked.

Take, for example, the way we accept how the government imposes ridiculous rules on what our children can eat for lunch at school. All things are connected so that local communities cannot even feed their children the way they see fit. Those rules, incidentally, create winners and losers. And in so doing, the voices of the affected are silenced.

We have a runaway EPA with the implementation and flawed interpretation of the Waters of the United States (WOTUS) legislation that threatens to create a second wave of land-grab after the market pushes a first wave of farmers off the land.

And then there is the Humane Society of the U.S. (HSUS) and their silver-tongued Wayne Pacelle. He is campaigning for Hillary Clinton. Her animal rights agenda dovetails with the candidate and Democratic Party’s obsession with climate change — right down to the livestock and dairy cattle on our farms.

There is so much more I could say, but to summarize, consider this: Who better to tackle over-regulation, unfair trade agreements, national food security, a vital agriculture, family farms and small businesses besieged by a labyrinth of complexities foisted upon them by a government run by self-perpetuating career politicians and ever-present, accountable-to-no-one bureacrats than a business man — a man that for all of his faults, at least does not live and has not spent 30-plus years operating in the self-perpetuation of the D.C. beltway.

We need to break free of the career politician mentality and breathe fresh air and common sense into the mix as well as to toss a bit of our sensitivity and political correctness to the side to break the cycle we are in and alter the path down which we are being led.

For all of his faults, Donald Trump is the only one of the two less than optimal choices we have in this election that fits that description.

Even on immigration reform, he is the one to have the best chance of getting it done. Only after our border is secured will our divided nation have a chance to come together with compassion for the illegal workers who are here today, working hard, making a contribution and raising their families that were born here. I have listened to Trump on this issue, and I get it. He is leaving room for that conversation after the border is secured and the estimated two million illegal immigrants that have committed crimes are properly dealt with. He will consult the American people on the next move after that first important move.

Election after election, candidates promise to shake things up, bring about change, bring people together, work for the people, protect our country.

Meanwhile, the beltway fills with sludge and slow-motion sets in to the point where boots are stuck.

Instead of standing fast, I’m leaving the boots in the mud, these bare feet are seeking new ground next Tuesday.