Water & Drought

He plowed his field and got hit with a $2.8 million fine. Will Trump rescind it?

John Duarte looks over pistachio clones at Duarte Nursery in Hughson, Calif., on Thursday, May, 7, 2015.
John Duarte looks over pistachio clones at Duarte Nursery in Hughson, Calif., on Thursday, May, 7, 2015. aalfaro@modbee.com

John Duarte spent five years fighting the Obama administration’s Justice Department over charges that he broke environmental laws by harming wetlands while planting a wheat crop on his Northern California farm. He lost his case, and faces a $2.8 million fine.

Now Duarte, whose case has become a national rallying cry among farmers and conservatives, is hoping President Donald Trump will wipe the penalties away. Last week, the Republicans who head the House agriculture and judiciary committees asked Attorney General Jeff Sessions to reconsider the government’s case against Duarte.

“I will be surprised if the Trump administration wants to own this prosecution,” Duarte said Wednesday. “I’ll be very surprised. I don’t believe it’s consistent with what they campaigned on and with what their conservative values are.”

Duarte’s case began five years ago, when the federal government accused him of illegally tearing through fragile wetlands on his 450-acre Tehama County farm in violation of the Clean Water Act. A judge in Sacramento last summer sided with the feds, who are pressing for a $2.8 million fine and an order requiring Duarte to restore the wetlands on his property and elsewhere. Duarte, who owns a Modesto-area nursery business, said the final payout could cost him more than $20 million.

“We’ve got the federal government attempting to ruin our business and destroy 600 jobs … because we planted wheat in a wheat field,” said Duarte, who said his legal bills run to $2 million.

Trump’s election has changed the equation, however. The president has already scaled back implementation of the Clean Water Act, reversing a decision by former President Barack Obama. While a spokesman for the Justice Department declined comment on the letter to Sessions, some believe the playing field is tilting in favor of Duarte and other farmers. Environmental advocates are aghast.

Trump’s actions will “eliminate protection for millions of acres of wetlands and many of our streams,” said Kyla Bennett, a former Environmental Protection Agency wetlands official now with a group called Public Employees for Environmental Responsibility. “For the cases in the pipeline … it’s going to wreak havoc.”

The Duarte affair became a national cause célèbre for farmers and property-rights advocates alike. The president of the American Farm Bureau paid a visit to Duarte’s farm, and state and local farm bureaus across the country have helped solicit funds for his legal defense.

Duarte’s supporters say the government’s case amounts to federal over-reach of the worst kind. Instead of just protecting rivers and streams, as Congress intended when it passed the Clean Water Act, Duarte’s supporters say the bureaucrats are now taking control of tiny ditches and wetlands on a farmer’s land. His allies say Duarte was merely conducting normal farming practices that are supposed to be exempt from the law.

“The more of your property – your land – that the government considers to be their water, the more you’re at risk of falling afoul of something like this,” said Duarte’s lawyer Anthony François of the Pacific Legal Foundation. The foundation is a Sacramento nonprofit that takes up conservative causes.

The issue came up at the U.S. Senate confirmation hearing of Scott Pruitt, Trump’s pick to run the EPA. As her aides held up an oversized photo of Duarte’s farm, Republican Sen. Joni Ernst of Iowa asked Pruitt whether he would make the government “stop trying to regulate ordinary farming practices.”

Pruitt replied, “Yes, Senator.”

This isn’t the first time a Northern Californian has been thrust into a high-profile fight over agriculture and the Clean Water Act. In 1999, Sacramento land baron Angelo K. Tsakopoulos was fined $500,000 for “deep ripping” wetlands on a south Sacramento County property he was converting to vineyards. The case went to the U.S. Supreme Court, which affirmed the penalty against Tsakopoulos in 2002.

Duarte’s case revolves around a provision of the Clean Water Act known as the “Waters of the United States,” or WOTUS. The rule is designed to protect “navigable” rivers and streams, but over the years, the federal government has broadened its scope to include small wetlands that feed into larger rivers.

The idea behind the expansion was to limit pollution running into larger waterways and to protect critical wetland habitat. Such habitat includes vernal pools, seasonal wetlands that fill with wildflowers in the spring and provide habitat for a wide variety of animals and plants. Nearly all of California’s traditional wetlands have been plowed under for agriculture and urban development.

Obama expanded the rules further in 2015 to cover more territory, although the enforcement action against Duarte got under way two years earlier.

Duarte has turned his case into a national crusade. “Federal regulators want to control ordinary farming,” he wrote in an online fundraising campaign that’s raised $28,000 for his legal fees. “They’re starting with me and a few others. We need to stop them before they put more farm families in economic peril – before they make farming a federal offense. I’m drawing the line right here, in my field.”

Duarte in 2012 bought 2,000 acres of Tehama County land near Coyote Creek, a tributary of the Sacramento River. He sold off about 1,500 acres but contracted with an area farmer to plant the rest of the land in winter wheat.

In December 2012, court records show, a U.S. Army Corps of Engineer field inspector from Redding noticed a massive Case IH tractor working the fields. The inspector, Matthew Kelley, called Duarte.

According to the federal government, Kelley warned Duarte that he might be violating the Clean Water Act by “deep ripping” the land and depositing dredged soil onto the property’s wetlands. The inspector also told Duarte that he needed a permit from the federal government.

Duarte, in court papers, said he received no such warning. He insisted his furrows dug by the plowing were small enough they posed no harm the vernal pools he acknowledges were on his property. “No deep ripping has taken place,” he said in court papers.

After the Army Corps issued a cease and desist letter, Duarte sued the government, saying he should have been entitled to a hearing. The U.S. Justice Department fired back with a lawsuit of its own.

As both sides presented evidence, one particular line in the federal government’s case drew seething condemnation from farm groups and helped rally them to Duarte’s cause. Federal lawyers cited a report by expert witnesses declaring that Duarte’s tractor work had created “small mountain ranges” not conducive to healthy wetlands.

“I’ve met with Mr. Duarte and personally visited the farm in question,” said Republican Rep. Doug LaMalfa, a rice farmer who represents the region in Congress, in a written statement last week. “To classify his five-inch furrows as ‘miniature mountain ranges’ is laughable.

“Unfortunately, this is no laughing matter for John Duarte and the many other farmers who face similar fines and penalties around the country,” he added.

LaMalfa asked the two House committee chairmen to contact the Trump administration on Duarte’s behalf.

A year ago, U.S. District Judge Kimberly Mueller ruled in the Army Corps’ favor and tossed out Duarte’s lawsuit. Although farmers under certain circumstances are exempt from Clean Water Act rules, Mueller ruled Duarte needed a permit before he plowed.

“A discharge of dredged or fill material … that impairs the flow of the waters of the United States still requires a permit, because it changes the chemical, physical and biological integrity of the waters,” she wrote.

The law exempts ordinary farming activities that are “established and ongoing.” Mueller said Duarte’s plowing didn’t qualify for the exemption because the land he bought hadn’t been farmed in 24 years.

The government asked Mueller to fine the agribusinessman $2.8 million. It repeated that stance in court papers filed last Friday – the same day the two congressmen wrote their letter to Sessions. A hearing is set for August.

Duarte’s lawyers said $2.8 million is far too high, and their client should pay only $1. In court papers filed last week, they called that “an appropriate penalty because Duarte’s actions caused no material harm to the environment.”

Duarte said he’s going to appeal the judge’s ruling in the case either way, because he feels there’s too much at stake for his fellow growers across the country.

“I’m happy to stand up for agriculture and property rights,” he said.

Ryan Sabalow: 916-321-1264, @ryansabalow

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