California farmer fights $2.8 million federal fine for plowing own field
Federal authorities are charging John Duarte of Modesto for not obtaining permits to discharge dredged or fill material into seasonal wetlands that are considered waters of the United States, the Redding Record Searchlight reported this week.
“The case is the first time that we’re aware of that says you need to get a [US Army Corps of Engineers] permit to plow to grow crops,” said Anthony Francois, a lawyer for the Pacific Legal Foundation, a libertarian nonprofit working on Duarte’s behalf. “We’re not going to produce much food under those kinds of regulations.”
The California Comrade shall be punished— Orwell was a Prophet (@JoeBravo77) May 25, 2017
Duarte, whose nursery business in Modesto bills itself as the “largest permanent crops nursery in the United States,” bought 450 acres of land in Tehama County in 2012. He hired consultants to map out areas that drained into Coyote and Oat creeks, which were subject to federal regulations, the Record Searchlight reported. He plowed around those and planted a wheat crop.
In February 2013, however, the Army Corps and California’s Central Valley Regional Water Quality Control Board accused him of not obtaining a permit to deposit drainage into the waters. When Duarte sued the Army Corps and the state for not granting him a hearing, they counter-sued him for violating the Clean Water Act. In June last year, US District Judge Kimberly J. Mueller sided with the government.
Duarte literally became a poster case for repealing the rules, when Senator Joni Ernst (R-Iowa) used a photograph of his furrows as a backdrop during the confirmation hearings for Scott Pruitt, President Donald Trump’s nominee to head the Environmental Protection Agency (EPA).
A week after Pruitt was confirmed, Trump signed an executive order directing the EPA to start repealing the Waters of the United States (WOTUS) rule.
“It was a massive power grab,” Trump said at the signing, adding that the EPA applied it to “nearly every puddle or every ditch on a farmer's land.”
Duarte called Trump’s actions “absolutely timely and very important,” according to the Los Angeles Times. “I hope they’re very broad because what’s happening to my family and myself is just an example of the kind of escalation we’re seeing nationwide,” he added.
According to court documents filed by the US Attorney’s Office in Sacramento, Duarte used a tractor equipped with a “ripper” that has seven 36-inch (91 cm) shanks and dug an average of 10 inches (25 cm) into the soil, damaging wetland areas.
Francois, however, says the federal law explicitly allows farmers to plow their fields.
“A plain reading of the rules says you don’t need a permit to do what he did,” Francois told the Record Searchlight. “How do you impose a multimillion [dollar] penalty on someone for thinking the law says what it says?”
“Even under the farming exemption, a discharge of dredged or fill material incidental to the farming activities 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,” the government said in the complaint.
In addition to the fine, the government is asking the judge to order Duarte to smooth out the disturbed soil, replant native plants, and maybe even purchase other wetlands to compensate for the damages.