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This will make you cringe: Wheat farmer faces millions in fines

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In June, 2016, I described a Clean Water Act (CWA) case involving a California wheat farmer. A U.S. District Court found John Duarte chisel plowed pasture lands which were considered to be vernal pools even though the pools seldom have water in them.

The Court determined his vernal pools were wetlands or waters of the United States. See where this is going?

After a year-long delay, the penalty phase of the case against Duarte starts on August 14th. For chisel plowing alleged wetlands, the U.S. Department of Justice (DOJ) and the U.S. Army Corps of Engineers (Corps) are seeking $2.8 million in fines and approximately $30 million to buy wetlands which would mitigate the alleged damage created by Mr. Duarte. He claims “It (450 acres of pasture land) was farmed for wheat many times before, and the permit they wanted me to get had never been issued to a farmer before” (The Modesto Bee, May 24, 2017).

Facing a trial
The Court has now issued an order which declares Mr. Duarte must now face a trial to determine “…the issue of injunctive relief and civil penalties.” Mr. Duarte and his California legal team filed a motion to stay the August 14, 2017 proceedings because there is another case pending before the U.S. Court of Appeals in San Francisco which may have a significant impact on Mr. Duarte.
The judge, after reviewing the prospective case filed in the 9th Circuit U.S. v Joseph Robertson, indicated she believed Duarte’s case should go forward even though the 9thCircuit case could substantially impact Mr. Duarte.

The Court found that “being required to defend [a] suit, without more does not constitute a clear case of hardship or inequity within the meaning of Landis.” The Court also concluded and agreed with the attorneys from DOJ that delay of the Duarte case would “…thwart efforts to mitigate onsite damage to the property.”

This of course means Duarte not only faces a possible fine but might also be saddled with $30+ million in damages… for chisel plowing a wheat field.

His legal team is seeking a stay of the August 2017 trial because the Robertson case could help determine what is a “water of the United States” under the CWA. This is an important question for everyone in tillage agriculture. You may recall the Robertson case because it involves a rancher in Montana who excavated and constructed 9 stock ponds after he was told by the government he could not do so. Mr. Robertson was sentenced to 18 months in prison and ordered to pay approximately $130,000 in restitution for ponds he dug on national forest land and on private property. Mr. Robertson raises a critical point. He believes the CWA only prohibits a discharge of a pollutant into navigable waters or waters of the United States.

Intense controversy
The term “waters of the United States” (WOTUS) has been an issue of intense controversy. Many believe the EPA and the Corps have exceeded CWA’s jurisdiction. Mr. Robertson and Mr. Duarte subscribe to the opinion of the late Justice Scalia which held that WOTUS requires wetlands to maintain a continuous surface connection to navigable water.

It appears the new proposed regulatory decision from EPA Administrator Scott Pruitt regarding WOTUS will also subscribe to this conclusion, which is helpful to everyone in agriculture and ranching. Duarte’s judge and Mr. Robertson’s judge subscribe to a definition written by Justice Kennedy in a case called Rapanos. In fact, in the Robertson case, the jury was instructed to use Justice Kennedy’s “significant nexus” test. The jury apparently was not allowed to utilize Justice Scalia’s four vote plurality test.

Even though this controversy over how to determine jurisdiction is going to be heard in the 9th Circuit, the Duarte court used the Justice Kennedy test and found Duarte’s property indeed had a “significant nexus” to a creek and it to the Sacramento River.
Notwithstanding this dispute, Mr. Duarte’s judge concludes no stay of his case is warranted because it may be 4-5 months before an opinion is issued by the 9th Circuit. The DOJ lawyers also argued that a decision in the Robertson case may not issue for at least 14 months and therefore there is no reason not to proceed with the trial and attempt to fine Duarte millions of dollars and require many millions in mitigation.

Last week Duarte’s legal team filed a PETITION FOR WRIT OF MANDAMUS in the U.S. Court of Appeals 9th Circuit in an attempt to stop the August 14, 2017 trial from proceeding.

The outcome of these legal activities in San Francisco will impact all in tillage agriculture.

(This article first ran in Farm Futures on July 11, 2017)
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