California

Plow Field, Pay Government $35 Million?

It's happening in California, where the case goes to penalty trial in August, if the Trump administration doesn't stop it before then.

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miran/flickr

A California farmer wheat farmer faces up to $35 million in fines for violating federal wetlands regulations. But it's unclear whether the law in question was supposed to apply to him, and the rules themselves represent a decades-long effort to "make everything a wetland," essentially depriving individuals of due process protections for alleged crimes against the environment.

The farmer in question is John Duarte, who runs Duarte Nursery near Modesto. In 2012 he purchased 450 acres of land, planning to grow wheat on it. Duarte knew the property contained swales and wetlands, which are considered "waters of the United States" and therefore fall under the purview of the Clean Water Act. But the act includes exemptions for "established (ongoing) farming…activites," including plowing. So he thought that he was in the clear, legally speaking. He also hired a consultant to map out where the wetlands were, so as to avoid places where he might cause harm.

One of Duarte's lawyers told the Redding Record Searchlight that his client did plow some of the wetlands, but the attorney insists that there was no significant damage and that the plowing went no deeper than 7 inches. The government disagrees, claiming that Duarte used a ripper that dug 10 inches into the soil. Either way, the authorities argue that the Clean Water Act's exemption didn't apply to Duarte because his land had not been farmed for at least 20 years; therefore, the government concluded, he was bringing new land into production.

Duarte was able to grow the wheat, but the U.S. Army Corps of Engineers and the California Central Valley Regional Water Quality Control Board ordered him not to harvest it, telling him he'd need a permit to work the land.

"The case is the first time that we're aware of that says you need to get a permit to plow to grow crops," attorney Anthony Francois of the Pacific Legal Foundation, a public interest law firm which has helped told the Record Searchlight. "How do you impose a multimillion penalty on someone for thinking the law says what it says?"

Duarte sued California and the Army Corps of Engineers for violating his due process rights, since they sent their cease-and-desist order without a hearing. The government then countersued over the alleged Clean Water Act violation. Last June, District Judge Kimberly Mueller issued a summary judgement in favor of the Army Corps of Engineers, finding that Duarte's due process rights had not been violated, that the cease-and-desist letter was not an "enforcement action," and that the Clean Water Act's exemption didn't apply. The case now goes to a penalty trial; the prosecution is asking for a fines totalling nearly $35 million.

Critics of the Obama administration often pointed to the case as an example of regulatory overreach. With a new president's deregulatory rhetoric in the air, Duarte's attorneys hope to work out a better deal. They met with the Justice Department earlier this month to discuss the prospect of a settlement.

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  1. sooo….it was farmed 20 years ago? so how the fuck is it new farmland fuckers!?!?!

    If it was once farmed in this countries history it is fucking farmland free to be tilled.

    1. It also must be zoned as farmland.

    2. EVERYTHING WAS FARMED MORE THAN 20 YEARS AGO!

      1. thats the point. No land should not be farmable if someone owns the deed.

        Total bullshit.

    3. The law doesn’t say anything about “new farmland”. The article says, “…the act includes exemptions for ‘established (ongoing) farming…activites,’ including plowing.” Obviously if there’s been no plowing for 20 years then plowing is not an ongoing activity. Reading the law as a general exemption for plowing was stupid.

      I’m not saying that there were any genuine wetlands at stake. But don’t make determinedly stupid arguments. That doesn’t help.

      1. Either way, the authorities argue that the Clean Water Act’s exemption didn’t apply to Duarte because his land had not been farmed for at least 20 years; therefore, the government concluded, he was bringing new land into production.

        this is what the article said. The government claim according to reason is that since it was not plowed for 20 years. He is bringing in new land into production.

        I said that is bullshit and it isn’t new land. Just because an acitivity hasn’t been down for 1, 5, 10, or 100 years does not mean it can be stopped by government if the person owns it.

        If i bought 100 acres and made a private farm or range the government can fuck off even if it hasn’t been used that way for years!

  2. also those fines are clearly unconstitutional but…staters are going to state.

  3. What most likely happens in these situations is that the Army Corps will take the land as compensation. Usually, in order to mitigate for destroying wetlands, you have to buy several acres elsewhere. They don’t want wetlands in the middle of an area where it isn’t doing much good. There are sensitive wetlands in areas where there are endangered species, and they’ll let you buy a couple of acres of that for them–and then you can destroy an acre on your own property. That’s if the destruction is preapproved.

    If you destroy wetlands without their permission, in addition to whatever criminal charges, they can demand 10 or more acres for every acre you destroyed. If he destroyed 45 acres of wetlands, they could demand 450 acres or more.

    I’ve had a project where we had to map out every single mud puddle. Our consultants mapped out some puddles for fairy shrimp testing that were half an inch deep and two inches across at their widest point. Each puddle required both a dry season test for endangered fairy shrimp and a wet season test. That means the tests can take nine months to a year–assuming it rains enough that year for a wet season test. Running a plow seven inches through those puddles without testing them could certainly destroy habitat as far as the Corps in concerned, and the county and state authorities may not have even weighed in yet.

    1. What’s great is it doesn’t even have to be a wetland.

      1. It’s hard to tell because they dry out for nine months of the year.

        I had a site with a wetland on it. We couldn’t figure out where the water was coming from. It wasn’t draining onto the property. It was a mystery. This is north of San Diego County. It’s in the summer. Where’s the water coming from?!

        One day I was down at the property, and as I’m talking to a broker about the site, these fire trucks pull up, connect to the hydrants at the end of the cul-de-sac, and start blasting water with their fire hoses into the middle of the property!

        I took some pictures of them blasting the water, then I went up to ’em, and I said, “Hey, what’s up!”

        They told me that they’re required to run their equipment for so many hours every week to make sure it’s working properly, so they’ve been blasting water onto my site for x number of hours for . . . as long as anyone can remember. God bless our firefighters for all the good work they do, but those guys created wetlands.

        Point is, you can go with overhead photographs over time to dispute the extent of the wetlands. They didn’t care about the source of the water–but they let us dispute the extent of the wetlands. At that point, taking the fire hoses away, we were worried that there wouldn’t be enough rain that year to do a wet season test. If that had happened, I thought maybe I’d resubmit the photos of the fire hoses at work again–and ask them to come back and give us some water.

    2. what you just said to me means that the wetland isn’t worth protecting (in your example). It sounds like a small section of land that depending on weather changes could simply kill it on its own.

      It sounds like “wetlands” come and go depending on weather and that they are super fickle and not worth protecting because nature can kill it on its own at a whim.

  4. How many people know that one of the species on the endangered species list is a) not ecologically significant and b) isn’t visible to the naked eye? You have to look at fairy shrimp under a microscope to see them, not to mention whether they’re one of the endangered species of fairy shrimp.

    Fairy shrimp are ecologically significant but the common variety are not endangered. I walked that site mentioned above with the biologists from county, state, and feds at the same time–and they all told me the endangered species of fairy shrimp were not ecologically significant. The common (non-endangered) shrimp are plentiful enough for wildlife. It’s just that they want to stop this one microscopic species from going extinct because it’s unique.

    What they’re saying is that if it did go extinct, no one except for lab techs would miss it. One of the reasons the endangered fairy shrimp is endangered is because they’re the favorite food of common fairy shrimp. If they find common fairy shrimp on your property, you probably don’t have the endangered species because the common fairy shrimp feed on the endangered ones.

    I think it should be necessary for a species to be either ecologically significant or visible to the naked eye in order to be put on the endangered species list. Our economy has wasted billions in consultants, delayed projects, and mitigation fees to protect a species that no one would miss if it were gone? Go figure!

    1. I think you’re missing the obvious point here, which is that the common fairy shrimp need to be exterminated.

  5. and that the plowing went no deeper than 7 inches.

    You know what else went no deeper than 7 inches?

  6. So, based on this and the previous California zoning article, if I’m a large land-owner in California, I should just sell my land to some unsuspecting sucker who thinks they can actually farm it.

    Then, I should buy as much SF real estate as I can, sit on it, and wait.

    Step 3: profit.

    1. You have no idea how hard it is to build anything in SF.

      1. Who said anything about building?

        Sitting.

        I said sitting.

        1. you have to squat to be in compliance. plain seated position is prohibited.

          1. Only illegal immigrant squatters receive deferment for posture violations in SF, outside investors fall under the BOAS( bend over and smile) rule. I think the applicable ordinance is worded something like “feet firmly set 24 apart, bent not less than 90? at the waist and a perceptible smile of appreciation cast over your left shoulder.”

            Bureaucratic obstruction will fallow investment anywhere, it’s not called red tape for nothing. The purpose is to Stop private activities and divert as much of the profit generated by self interest into government coffers as possible. This stolen profit is then put to use against future production.

            Have you ever seen a tractor pull? The farther down the track the machine gets the heavier the weight becomes and watching the mighty thing struggle to a halt is exhilarating to some and depressing for others.

    2. Buying land has been a crapshoot in California for a while. As more and more of the state gets developed, the probability increases that remaining land is unusable for some reason (which the seller ain’t gonna tell you of course, assuming he even knows).

  7. Its sad that our society and even the people reading this article have patience for the cancer of regulatory overreach sweeping and destroying the country. Cases like this show the insane truth about what is going on which can best be described as one group of people (government) making up laws (that are in direct contraction of the Constitution) to take the property of others. The details and semantics shouldn’t even be worth discussing. If it wasn’t a wetland 1,000 years ago, it shouldn’t be considered a wetland now. Maybe the government should nationalize all of our farmland for our own good like they did in Venezuela…

    1. gov?ern?ment
      ???v?r(n)m?nt/
      noun
      noun: government; plural noun: governments

      1. An organized system for taking property from others.

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