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.