A land-use case that's enough to furrow a farmer's brow

Jan. 15, 2016 2 AM PT

reporting from RED BLUFF, Calif. — John Duarte is a fourth-generation California farmer. Just outside Modesto, his family owns one of the biggest agricultural nurseries in the country.

Duarte Nursery is famous for its grapevines, and its almond, walnut and pistachio root stock. The family also cultivates vineyards and orchards. In all, it’s a $50-million-a-year concern.

Which is why Duarte is able to finance his million-dollar legal fight with the federal government, a fight where the government will almost certainly find itself on the losing side.

The trouble started in 2012. That’s when Duarte, 49, hired a guy to plow 450 acres that he’d purchased here in Tehama County, about two hours north of Sacramento.

The idea was to plant a crop of winter wheat, which would later be replaced by a walnut orchard. The land is typical of farms in the area, rolling grassland on top of gravelly clay loam soil. When it rains, water gathers in puddles called vernal pools. The pools evaporate instead of drain, thus offering habitat to creatures like the fairy shrimp, a creature you may remember from your list of greatest childhood disappointments as sea monkeys.

Duarte was aware of the smattering of vernal pools and swales on his property, and asked his contractor to plow around them. Some he did, some he didn’t, but none was destroyed. After all, the plow was going only 4 to 7 inches deep, maybe a foot in a few places, but not far enough down to disturb the impermeable clay-like layer beneath the pools.

As a farming matter, you don’t really want to plant in puddles that don’t drain. As a legal matter, the government takes a dim view of wetlands destruction. Vernal pools are considered wetlands.

Years ago, in the course of refining the Clean Water Act, the Environmental Protection Agency adopted a rule that plowing is not regulated by the act, so long as plowing does not turn a wetland into dryland. This allows farmers to plow their land without the onerous permitting process required when wetlands are otherwise put to human use.

In the winter of 2012, a project manager from the local office of the U.S. Army Corps of Engineer, which is responsible for enforcing the Clean Water Act, happened to drive by Duarte’s field as it was being plowed. He decided that the land was being tilled too deeply. What he observed did not count as plowing, he concluded. It was “deep ripping,” which is not allowed, as it can destroy wetlands. The Corps sent Duarte a cease-and-desist letter.

Duarte contends that the project manager was simply mistaken. He and his attorneys say that rather than admit the mistake, the government has doubled down, leading to multiple lawsuits (by Duarte against the feds; by the feds against Duarte), millions of dollars in legal costs and, of course, lost wheat revenue.

The case has resulted in some spectacularly absurd contortions on the part of the Corps:

The agency claimed that the cease-and-desist order, which raised the specter of fines and even imprisonment, was merely a suggestion, not a command. No one forced Duarte to stop working his wheat field, government lawyers said. That was simply his own choice.

The federal judge hearing the case found the claim mind-boggling — like holding a gun to Duarte’s head, he wrote, then claiming Duarte should have known the weapon wasn’t loaded.

In another instance, when Duarte gave Corps staffers access to his land to examine the vernal pools and furrows, they brought a steam shovel. “They’ve dug 20 or more pits right in the middle of the wetlands they claim I have destroyed,” he said.

Finally, and perhaps most deliciously, the Corps maintains that the raised parts of the plowed furrows, which are maybe 3 to 4 inches tall, created “small mountain ranges,” which discharged pollutants (i.e., tilled dirt) into the wetlands.

On Wednesday, under drizzly skies, Duarte stood on one of those teensy mountain ranges and smiled. “We call these ‘Sierra de minimis.’”

Duarte and his attorney, Anthony Francois of the Pacific Legal Foundation, had picked me up in Sacramento and driven me to the field. I had to see it for myself.

Along the way, we passed some of the northern Central Valley’s most glorious landscape — sun-dappled hills, 100-year-old olive groves, and many, many orchards planted with walnuts and almond trees that began life at Duarte Nursery. Thanks to recent rains, the medians were a nearly fluorescent green.

We talked about the Lodi cherry harvest, the battle against GMOs and Duarte Nursery’s pioneering work on in-vitro micropropagation of avocados.

The Pacific Legal Foundation, a conservative outfit, fights government infringement on private property rights. It works free of charge and is supported by foundations and individuals, and has won a string of Supreme Court victories. Though I often find myself in vehement disagreement with its positions, I can’t say it’s wrong on this one. (Duarte’s high legal bills are being incurred as he pays a second set of lawyers to defend him against the government’s countersuit.)

Duarte’s specific claim against the Corps of Engineers is that he was deprived of his constitutional right to due process. “Our lawsuit says they were required to give Duarte a hearing before forbidding them to use their property,” Francois said.

Court documents show that when Duarte’s first attorney contacted the Corps to ask for details about his alleged violations, the senior project manager who flagged the plowing told his bosses in an email that the attorney was on a “ranting fishing expedition” and ignored the request.

(I reached out to the Army Corps of Engineers and the Justice Department, which represents the Corps. Neither would comment on pending litigation.)

Duarte, to his surprise, has become a symbol for government overreach.

Earlier this week, he was in Orlando, discussing his plight at a meeting of the American Farm Bureau. On the day I met him, an op-ed piece by Republican House Speaker Paul Ryan appeared in the Omaha World Herald, citing Duarte’s situation as “another example of Washington bureaucrats sticking their nose where it doesn’t belong.”

Francois thinks this case could go on for years, and perhaps reach the U.S. Supreme Court.

On Wednesday, Duarte, Francois and I walked across the gravelly dirt of Duarte’s fallowed field. A few wisps of the winter wheat he planted in 2012 remained. A flock of geese honked over us as they flew south in a wobbly formation. The only thing that marred the stark view was a red couch marooned in a shallow stream on the northern end of the property.

Whether that was a form of pollution worthy of government attention, I really couldn’t say.

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