The long-running Duarte case ended abruptly on Aug. 15 in a $1 million settlement. This ended an almost five-year conflict between John Duarte and the U.S. government over a plowed field, the definition of waters of the U.S., and the authority of the Clean Water Act.
The case started back in November 2012 when John Duarte, owner of Duarte Nursery Inc., plowed a section of his land with plans to plant wheat. The Army Corps of Engineers (Corps) sent Duarte a letter, ordering him to stop farming operations on the piece of land. This was based on alleged violations of the Clean Water Act, the Corps claiming the land was a waters of the U.S. with the Coyote Creek watershed.
The initial suit by Duarte argued his right to due process had been violated in how the Corps and later the Central Valley Regional Water Quality Control Board communicated with him. In June 2016, the court ruled against Duarte, asserting the company had violated the Clean Water Act as the Corps had claimed. This ruling was appealed. The recent settlement ended the appeal case.
The settlement of this case—like any settlement case—is effectively an agreement to stop the lawsuit without either side conceding defeat or admitting wrongdoing.
“John would have preferred to see this case through to trial and appealed the court’s liability ruling, which holds that plowing a field requires federal permission—despite the clear text of the Clean Water Act and regulations to the contrary,” said Pacific Legal Foundation (PLF) Senior Attorney Tony Franзois in the group’s announcement.
“Under the agreement, Duarte would admit no liability, pay the government $330,000 in a civil penalty, purchase $770,000 worth of vernal pool mitigation credits, and perform additional work on the site of the plowing.”
Franзois told WLJ that the $330,000 civil penalty was negotiated down from the $2.8 million the government had asked the court to impose.
“Its request never explained how it arrived at that number, other than to note that it could have asked for tens of millions in civil penalties under the statute,” he added.
“This has been a difficult decision for me, my family, and the entire company, and we have come to it reluctantly,” said Duarte in PLF’s announcement of the decision.
“But given the risks posed by further trial on the government’s request for up to $45 million in penalties, and the catastrophic impact that any significant fraction of that would have on our business, our hundreds of employees, our customers and suppliers, and all the members of my family, this was the best action I could take to protect those for whom I am responsible.”
The settlement agreement stipulates that Duarte must do a few other things in addition to paying the fees. These include:
- Not “disturbing” the 44 acres of contested land as well as a 35-foot setback area. Disturbance includes “any dredging, filling, land clearing, tillage, agricultural activities, construction work, or any pollutant discharge or earthmoving activities” for 10 years. The banned “agricultural activities” do not include “moderate non-irrigated cattle grazing and wee, pest, or invasive species control;”
- Submitting a plan to return the contested acres to their pre-November 2012 state and accomplishing the items of that plan once approved by the Corps; and
- Informing the Corps of instances of “force majeure”—events beyond their control—that might delay or upset the completion of the other obligations.
WOTUS and worries
The list of requirements also provided for potential changes to the definition of waters of the U.S. In two years, Duarte may “seek from the Corps a revised jurisdictional determination” for the site.
“In making such determination [sic], the Corps shall apply the then-applicable definition of ‘waters of the United States’ and shall otherwise act in accordance with then-governing law,” the agreement reads.
However, Franзois told WLJ that the 2015 Waters of the U.S. (WOTUS) rule was not a factor in the case. He also noted that the possible rewrite might not matter either.
“The government argued that 22 acres of Duarte’s land are federally protected navigable waters based on a Bush administration-era guidance document, issued in 2008, which the EPA has said it will rely on after it formally rescinds the 2015 rule and while it develops a new rule.”
More concerning is how the Corps and the courts treated the issue of normal farming practices. At the heart of the case was the fact Duarte plowed part of his land, something most consider a normal farming practice.
Franзois told WLJ that a lot of PLF’s concern stems from the fact the Corps has said, “that what most farmers read as a broad and clear exemption from Army Corps permitting for normal farming practices in the Clean Water Act is, in the agency’s view, really full of loopholes, caveats, and conditions such that farmers really have no way of knowing whether their practices actually require a permit,” he explained in an email.
“This puts any and all farming practices under the threat of prosecution by the federal government or injunction in private activist suits.” — Kerry Halladay, WLJ editor
