If the old phrase “making a mountain out of a molehill” didn't already exist, lawyer Tony Francois jokes he would have had to invent it to describe the situation facing his client, farmer John Duarte.
If the old phrase “making a mountain out of a molehill” didn’t already exist, lawyer Tony Francois jokes he would have had to invent it to describe the situation facing his client, farmer John Duarte.
But it’s no laughing matter, and that’s why they are putting up a fight against the federal government, backed by the Pacific Legal Foundation of Sacramento.
“This could destroy us,” said Duarte, a large nursery operator from central California. “The bank’s already out of its mind over this. It’s been a huge strain on our family.”
Duarte has become a minor celebrity in agricultural circles as the farmer fined for tilling his own field, a seemingly textbook example of government overreach. Since 2012, he has been locked in an escalating legal battle with the Army Corps of Engineers and the Department of Justice after allegedly violating the Clean Water Act by “deep ripping” a tract of land he was preparing to aerially seed with winter wheat.
Duarte has been sharing his story widely at venues like the American Farm Bureau’s annual conference, the Tulare Farm Show, the Range Rights Symposium in Omaha and most recently at the annual gathering of the Ag Relations Council. His plight also made it onto Lou Dobb’s Fox News television show.
He and his lawyer are pressing for more financial donations after raising about $125,000 so far.
The saga began in 2012, when wheat prices spiked. With the world clamoring for more grain, the mild-mannered, clean-cut Duarte decided to convert a 450-acre tract that had been in the Conservation Reserve Program back to wheat and started by preparing the grass-covered ground with a ripper, basically a chisel with shanks.
The field near Red Bluff contains 22 acres of shallow depressions, some roughly the size of a buffalo wallow, that fall under the jurisdiction of the Corps of Engineers. A complaint from a field agent who noticed the tillage implement in Duarte’s field triggered a federal cease-and-desist order that eventually led to a large fine. In rebuttal, Duarte filed a lawsuit claiming lack of due process.
The “vernal pools” at issue hold water only when it rains and recede even faster than a prairie pothole, Duarte said. Most of the time they can only be identified by a slight change in vegetation.
Still, the Corps fined him $2.8 million for what they are treating as an earth-moving operation and also demanded he purchase mitigation credits and remediate the land at a cost of around $8 million more.
Federal prosecutors claim rather than using legitimate cultivation practices Duarte was actually “re-organizing the soil into a series of furrows and ridges” and “discharging dredged or fill material into seasonal wetlands,” actions equivalent to polluting “navigable” waters and undertaken without the required permit. In court documents, they describe the ridges left behind by the ripper as “small mountain ranges.”
Ironically, government engineers came in with heavy dirt-moving equipment and tore 3-foot deep holes in the ground to establish that Duarte had dragged it with cultivating equipment at a depth of roughly five inches.
“No mitigation was required of them, and only limited restoration,” Duarte noted wryly.
An even bigger irony is that Duarte helped pioneer environmentally friendly farming practices in California by refusing to fumigate his land with ethyl bromide, a common practice used to control insects.
“Our nursery in the last 25 years revolutionized the industry and all of our competitors are following us now,” he said. “I think we’re environmental champions. To be caught up in trumped up charges like these is just an insult.”
Duarte believes the Clean Water Act is a good law, written with proper protections for agriculture, but believes he has been the victim of a “rogue prosecution team” and fined based on his perceived ability to pay.
Duarte’s diversified horticultural business, which was started by his grandfather, has $52 million in annual revenues but operates in a highly cyclical environment.
It’s not clear yet to what degree the new presidential administration can help. Soon after taking office, President Trump ordered the Environmental Protection Agency to re-examine the scope of the Clean Water Act and rewrite the Waters of the U.S., a rulemaking clarification vigorously opposed by farmers.
Duarte’s lawyer believes the prosecution team is pushing to try their case before the current administration has time to get more organized. A jury trial is set for August.
Duarte feels like what happened to him is part of a bigger “shakedown racket” throughout the state and beyond, as regulatory agencies squeezed for funding seek new sources of revenue. Confronted with a dispute, small business owners are typically forced to throw in the towel and settle.
“You wonder if you can afford to stand up and fight, but you really can’t,” Duarte said.
“What’s going on in this case is not unique to California,” his lawyer added. “It’s a systematic problem for farm operations around the country.”
If they lose the case, they fear it would set a new precedent that would make it easier for federal agencies to crack down on farming practices with little or no due process.