WASHINGTON, May 26, 2017 - Pressure is mounting on the Justice Department to back off its prosecution of a California nursery owner who is facing $2.8 million in fines for plowing in wetlands.
The latest development in the case involving John Duarte (pictured above), whose trial is scheduled to begin in August, is a letter sent today by House Agriculture Committee Chairman Mike Conaway, R-Texas, and Judiciary Committee Chairman Robert Goodlatte, R-Va., to Attorney General Jeff Sessions.
In it, the chairmen ask Sessions whether it might be “appropriate to seek reduced penalties where the alleged violation is based on a novel or strained interpretation of the underlying statutory authority.” The reference is to the Clean Water Act (CWA) exemption of “normal farming” activities from the prohibition against the discharge of dredged or fill material into waters of the U.S., including wetlands.
The Duarte prosecution “raises concerns that the congressional intent behind the farming exemptions in the statute is misunderstood,” the chairmen wrote. “Specifically, it is the Agriculture Committee’s view that even occasional farm activities, including grazing, qualify as ‘normal’ farming under the statutory exemption, and also are part of an established operation for purposes of the exemption.” The ag committee also is of the opinion “that the activity at issue in this case constitute(s) plowing for the purposes of the exemption.”
Conaway and Goodlatte asked Sessions whether DOJ “has entered into contingent settlements pending an appeal of a CWA case” and whether it has “ever declined on appeal to advance CWA arguments that were successful at the district court level.”
A DOJ spokesman said the department would not comment.
Last June, U.S. District Judge Kimberly Mueller found Duarte had violated the CWA by preparing his land near Modesto to plant wheat. The judge said she was “not persuaded that, after nearly 24 years of no activity that meets the applicable definition of farming, the tillage and planting of wheat by plaintiffs can be considered a continuation of established and ongoing farming activities.”
CWA regulations state that “an operation ceases to be established when the area on which it was conducted has been converted to another use or has lain idle so long that modifications to the hydrological regime are necessary to resume operations.”
Mueller’s decision ended the liability phase of the case. In March, she rejected Duarte’s request that she reconsider her decision. She also denied his motion to appeal that decision before Duarte’s trial begins in August.
Duarte attorney Tony Francois of the Pacific Legal Foundation said in an interview today that he and co-counsel Peter Prows met with Justice Department attorneys earlier this month, and just yesterday he said he walked the property in question with two DOJ lawyers involved in the case.
The wetlands that were plowed “are all there,” he said. “They are as big as they were before.”
The “bottom line,' said Francois: “What was done on the property was plowing.”
Francois declined to discuss the substance of any settlement negotiations, but said the Justice Department could revise its position and determine that Duarte’s actions did not violate the CWA. Alternatively, DOJ could impose a “nominal” penalty and allow Duarte to appeal Mueller’s earlier ruling to the 9th Circuit Court of Appeals.
"We are hopeful that the Justice Department would look at the facts of this case and acknowledge that the plowing done on the property clearly falls within the normal farming exemption of the statute, and the plowing exclusion in the regulations, and revise their position that the actions constitute a violation," Francois said.
Duarte’s case has been used as an example of government overreach by farm-state lawmakers and groups such as the American Farm Bureau Federation. Duarte has set up a GoFundMe page to raise money for his legal defense, the cost of which is “$1.5 million and growing,” he said on the page.
Francois said that “Duarte cannot afford any significant penalty. The $2.8 million penalty threatened here threatens both the Duarte family as well as the families of the more than 600 people who work for Duarte Nursery.”
Critics of his prosecution often point to the government’s citation of an expert report that said Duarte’s plowing created furrows that resemble “small mountain ranges (microtopographic high spots) that cross the swales and depressions in various directions.”
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