WASHINGTON, Aug. 15, 2017 - John Duarte, the California nursery owner who faced more than $30 million in fines and mitigation costs for plowing his land, has agreed to pay the government $1.1 million to settle the case against him.
“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,” according to the Pacific Legal Foundation, which provided free legal representation to Duarte. He also was represented by other lawyers and is facing legal bills that could total $2 million, according to his trial lawyer in the case.
Duarte was found liable for violating the Clean Water Act last year. A trial to determine the amount of fines and the cost of mitigation, which was to begin today, was cancelled.
The court will hold a hearing in about 45 days to approve the settlement, PLF said.
“This has been a difficult decision for me, my family, and the entire company, and we have come to it reluctantly,” Duarte said in the PLF press release. But given the risk of fine and mitigation costs, “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 government had been seeking what it described as a “conservative” fine of $2.8 million. Duarte estimated the potential cost of mitigation credits at between $15-$30 million.
PLF attorney Tony Francois said that Duarte “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. John and his counsel remain concerned that legal liability for farming without federal permission undermines the clear protections that the Clean Water Act affords to farming and poses a significant ongoing threat to farmers across the nation.”
The case stems from plowing conducted in 2012 on land owned by Duarte in Tehama County. The U.S. Army Corps of Engineers, however, said the plowing was actually the “ripping” of 22 acres of wetlands – and the judge agreed.
In a pretrial brief, the Corps said that “despite claims by Duarte to the contrary, this case is not (and will not be used as) a pretext for federal prosecution of farmers who engage in normal plowing on their farms. No federal dredge-or-fill permit is required for plowing as defined in the regulations, and no such permit is required for discharges from ‘normal farming . . . activities’ (including plowing) if they are part of an established (i.e., ongoing) farming operation and not for the purpose of converting federally protected waters to new uses. Those protections for farmers remain in the law today and will continue to be recognized.”
The judge in the case, Kimberly Mueller, said the ground in question had lain fallow for 24 years and thus was not part on an ongoing farming operation.
The settlement and more information can be found here.
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