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10 CapitalPress.com August 11, 2017 Campaign mounted seeking to have Trump administration intervene DUARTE from Page 1 The trial follows years of legal maneuvering and months of pleas by Duarte, his attorneys and supporters to President Donald Trump’s administration to intervene. Duarte’s lawyer, Pacif- ic Legal Foundation senior attorney Tony Francois, has also been in settlement talks with the U.S. Justice Depart- ment, but as of press time no agreement had been reached. “It keeps going,” Duarte said one recent morning as he stood where the trouble began — in the middle of the 450- acre grass field south of Red Bluff, where he had intended to plant winter wheat. Francois hasn’t given up on the possibility of an elev- enth-hour reprieve. “We remain hopeful that the administration will re- assess its view of the case,” he said, “but so far nothing has come to fruition on that front.” Asked by the Capital Press if a resolution could be near, Justice Department spokes- man Justin Abueg declined to comment. Troubles begin Duarte, who also owns Duarte Nursery in Modesto, Calif., purchased the Tehama land in 2012 and pondered what to do with it. The field had been planted to wheat de- cades before but more recent- ly was used to graze cattle, he said. Commodity prices were high in 2012, so Duarte de- cided to put the land back into wheat production, Francois, his attorney, said. Duarte said a wetland de- termination by a consultant had been done shortly before he bought the property. “We knew where the wet- lands were,” Duarte said. “I don’t think you’ll ever find a grower who’s done a wetland delineation to plant wheat. ... The depth of tillage on wheat isn’t enough.” The Army Corps still is- sued a cease-and-desist order to Duarte, finding him in vio- lation of the 1972 Clean Wa- ter Act for farming without a wetlands permit. As a result of the order to stop, Duar- te lost the $50,000 it cost to plant the wheat and the abil- ity to grow a field crop on the property, Francois said. He would also have to pay a multi-million-dollar fine. The field was leased out last winter as cattle pasture, Duarte said. The PLF filed suit on Du- arte’s behalf in 2013, disput- ing the Corps’ allegations and arguing the government violated his Fifth Amend- ment due-process right by not allowing him to answer the charge in a hearing. The Corps responded with a coun- terclaim alleging the Clean Water Act violation. The Corps claims the till- age on Duarte’s property “re- located earthen material into Tim Hearden/Capital Press John Duarte, left, talks with Pacific Legal Foundation senior attorney Tony Francois on Duarte’s prop- erty south of Red Bluff, Calif. Duarte is being sued by the federal government for allegedly plowing wetlands on the property while the farmer is challenging the government’s interpretation of the Clean Water Act. ridges,” unlaw- fully raising the elevation of the soil in the wetlands with “fill material.” Last year, U.S. Doug District Judge LaMalfa Kimberly Mueller agreed, ruling that Duarte should have obtained a permit to run shanks through wetlands at a depth of 4 to 6 inches, creat- ing furrows. Duarte and Francois insist the law is on their side, not- ing that Congress drew clear exemptions for normal farm- ing practices such as plowing when it passed the Clean Wa- ter Act. They plan to appeal that decision. “This case has the law wrong,” Francois said. “What Duarte ... did on this property was plowing.” The attorney’s latest ma- neuver has been to file a mo- tion to dismiss the case on the grounds that the Army Corps had no jurisdiction. The U.S. Environmental Protection Agency, not the Corps, has the authority to bring enforce- ment actions when no permit has been obtained, Francois said. Mueller will consider the motion Aug. 15 before hear- ing other evidence, he said. Trump turnaround? During the ordeal, Fran- cois and Duarte have mounted a public-relations offensive, inviting reporters, members of Congress and leaders of or- ganizations such as the Amer- ican Farm Bureau Federation to the property. As of this summer, a Cal- ifornia Farm Bureau Fed- eration-sponsored fund for Duarte had raised more than $100,000, he said. Their hopes for a political solution got a boost last No- vember, when voters elected Trump and a Republican-led Senate and House of Repre- sentatives. In February, the president issued an executive order directing EPA administrator Scott Pruitt to review the “Wa- ters of the United States” rule and asking At- torney General Jeff Sessions to consider the re- view as it pur- sues litigation initiated under Col. David then-President G. Ray Barack Obama. The EPA and Army Corps have since proposed scrapping the WO- TUS rule, which critics say encroaches on private proper- ty rights. At his Senate confirma- tion hearing, Pruitt appeared to agree with Sen. Joni Ernst, R-Iowa, who ridiculed what she saw as the Obama ad- ministration’s policy that “any plowing that pushes soil into furrows is not an exempt farming activity because the tops of plowed furrows can dry out,” she said. Ernst asked Pruitt if EPA “will work with the Corps and (the Department of the Justice) to make sure that federal agencies stop trying to regulate ordinary farming practices.” “Yes, senator,” Pruitt re- sponded. In May, House Agriculture Committee Chairman Mi- chael Conaway and House Ju- diciary Committee chairman Bob Goodlatte sent a letter to Sessions arguing that Duar- te’s field work should qualify as “normal” farming practices under the Clean Water Act ex- emption. Rep. Doug LaMalfa, R-Calif., a House Agriculture Committee member whose district includes Duarte’s land, said Sessions should “call the dogs off.” “The administration needs to get a handle on it,” LaMal- fa said. “We’ve talked with the attorney general’s office. They need to put the brakes on that lawsuit or at least min- imize it.” The political push suggests a shift in strategy for Duarte, said Richard Frank, director of the California Environ- mental Law and Policy Cen- ter at the University of Cali- fornia-Davis School of Law. Duarte has “mounted a political campaign seeking to have the Trump administration — which is far less interest- ed in asserting broad federal authority to Paul regulate wet- Wenger lands than was the Obama ad- ministration — intervene and withdraw the enforcement action altogether,” Frank, a professor of environmental practice, said in an email. However, “he and PLF have been unsuccessful in their political lobbying ef- forts,” Frank said. A key ally Duarte has an ally in U.S. Agriculture Secretary Sonny Perdue, who said Aug. 7 he planned to get the “straight scoop” about the case from Pruitt and Sessions when he returned to Washington, D.C., from a tour of Midwest farms. Perdue said he sees the government’s continued pur- suit of the Duarte case is an “extension” of Obama admin- istration policies. “My understanding was there had been some recon- ciliation of the case, but it appears to be going forward,” Perdue told the Capital Press. “I’m hoping that the U.S. Jus- tice Department will see fit to hold off on that until a better definition of Waters of the U.S. appears.” But in a July 10 let- ter to committee chairmen Conaway and Goodlatte, act- ing Assistant Attorney Gener- al Samuel Ramer said he’s un- aware of instances when the government settled a Clean Water Act case that was pend- ing an appeal. “To enter such a ‘contin- gent’ settlement would be, as a general matter, contrary to the United States’ interest in obtaining final resolution of an enforcement matter,” Ram- er wrote. “Nonetheless, please rest assured that we are often able to achieve appropriate settlements in our Clean Wa- ter Act enforcement cases, and ... we actively pursue the settlement of our enforcement cases wherever feasible.” While leaders in Wash- ington discuss scrapping the WOTUS rule, there’s been no change in how officials at the local level enforce the Clean Water Act, said Col. David G. Ray, commander of the Army Corps’ Sacramento district. “If and when there are changes, we will alter our pro- cedures,” Ray told the Capital Press. “There’s been no com- munication down to the dis- trict level.” Paul Wenger, president of the California Farm Bureau Federation, said he wondered whether the Trump adminis- tration would drop its pursuit of the case. But he’s not sur- prised that it’s moving for- ward. “Once it’s in the courts, you can’t pull it back,” he said. “I know there have been requests by Congressman Doug LaMalfa and others to the attorney general’s office that it’s not a good case and they ought to pull it back. ... But the judge ruled against Duarte, so it’s kind of like it’s on its own course now.” Impact uncertain Wenger and other farm- ers’ advocates say if the case against Duarte is upheld by the courts, it could force growers across the country to obtain costly permits for nor- mal activities such as plow- ing and planting, which was not the intent of Congress. It could also bring more law- suits from environmental groups, Francois said. “No farm in America is safe from this kind of prose- cution,” Duarte said. But Kieran Suckling, ex- ecutive director of the Center for Biological Diversity, said it’s difficult to determine the case’s ramifications because it’s unknown which issues the courts will decide are the crit- ical factors when they make rulings. Any “grand claims” by the PLF or farm groups about winning legal precedents and scaling back the reach of the Clean Water Act are just “po- litical huffing and puffing,” Suckling said. “The bottom line here is that no one can really predict either the outcome of the case or whether it will set interest- ing new legal precedents,” he said in an email. While settlements are al- ways possible in cases such as this, Suckling said he would be more concerned if the Trump administration sim- ply dropped the case. Such a move would signal “that the administration is going to stop enforcing the Clean Wa- ter Act,” he said. Francois acknowledg- es the case faces an uncer- tain fate on appeal, even if it reaches the U.S. Supreme Court. He believes the court could clarify the scope of the Clean Water Act as well as its farming protections. But pre- vious cases before the high court “fell short of clarity,” he said. Frank, of the UC-Davis School of Law, doesn’t think the outcome will amount to much. “I confess that I don’t real- ly see the Duarte case as likely to have a major, future effect on the federal government’s wetlands jurisdiction under Section 404 of the Clean Wa- ter Act,” he said. But the Farm Bureau’s Wenger, an almond and wal- nut grower from Modesto, Calif., thinks the case is im- portant. “You always worry” about an appeal leading to an un- favorable precedent, Wenger said. “I think you just have to put up a fight.” High stakes Duarte said he’s spent more than $2 million putting up a fight, but the penalties demanded by the government “would wipe me out,” he said. Francois said the $2.8 mil- lion fine “arrived from thin air,” as the government’s fil- ings have never explained how officials arrived at that figure. In addition to the fine, the government wants Duarte to purchase vernal pool miti- gation credits, which Francois estimates could cost between $13 million and $43 million. “That’s an order of mag- nitude (beyond) a civil pen- alty that’s just laughable if it weren’t real,” Francois said. “We’re prepared to show the judge that the evidence strongly favors a nominal penalty in this case as opposed to the ruinous figures that the government is demanding.” Among the factors the judge can consider is the im- pact of a penalty on the defen- dant and his nursery, he said. “It’s impossible to see how they would continue employ- ing the 500-plus Modesto area workers that work for them,” Francois said. “Basically, the government would succeed in putting several hundred good people out of good work who’ve had nothing to do with what happened in that field near Red Bluff.” Duarte argues there has been no long-term environ- mental damage to the prop- erty. “If anything, I believe our tillage increased percolation into the ground, improved groundwater and enhanced grazing,” he said. The grower said he will continue to welcome visitors to the property. “We would like to meet them here, but we would pro- vide access to the property,” Duarte said. “This is a very boring grass field with noth- ing special about it except the government prosecuting a farmer.” And he continues to lead a push for officials to put a stop to the case. “Every farmer should be contacting their Congress per- son right now to get the ad- ministration’s attention,” he said. “This case is extremely important.” GMO beets allow growers to use fewer herbicides ‘Sam Clovis is a very smart individual ... committed to the success of agriculture’ GMO from Page 1 herbicide, enjoy 100 percent adoption among Amalgam- ated growers and save them about $22 million per year, he said. Because the GMO beets allow growers to use few- er herbicides, the plants are disturbed less and they face much less competition from weed pressure, which has translated into higher yields, Grant said. Since GMO corn was in- troduced in the 1990s, he said, U.S. corn acres have increased from just under 60 million to 90 million, while acres of wheat, which is not genetically modified, have dropped from about 60 mil- lion to 45 million in 2017, which is the lowest acreage since records began in 1919. The wheat “industry is struggling because returns don’t match the returns in crops grown with biotechnol- ogy,” Grant said. “The value of that technol- ogy to a farmer is intuitive,” he said. But, he added, it’s not in- tuitive to many consumers PERDUE from Page 1 Sean Ellis/Capital Press File A sugar beet field near Nampa, Idaho, is shown in this photo. Two of the nation’s sugar companies will launch a $4 million online campaign this fall aimed at educating consumers about GMO crops and changing their perceptions of the technology. and that’s the reason for the “A Fresh Look” campaign, which will target moms who are deemed to be decision makers and engage them on- line. “We are going to talk to them in their language,” Grant said. “All they care about is, is this good for the planet and will it be good for my kids.” The campaign will in- troduce those consumers to some of the 25 environmen- tal benefits of GMO crops that the sugar beet industry documented and submit- ted to the National Acade- my of Sciences in 2015, he said. The use of fewer pesti- cides and herbicides in GMO crops will be highlighted, Grant said. “We’re going to own that one.” Doug Jones, executive director of Growers for Bio- technology, which promotes the acceptance of agricultural biotechnology, applauded the campaign. “The public’s understand- ing of biotechnology is very low and often misguided,” he said. The campaign won’t change everyone’s mind, but “if they can do something to educate the public, I’m all for it.” Critics have taken aim at past statements by Clovis, a one-time radio talk show host and blogger who ran unsuc- cessfully for U.S. Senate. In 2014, he told Iowa Public Ra- dio he was “extremely skep- tical” about climate change, adding he has “enough of a science background to know when I’m being boofed.” Perdue was asked about a CNN report that Clovis, in a now-defunct blog, was high- ly critical of the progressive movement and former Presi- dent Barack Obama, whom he called a “Maoist” with “com- munist” roots. Perdue said he was unfa- miliar with Clovis’ alleged statements but added that Trump still has confidence in the nominee. “I find it amazing how the media goes back years and finds every type of allega- tion,” Perdue said. “It’s what the opposition does. They did it with me. They dredge up stories ... Sam Clovis is a very smart individual who’s very committed to the success of agriculture. I fully support his nomination.” Perdue hosted the telecon- ference from Springfield, Ill., where he was in the middle of a tour of the Midwest to dis- cuss the farm bill and other topics. Among other issues, he said he plans to be “engaged” on renegotiation of the North American Free Trade Agree- ment. He said the trade deal’s benefits to agricultural ex- ports were a big reason Trump sought to renegotiate it rather than simply withdraw. At the same time, Amer- ican agriculture could “have a lot to gain” from the talks, including perhaps resolving issues with Canada’s dairy supply management system and issues with Mexico in- volving pork and potatoes, Perdue said. “But those are really minor types of issues that we can re- solve,” he said.