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.