AFBF leader visits land at center of dispute


Issue Date: May 17, 2017
By Kevin Hecteman
Landowner John Duarte, right, describes to American Farm Bureau Federation President Zippy Duvall his struggle with federal agencies over management of a plot of land in Tehama County. Duvall and other Farm Bureau leaders visited the land last week.
Photo/Kevin Hecteman

A patch of land in Tehama County stands at the center of a federal case with implications for every farmer and rancher in the United States, and as example for farm organizations of the need for federal regulatory reform.

John Duarte's struggle against the Army Corps of Engineers and the U.S. Department of Justice is nearly five years old. American Farm Bureau Federation President Zippy Duvall made a point of visiting Duarte's land south of Red Bluff during a visit to California last week. Regulatory reform is one of Duvall's top priorities.

"When I heard about Mr. Duarte's situation here, and he came by and visited me last year, it became part of my everyday speeches that I made all across America," Duvall said. "We've talked about the federal government taking advantage of our farmers in situations where they really had no right of invading our private property rights. We're standing in this field that he's been sued over for plowing, and it's no different than any other field that we would plow and plant wheat on anywhere in America. And if it comes true that the legal system wins on this one, this could be used against any farmer anywhere in America."

Duarte, whose family runs a nursery in Stanislaus County, bought the land in 2012 and decided to plant wheat. Then came the phone call from the Army Corps office in Redding: A field representative had seen the field being tilled.

"He looked at our operations and presumed that we were deep-ripping," Duarte said. "He, in his field report that day, wrote that we were ripping 3 feet deep and destroying vernal pools in the process. He subsequently sent us a cease-and-desist notice and told us we couldn't farm our ground because we were violating the Clean Water Act."

Tony Francois of the Pacific Legal Foundation, which is representing Duarte, said the government's own experts ultimately agreed the plowing went only 5 to 7 inches deep, on average.

"All the vernal pools on the property are still there. No wetlands have been destroyed," Francois said.

Even so, Duarte was forced to quit farming the land. He sued over the lack of due process, only to be countersued by the Department of Justice for penalties relating to Clean Water Act violations. Francois said a judge ruled against Duarte's due-process claims and in favor of the government on Clean Water Act liability.

"What remains is a trial on the amount of money that the government wants from John and his company," Francois said. "The government has asked for a $2.8 million civil penalty and purchase of as many as 132 acres of wetland mitigation credits."

The trial is set for Aug. 14.

Duarte said the land he owns, which was pasture when he bought it, has been identified by Tehama County as being ideal for "increased agricultural activity," meaning crops such as grapes, orchards and nursery crops.

"This community needs this land farmed to create rural jobs," Duarte said, adding he was pleased that Duvall, California Farm Bureau Federation President Paul Wenger, other Farm Bureau leaders and Rep. Doug LaMalfa, R-Richvale, offered their support during the visit.

At the heart of the issue is the way regulators and agencies carry out their duties, the farm representatives said. The Clean Water Act contains a provision, Section 404, under which it is illegal to discharge dredged or fill material into a U.S. waterway without a permit from the Army Corps. According to the U.S. Environmental Protection Agency, normal farming operations do not require Section 404 permits.

Wenger said the Duarte case gives farmers good reason for alarm.

"This is a strong-arm tactic by the federal government to try to take property rights away from property owners who are asked to pay property taxes on their property, but they can't do anything with it," Wenger said. "This is nothing more than a taking, a blatant misuse of federal power."

LaMalfa, a fourth-generation farmer, said he is watching the case closely.

"The constituents I represent up in this county and this area have been fighting this for some time, here on this particular piece and other ones, with an out-of-control Army Corps of Engineers and out-of-control interpretations of the Clean Water Act and waters of the United States," LaMalfa said, adding that legislation is being drafted to clarify what normal farming activities are and what should be exempt from federal oversight.

Wenger said he sees hope in the statements of new EPA Administrator Scott Pruitt, who Wenger said wants to bring interpretations of the law back to what Congress intended.

"That's all we ask: Let's have good laws and let's make sure those good laws are interpreted and put into action the way that common sense would dictate—not by somebody that's a zealot sitting in Washington, D.C., and making up their own mind of what Congress intended," Wenger said.

Duvall said he wants the new administration to pay attention.

"President Trump talks about regulatory reform," Duvall said. "He just signed an executive order in my presence to create a task force to study ag and rural prosperity, saying that we're going to look and see what regulations are out there that are getting in the way of our rural farmers and ranchers and rural communities from prospering, and tear them down so that we can go back to work and create jobs and create wealth in rural America. If we can get his attention on a situation like this, I know that this president will be against this."

Duvall added that farmers around the country should realize the risk Duarte is taking on their behalf, calling his actions "a step of faith that could help every farmer in America."

"We should step up to the plate and try to help him, too, because he's put his family's business and his family's farm into jeopardy by fighting for what's right," Duvall said.

Duarte said he has spent $1.8 million in legal bills so far, and noted that CFBF and AFBF have rallied to his cause. CFBF, more than a dozen other state Farm Bureaus, several county Farm Bureaus and other agricultural groups have donated, Duarte said. He also has a GoFundMe page at www.gofundme.com/Duartestandsup.

(Kevin Hecteman is an assistant editor of Ag Alert. He may be contacted at khecteman@cfbf.com.)

Permission for use is granted, however, credit must be made to the California Farm Bureau Federation when reprinting this item.