Duarte Nursery v. U.S. Army Corps of Engineers

Wheat farmer vs. the federal government: will the Constitution prevail?

Cases > Separation of Powers > Duarte Nursery v. U.S. Army Corps of Engineers
Case Status: Active: Duarte Nursery has agreed to a settlement with the United States

John Duarte and Duarte Nursery, in rural Tehama County, California, received a cease and desist order from the U.S. Army Corps of Engineers for engaging in normal farming activities (i.e., plowing) that purportedly affected wetlands. Duarte was not permitted any type of hearing to defend himself. Duarte, represented by PLF, sued the Corps for violating his due process rights. The Corps retaliated by suing Duarte for millions of dollars in fines based on the government’s contention that farming harmed small and isolated vernal pools and swales on the company’s property that the government says are protected wetlands under the Clean Water Act. Such retaliation violates the First Amendment right to petition the government and PLF amended the complaint to litigate that right as well as the underlying Clean Water Act and due process issues.

John Duarte is a fourth-generation California farmer growing grapevines and almond, walnut and pistachio root stock. The family also cultivates vineyards and orchards. Duarte hired a contractor to plow 450 acres in Tehama County, about two hours north of Sacramento, to plant winter wheat and a walnut orchard. The land contains isolated vernal pools, also known as rain puddles.

The Army Corps of Engineers, which considers vernal pools to be wetlands, ordered Duarte Nursery to stop farming its land, without giving the company a hearing. This violates the Fifth Amendment’s prohibition against the government depriving any person of their property without due process of law.

When Duarte sued, with PLF representation, the government doubled down and counter-sued, demanding millions of dollars to restore wetlands in perpetuity – even though there is no evidence that he damaged a single wetland on his property. The government’s retaliation against Duarte violated his First Amendment right to petition the government for redress of grievances.

The government’s case on the merits turns on the definition of waters that can legitimately be regulated under the Clean Water Act. Under a split decision in Rapanos v. U.S., federal regulation of non-navigable wetlands applies only if they directly abut navigable waters such that one can’t tell where one ends and the other begins. The Corps, however, issued a regulation that expands its jurisdiction over isolated wetlands. PLF argues that this regulation is invalid and the Corps has no authority over this property.

After the federal district court rejected Duarte’s claims, he reached a settlement with the federal government and agreed to pay fines but admit no liability. Although he would have preferred to fight in the trial and appeal, he could not afford the risk to his family, his business, and his hundreds of employees.

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What’s at stake?

  • The Corps of Engineers regulation encompassing isolated wetlands under the Clean Water Act is an invalid effort to expand federal authority beyond limits set by the Supreme Court.
  • The First Amendment prohibits the government from taking action against citizens that is substantially motivated by retaliation against the exercise of rights like speaking out in public against the government (freedom of the press) and suing the government (petitioning for redress of grievances).

Case Timeline

Duarte Nursery v. U.S. Army Corps of Engineers Documents 8-15-17

August 15, 2017 Download

Duarte Nursery v. U.S. Army Corps of Engineers Documents 7-31-17

July 31, 2017 Download

Duarte Nursery v. U.S. Army Corps of Engineers Documents 6-23-17

July 23, 2017 Download

Duarte Nursery v. U.S. Army Corps of Engineers Documents 5-26-17

May 26, 2017 Download

Duarte Nursery v. U.S. Army Corps of Engineers Documents 5-26-17

May 26, 2017 Download

Duarte Nursery v. U.S. Army Corps of Engineers Documents 5-25-17

May 25, 2017 Download

Duarte Nursery v. U.S. Army Corps of Engineers Documents 8-22-16

August 22, 2016 Download

Duarte Nursery v. U.S. Army Corps of Engineers Documents 6-29-16

July 29, 2016 Download

Duarte Nursery v. U.S. Army Corps of Engineers Documents 7-27-16

July 27, 2016 Download

Duarte Nursery v. U.S. Army Corps of Engineers Documents 6-13-16

June 13, 2016 Download

Duarte Nursery v. U.S. Army Corps of Engineers Documents 6-10-16

June 10, 2016 Download

Duarte Nursery v. U.S. Army Corps of Engineers Documents 11-6-15

November 06, 2015 Download

Duarte Nursery v. U.S. Army Corps of Engineers Documents 10-23-15

October 23, 2015 Download

Duarte Nursery v. U.S. Army Corps of Engineers Documents 9-3-15

September 03, 2015 Download

Duarte Nursery v. U.S. Army Corps of Engineers Documents 9-3-15 (2)

September 03, 2015 Download

Duarte Nursery v. U.S. Army Corps of Engineers Documents 7-30-15

July 30, 2015 Download

Duarte Nursery v. U.S. Army Corps of Engineers Documents 7-24-15

July 24, 2015 Download

Duarte Nursery v. U.S. Army Corps of Engineers Documents 7-7-15

July 07, 2015 Download

Duarte Nursery v. U.S. Army Corps of Engineers Documents 3-24-15

March 24, 2015 Download

Duarte Nursery v. U.S. Army Corps of Engineers Documents 10-31-14

October 31, 2014 Download

Duarte Nursery v. U.S. Army Corps of Engineers Documents 10-7-14

October 17, 2014 Download

Duarte Nursery v. U.S. Army Corps of Engineers Documents 10-12-14

September 12, 2014 Download

Duarte Nursery v. U.S. Army Corps of Engineers Documents 8-20-14

August 20, 2014 Download

Duarte Nursery v. U.S. Army Corps of Engineers Documents 4-23-14

April 23, 2014 Download

Duarte Nursery v. U.S. Army Corps of Engineers Documents 1-27-14

January 27, 2014 Download

Duarte Nursery v. U.S. Army Corps of Engineers Documents 10-10-15

October 10, 2013 Download

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