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.