June 30, 2016

Duarte Nursery seeks immediate appeals in Clean Water Act case

By Anthony L. Francois Senior Attorney

Following the trial court’s remarkable June 10 ruling that plowing violates the Clean Water Act, despite clear regulatory provisions to the contrary (see 33 CFR 324.4(a)(1)(iii)(D)), Duarte Nursery has moved for reconsideration or certification for immediate appeal on several Clean Water Act issues. We expect a decision from the court any day on this motion, which will determine whether Duarte Nursery can immediately address the trial court’s legal errors in the appellate court, or will have to go through a trial first on whether the government is entitled to a penalty.

Today we filed a second motion, asking the court to enter judgment as to Duarte Nursery’s due process and retaliation claims against the government. The June 10 ruling also favored the Corps of Engineers on these claims. Since there are no remaining issues for trial on these claims, we have asked the court to enter judgment on them so that an appeal can be taken directly, rather than waiting for the above-mentioned penalty trial on the Clean Water Act penalty.

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

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.

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