October 10, 2013

Fire, aim, ready!

By Anthony L. Francois Senior Attorney

Today, PLF filed a lawsuit in federal district court in California on behalf of Duarte Nursery, Inc., against the United States Army Corps of Engineers and officials of the Central Valley Regional Water Quality Control Board.  The suit alleges that both of these agencies violated Duarte’s constitutional rights to due process of law, by issuing enforcement orders that wrongly accuse Duarte of illegally filling wetlands, without giving Duarte a hearing.  As a result of this illegal action, Duarte has lost a wheat crop and the ability to farm its property.

Duarte Nursery is a successful family owned and managed California business, headquartered outside of Modesto.  Founders Jim and Anita Duarte and their sons John and Jeff have built the business from nothing over the last 24 years.  Duarte employs hundreds of Californians, and their nursery operation helps feed the nation and the world.  The Duarte family’s effort to productively farm their property is threatened by the Corps’ illegal action.  For themselves and many other farmers who face similar heavy handed and unconstitutional enforcement, they are standing up to the Corps.


The heart of the matter is a piece of farmland in rural Tehama County, near the California town of Red Bluff.  This farm ground is like a lot of agricultural land in Northern California, and Duarte’s farming efforts are indistinguishable from thousands of other farmers across California and the United States.  Duarte acquired the property last year and before farming it sought advice from a knowledgeable consultant to identify and map any wetlands on the property.  Duarte’s contract farmer planted a winter wheat crop in the Fall of 2012, and used the consultant’s map to avoid any impacts to the few wetlands on the property.

A few months later, Duarte received a surprising letter from the Corps of Engineers that, with no prior notice, “convicted” the company of illegally filling wetlands on the property, and ordered the company to cease and desist any further activity in connection with the wheat crop. Duarte lost the crop as a result, and has been unable to prepare the ground for future crops.

The Corps’ action is like the police issuing you a traffic fine without first giving you a traffic ticket or a date in traffic court.  In America, under the Constitution, no person can be deprived of life, liberty, or property without due process of law.  That is true regardless of what you are accused of, or what wetlands you have allegedly filled.  But in this case, the Corps first imposed an enforcement penalty, and never provided a hearing to set the record straight.

If the Corps had given Duarte a hearing it would have learned a few things.  First, the Corps’ understanding of the scope of wetlands on the property is based on a decades old and legally obsolete definition of wetlands, and does not reflect the current wetland delineation, using current legal standards, which Duarte obtained before farming the property.  And, the Corps accused Duarte of deep-ripping the property, which did not happen.

PLF’s lawsuit asks the federal Court to set aside the Corps’ cease and desist letter, and to order the Corps to provide Duarte with a hearing if the Corps intends any further investigation of the matter.

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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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