Holding the feds accountable for closing farm without due process

February 07, 2014 | By TONY FRANCOIS

Next Monday morning I will be presenting oral argument in the federal District Court for the Eastern District of California in Sacramento, in the case of Duarte v. Corps of Engineers.  PLF represents Duarte Nursery, Inc., and its president, John Duarte, in their suit against the Army Corps of Engineers, which violated their constitutional due process rights by shutting down their farm without a hearing.

The Army Corps’ unconstitutional action against Duarte is a classic government screw up.  With no notice or opportunity to be heard, the Army Corps ordered Duarte to cease all activity on any part of the farm occupied by wetlands.  The order does not identify what Duarte supposedly did to violate the Clean Water Act, and does not say what part of the property is supposedly covered by wetlands, making it anyone’s guess why the Army Corps actually issued the shut down order.  Since the shut down deprives Duarte of property with a hearing, PLF sued the Army Corps on Duarte’s behalf.

The Army Corps has now asked the court to dismiss Duarte’s suit, on the remarkable basis that Duarte could simply have ignored the order and continued to farm.  The order reads: “You are hereby directed to cease and desist all activities in waters of the United States until this violation has been resolved.”  In what may redefine “chutzpah” for future generations, the Corps argues that this order did not deprive Duarte of the farm; instead, Duarte has voluntarily abstained from farming.  I will be arguing against the motion to dismiss on Monday.  You can get more details on the legal arguments in our brief, and learn more about the case by listening to our podcast.