March 27, 2015

Judge again refuses to toss Duarte Nursery's due process claims in PLF suit

By Anthony L. Francois Senior Attorney

In Duarte v. Corps of Engineers, the trial court has, for the second time, denied a motion by the federal government to dismiss Duarte Nursery’s claims for violation of the Due Process Clause against the Army Corps of Engineers. Over two years ago, the Army Corps ordered Duarte off its farm over alleged violations of the Clean Water Act without affording Duarte a hearing, in violation of the Due Process clause of the United States Constitution. PLF filed suit on behalf of Duarte to get the Army Corps’ cease and desist order thrown out.

The government first moved to dismiss this claim because it had not yet taken an enforcement action against Duarte in court, and therefore Duarte’s due process suit was supposedly not yet ripe, meaning that it was too early to sue. The court denied that motion, finding that the Corps’ actions had harmed Duarte and that the farming business could proceed with its due process suit.

Then the federal government filed a civil enforcement action against Duarte, and again asked the court to dismiss Duarte’s due process suit against the Army Corps. This time, the theory was that the due process claim was moot, on the assertion that the cease and desist order was doing no further harm to Duarte. This week, the court ruled against the Corps on this motion, so now Duarte’s Due Process case will proceed to the merits.

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