Judge refuses to toss PLF suit against wetlands enforcers due process violations
Today, the United States District Court for the Eastern District of California, denied the federal government’s motion to dismiss PLF’s due process challenge against the Army Corps of Engineers, brought on behalf of Duarte Nursery and its president, John Duarte.
The suit challenges the Army Corps’ violation of Duarte’s constitutional due process rights by ordering the company to cease farming its property without holding a hearing on the matter. If the Army Corps had complied with the constitution and provided Duarte a hearing, the Army Corps would have discovered that it was in error as to the facts in the case, and likely would not have shut down the farm.
The Army Corps moved to dismiss the suit, to try and force Duarte back into a lengthy (average – two years), costly (average – a quarter million dollars), and unnecessary (normal farming practices are exempt) permit application. In its motion, the government argued that its cease and desist order had not deprived Duarte of property, but that Duarte had “voluntarily abstained from farming” in response to the order. Seriously. But at a February 10th hearing, the judge had none of that argument from the Army Corps, telling the federal attorney: “You have a serious problem.” Today the court formally denied the motion to dismiss, and required the government to defend Duarte’s suit on the merits. The Court’s order makes this telling observation:
If the Corps, instead of issuing the CDO, had burned plaintiffs’ nursery to the ground in an effort to protect the waters of the U.S., plaintiffs surely would have suffered an injury, even though the Corps still would not have imposed any legal “obligation” or “liability” on plaintiffs.
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