Its been several weeks since we provided an update on Duarte Nursery’s due process challenge against the US Army Corps of Engineers. Readers will recall that the court denied the Army Corps’s motion to dismiss. Since then, the Corps has doubled down on its false accusation of illegal deep ripping by filing a counterclaim against our clients for the supposed Clean Water Act violation on which the cease and desist order was based.
After ordering our clients to stop farming their property, the Corps of Engineers appeared to do nothing further to pursue formal enforcement of any purported violation of the Clean Water Act. The agency was evidently content having shut down the farm. That is, until Duarte sued, and the Corps of Engineers decided to go into enforcement mode after all. The federal counterclaim has many indicia that Duarte’s exercise of the First Amendment protected rights to sue the government (petition for redress of grievances) and to talk about that suit in the media (freedom of speech and of the press) were substantial or motivating factors in its filing.
So today, on behalf of Duarte Nursery and its president John Duarte, Pacific Legal Foundation filed a motion to supplement the complaint against the Corps of Engineers, to add a cause of action for retaliatory prosecution. The First Amendment prohibits government officials from taking official action against citizens for the purpose of chilling their exercise of First Amendment rights, and we intend to show that Duarte’s exercise of these rights was a substantial or motivating factor in the Corps of Engineers’ decision to file the counterclaim.
Duarte Nursery denies violating the Clean Water Act, and looks forward to proving that no discharge to waters of the United States occurred, and that all of its farming activities were exempt from Clean Water Act prohibitions and permitting, under the Act’s express exemption for normal farming practices.