October 10, 2013

Feds are sued over shut-down order to Tehama wheat farm

Sacramento, CA; October 10, 2013: Federal regulators threw due process rights out the window recently when they ordered a halt to wheat-growing operations on private farmland in Tehama County without giving the property owners advance notice or opportunity for a hearing.

So argues a lawsuit filed today by attorneys with Pacific Legal Foundation (PLF), on behalf of the property owners — Duarte Nursery Inc. and John Duarte, who is president of the family-owned business. The property is located on Paskenta Road in rural Tehama, a few miles south of the city of Red Bluff.

In February, 2013, the Corps issued a cease and desist letter and a notice of violation that accused Duarte of illegally filling wetlands. Although the accusation itself is wrong, the lawsuit targets the Corps’ due process violation in not allowing Duarte to answer the accusation before summarily ordering a shut-down of Duarte’s wheat-growing operations on the Tehama property.

Feds force Tehama County property owners’ farming to cease — without giving notice or a hearing

Under the Due Process Clause of the Fifth Amendment, the Corps was required to advise Duarte ahead of taking an enforcement action, and to give Duarte a reasonable opportunity to set the record straight. But federal officials failed to do either.

“Constitutional rights were plowed under when the feds issued their summary shut-down order against Duarte’s wheat farming,” said PLF attorney Tony Francois. “The Corps apparently couldn’t be bothered with giving the landowner an opportunity for a hearing. Now, the Corps will have to answer in court for that arbitrary and frankly dictatorial behavior.” If a hearing had been allowed before the shut-down demand, Duarte could have informed the government that a consultant had carefully identified the few areas of Duarte’s property that are possible wetlands, and there has been no plowing in those areas. Moreover, Duarte could have demonstrated that the areas where plowing has occurred don’t meet the tests that the U.S. Supreme Court has set out for “wetlands” subject to federal Clean Water Act oversight. And Duarte followed normal farming practices in the way it plowed the property.

Corps put enforcement before fact-finding

“If the Corps had proceeded in the constitutionally correct way — putting investigation ahead of enforcement — its actions could have been based on information instead of ignorance,” said Francois. “It would have learned that the charges about wetlands disturbance don’t stand up, so there was no need to stop wheat production and cost people their jobs.”

Duarte Nursery — husbanding and conserving the land, employing hundreds, and helping to feed the nation and the world

Duarte Nursery is a successful family-owned California business, headquartered outside of Modesto, founded by Jim and Anita Duarte and their sons John and Jeff. The family has built the business from nothing over the last 24 years. Today, they employ hundreds of Californians, and their nursery operation helps feed the nation and the world. The Duarte family’s effort to productively farm their property in Tehama is threatened by the Corps’ illegal action.

“We were blindsided by the Corps’ action, which has halted our farming operation in Tehama — and the jobs that depend on it,” said John Duarte. “We have always been careful to conserve and protect the land, and the Corps is wrong to suggest we’ve harmed any wetlands. But beyond that, the Corps is wrong to deny us our constitutional right to answer their allegations in a hearing prior to enforcement. We’re standing up for everyone’s right to due process of law, and we’re very grateful that Pacific Legal Foundation is standing with us.”

At issue is farmland in rural Tehama, near Red Bluff, which Duarte acquired a couple of years ago. Before farming commenced, Duarte sought advice from a knowledgeable consultant to identify and map wetlands on the property. Those areas were not plowed.

Nevertheless, in a letter sent out of the blue this past February, the Corps accused Duarte of illegally filling wetlands and ordered farming operations to stop. As a result of this unconstitutionally issued order, Duarte has lost a wheat crop and the ability to farm the land.

At issue: Feds’ “punish first — investigate later” abuse of process

“The Corps has totally reversed the proper regulatory procedure, putting punishment before investigation,” said Francois. “The agency’s action is analogous to the police issuing you a traffic fine without first giving you a traffic ticket or a date in traffic court. The Constitution doesn’t permit this ‘fire, ready, aim!’ approach to regulatory enforcement.

“Disturbingly, Duarte’s case may not be an isolated one,” Francois continued. “Anecdotal reports indicate the Corps has a habit in the Sacramento and San Joaquin Valley of depriving people of their due process rights. We’re hearing of more cases where the Corps is penalizing property owners for alleged wetlands violations before asking questions and determining whether the allegations have any basis.”

About Pacific Legal Foundation
Donor-supported Pacific Legal Foundation is a nonprofit, public interest watchdog organization that litigates for limited government, property rights, individual rights, free enterprise, equal protection, and a balanced approach to environmental regulations in courts nationwide. PLF attorneys represent all clients free of charge.

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About Pacific Legal Foundation

Pacific Legal Foundation is a national nonprofit legal organization that defends Americans threatened by government overreach and abuse. Since our founding in 1973, we challenge the government when it violates individual liberty and constitutional rights. With active cases in 39 states plus Washington, D.C., PLF represents clients in state and federal courts, with 12 victories out of 14 cases heard by the U.S. Supreme Court.

For Media: If you are on deadline or need immediate assistance, please call/email our media team at 202-465-8733 or media@pacificlegal.org

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