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.
Case CommentarySee all posts
August 15, 2017 (Sacramento)
“Duarte Nursery, its president, John Duarte, and Pacific Legal Foundation and their co-counsel announce that Duarte Nursery has agreed to a settlement with the United States in the federal government’s nearly five-year enforcement action over Duarte’s routine action of plowing its property to plant wheat in late 2012,” said PLF Senior Attorney Tony Francois
Under the agreement, Duarte would admit no liability, pay the government $330,000 in a civil penalty, purchase $770,000 worth of vernal pool mitigation credits, and perform additional work on the site of the plowing
“This has been a difficult decision for me, my family, and the entire company, and we have come to itRead more
Employees of Duarte Nursery in Modesto, California talk about why their jobs are important and at risk because of runaway regulations in government agencies When the nursery plowed a wheat field in Tehama, Calif to plant wheat in 2012, the Army Corps of Engineers stepped in and halted work on the project The Army Corps said that John Duarte, president of the nursery, had disrupted land that was a navigable waterway under the waters of the United States The company now is facing millions in fines, which would inherently be felt most by it’s dedicated employeesRead more