Why is it so hard to be a California farmer?

September 20, 2021 | By JAMES BURLING AND BOB VICE

In August, California’s State Water Resources Control Board voted unanimously to drastically reduce farmers’ rights to draw water from the state’s two largest rivers. The decision was just the latest in a series of blows to thousands of California farmers who are struggling to keep their farms alive, thanks to shrinking water allocations and hostile regulations.

While California’s recent drought was the impetus for the latest water rights reduction, it wasn’t the sole factor: Farmers’ water rights have been increasingly marginalized in recent years by conservationists, who demand that more water be set aside for fish such as salmon and the minnow-like delta smelt. Rights to water that stretched back generations are now subject to new requirements that rivers run at high levels to allow more fish to migrate and spawn. Such demands only compound the supply shortages caused by drought.

Of course, without sufficient water, farms cannot operate. Farmworkers will lose wages. Crop yields will decrease. The price of food will increase.

The state’s decision to take away farmers’ water allocations may also violate the Takings Clause of the Fifth Amendment: Robbing farmers of their farms’ value constitutes a “taking” of private property without just compensation. Over the years, Pacific Legal Foundation attorneys have been involved in numerous cases seeking to protect farmers’ rights to their water and to farming. These legal battles will likely continue for years.

Farmers’ legal battles are hardly limited to water allocations. In addition to fish, other endangered species present regulatory challenges for farmers. Farmers have been prosecuted for inadvertently plowing fields containing allegedly endangered rodents. Ranchers in rural areas are watching their flocks of sheep and herds of cattle grow wary of, and sometimes be eaten by, endangered wolves. Although gray wolves are no longer protected under the federal Endangered Species Act, they’re still protected under California law. Ranchers cannot kill, or even “pursue, harass, catch, or capture” a wolf that is endangering livestock. Although conservationist groups argue all ranchers must do is install more fencing (which can be prohibitively expensive and doesn’t do much to stop wolves), employ more dogs, or use air horns to scare wolves away, ranchers say these deterrents don’t work.

And should a farmer mistakenly plow a field with a wet spot, there could be serious consequences. In 2017, Northern California farmer John Duarte was forced to settle with the federal government for $1.1 million for plowing his field, which included wetland area. Duarte called the settlement “a difficult decision,” but “given the government’s request for up to $45 million in penalties, and the catastrophic impact that any significant fraction of that would have on our business, our hundreds of employees, our customers and suppliers, and all the members of my family, this was the best action I could take to protect those for whom I am responsible.”

For farmers like Duarte, the potential for catastrophic fines can be a constant threat—made worse by the fact that it is virtually impossible for farmers, even those who hire consultants, to be sure what is a protected wetland and what is not. Some wetlands are wet. Some are not. And not even the experts can always tell for sure.

Farming has many risks, and Mother Nature supplies most of them. There is excessive heat, freezes, drought, floods, insects and soil-borne diseases, and market disruptions, just to name a few. The fear of massive penalties simply for plowing a damp piece of ground shouldn’t be one of them.

That is why PLF has been to the Supreme Court four times already to chip away at unreasonable and unconstitutional wetlands regulations. Presently, we are hoping to go back a fifth time on behalf of the Sacketts from Priest Lake, Idaho. We already successfully fought for the Sacketts’ right to go to court to challenge EPA’s conclusion that they had wetlands on their (dry and suburban) property. Now we are seeking to go back to the Supreme Court for a clearer rule on exactly what sort of land is a wetland subject to federal control.

On top of environmental and conservationist concerns, farmers have also been forced to contend with difficulties presented by California labor laws. Until late June of this year, California law forced farm owners to allow union organizers onto their private farming operations for three hours a day and 120 days a year. Running a farm can be especially difficult during certain times of the year. Having to manage a farm while bullhorn-wielding organizers wander around and ask farmworkers to join the union and go on strike is exceedingly difficult.

But that particular challenge, at least, no longer exists. We sued on behalf of some California farmers who were upset that their property rights—which include the right to exclude unwanted trespassers—were being taken away by the State of California. While we met an unreceptive audience at the Ninth Circuit, the Supreme Court fortunately reversed, agreeing that the state-sponsored incursions violated the Takings Clause.

PLF has been involved in many cases supporting the ability of farmers to use their land free of excessive regulation of endangered species, wetlands, and water use. Succeeding before the California courts and the Ninth Circuit has been particularly challenging. Farmers understand that they must forever contend with weather, insects, and markets. Their greatest challenges should not come from government agencies bent on twisting the agricultural economy to meet misshapen policy proscriptions from people who don’t understand farming. It is essential that we continue to work on behalf of California farmers.

California is one of the biggest food producers, not only for America but also the world. The harder and more expensive it is to farm and produce food in California, the less quality and affordable food there is available for people across the country.

Just like the natural challenges that come with farming, farmers expect and respect reasonable and common-sense laws and regulations, but in too many instances, California politicians and bureaucrats have enacted harmful and overreaching laws and regulations that violate farmers’ rights and make farming more difficult, while doing nothing to protect the environment or land.