He plowed his field; now he faces a $2.8M fine
RED BLUFF, Calif. — A farmer faces trial in federal court this summer and a $2.8 million fine for failing to get a permit to plow his field and plant wheat in Tehama County.
A lawyer for Duarte Nursery said the case is important because it could set a precedent requiring other farmers to obtain costly, time-consuming permits just to plow.
“The case is the first time that we’re aware of that says you need to get a (U.S. Army Corps of Engineers) permit to plow to grow crops,” said Anthony Francois, a lawyer for the Pacific Legal Foundation. The libertarian-leaning nonprofit fights for private property rights and limited government.
“We’re not going to produce much food under those kinds of regulations,” Francois said.
However, U.S. District Judge Kimberly J. Mueller agreed with the Army Corps in a judgment issued in June. A trial, in which the U.S. Attorney’s Office asks for $2.8 million in civil penalties, is set for August.
The case began in 2012 when John Duarte, who owns Duarte Nursery near Modesto, Calif., bought 450 acres about 10 miles south of Red Bluff.
Duarte planned to grow wheat there, according to Francois and court documents.
Because the property has numerous swales and wetlands, Duarte hired a consulting firm to map out areas on the property that were not to be plowed because they were part of the drainage for Coyote and Oat creeks and were considered “waters of the United States.”
Francois conceded that some of the wetlands were plowed but not significantly damaged. He said the ground was plowed to a depth of 4 to 7 inches.
The Army Corps did not claim Duarte violated the Endangered Species Act by destroying fairy shrimp or their habitat, Francois said.
This particular freshwater species is unique to California and southern Oregon and has been classified as a threatened species since 1994 because much of its wetlands in California's Central Valley were converted to cropland or became urban.
Vernal pool fairy shrimp are about the size of salad shrimp and live in grassland pools that form in spring and dry up very quickly. The shrimp die then, too, but their eggs hatch when the pools refill.
Duarte's wheat was planted but not harvested because in February 2013 the Army Corps of Engineers and the California Central Valley Regional Water Quality Control Board issued orders to stop work at the site. The agencies claimed Duarte had violated the Clean Water Act by not obtaining a permit to discharge dredged or fill material into seasonal wetlands considered waters of the United States.
Duarte sued the Army Corps and the state, alleging they violated his constitutional right of due process by issuing the cease and desist orders without a hearing. The U.S. Attorney’s Office counter-sued Duarte Nursery to enforce the Clean Water Act violation.
Farmers plowing their fields are specifically exempt from the Clean Water Act rules forbidding discharging material into U.S. waters, Francois said.
However, the tractor was not plowing the field, according court documents filed by the U.S. Attorney’s Office in Sacramento. Rather, it was equipped with a ripper that had seven 36-inch shanks, which dug an average of 10 inches deep into the soil.
Duarte disturbed portions of the property that included wetland areas, the U.S. attorney alleges.
The ripping deposited dirt into wetlands and streams on the property in violation of the Clean Water Act, according to documents filed the U.S. attorney filed.
Assistant U.S. Attorney Gregory Broderick said he could not comment on the case and referred questions to his office’s public affairs department, which did not return phone calls.
However, documents filed in court explain some of the rationale behind the government’s case.
“Even under the farming exemption, a discharge of dredged or fill material incidental to the farming activities that impairs the flow of the waters of the United States still requires a permit because it changes the chemical, physical and biological integrity of the waters,” the U.S. attorney said in court filings.
The creeks also flow into the Sacramento River, home to endangered chinook salmon.
In addition to civil penalties, the U.S. Attorney’s Office is also asking the judge to order Duarte to repair the damage to the wetlands, including smoothing out the soil and replanting native plants in the wetlands.
He also may be required to purchase other wetlands to compensate for the alleged damage to the property south of Red Bluff, according to the government’s proposed penalties.
Francois said he thought the proposed penalties were unfair. His client thought the plowing exemption allowed him to till the soil.
“A plain reading of the rules says you don’t need a permit to do what he did,” Francois said. “How do you impose a multimillion penalty on someone for thinking the law says what it says?”
Tags
Who is online
89 visitors
This is environmental over-regulation to the extreme. As a civil engineer working for a private developer, it is the bane of my existence. The reason new homes cost hundreds of thousands of dollars these days is that the design and approval process takes years, sometimes decades, just to get a shovel in the ground.
When I started in this business, I tried to save any large tree that I could in my designs, even though most developers just wanted everything cut down. It rarely ever took more than two years to design and construct a project in its totality. Now days, existing trees larger than 30” in diameter cause us to lose hundreds of thousands of dollars in lost real estate revenue, or require expensive retaining walls to save, as it is against the law to cut them down. A bat species in Pennsylvania caused us to lose ten acres of otherwise developable land, even though there was no evidence it existed on the property. An old bottle dump on a site can delay a project for years, possibly permanently. Worse yet, by the time a project gets preliminary approval to move forward, the wetlands delineation from the projects conceptual stage has expired and a new one must be performed, possibly causing us to go back to the drawing board. It is madness.
There are sensible and pragmatic environmental regulations, and there are insane regulations that can only be described as anti-development. We jump through great hoops to “protect” watersheds from the rain that falls on rooftops and pavement, as if it is somehow contaminated the moment it touches something. Meanwhile, the watersheds are actually being wrecked by fertilizers and pesticides dumped on crops by the ton.
This is one of the consequences of the ever expanding government liberals live for. Perhaps you are not the liberal you thought you were? Government overreach? Careful there Hal, your buddies may think you jumped the fence and may disown you.
That's your problem 96 - you assume all liberals are alike. As I clearly stated, there is such a thing as over-regulation. That does not imply that all regulation is bad. When a tree needs pruning, you don't cut it down and grind out the stump as a solution.
At the very least 2.8 M$ seems excessive ...
For those who believe that "the bottom line is the bottom line," …
We all live downstream.
Everyone Lives Downstream - Tech Alive
Yes, but there is such a thing as over-regulation. I understand the concern over silt and sedimentation from construction projects, but I will never understand the concern over perpetually treating stormwater runoff that comes from the roof of a building. Believe it or not, in MD that is treated more aggressively than the massive amounts of fertilizers and pesticides coming off of our farm fields, which directly lead to algae blooms and fish kills downstream. This poor guy got socked with bankruptcy level fines before he ever even had a chance to dump tons of chemicals into the watershed, because he touched the edge of arbitrarily delineated wetlands and tilled dirt too deep. This is the shit that gives liberals a black eye.
This is the shit that gives liberals a black eye.
Yes . Fortunately we have Trump cutting funding to groups that abuse these laws ... like the EPA .
If I understand correctly, the farmer was working the land under restrictions. He decided to do something that was outside those restrictions (if not contrary to them)... and did not imagine that it might be a good idea to check with the appropriate authorities.
And then he kinda sorta did more than he said he was doing. Ripping rather than plowing. And in areas other than he declared.
But hey!
More government overreach. He made a good faith effort to exclude the wetlands and was persecuted by the government anyway.
More government overreach. He made a good faith effort to exclude the wetlands and was persecuted by the government anyway.
Good faith efforts are just that, but, when (unsuccessfully) trying in good faith to work around a law or regulation, but still, potentially or actually risking whatever outcomes that regulation is in place to avoid … the perpetrator is still culpable and guilty.
For example, many urban areas have underground natural gas lines; digging on one's own property and inadvertently, or, recklessly, by ignoring laws/regulations requiring home owners to check first with the city before digging, and subsequently rupturing a line -- burning down half a neighborhood -- is still illegal -- with consequences.
No comparison. He didn't try to work around the regulations. He tried to meet them. Government overreach.
7-10 inches? There is digging and then there is not digging (would you also exclude gardening in your yard?). Underground piping is not at 7-10 inches.
Local regulations apply and obviously are based upon pipelines, gas and water lines, water table features ... It's not one size fits all.
Typical government overreach and over regulation. Who'd have thought that people might actually farm on land that has been farmed in California's Central Valley?
Typical doubling down on an incorrect premise albeit coming after being corrected.
One cannot ignore a law simply because one violates it on his/her own property.
I try to address misstatements when I see them; it's obvious that it often is a waste of time … even on your own property, you can't be exempted if committing a murder, etc., can't legally use illegal substances, legally tap into a cable connection to which you are not a paid subscriber … certain laws in fact, do not make you subject on your own property … but laws precluding actions that might adversely affect others while on or not on your property … you cannot violate with impunity.
From the article …
“A plain reading of the rules says you don’t need a permit to do what he did,” Francois said. “How do you impose a multimillion penalty on someone for thinking the law says what it says?”
If the law is ambiguously written, an appeal will likely be filed (if it hasn't already been filed). I've been involved in arbitrations where one side would argue (i.e) … "That's not what the particular contract clause means" -- to which an arbitrator ruled … "We could speculate as to the meaning of the cited clause as it is written … however … I must rule based on what the clause 'says'!"
No question that we are over-regulated by certain laws … but in this case, it's hard for me to believe that the owner of a nursery (or any business for that matter) would fail to inquire into and/or obtain a permit particularly in a watershed area.
From the article …
"A lawyer for Duarte Nursery said the case is important because it could set a precedent requiring other farmers to obtain costly, time-consuming permits just to plow."
The "just to plow" is a qualifier that implies the nursery interpreted the law in such a way as to rationalize it to be frivolous … bad judgement on the lawyer's part to make such a statement IMO.
This issue can be discussed based on philosophy or legal protocol … I have not (consciously) taken a side either way …
The lawyer is right. The EPA is acting frivolously and needs to be called out. He could be looking for a change in regulation from D.C. or setting up an appeal if he determines this court is already against his client. I live 40 miles from there and have some interest in the case. I was going to seed on the topic until I saw Hal's seed and agreed with it and surprisingly him.
The lawyer is right. The EPA is acting frivolously and needs to be called out. He could be looking for a change in regulation from D.C. or setting up an appeal if he determines this court is already against his client. I live 40 miles from there and have some interest in the case. I was going to seed on the topic until I saw Hal's seed and agreed with it and surprisingly him.
IMO, the lawyer, AS SUCH, has made statements that add to his client's vulnerability. This isn't occurring in a school yard or even in an internet forum where "calling out" a position may settle a disagreement.
One does not appeal on the basis of "court bias" (as Trump does regularly with judges, FBI Directors, etc.). Appeals are based on challenging rulings as they apply to whether or not, in the judgement of a court or other entity, a formal charge has been satisfied/justified as per a burden of proof.
While "ignorance of the law" may be honestly stated as a defense … it is unlikely to be a viable one particularly where a for-profit business is concerned.
Ignorance of law means want of knowledge of those laws which a person has a duty to know and which everyman is presumed to know. ... Ignorantia juris non excusat or Ignorantia legis neminem excusat is a Latin maxim which means "ignorance of the law does not excuse" or "ignorance of the law excuses no one."
Somewhere in this case and others like it, I would want GOVERNMENT REGULATORS to be compelled to prove that they have made, multiple, regular and varied exhaustive efforts to apprise businesses, industries, soul proprietors, etc., of regulations germane to their various businesses.
It's a two-way street, IMO, both sides having responsibilities … one to educate with regard to the law, the other to, when in doubt, get educated.
If you're in your own home, or field … are you "free" to make bombs therein?
Can we leave the platitudes and introduce some common sense?
"If you're in your own home, or field … are you "free" to make bombs therein?"
Are you even trying anymore? This comment is ridiculous.
Let me translate ...
Can an individual commit illegal acts with impunity simply because he commits the acts on his own property?
Are you playing dumb to evade the question, or are you so dense as to not be playing?
Answer the first question directly.
Whether or not a law is unfair, an overreach of government or, carrying unfair sanctions are real issues for discussion, but this case is not about putting a law on trial, it's about whether or not an existing law has been violated.
If someone buys a bomb factory, is it reasonable fir the government to say he can't make bombs?
That's a better comparison. Depending on your density.
A so-called bomb factory or any other business for that matter, would necessarily be subject to various codes, laws and regulations.
If/when the proprietor, violated any of these, he'd be subject to sanctions for such violations. If the i.e. bomb factory owner failed to keep all chemical components in code-specified containers, he could be cited and subject to fines or imprisonment as per the codes/laws.
Your example does not hold up.
Yours doesn't as I stated.
"Can an individual commit illegal acts with impunity simply because he commits the acts on his own property?"
Nope. Fortunately no one but you is arguing that point. Typical.
Actually, it's you who have been arguing that of which you have accused me.
For one of the few instances, the Pee Wee Herman defense actually applies. You have now been both a donor and recipient."Actually, it's you who have been arguing that of which you have accused me."
Please point out where I did that. I believe you will fail. Or move the goal posts as per your MO.
Among other things, you tried to exonerate the farmer because he acted in good faith.
You have posited arguments, none of which deal with the reality, that intentionally or inadvertently, a law was violated.
It's not that I moved the goal posts ... It's that you you can't see them from the sidelines.
Good night.
Nice try. I stated that the farmer tried to meet the regulations in good faith. I also stated that the regulations were an overreach. Nowhere did I say laws did not apply on private land. Your contention that I did was simply another strawman.
Nice try. I stated that the farmer tried to meet the regulations in good faith. I also stated that the regulations were an overreach. Nowhere did I say laws did not apply on private land. Your contention that I did was simply another strawman.
All equivocations … what you have avoided saying is, if in fact he plowed in a manner violative of the law, he has … violated the law; good faith and absence of intent are irrelevant to the case (as I noted when I explained "reckless endangerment").
You quip, cry "straw man" and make pronouncements …
I'm out.
Where do you find "good faith" (other than in your imagination)? He hired an outfit to tell him where he could farm, and then plowed where he had been told he shouldn't.
"Good faith"?
I couldn't agree more. He should have followed the guidelines of the company he paid to guide him. He didn't. That's like hiring an attorney, not following any of their advice and then complaining when you get convicted.
He knew the rules when he bought the land. He hired a firm to tell him where he could not plow. He plowed there anyway. He has to pay. Pay up. It really is that simple.
If you buy a home in a historical district of a town there are rules about what you can and can not do to the home. You know those rules when you buy the home. If you decide to tear the house down and build a different house the town or city takes you to court because you destroyed a historical building and you lose, as you should. You pay a huge fine. Pay up. It really is that simple.
"He knew the rules when he bought the land. "
Nope. Read the article.
"He hired a firm to tell him where he could not plow. He plowed there anyway."
Nope. Read the article.
Ahem ... it's a 2.8 million dollar fine. Does that really seem appropriate? Who got hurt? A dozen potential fairy shrimp? It's obnoxiously excessive.
Not really.
A person tears down a house in a historical district of a town and is fined $1 million dollars. Excessive? I mean no one was hurt? It was just a house? However if they owned it or not everyone else in town was hurt, not just the house.
That is not even close in comparison. If you think that is reasonable, you probably think 100 million is reasonable. We're talking about more money than a typical wheat farmer earns in his lifetime, because he didn't plow within the lines once. It's ridiculous and it tends to make all regulations seem oppressive, regardless of how reasonable they may be.
He can appeal the fine, great and good luck, but not the guilt.
"Reasonable" is a judgment call. The article doesn't give us the economic context: the cost of restoration, the farmer's reveue, ... So we don't know.
Any opinion is just an expression of previously held bias.
For 540 acres? Definitely not. Seems like the government is working hard to bankrupt a farmer. I wonder if someone has plans for his land after he can no longer afford to keep it?
Surely!
That's what the government ALWAYS does!
All those agriculture subsidies do NOT come from the government. They come from the tooth fairy.
The proponents of hostile over-regulation have made their position known here. There is no human activity or freedom immune from their desire for government control. Fortunately Trump will turn the tide back.
Trump makes decisions based on whose next to him, telling him what to do. When it comes to 'waters of the US', he will do way more damage than good with his sweeping and uninformed legislation.
Perhaps. That won't be much different than the last administration.