Photo of two men standing in a field with power line behind them. Pacific Legal Foundation
Brothers Jeff Duarte, left, and John Duarte, right. Jeff is the current vice president and director of operations for Duarte Nursery. John is the president of Duarte Nursery.

Farmers’ right to plow still in hands of government

Californian farmer settles with the government rather than see his million dollar case through till the end.

California farmer John Duarte made a tough decision: Instead of facing more than $30 million in fines from the U.S. government for plowing his field, he would instead pay $1 million. With that court settlement, however, the fate of whether farmers have the right to plow remains uncertain.

Under an agreement reached ahead of the Aug. 15 court date, 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. The court will hold a hearing likely at the end of September to approve the settlement.

“This has been a difficult decision for me, my family, and the entire company, and we have come to it reluctantly,” said Duarte.  “But given the risks posed by further trial on 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.”

You see, Duarte did what hundreds of thousands of farmers consider to be a normal farming practice: tilling up his field and preparing it for planting. For Duarte, it happened to be a 450-acre wheat field that had been fallow for several years.

The news that there was a settlement actually made my stomach turn. Just mere weeks ago, I spoke directly with Duarte, who, for the past several years, has fought for what he felt was the right thing to do.

“This case could make American farmers peasants on their own land,” Duarte said when I spoke with him at the beginning of August. These government officials act like the sheriff of Nottingham and can come onto a property and extract whatever they think one can pay. If you oppose (these officials), your head will be on a stake outside of Windsor Palace, and then we’ve got a regression to feudal politics and government control of farms.”

Plowing is legal under the Clean Water Act, but so far, the U.S. government has successfully won the original August 2016 case, which stated that plowing is legal only if it does not move soil. The Duartes, like other farmers, have yet to understand how plowing can be done without moving the soil. If this unprecedented prosecution succeeds, it threatens nearly every farm in the U.S.

Duarte settled ahead of his court appearance, which was scheduled to determine the fines for the August 2016 ruling. He was hopeful that the Trump Administration would step in and actually put a limit on his fines and offer the ability to appeal the ruling.

The hope was that a future appeal could clarify that the soil being plowed is not a pollutant and that the action of plowing is not a discharge.

This case was negotiated at the highest level, as President Donald Trump’s appointees at the U.S. Department of Justice were getting heat from Capitol Hill and others to make a deal with Duarte.

In the end, Duarte may not have won for all farmers, but the $1 million in fines still were much better than the $30 million alternative. In a court with a President Barack Obama-appointed judge, it was probably the smarter choice to walk away than fight.

So, the question remains whether agriculture will have to live with a negative court case, because Duarte had argued earlier this month that if he doesn’t get the right to appeal, “American farming is jeopardized for the foreseeable future.”

TAGS: Farm Policy
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