John Duarte and the Army Corps of Engineers will face off in court Tuesday, four years after the federal government fined Duarte millions for “deep[ly] ripping” shallow pools of water on his land.
Duarte has refused to pay a penalty of $2.8 million as well as purchase $13 million in “mitigation credits” to compensate for polluting the pools, protected as “waters of the U.S.” under the Clean Water Act, according to the Weekly Standard.
The dispute between Duarte and the Army Corps of Engineers rests on the definition of “normal farming” practices, exempted from needing a permit under the Clean Water Act.
The Army Corps of Engineers claims normal means “ongoing,” or a farming practice that is being repeated year after year. Duarte and the Pacific Legal Foundation (PLF), a nonprofit law group helping represent Duarte, claim that any reasonable agriculture activity can be classified as a normal farming practices, PLF attorney Tony Francois told The Daily Caller News Foundation.
The trial, being held in front of a U.S. district judge in Sacramento, is a battle over the penalty Duarte should pay, not Duarte’s guilt. The court has already ruled that the farmer is guilty of polluting “waters of the U.S.”
Duarte’s lawyers are pushing for a ruling where Duarte will have to make a nominal payment of $1 to satisfy the terms of being found guilty of breaking the Clean Water Act. Duarte will appeal the decision, however, no matter the outcome.
“The liability ruling, in a certain sense, brands the company as a prior violator and that can have an effect on future permitting actions … so its important to make sure that, at the end of the day, the right thing is done here,” Francois told TheDCNF. “The other thing is that the case sets a very bad precedent for agriculture in general.”
Obtaining a “dredge and fill” permit, the type of permit Duarte would have needed to plow his land, from the Army Corps of Engineers takes an average two years. The entire process can cost the applicant over $250,000 in consultant fees alone, Francois says.
“You look at that permitting regime and, basically, you wont grown any food if you needed that permit to farm,” Francois pointed out.
The trial is scheduled to take three weeks, however there is no hard limit on the actual length of time the trial can take. Duarte’s appeal will take the case to the U.S. Ninth Circuit Court of Appeals.
“We are optimistic,” Francois said. “We think that [the evidence] clearly shows on all of the factors that the judge has to consider that it favors a modest or nominal penalty rather than the astonishing pile of money the government has demanded.”
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