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Plowing Is Pollution, Dry Streams Are Navigable Water Says Federal District Judge In Duarte “Plow A Field, Go To Jail” Lawsuits

Plowing a field is pollution according to Judge Kimberly J. Mueller in an order issued June 10 in U.S. District Court for the Eastern District of California.

 

The decision carries significant implications for agriculture of every sort.

 

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Duarte wheat field south of Red Bluff in Tehama County showing multiple, highly developed and frequently plowed fields between his farm and the Sacramento River. Right-click map to view larger image For a very large (4MB), but also very detailed image click this link. You will also be able to enlarge the downloaded image further.

 

The order said that, according to the U.S. Clean Water Act (CWA) soil is a pollutant, a plow is a point source of pollution, a dry creek bed can be navigable waters, there are limited exemptions for farming, and that those are restricted in many ways including the issues of how long a field has been farmed continuously with the same crop.

 

The judicial ruling Friday was issued in the countersuits between the U.S. Army Corps of Engineers (Corps),  Duarte Nursery, Inc. (Duarte), and its president John Duarte.

 

The nursery, and co-plaintiff John Duarte, originally sued the Corps in 2014 in the U.S. District Court for the Eastern District of California, charging Constitutional violation of the Fifth amendment:  alleging the taking of property without due process (Plow Field, Go To Jail? Feds Threaten John Duarte. He Slugs Back)

 

In September 2015 U.S. District Court Judge Kimberly J. Mueller ruled that the Corps could also be charged with violating Duarte’s First Amendment rights for allegedly trying to silence him when he spoke out against their actions. (Duarte wins a round against the Corps of Engineers, judge OKs new charges).

 

Duarte is represented by Peter Prows of Briscoe, Ivester and Bazel of San Francisco and supported by the Pacific Legal Foundation.

 

Prows and John Duarte said they were mulling over their next moves, but that no decision had been made.

 

The judge’s complete opinion is available at this link for Wine Executive News Premium Subscribers

 

Contractor didn’t color inside the lines

 

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Photo source: L.A. Times

Friday’s judicial decision stems from 2012 when Duarte Nursery bought a 450-acre field southwest of Redding  and had a local contractor till it  in order to plant winter wheat.

 

Prior to the plowing, Duarte had an environmental consultant map buffer zones around all wetlands. The consultant’s report indicated that 40.78 acres should be avoided. Both Duarte and the Corps agreed that the contractor’s plowing had unintentionally encroached on parts of the buffer zone.

 

Duarte said that a new study conducted by environmental experts after the 2015/2016 rains shows that no damage had been done by the inadvertent encroachment by the contractor on the boundary marked off before tilling. That contention was not addressed in the judge’s ruling.

 

In addition, experts contacted by Wine Industry Insight said that the government does not have to prove actual damage to win a CWA legal case.

 

Issues based on disputed  interpretations of federal law which may now be disputed by one key Supreme Court Justice

 

Friday’s judicial decision — like most federal cases based on the Clean Water Act — is based less on actual statutory authority and more on judicial interpretations of federal law. Those interpretations remain vague and unsettled.

 

The current decision acknowledges that even the Supreme Court has not been able to figure out definitively how to define many provisions under the CWA such as whether a dry stream bed can be considered “navigable waters” even if it is 10 miles from the nearest body of water that is actually navigable.

 

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U.S. Supreme Court Justice Anthony Kennedy may be reconsidering his “nexus” creation.

 

Indeed, one Supreme Court Justice — Anthony Kennedy — may be in the process of backing away from a significant opinion that strikes at the heart of the judge’s decision in the Duarte case. (Details below at “Nexus”subhead).

 

Similarly, only court decisions — not language in federal law — define a plow as a point source of pollution or equates the soil in a plowed field with spoils dredged from a shipping channel.

 

The lack of clarity in the laws themselves have drawn bitter lines between environmentalists who cheer the judicial decisions and farmers who see court decisions as unfounded and illegal judicial over-reaching.

 

This article attempts to objectively describe the court battle based on the record of the case. It will probably be too dry for many and fail to convey the personal and human impact of this specific case.  This article from the L.A. Times does a very nice job of capturing the agricultural angst involved: A land-use case that’s enough to furrow a farmer’s brow

 

Key Judicial Points

 

The judge’s decision rested on the following key points:

 

  • Soil is pollution
  • A plow is a point source of pollution, identical under the law as “dredge fill.”
  • The smallest “nexus” turns land into navigable “Waters of the United States”
  • A farming exemption must be based on continual farming.
  • Grazing does not count as farming for CWA exemption if it is different from the previous land use.

“Soil is a Pollutant”– Judge

 

In her opinion, the judge wrote that soil came under the same legal definition as “dredge fill.”

 

“In sum, soil is a pollutant. And here, plaintiffs instructed Unruh to till and loosen the soil on the Property.

“The equipment Unruh used caused the material, in this case soil, to move horizontally, creating furrows and ridges.

“This movement of the soil resulted in its being redeposited into waters of the United States, at least in areas of the wetlands as delineated by NorthStar on the Property.

“Thus, the Nursery’s activities discharged a pollutant.”

A plow is a point source of pollution

According to the judge’s decision:

“The CWA defines the term “point source” to mean, “[a]ny discernible, confined and discrete conveyance, including but not limited to any . . . conduit. . ., [or] container. . . from which pollutants are or may be discharged.” 33 U.S.C. § 1362(14).

“Under the broad statutory language, courts have found ‘bulldozers and backhoes’ to be “point sources” under the CWA, because they collect and pile material that may eventually find its way into the waters of the United States….[A] grader, tractor pulling discs, and a ripper are point sources.”

“The equipment [used by the contractor]loosened and moved the soil horizontally, pulling the dirt out of the wetlands and redepositing it there as well. The equipment, with the ripper attachment, is a “point source” under the CWA.”

 

The smallest “nexus” turns land into navigable “Waters of the United States”

 

While the Duarte property is more than 10 miles from the Sacramento River and connected by seasonal streams that are dry for most of the year, the judge in the Duarte case, “thus finds that the wetlands on the Property have a “significant nexus” with the Sacramento River, which is a traditionally navigable waterway.”

 

The judge noted that, “a majority of the Supreme Court has yet to agree on  an explanation of when wetlands are sufficiently adjacent to navigable waters to confer CWA protection.”

 

U.S. Supreme Court Still Scratching Hallowed Heads

 

As justification for finding that the Duarte property should be considered as part of “The Waters of the United States,” she cites a plurality decision by the U.S. Supreme Court, Rapanos v. United States which was a 4-4-1 decision.

 

The decision reversed federal prosecution of a CWA case in Michigan. Justice Kennedy was a “tie-breaker” in that case: he concurred in the decision, but did not agree with the other four justices in their reasons for overturning the government’s CWA prosecution.

 

In Rapanos, the other four justices agreed with the decision (written by now-deceased Justice Scalia) that,

The phrase ‘the waters of the United States’ includes only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic features’ that are described in ordinary parlance as ‘streams,’ ‘oceans, rivers, [and] lakes’….

Further that decision noted that:

“Those terms all connote relatively permanent bodies of water, as opposed to ordinarily dry channels through which water occasionally or intermittently flows.”

and

A wetland may not be considered “adjacent to” remote “waters of the United States” based on a mere hydrologic connection.”

 

Current decision does not rely on current Supreme Court precedent

 

However, the judge in the Duarte case relied on Justice Kennedy’s concurring decision that:

 

Accordingly, wetlands possess the requisite nexus, and thus come within the statutory phrase “navigable waters,” if the wetlands, alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters understood as navigable in the traditional sense.

When, in contrast, their effects on water quality are speculative or insubstantial, they fall outside the zone fairly encompassed by the term “navigable waters.”

Significantly, the Ninth Circuit Court of Appeals, which includes California, has also adopted Kennedy’s “nexus” definition.

 

Justice Kennedy hints regret over his “nexus” opinion

 

In what could ultimately be a blow for Judge Mueller, U.S. Supreme Court Justice Anthony Kennedy recently commented during a recent case before the Court that,

“[T]he Clean Water Act is unique in both being quite vague in its reach, arguably unconstitutionally vague, and certainly harsh in the civil and criminal sanctions it puts into practice,”

 

For more, see Wall Street Journal:Supreme Court Water Fight.”

 

No evidence was  submitted to the court by the Corps indicating that the water quality of the Sacramento River had been affected.

 

A farming exemption must be based on continual farming.

 

“[C]ertain activities are exempt from the definition of discharge of fill or dredged material, said the judge who noted that federal law “exempts certain activities in connection with farming, silviculture and ranching from the NPDES permitting requirement.

[T]o fall under the exemption, the farming activities must be ‘established and ongoing.’ A farming operation ceases to be established when the area has been converted to another use, or modifications to the ‘hydrological regime’ are necessary for continue the farming operations. 

“”In addition, even if the farming activities are established and ongoing, if they convert waters of the United States into a new use to which they were not previously subjected, or impair the flow or circulation of waters of the United States, then a permit is required.

 

Grazing does not count as the right kind of farming for exemption

 

Court testimony noted that the Duarte property had been used for grazing since it was last cultivated in 1988.

 

“Here, there is no evidence the Property supported farming activity between 1988 and the summer of 2012. 

“Unruh, who performed the tillage service for the Nursery and John Duarte in 2012, stated the ground on the Property was hard and difficult to penetrate from the grazing activities.

“Plaintiffs have provided no support to show grazing is analogous to the farming activity they conducted beginning in 2012.

“The court is not persuaded that, after nearly twenty-four years of no activity that meets the applicable definition of farming, the tillage and planting of wheat by plaintiffs can be considered a continuation of established and ongoing farming activities.”

Judge dismisses Duarte’s constitutional issues

 

In addition to the CWA charges, the judge dismissed contentions that the Corps had violated Duarte’s consttutional rights of due process and speech. In those decisions she found that:

 

(1) The Corps had not violated Duarte’s rights to due process because their Cease and Desist letter — despite stating drastic legal consequences for failing to comply — didn’t actually require Duarte to stop farming.

 

(2) Duarte had suffered no losses despite the evidence that he lost his newly planted wheat crop when he complied with the Cease and Desist order.

 

(3) The Corps had not retaliated against Duarte President John Duarte when it filed CWA charges against him and the nursery only after he spoke out against the Corps publicly in television interviews and other statements.