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Vineyards, grain supplies have stake in “Goofy” Federal Plowing-Is-Pollution Case


While this particular case involves a row crop, its outcome will substantially effect vineyard development, grain production and tree-nut orchards.


Not only does this judicial decision reclassify shallow tillage (4-6″) as deep ripping, but it also holds that exemptions for ordinary farming activities are not exempt from federal sanctions if land is converted from one use to another (grazing to cultivation,  forest to cultivation or vineyard, cultivation to vineyard), or if the land being developed has not been “continuously farmed.”



With her judicial decision in the “Plowing Is Pollution” case already weakened by a key Supreme Court Justice’s opinion shift on the Clean Water Act, U.S. District Court Judge Kimberly J. Mueller now must consider a laundry list of alleged errors in a new court brief filed by John Duarte and his nursery.


Mueller’s order was issued June 10 in U.S. District Court for the Eastern District of California in the countersuits between the U.S. Army Corps of Engineers (Corps),  Duarte Nursery, Inc. (Duarte), and its president John Duarte. (Dry Streams Are Navigable Water Says Federal District Judge).


On June 13, Duarte filed a “motion for reconsideration or for interlocutory appeal and stay” which alleges serious errors of fact and judicial judgment. According to Duarte’s filing:


If, as the order concludes, plowing soil in waters is a discharge, then the previously plowed soil on Duarte’s property was already a pollutant. Replowing that previously plowed soil added no new pollutants to those waters, and thus caused no discharge.


The Government for more than 40 years had maintained that plowing, as defined in the regulation, causes no discharge. But here, the Government argues, and the order effectively holds, that all plowing in any water is a discharge even if no wetlands are destroyed—a blockbuster holding that may have serious nationwide ramifications.


In addition, the Duarte brief says:


The Court should reconsider its order granting the Government’s motion for summary judgment on its Clean Water Act counterclaim, because the order does not address the issue that both sides agree is the key to this case: whether Duarte ‘plowed” a field’.”


To his credit, at oral argument on the motions here, counsel for the Government conceded that, if what Duarte did was “plowing” (as defined in the Government’s regulations), then that plowing “doesn’t require a permit or violate” the Act.


So if Duarte plowed, it cannot be liable.


The Court’s order, however, does not address this issue. Although the order quotes the plowing regulation, and characterizes the tilled areas as “plowed” , it says not a word about whether the plowing regulation operates here to establish that Duarte’s plowing was not a discharge.


The Court should reconsider its order to analyze whether Duarte “plowed”, or else certify its order for interlocutory appeal of this important issue.”


“Goofy” Government

The Corps Clean Water Act complaint alleged that Duarte exceeded ordinary farming practices in its tilling of the land.


Because of that, the Corps denied that Duarte had “plowed” and instead had “deep-ripped”the soil. The judge’s June 10 order confirmed Duarte’s original contention that the furrows were 4- to 6-inches deep as opposed to deep ripping.


According to Duarte’s June 13 filing:


The Government’s sole reason for why Duarte did not plow came down to the goofy argument that the furrows and ridges created by the tillage were “small mountain ranges (microtopographic high spots)” that amounted to “mini uplands”.  Duarte’s reply brief in support of its motion for summary judgment showed why this argument was wrong.


Judge Ignored Most Relevant U.S. Supreme Court Decisions


In addition to this issue, the filing also said that Mueller’s decision failed to consider the most relevant U.S. Supreme Court decisions:


The Court’s order also gives short shrift to two recent Supreme Court decisions—L.A. County Flood Control District and Miccosukee—that effectively overrule the Ninth Circuit’s earlier Borden Ranch case, upon which the order heavily relies.


Those Supreme Court cases hold that merely moving a pollutant within the same waterbody causes no discharge.


The order’s conclusion, citing Borden Ranch, that the movement of previously plowed “soil … horizontally” within waters was a discharge cannot be squared with these Supreme Court cases. The Court should reconsider the application of these Supreme Court cases, or else certify an interlocutory appeal.


The Court’s order also does not cite or apply the Supreme Court case, Meyer v. Holley, that places strict limits on when corporate officers may be held personally responsible for the acts of their companies.


The Court should also reconsider whether that decision bars Mr. Duarte from being held personally liable for the plowing done by his company, or else certify that issue for appeal.

Genuine Facts Of Dispute Also Ignored


Mueller’s June 10 order for summary judgment stated that it was based on the precedent that: “A court must grant a motion for summary judgment “if the movant shows there is no genuine dispute as to any material fact….”


But Duarte’s new filing disputes several key items the judge considered undisputed: “The order overlooks several material factual disputes that preclude summary judgment for the Government:


Navigable Waters.

The order concludes that Duarte has not presented evidence creating a material factual dispute about whether any of the waters or wetlands on the property meet Kennedy’s “significant nexus” test in Rapanos v. United States.


No significant nexus exists where effects on downstream water quality are “speculative or insubstantial”—such as for features “remote from any navigable-in-fact water and carrying only minor water volumes toward it”.


Whether a significant nexus exists must be determined “on a case-by-case basis”. 


Duarte presented evidence that the waters and wetlands on the property are remote from the navigable-in-fact Sacramento River, carry only minor water volumes toward it, and are not similarly situated to other lands in the region.


Normal farming practices exemption.


The order concludes that Duarte has not provided evidence “to show grazing is analogous to the farming activity they conducted beginning in 2012.”


But Duarte did provide evidence that the cattle grazing mixed the soil “as much as the cultivation event that occurred on this property.”


Duarte also provided evidence that Duarte’s tillage is “part of a conventional rotational cycle”, within the meaning of the normal-farming-practices exemption, because, in this region, it is conventional for a landowner to follow an irregular but persistent cycle of grazing and then cultivating a piece of farmland.


Hydrological modification.


The order relies on evidence submitted by the Government to conclude that the plowing caused “substantial changes in the hydrological regime, which are prohibited if a party is to benefit from the farming exemption”. 


This misstates the standard, which is whether “modifications to the hydrological regime are necessary to resume operations”, not whether the farming activities cause hydrological modifications.


Duarte provided evidence both that hydrological modifications were not necessary to resume the plowing, and that the plowing did not cause hydrological modifications.


The Court should reconsider these material disputes.