← Return to Archives - Subscribe to FREE NewsFetch Email Newsletter
From: lewis.perdue@wineindustryinsight.com

Subject: Duarte wins a round against the Corps of Engineers, judge OKs new charges -- VIP Wine Executive News Member Briefing -- Sep. 4, 2015

Date: 2015-09-04 08:42:58

To: Emailing List Subscriber
Please use CMD+F (Mac) or CRTL+ F(Windows) to find your specific search term within this issue of NewsFetch. This "double search" is due to our links sourcing from websites not within WineIndustryInsight.
You are receiving this email because you are a premium VIP subscriber to Wine Executive News Premium Member. This briefing contains a information about -- and a link to -- the latest premium news as well as other exclusive information.

If you do not wish to receive this, please:Click the following link:
 >>>> [UNSUBSCRIBE] <<<<

Wine Executive News

VIP Wine Executive News Member Briefing

The premium, VIP service of Wine Industry Insight

Editor & Publisher, Lewis Perdue.

Issue #5 - September 4, 2015

Hope you are looking forward to a having a good Labor Day Holiday.

The following short article in Wine Industry Insight contains a number of full-text court documents that are exclusive to VIP Wine Executive News subscribers like you.

Duarte wins a round against the Corps of Engineers, judge OKs new charges

John Duarte and co-plaintiff Duarte Nursery won a round Thursday (Sept. 3), when U.S. District Court Judge Kimberly J. Mueller ruled that the U.S. Army Corps of Engineers (CoE) could be charged with violating Duarte's First Amendment rights. Previously, Duarte had sued the Corps in October 2014 charging Fifth Amendment violations alleging the taking of his property without due process. Full text of judge's order at this link for premium Wine Executive News Subscribers

Duarte files amended complaint

Immediately after the judge's order, Duarte's attorneys from the Pacific Legal Foundation filed an amended complaint charging that the Corps filed a retaliatory lawsuit against Duarte when he went to the media to describe his struggles with the CoE. Those struggles began after Duarte plowed a field in Tehama County and planted wheat. (For more details leading up to the Sept. 3 court actions, see: Plow Field, Go To Jail? Feds Threaten John Duarte. He Slugs Back) Full text of Duarte amended complaint at this link for premium Wine Executive News Subscribers

Record indicates Corps waited to file counterclaim

The court record shows that even after Duarte filed suit the Corps took no legal or other enforcement actions. Instead, the Corps fought Duarte's charges alleging lack of jurisdiction and other procedural issues. Tony Francois, Duarte's attorney at the Pacific Legal Foundation, said that,
“The Second Amended Complaint alleges that the retaliation against Duarte Nursery and John Duarte (for suing the government, and making statements against the Army Corps in the press, on radio, and on television) was a substantial reason for the Army Corps and Justice Department bringing their lawsuit for supposed Clean Water Act violations. "Prevailing on this claim will require the government to prove that they would have sued the Duartes and their company even absent the retaliatory motive. We do not think the government will be able to show this.”

Documents could indicate Corps culpability

On April 23, 2014, the judge rejected the Corps' request to have the case dismissed. On May 7, 2014, the Corps filed a counterclaim. Duarte's attorneys subsequently obtained documents they say indicate the counterclaim was retaliatory: According to Judge Mueller's Sept. 3 court order allowing the First Amendment violation claim,
"In May 2015, they [Duarte's attorneys] received the following documents among others in response to a production request: correspondence surrounding the filing of the counterclaim, correspondence containing a third party’s observation that the counterclaim is retaliatory, and a deposition of Matthew Kelley of the Army Corps staff, who testifies about the unusual circumstances surrounding this litigation."
The judge's order allowing the First Amendment complain to be included in the trial concluded that,
"Plaintiffs’ allegations support some inference that defendants filed the counterclaim in retaliation, and that the counterclaim’s enforcement action would not have been filed without plaintiffs having first brought their initial claim. Plaintiffs plead injury of a violation of their rights to free speech. The claim is therefore legally sufficient...."
Francois said in a blog about the judge's order, that "Evidence discovered in the case shows that the Army Corps would not have referred this matter to the Justice Department, until our client sued the agency."  

A Reminder About Your Subscription

You may have misplaced the original email that accompanied your subscription, so I'd like to mention several things.

Monthly subscriptions automatically renew at the end of each month and yearly ones every year unless you cancel.

You can cancel anytime 24/7/365 using the email or phone number at the end of this email.

Your subscription rate will never change even when the standard rate increases.

In addition, if you cancel and wish to re-new, the best option is to contact ECSuite and have your old account re-instated.

Re-instatement will allow you to re-subscribe at your original rate even if it is lower than the current rate when you re-up.

The subscriptions and charges are handled by ECSuite, which I chose because they can provide better security and credit card customer service than I can. I never receive credit card information and none is ever stored on my server.

If you need customer service with your account, please contact ECSuite at:  consumersupport@ecsuite.com or 1-888-736-6475.

================= CONTACT DATA ====================
Lewis Perdue
670 W. Napa St., Suite H, Sonoma, CA 95476
Phone: 707-326-4503, fax: 707-940-4146
Email: lewis.perdue@wineindustryinsight.com