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From: lewis.perdue@wineindustryinsight.com

Subject: WINE EXECUTIVE NEWS | Duarte signs consent decree to settle federal court case over Tehama County plowing case | Premium Member Briefing | August 15, 2017

Date: 2017-08-15 16:07:53

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Duarte signs consent decree to settle federal court case over Tehama County plowing case -- Premium Member Briefing August 15, 2017
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From editor & publisher, Lewis Perdue
August 15, 2017

Duarte signs consent decree to settle federal court case over Tehama County plowing case

A full copy of the consent decree can be accessed by Wine Executive News premium subscribers at the article link at log on (below)

Without admitting guilt or liability or accepting the federal charges against him and his family's nursery, John Duarte has signed a consent decree with the U.S. Department of Justice (DoJ) to end his long, grueling fight with the Army Corps of Engineers (CoE).

DoJ attorneys had sought $2.8 million in fines and substantial more in landscape remediation.   The consent degree was entered in U.S. District Court on Aug. 15 just as court proceedings were scheduled to begin. Wine Industry Insight reached out to Duarte and his legal team for comment.
“This has been a difficult decision for me, my family, and the entire company, and we have come to it reluctantly,” said John Duarte in a public statement. “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.”
  A short summary of the 56-page filing contained these substantial points.
  • Duarte must pay $300,000 in civil penalties to the United States, and spend.
  • $700,000 in off-site compensatory mitigation such as purchasing vernal pool establishment credits from CoE-approved mitigation banks.
  • Duarte is enjoined from disturbing approximately 44 acres the CoE considered waters of the United States. In addition, that area also is required to have a 35-foot setback for 10 years.The 44 acres can be used for "moderate non-irrigated cattle grazing and weed, pest, or invasive species control."
  • The obligations of this "shall run with the land and bind Defendants' successors and assigns." A certified copy of this Consent Decree must be filed with the Tehama County, California, recorder's office.
  • After two years Duarte may seek from the CoE a revised jurisdictional determination for the site. "In making such determination, the Corps shall apply the then-applicable definition of 'waters of the United States' and shall otherwise act in accordance with then-governing law.
  • Duarte must "smooth all disturbed soil surfaces and reasonably match the pre-November 2012 grade and hydrology within impacted waters of the United States on the Site, approximately 22 acres as identified in Trial Exhibit 61 and attached hereto as Appendix 3."
  “John would have preferred to see this case through to trial and appealed the court’s liability ruling, which holds that plowing a field requires federal permission — despite the clear text of the Clean Water Act and regulations to the contrary,” said Francois.

“John and his counsel remain concerned that legal liability for farming without federal permission undermines the clear protections that the Clean Water Act affords to farming and poses a significant ongoing threat to farmers across the nation.”

Full documents, expert reports and court documents Available to Wine Executive News Premium Subscribers

  • Expert witness reports (begin page 6 of this document)

  • Judge opinion blocking admission of key expert witness evidence

  • Corps of Engineers Deep Ripping Regulation

  • Declaration Lyndon Lee 102715

  • Department of Justice Expert Team Report-080715

  • Direct Expert Testimony of Lyndon Lee filed 080417

  • Expert Document-87-3-Filed080715

  • U.S. Expert Disclosures and Designations

  • Second Supplemental Report of Diane S. Moore


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Previous Wine Industry Insight Coverage

Duarte vs U.S. Army Corps of Engineers

Clean Water Act & WOTUS Issues

Other relevant articles

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