On a rainy afternoon in late November 2012, Matthew Kelley, a project manager for the U.S. Army Corps of Engineers, pulled his truck over to the side of a road in Tehama County in northern California.
He’d seen something he found disturbing: a tractor parked in an open field. Fields and tractors are common in this rural region halfway between Sacramento and the Oregon border. The area is known for its almond and walnut orchards. What Kelley found so alarming was that this tractor was in a 450-acre field that he knew contained dozens of vernal pools. These are small depressions that can fill with rainwater seasonally, but environmental regulators consider them to be part of nearby Coyote Creek.
Kelley was the Army Corps’s lone representative in Tehama County, and nobody had asked him for a permit to plow. In an email to his superiors, Kelley wrote, “I think this is going to be a big violation.”
He had no idea just how big the investigation he was launching would become. For rather than acquiesce to the Army Corps’s demands, the property owner, John Duarte, decided to fight. His decision unleashed the full fury of the government’s regulatory apparatus and resulted in a legal battle that has stretched more than four years and placed Duarte on the brink of financial ruin.
This month, after a string of victories largely vindicating the government’s legal positions, the Justice Department is heading to court to press Duarte to pay a $2.8 million fine and to buy mitigation credits his lawyers say will cost at least $13 million.
The case rests on a handful of narrow legal questions, such as how much deference to afford executive branch agencies; whether ponds that are sometimes dry are really part of a “significant nexus” of “navigable waters” subject to regulation under the 1972 Clean Water Act; and if plowing a vacant field constitutes protected “normal farming.” But to farmers across the country, the case exemplifies the overreach of the regulatory state. To them, it seems like a guy could wind up paying millions in fines for the crime of planting wheat.
“What sort of things can a citizen-farmer do without having to say ‘Mother, may I?’ to the government?” asks Will Rodger, a spokesman with the American Farm Bureau Federation, which is closely following the case. “What sort of things can they do without worrying about the hand of the federal government coming down on their head?”
The most curious aspect of the case is that despite the Trump administration’s rollback of Obama environmental regulations, the Justice Department is continuing to advance legal arguments that augment environmental regulatory power. In May, the chairmen of the House Agriculture and Judiciary Committees wrote to Attorney General Jeff Sessions, saying that the prosecution of Duarte is inconsistent with legislation passed by Congress. Yet the case continues. The Justice Department declined to comment for this article.
Duarte is a fourth-generation California farmer. He bought the 450-acre parcel in Tehama in April 2012. As part of the deal, he received a detailed environmental assessment that identified the vernal pools as potential water features. Coyote Creek, a tributary of the Sacramento River, runs through a portion of the property. He was considering flipping the land or perhaps turning it into an orchard or vineyards—Duarte Nursery is a large supplier of small trees and plants to farms. Initially, though, he decided to plant wheat on the land for the winter season. He hired Brad Munson, a friend of his father, to supervise the operation.
In November, Munson hired a subcontractor to till the soil in preparation for seeding. Planting wheat, a member of the grass family, is generally easier on the soil than planting nut trees, which require deeper cuts into the earth. Duarte and Munson acknowledge that some of the plowing was done through vernal pools.
A 2006 Supreme Court decision, Rapanos vs. United States, says the Clean Water Act covers only waters that have a “significant nexus” to “navigable waters.” But when Kelley saw the tractor and later found evidence of plowing, he and the Army Corps were alarmed because they interpret the Clean Water Act as covering any and all water features connected to a creek. As the plowing resulted in the movement of soil into the vernal pools, regulators further interpreted that action as a “discharge” into federal waters—which generally requires a permit. Some of the vernal pools in the area occasionally contain a variety of tadpole shrimp that is on the endangered species list—though there’s no proof that any were in Duarte’s pools.
There is a section of the Clean Water Act that exempts “normal farming, silviculture, and ranching activities such as plowing, seeding, cultivating, minor drainage, [and] harvesting for the production of food.” The Army Corps of Engineers and the Environmental Protection Agency, which jointly enforce the Clean Water Act, interpret that clause to mean that the farming in question must be part of an established, ongoing operation. Duarte’s wheat, regulators believed, did not qualify for that exception: At the time of the plowing, the land was not used for growing crops, although there had been wheat production on nearby land in the past.
When Duarte received a cease-and-desist letter from the Army Corps in February 2013, he stopped the seeding operation. But the government also accused him of “deep ripping,” which is plowing three-to-four feet deep rather than the shallow plowing needed for wheat. He contested the investigators’ findings and launched a legal process that continues to this day. (He’s represented by the Pacific Legal Foundation, a libertarian public-interest law firm headquartered in Sacramento.)
Duarte contends that the government case is baseless and that investigators simply doubled-down rather than admit they made a mistake. Prosecutors do agree that the plowing was less than a foot deep. But they still refer to it as “ripping.” For his part, Duarte calls them “a carload of idiots”: “They’re evil and they’re destroying jobs and destroying lives,” he told a local TV station in June.
President Trump in February ordered the EPA to revise the Obama administration’s environmental rules and limit their scope. In signing the order, Trump described some of the problems with a broad interpretation of the regulations: “You have to worry about getting hit with a huge fine if you fill in as much as a puddle—just a puddle—on your lot. I’ve seen it. In fact, when it was first shown to me, I said, ‘No, you’re kidding, aren’t you?’ But they weren’t kidding.”
Trump’s Justice Department, nonetheless, continues to pursue the Duarte case, in which a farmer is accused of plowing soil near a wetland that might not have been wet. “You have this irony of the government continuing to prosecute a crippling civil penalty, when they’re also in the process of deciding these aren’t really waters protected by the Clean Water Act anyway,” says Duarte’s lawyer, Tony Francois.
It’s hard to know how often regulators pursue such cases. The Army Corps’s Sacramento office says that it has no documents that summarize its enforcement actions. In a deposition in the case, Kelley’s boss said the Army Corps typically investigates between 30 and 60 Clean Water Act cases a year across four Western states. About one-quarter of those cases involve farming.
Tony Mecia is a senior writer at The Weekly Standard.
