Saturday, July 15, 2017 by JD Heyes
There are so many things Congress and our regulation-cutting president need to fix within the federal bureaucracy they are beyond anyone’s ability to even add up. But giving Americans back control over their own land seems like a great place to start, especially if that American is attempting to use his land to feed us.
As reported by USA Today, a farmer near Red Bluff, Calif., is looking at a trial this summer in addition to $2.8 million in fines simply because he neglected to obtain permission in the form of a revenue-generating permit to plow his own field and plant wheat in Tehama County.
This case is a very big deal, said an attorney for Duarte Nursery because one way or another it will set a precedent: Farmers will either have to obtain expensive permits that take a lot of time to obtain before putting plow to field, or they won’t.
As you can probably imagine, most are hoping for the latter. (Related: Read California Has Lots Of Water – But Too Much Abusive Regulation Prevents It From Flowing.)
“The case is the first time that we’re aware of that says you need to get a (U.S. Army Corps of Engineers) permit to plow to grow crops,” Anthony Francois, a lawyer for the Pacific Legal Foundation, told the paper.
His libertarian-leaning nonprofit organization specializes in fighting for property rights and dramatically scaled-back federal bureaucracy and red tape.
“We’re not going to produce much food under those kinds of regulations,” he added.
But a federal magistrate, U.S. District Judge Kimberly J. Mueller, didn’t agree. In June she sided with the Army Corps and issued judgement, which is how the Justice Department is seeking the exorbitant fine. The trial is set to begin in August.
As USA Today reports:
The case began in 2012 when John Duarte, who owns Duarte Nursery near Modesto, Calif., bought 450 acres about 10 miles south of Red Bluff.
Duarte planned to grow wheat there, according to Francois and court documents.
However, the land he bought contains a number of wetlands and swales, so Duarte hired a consulting company to locate and mark areas of his property where he could not plow since they were considered part of the drainage for Coyote and Oat creeks, thus considered “waters of the United States.”
While Francois said that some of those wetlands were inadvertently plowed, the damage was not significant and, in fact, the plow depth was something like four-to-seven inches.
While the Army Corps didn’t say that Duarte violated the Endangered Species Act through the destruction of fairy shrimp and their habitat — a species that is unique to California and under threat of extinction since 1994 — the Corps nonetheless issued a cease-and-desist order in February 2013 after Duarte’s wheat was planted but not harvested.
The Corps, together with the California Central Valley Regional Water Quality Control Board, issued the stop-work order at the site, claiming that Duarte had violated the Clean Water Act by failing to obtain “a permit to discharge dredged or fill material” into wetlands that change by the season and are ridiculously considered by regulation to be U.S. waters.
Duarte sued, claiming the Corp and the board violated his constitutional right to due process after issuing the cease-and-desist order without a hearing. At that point the U.S. Attorney’s office countersued to enforce the violation of the Clean Water Act. (Related: Read Nearly Half Of States ‘Just Say No’ To Stifling New EPA Climate Regs.)
Francois says that the law does not require farmers plowing their fields to get such permits. Naturally, the U.S. Attorney’s office, no doubt eyeing the multi-million dollar award, says that what Duarte was doing did not amount to plowing.
“Even under the farming exemption, a discharge of dredged or fill material incidental to the farming activities that impairs the flow of the waters of the United States still requires a permit because it changes the chemical, physical and biological integrity of the waters,” said the U.S. Attorney office’s court filing.
In addition to the hefty fine, the government wants Duarte to fix the “damage” by smoothing the area he scratched and replant native greenery.
Francois says it’s bogus.
“A plain reading of the rules says you don’t need a permit to do what he did,” Francois said. “How do you impose a multimillion [dollar] penalty on someone for thinking the law says what it says?”
J.D. Heyes is a senior writer for NaturalNews.com and NewsTarget.com, as well as editor of The National Sentinel.