By Richard Pombo
Donald J. Trump largely took the path through rural America to the presidency of the United States. Farmers and ranchers cheered at the election results last November because they felt that they now had the chance to be relieved of the burdens of the regulatory tsunami that had been unleashed on them by the previous administration. This anti-farmer regulatory environment is at the core of America’s ability to compete in a world economy. Was it all an illusion, or will President Trump stand up for the men and women of rural America?
Now a rare opportunity stands ready for the Trump administration to deliver American farmers a win for their rights to farm and to protect the private property rights of thousands of farmers and ranchers. The Duarte vs. Army Corps of Engineers case is currently housed in the Trump DOJ on the government side, and the Pacific Legal Foundation on the Duarte side. This case is based on a set of facts one agricultural reporter, Chris Bennett, called “a Monty Python, George Orwell lovechild.” This is a case where the facts favor an extraordinary opportunity for good law for American agriculture and an opportunity for President Trump to fulfill his promise that a farmer will no longer have to get permission from the government to plow his field. The plowing exemption for tillage may include all types of field preparation for grains, grapes and tree crops. A general farming exemption from Clean Water Act regulation may protect the percentage of farms that fallow or graze land when markets are low and plant crops only when profitable.
Duarte Nursery Inc. of Hughson, California, is a multi-generational family company being sued, to the tune of millions in ruinous fines, purportedly for planting wheat in a wheat field. The company employs up to 600 people propagating trees and vines for California farmers. They are technical, market and political leaders in the state’s agriculture industry. This case isn’t about sustainable wheat farming. In truth John Duarte, president of DNI and co-owner with his brother Jeff, had the audacity to stand up to the Obama administration formerly famous for audacity.
In 2012, in the middle of one of the worse droughts in California history, Duarte was planting wheat in an area of Northern California where new orchard plantings compete for land with government ambitions for critical habitat preserves for fairy shrimp (seas monkeys). The government field agent for the Army Corps of Engineers mistook Duarte’s 4-to-12-inch-deep pre-plant wheat tillage for three-foot-deep ripping. He was the “ag specialist.”
Duarte has spent close to $3 million battling the feds and has built an excellent record. California Farm Bureau Federation, American Farm Bureau Federation and many other ag advocacy interests have pushed this case forward as a poster child of government abuse. There is a Duarte Defense Account at CFBF that has raised six-figure amounts of money to support the battle. County Farm Bureaus have begun challenging each other to donate on a per farmer member basis. Ten bucks per is Butte County Farm Bureau Clark Becker’s prescribed number, and he handed his membership’s $10,650 check to John Duarte Saturday. A recent obituary for California farmer Bill Fisk asked that in lieu of flowers to please donate to the Duarte “GoFundMe” page.
This case is scheduled for trial Tuesday. The Duartes had the courage to stand up to the Obama administration and now need the Trump administration to stand up for them. What agriculture expected to be a welcomed effort to clear up numerous threats to agriculture with a broad set of claims and ultimately high-court rulings has so far hit a tin ear at the DOJ. The Obama holdovers have convinced the Trump appointees that the Duartes really harmed the Earth by planting wheat. Purportedly, Duarte should have pulled a permit that no farmer has ever been forced to pull and avoided tilling dark spots and low spots other farmers cultivate through.
This is the nonsense we expected from the Obama administration. Things are different now that America has elected President Trump, but they haven’t been different on this case so far. If Attorney General Sessions settles this case for a financial penalty against Duarte and allows the appeals opportunities to go forward, then agriculture is likely get big and durable wins.
Time is running down fast. We hope that our new administration delivers an answer to what AFBF President Zippy Duvall recently questioned in a letter to USDA Secretary Sonny Perdue, “… whether the abuses of the past eight years are at an end.” This case is a heinous threat to a solid agricultural family and their employees. It is also very important as an opportunity to support all American farmers and rural communities. Jeff Sessions can either deliver or fail big on this one.
Richard Pombo is a former Republican member of the United States House of Representatives, having represented California’s 11th congressional district from 1993 to 2007.