ARRA News Service
ARRA News Service facebook page  
News for social, fiscal & national security conservatives who believe in God, family & the USA. Upholding the rights granted by God & guaranteed by the U.S. Constitution, traditional family values, "republican" principles / ideals, transparent & limited "smaller" government, free markets, lower taxes, due process of law, liberty & individual freedom. All content approval rests with the ARRA News Service Editor. Opinions are those of the authors. While varied positions are reported, beliefs & principles remain fixed. No revenue is generated for or by this site - no paid ads accepted - no payments for articles. Fair Use doctrine is posted & used.
Editor/Founder: Bill Smith, Ph.D. [aka: OzarkGuru & 2010 AFP National Blogger of the Year]
Contact: (Pub. Since July, 2006)
    Home Page

One of the penalties for refusing to participate in politics is that you end up being governed by your inferiors. -- Plato (429-347 BC)

Monday, July 17, 2017

Get Ready To Cringe: Wheat Farmer Faces Millions in Fines

by Gary Baise: In June, 2016, I described a Clean Water Act (CWA) case involving a California wheat farmer. A U.S. District Court found John Duarte chisel plowed pasture lands which were considered to be vernal pools even though the pools seldom have water in them.

The Court determined his vernal pools were wetlands or waters of the United States. See where this is going?

After a year-long delay, the penalty phase of the case against Duarte starts on August 14th. For chisel plowing alleged wetlands, the U.S. Department of Justice (DOJ) and the U.S. Army Corps of Engineers (Corps) are seeking $2.8 million in fines and approximately $30 million to buy wetlands which would mitigate the alleged damage created by Mr. Duarte. He claims “It (450 acres of pasture land) was farmed for wheat many times before, and the permit they wanted me to get had never been issued to a farmer before” (The Modesto Bee, May 24, 2017).

Facing a trial
The Court has now issued an order which declares Mr. Duarte must now face a trial to determine “…the issue of injunctive relief and civil penalties.” Mr. Duarte and his California legal team filed a motion to stay the August 14, 2017 proceedings because there is another case pending before the U.S. Court of Appeals in San Francisco which may have a significant impact on Mr. Duarte.

The judge, after reviewing the prospective case filed in the 9th Circuit U.S. v Joseph Robertson, indicated she believed Duarte’s case should go forward even though the 9thCircuit case could substantially impact Mr. Duarte.

The Court found that “being required to defend [a] suit, without more does not constitute a clear case of hardship or inequity within the meaning of Landis.” The Court also concluded and agreed with the attorneys from DOJ that delay of the Duarte case would “…thwart efforts to mitigate onsite damage to the property.”

This of course means Duarte not only faces a possible fine but might also be saddled with $30+ million in damages… for chisel plowing a wheat field.

His legal team is seeking a stay of the August 2017 trial because the Robertson case could help determine what is a “water of the United States” under the CWA. This is an important question for everyone in tillage agriculture. You may recall the Robertson case because it involves a rancher in Montana who excavated and constructed 9 stock ponds after he was told by the government he could not do so. Mr. Robertson was sentenced to 18 months in prison and ordered to pay approximately $130,000 in restitution for ponds he dug on national forest land and on private property. Mr. Robertson raises a critical point. He believes the CWA only prohibits a discharge of a pollutant into navigable waters or waters of the United States.

Intense controversy
The term “waters of the United States” (WOTUS) has been an issue of intense controversy. Many believe the EPA and the Corps have exceeded CWA’s jurisdiction. Mr. Robertson and Mr. Duarte subscribe to the opinion of the late Justice Scalia which held that WOTUS requires wetlands to maintain a continuous surface connection to navigable water.

It appears the new proposed regulatory decision from EPA Administrator Scott Pruitt regarding WOTUS will also subscribe to this conclusion, which is helpful to everyone in agriculture and ranching. Duarte’s judge and Mr. Robertson’s judge subscribe to a definition written by Justice Kennedy in a case called Rapanos. In fact, in the Robertson case, the jury was instructed to use Justice Kennedy’s “significant nexus” test. The jury apparently was not allowed to utilize Justice Scalia’s four vote plurality test.

Even though this controversy over how to determine jurisdiction is going to be heard in the 9th Circuit, the Duarte court used the Justice Kennedy test and found Duarte’s property indeed had a “significant nexus” to a creek and it to the Sacramento River.

Notwithstanding this dispute, Mr. Duarte’s judge concludes no stay of his case is warranted because it may be 4-5 months before an opinion is issued by the 9th Circuit. The DOJ lawyers also argued that a decision in the Robertson case may not issue for at least 14 months and therefore there is no reason not to proceed with the trial and attempt to fine Duarte millions of dollars and require many millions in mitigation.

Last week Duarte’s legal team filed a PETITION FOR WRIT OF MANDAMUS in the U.S. Court of Appeals 9th Circuit in an attempt to stop the August 14, 2017 trial from proceeding.

The outcome of these legal activities in San Francisco will impact all in tillage agriculture.
Gary Baise is an Illinois farmer and trial attorney at the law firm Olsson Frank Weeda Terman Bode Matz PC. Specializing in agricultural and environmental issues, he also serves as outside General Counsel for the U.S. Grains Council, Agricultural Retailers Association, and National Sorghum Producers. Jefferson Policy Journal shared this Farm Futures article.

Tags: Clean Water Act, California, Wheat Former, John Duarte, EPA To share or post to your site, click on "Post Link". Please mention / link to the ARRA News Service and "Like" Facebook Page - Thanks!
Posted by Bill Smith at 2:11 PM - Post Link


Post a Comment

<< Home

National Debt
Don't miss anything!
Subscribe to the
ARRA News Service
It's FREE & No Ads!

You will receive a verification email
& must validate you subscribed!

You Then Receive One Email Each AM
With Prior Days Articles / Toons / More

Also, Join us at:

Recent Posts:
Personal Tweets by the editor:
Dr. Bill - OzarkGuru - @arra
#Christian Conservative; Retired USAF & Grad Professor. Constitution NRA ProLife schoolchoice fairtax - Editor ARRA NEWS SERVICE. THANKS FOR FOLLOWING!

Action Links!
Arkansas State Senators
AR State Representatives
Arkansas Governor Office
Arkansas Attorney General
Bankrupting America
US House of Representatives
US Senators
Family Research Council
Sunshine Review

Facebook Accts - Dr. Bill Smith
ARRA News Service
Arkansans Against Big Government
Alley-White Am. Legion #52
Catholics & Protestants United Against Discrimination
End Taxpayer Funding of NPR
Overturn Roe V. Wade
Prolife Soldiers
Project Wildfire 4 Life
Republican Liberty Caucus of Arkansas
The Gold Standard
US Atty Gen Loretta Lynch, aka Eric Holder, Must Go
Veterans for Sarah Palin
Why Vote for Hillary (Satire)
FB Groups:
Arkansas For Sarah Palin
Arkansas Conservative Caucus
Arkansas County Tea Party
Arkansans' Discussion Group on National Issues
Blogs for Borders
Conservative Solutions
Conservative Voices
Defend Marriage -- Arkansas
FairTax Nation
Arkansas for FairTax
Friends of the TEA Party in Arkansas
Freedom Roundtable
Let's Mine AR Lignite NOW!
Pro-Life Rocks - Arkansas
Republican Network
Republican Liberty Caucus of AR
Reject the U.N.


Request Via
Article Comment

Links to ARRA News
A Patriotic Nurse
Agora Associates
a12iggymom's Blog
America, You Asked For It!
Americans for a Free Republic
America's Best Choice
America's Whatchtower
An Ol’ Broad’s Ramblings
ARRA Twitter
As A Matter of Fact
As The Crackerhead Crumbles
Baaad Media!
Black & Right
Blogs For Borders
Blogs for Palin
Blow the Trumpet Ministry
Boot Berryism
Cap'n Bob & the Damsel
Chicago Ray Report
Chuck Baldwin - links
Citizen Pamphleteer
Common Cents
Conservative Hideout
Conservative Observer AZ
Conservative Voices
Conway Real Deal
Defeat Obama's Agenda
Diana's Corner
eGOP News
Florida Pundit
Franklin Online Outreach
Freedom For US Now
Free Zone Media Center
For God and Liberty
Garland County Republicans
Greater Fitchburg For Life
Guns and Religion
Lasting Liberty Blog
Liberal Isn't Amy
Liberty's Lifeline
Maggie's Notebook
Marathon Pundit
Monkey in the Middle
NASA Satellites
No Runny Eggs
Okie Campaigns
Our Voices Arkansas
Patriot's Corner
Publius Forum
Randy's Roundtable
Real Debate Wisconsin
Religion and Morality
Right on Issues that Matter
Right Reason
Rocking on the Right Side
Saber Point
Saline Watchdog
Secure Arkansas
Sentry Journal
Sultan Knish
Stop Obama Satire & Cartoons
The Arkansas Patriot
The Audacity of Logic
The Blue Eye View
The Bobo Files
The Born Again Americans
TEA Party Cartoons
The Conservative Citizen
The Foxhole | Unapologetic Patriot
The Liberty Republican
The Lid
The Looking Spoon
The Maritime Sentry
The O Word
The Path to Tyranny Blog
The Real Polichick
Truth About Obamacare
Twitter @ARRA
Warning Signs
Women's Prayer & Action

Editor's Managed Twitter Accounts
Twitter Dr. Bill Smith @arra
Twitter Arkansas @GOPNetwork
Twitter @BootBerryism
Twitter @SovereignAllies
Twitter @FairTaxNation

Editor's Recommended Orgs
Accuracy in Media (AIM)
American Committment
American Culture & Faith Institute
American Enterprise Institute
American Family Business Institute
Americans for Limited Government
Americans for Prosperity
Americans for Tax Reform
American Security Council Fdn
AR Faith & Ethics Council
Arkansas Policy Foundation
Ayn Rand Institute
Bill of Rights Institute
Campaign for Working Families
Center for Individual Freedom
Center for Immigration Studies
Center for Just Society
Center for Freedom & Prosperity
Citizens Against Gov't Waste
Citizens in Charge Foundstion
Coalition for the Future American Worker
Competitive Enterprise Institute
Concerned Veterans for America
Concerned Women for America
Declaration of Am. Renewal
Eagle Forum
Family Research Council
Family Security Matters
Franklin Center for Gov't & Public Integrity
Freedom Works
Gingrich Productions
Global Incident Map
Great Americans
Gold Standard 2012 Project
Gun Owners of America (GOA)
Heritage Action for America
David Horowitz Freedom Center
Institute For Justice
Institute for Truth in Accounting
Intercollegiate Studies Institute
Judicial Watch
Less Government
Media Reseach Center
National Center for Policy Analysis
National Right To Work Foundation
National Rifle Association (NRA)
National Rifle Association (NRA-ILA)
News Busters
O'Bluejacket's Patriotic Flicks
Open Secrets
Presidential Prayer Team
Religious Freedom Coalition
Renew America
Ron Paul Institute
State Policy Network
Tax Foundation
Tax Policy Center
The Club for Growth
The Federalist
The Gold Standard Now
The Heritage Foundation
The Leadership Institute
Union Facts

Blogs For Borders

Reject the United Nations

Adopt Our Troops in Prayer

Thousands of Deadly Islamic Terror Attacks Since 9/11

FairTax Nation on FaceBook
Friends of Israel - Stand with Israel
Blog Feeds
Syndicated - Get the ARRA News Service feed Syndicated!
ARRA Blog Feed

Add to Google Reader or Homepage

Add to The Free Dictionary

Powered by Blogger

  • How To Exchange Links!
  • Comments by contributing authors or other sources do not necessarily reflect the position the editor, other contributing authors, sources, readers, or commenters. No contributors, or editors are paid for articles, images, cartoons, etc. While having reported on and promoting the beliefs associated with the ARRA, this blog/site is not controlled by nor funded by the ARRA. This site/blog does not advertise for money or services nor does it solicit funding for its support.
  • Fair Use: This site/blog may contain copyrighted material the use of which has not been specifically authorized by the copyright owner. Such material is made available to advance understanding of political, human rights, economic, democracy, and social justice issues, etc. This constitutes a 'fair use' of such copyrighted material as provided for in section Title 17 U.S.C. Section 107 of the US Copyright Law. Per said section, the material on this site/blog is distributed without profit to readers to view for the expressed purpose of viewing the included information for research, educational, or satirical purposes. Any person/entity seeking to use copyrighted material shared on this site/blog for purposes that go beyond "fair use," must obtain permission from the copyright owner.
  • © 2006 - 2017 ARRA News Service
Creative Commons License
Creative Commons Attribution Noncommercial Share Alike 3.0 Unported License.