Issues and Cases

A farmer’s due process rights are plowed under by the feds

Duarte Nursery v. Corps of Engineers, Members of the Board of the Central Valley Regional Water Quality Control Board

Contact: Anthony L. Francois

Status: On October 23, 2015, Duarte Nursery filed a motion for summary judgment against the Army Corps of Engineers, presenting undisputed facts that show that the farming company is entitled to judgment as a matter of law because the government deprived it of property without a hearing. Hearing on dispositive motions was held on November 20, 2015. On June 10, 2016, The court ruled that the company violated the Clean Water Act by plowing its property, even though the Act exempts normal farming practices. PLF has appealed the judge’s dismissal of Duarte Nursery’s First Amendment retaliation claim to the Ninth Circuit, and asked for a stay of the remaining trial court proceedings pending that appeal. A settlement was reached on August 15, 2017. Under the agreement, Duarte would admit no liability, pay the government $330,000 in a civil penalty, purchase $770,000 worth of vernal pool mitigation credits, and perform additional work on the site of the plowing.
PLF attorneys represent Duarte Nursery and John Duarte in a lawsuit over the denial of due process rights by the U.S. Army Corps of Engineers and the Central Valley Regional Water Quality Control Board.

Duarte NurseryOn February 25, 2013, the Corps sent a cease and desist letter to Duarte, ordering suspension of farming operations on a parcel of land in Tehama County, California, based on alleged violations of the Clean Water Act during farming operations. The Corps did not notify Duarte of the allegations in the letter prior to issuing the letter, or provide Duarte any opportunity to comment on the allegations or the requirements of the letter prior to issuing it.

On April 18, 2013, the Corps sent a follow-up letter to Duarte’s counsel, providing an erroneous factual basis for the cease and desist letter, and then asking Duarte for several items of information, which the Corps should have inquired into and given Duarte an opportunity to comment on prior to issuing the February 25, 2013, letter.

On April 23, 2013, the Central Valley Regional Water Quality Control Board issued a notice of violation, evidently based on the same factual allegations, and also without prior notice or an opportunity to comment afforded to Duarte. The notice of violation appears to be based largely, if not entirely, on receipt of the Corps’ February 25 letter.

The lawsuit argues that Duarte’s right to due process has been violated by these communications and commands, because they were issued with prior notice of alleged illegal activity, and with no opportunity to comment.


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