{"id":4029,"date":"2016-07-11T01:17:45","date_gmt":"2016-07-11T06:17:45","guid":{"rendered":"http:\/\/agrilife.org\/texasaglaw\/?p=4029"},"modified":"2026-04-17T15:27:31","modified_gmt":"2026-04-17T20:27:31","slug":"duarte","status":"publish","type":"post","link":"https:\/\/agrilife.org\/texasaglaw\/2016\/07\/11\/duarte\/","title":{"rendered":"Trial Court Ruling in Duarte Nursery v. Army Corps of Engineers Concerning for Landowners"},"content":{"rendered":"

Today’s blog is long….I’m warning you now.<\/p>\n

In the last few years, we have seen an increased focus on the regulatory reach of federal jurisdiction over agricultural lands, with the new WOTUS rule and other court decisions. \u00a0A recent trial court decision from the Eastern District of California should be extremely concerning to landowners across the country. \u00a0At issue, the federal Clean Water Act and agricultural operations.<\/p>\n

\"Texas<\/a>

Texas A&M Agrilife photo by Kay Ledbetter<\/p><\/div>\n

Background<\/strong><\/p>\n

In 2012, Duarte Nursery purchased\u00a0450 acres land in Tehama County, California\u00a0with the intent to farm the land, initially by sowing winter wheat. \u00a0The property, north of Sacramento, consists of rolling grassland. \u00a0Prior to 1988, the land had been farmed, but from 1988 until the Duarte purchase in 2012, the land had been used for grazing. \u00a0Due to the clay soil, water collects after rainfall in what are referred to as vernal pools.<\/p>\n

Duarte hired a local wheat farmer to plant, care for, and harvest wheat on the property. \u00a0The farmer was instructed to till the soil 12″ or less, and did so using a Case IH tractor and a Wilcox ripper with 36″ shanks. \u00a0He was told to avoid vernal pools on the land. \u00a0The farmer avoided some, but not all, of the vernal pool areas, but none of the pools were destroyed.<\/p>\n

In November 2012, an Army Corps of Engineers (“COE”) employee drove by the property and observed farming activities and equipment present. \u00a0He took photographs of what he believed to be a Clean Water Act violation. \u00a0He returned again in December and observed tilling of the land. \u00a0He then contacted the owner of Duarte Nursery to inform him that the tilling activities required a permit under the Clean Water Act. \u00a0Duarte argued it did not need a permit as it was avoiding areas considered wetlands and, therefore, “waters of the United States.”<\/p>\n

In February 2013, the COE sent a cease and desist letter to Duarte. \u00a0The letter stated that the COE believed Duarte discharged dredged or fill material into waters of the United States without a permit as required by Section 404 of the Clean Water Act. \u00a0Specifically, the discharge allegedly occurred into “seasonal wetlands, vernal pools, vernal swales, and intermittent and ephemeral drainages.”<\/p>\n

In March 2013, Duarte’s counsel responded to the letter, seeking any and all documentation used by the COE to support the allegations that Duarte was in violation of the Clean Water Act.\u00a0 They also pointed out that Section 404 of the Clean Water Act exempted certain agricultural activities.<\/p>\n

Eventually, the case was transferred to the Environmental Protection Agency (“EPA”) for enforcement.<\/p>\n

In October 2013, Duarte filed suit against the COE, alleging due process violations. \u00a0In response, the COE filed a counterclaim alleging violation of the Clean Water Act by Duarte.<\/p>\n

Clean Water Act<\/strong><\/p>\n

The federal Clean Water Act essentially provides that a landowner may not discharge a point-source pollutant (Section 402) or dredge and fill material (Section 404) into a “water of the United States” without obtaining the proper permit from the Environmental Protection Agency or the Army Corps of Engineers. \u00a0There are important agricultural exceptions to both Section 402 and 404. \u00a0To read more on the basics of the Clean Water Act and agriculture, click here<\/a>.<\/p>\n

Trial Court Decision<\/strong><\/p>\n

At the end of June, the trial court issued its opinion in this case. \u00a0Read full opinion here<\/a>.<\/p>\n

First, the trial court\u00a0discussed a technical issue of whether this case was properly filed based upon the cease and desist letter, or whether a “final agency action” was required based on the Administrative Procedures Act. \u00a0The Court sided with Duarte on this issue, finding that no “final agency action” was necessary because the nature of the challenge was constitutional. \u00a0Regardless, the court reasoned, the plaintiffs had sufficiently shown that a CWA cease and desist letter was sufficient “final agency action” under the APA. \u00a0Thus, the court had jurisdiction to hear the case. \u00a0To read more about a recent Supreme Court decision on the issue of final agency action and the Clean Water Act, click here<\/a>.<\/p>\n

Second, the court reviewed Duarte’s due process claim. \u00a0In order to succeed on a due process case, the plaintiff must show (1) deprivation of a constitutionally protected liberty or property interest, and (2) a denial of adequate procedural protections. \u00a0Duarte argued it had a protected property interest in the land and its use for wheat farming. \u00a0The COE argued that a cease and desist letter did not constitute “deprivation” of an interest. \u00a0The Court sided with the COE on this issue, finding that there was no deprivation based upon the letter. \u00a0“The Army Corps would have had to request the EPA or the DOJ to bring an enforcement action to actually enforce the CWA. \u00a0The Army Corps has sought enforcement now by filing its counterclaim to this action. \u00a0However, enforcement had not occurred at the time the plaintiffs received the C&D letter.” \u00a0Without actual deprivation of a protected property interest, the due process claim must fail. \u00a0Summary judgment was entered for the COE on this issue.<\/p>\n

Third, the court turned to the COE’s counterclaim, alleging that Duarte violated the Clean Water Act. \u00a0The court addressed numerous sub-issues in analyzing this counterclaim.<\/p>\n