It's a case that already has received considerable attention because of the eye-catching headlines about a farmer being fined – possibly tens of millions of dollars – for plowing his own land in preparation to plant wheat.
But it's also already drawn the attention of members of Congress and others who believe the trial in the case Duarte Nursery vs. Corps of Engineers and members of the Central Valley Regional Water Quality Board could clarify the Clean Water Act.
And it could give the Trump administration an open door to free the American farming industry from arcane regulations about "ephemeral" water puddles.
At issue are what the plaintiffs describe as the ridges and furrows left behind by the ordinary farm practice of plowing a field.
They're needed to plant crops, they explain.
But the federal agency claims that the ridges are now mountains, and the furrows are all that's left of a large mass of lands that qualified for protection because of the "ephemeral" water that's there.
The Clean Water Act is written to protect navigable waters of the United States. However, under Obama, the government expanded the definition to include even soggy areas on agricultural land, which can be as small as pools of standing water that only appear in the wet seasons of the year in areas that are normally entirely dry. Farming practices in general are supposed to be exempt from the law.
The case is being handled for the nursery by the Pacific Legal Foundation, which works to protect the Constitution and property rights.
Senior attorney Tony Francois told WND the focal point for the court fight is the way the federal government, under the Obama administration, began interpreting various water and property rights rules. The hearing is to determine damages, since a court already ruled the nursery broke the law, a decision that will be appealed when the court process are ripe for that move.
"We think it would be consistent with policy and legal matters for the Department of Justice to fundamentally re-evaluate" some of the issues, he said.
He said the law explains clearly that normal farming operations don't require permission from the Army Corps of Engineers, and plowing clearly should fall under that exemption.
The case developed when Duarte in 2013 plowed some of its land to plant wheat. A local federal agent claimed the plowing violated federal law and the Corps sent a cease-and-desist order.
A later court decision claimed the nursery was violating the Clean Water Act, but the lawsuit was filed because the government refused to provide to the nursery any notice of wrongdoing.
Essentially, the government said it had decided there was wrongdoing, so it ordered a halt, depriving the nursery of its property without giving any opportunity to challenge the decision.
Pacific Legal has prepared a video explaining the case:
Losing the case could mean $2.8 million in penalties for the nursery, plus possibly tens of millions of dollars it could be required to pay to third parties for "mitigation."
Related column:
Will Trump continue anti-farmer Obama tack? by Richard Pombo
Members of Congress have expressed disbelief that such a case actually could be happening.
Sen. Joni Ernst, R-Iowa, for example, during one congressional hearing, got confirmation from experts that the idea that the occasional puddle on Duarte property needed to be protected was incorrect.
One witness, Misha Tseytlin of Wisconsin, characterized such claims as propaganda.
Ernst ridiculed the government's characterization of the plowed ridges as "mini mountain ranges."
She pointed out that under the government's definitions, 97 percent of Iowa would be regulated because the state would be considered waters of the United States and her state should be counted as the most mountainous state in the union.
Her comments:
The Department of Justice refused to respond to WND questions about the case on Monday.
The trial is scheduled for three weeks beginning Tuesday.
Former congressman Richard Pombo writes in a WND commentary that it is an opportunity for President Trump to move the federal government back toward common sense.
"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?"
The case, he noted, "is based on a set of facts that one agricultural reporter, Chris Bennett, called 'a Monty Python, George Orwell lovechild.'"
The case provides "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," he said.
"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 that other farmers cultivate through.
"This is the nonsense that we expected from the Obama administration," he explained. "Things are different now that America has elected President Trump, but they haven't been different on this case so far."
Two other Republicans, K. Michael Conaway of the House Committee on Agriculture and House Judiciary Chairman Bob Goodlatte, wrote to Sessions raising concerns that the DOJ was misinterpreting congressional intent in its actions.
"The prosecution of Mr. Duatre raises concerns that the congressional intent behind farming exemptions in the statute is misunderstood. Specifically, it is the Agriculture Committee's view that even occasional farm activities, including grazing, qualify as 'normal' farming under the statutory exemption, and also are part of an established operation for purposes of the exemption."
They want the DOJ to explain who the DOJ decides to prosecute under the Clean Water Action, about the "novel or strained interpretation" that might be at play, or settlements that have been reached.
Francois said: "This is a life-or-death moment for a long-established business with hundreds of employees in the Central Valley. Federal prosecutors are asking for ruinous fines against Duarte Nursery and John Duarte personally, for plowing a field without permission from the Army Corps of Engineers. Yet we're talking about shallow plowing that caused no harm and was done in the good faith, reasonable belief that it was entirely legal.
"If any fine is levied for what was at worst an innocent misunderstanding, it should be nominal. Instead, prosecutors and agency officials are asking for a staggering $2.8 million — plus tens of millions in payments to a wetlands bank. These incredible sums would close Duarte Nursery and put its 500-plus workers on the street.
"The court must impose sanity on this situation and reject these extremist demands. Government bureaucrats cannot be allowed to destroy a productive business and the futures of hundreds of employees and their families, over conduct that was — and will be proven on appeal to be — legal at the time and which did not harm the environment."
The trial will be in Sacramento before Judge Kimberly Mueller.
There also are technicalities that could disrupt the government's case. For one thing, Duarte's lawyers are arguing only the Environmental Protection Agency, not the Army Corps, can bring such an action. The EPA declined to do so.
WND reported that, so far, all the legal action taken against the Duartes has been by Obama administration officials.
Since the government side of the suit is now owned by the Trump administration, there may be hope that the government will drop the suit and leave the Duartes in peace.
EPA Director Scott Pruit has indicated sympathy with the Duartes, and members of Congress have petitioned Sessions to drop the case against the California farmers.
Trump has already directed that the EPA review the rules concerning what constitutes "navigable waters" under the Clean Water Act, which could lead to the case against the Duartes being thrown out anyway.
The government has been arguing that the exemptions granted for farming and plowing only apply if soil is not moved. Duarte said in his statement that he and other farmers "have yet to understand how plowing can be done without moving soil."
"What sort of things can a citizen-farmer do without having to say 'Mother, may I?' to the government?" said American Farm Bureau Federation spokesman Will Rodger in a report in the Weekly Standard. 'What sort of things can they do without worrying about the hand of the federal government coming down on their head?"