|Duarte Goes On Offensive In Battle with Feds. Outcome May Affect Vineyards, Other Ag - VIP Wine Executive News Member Briefing
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VIP Wine Executive News Member Briefing
Editor & Publisher, Lewis Perdue
Issue #9 - October 27, 2015
Duarte Goes On Offensive In Battle with Feds. Outcome May Affect Vineyards, Other Ag
EDITOR'S NOTE: The outcome of this case could significantly impact vineyard development and other common agricultural practices.
Significantly for vineyards and other ag, in this lawsuit the federal government has defined a plow as a point source of pollution and the soil plowed as an illegal discharge into the Waters of the US (WOTUS). The field in this case is more than 7 miles away from the nearest flowing water and connected to it only during wet winters by seasonal creeks.
Most vineyard developments are tilled much more deeply than the one in this instance.
On most of the North Coast, vineyards are rarely more than seven miles away from The Russian or Napa Rivers and are commonly deep ripped. Vineyards located on The Salinas and Santa Ynez rivers or any watershed that eventually drains into the Delta are equally at risk.
Duarte Nurseries, Inc., has seized on a U.S. Justice Department (DoJ) foul-up and is moving quickly to see if it can torpedo the litigation brought by the U.S. Army Corps of Engineers (CoE) over the plowing of a California wheat field southeast of Red Bluff in Tehama County.
According to Duarte nursery, it is the largest permanent crops nursery in the United States and one of the top suppliers of wine grape vines to West Coast Vineyards.
Constitutional Violations Previously Alleged by Duarte
The nursery, and co-plaintiff John Duarte, originally sued the CoE in 2014 in in U.S. District Court for the Eastern District of California, charging Constitutional violation of the Fifth amendment: alleging the taking of property without due process (Plow Field, Go To Jail? Feds Threaten John Duarte. He Slugs Back)
More recently, in September, U.S. District Court Judge Kimberly J. Mueller ruled that the U.S. Army Corps of Engineers (CoE) could also be charged with violating Duarte’s First Amendment rights for allegedly trying to silence him when he spoke out against their actions. (Duarte wins a round against the Corps of Engineers, judge OKs new charges).
Duarte is represented by Peter Prows of Briscoe, Ivester and Bazel of San Francisco and supported by the Pacific Legal Foundation.
DoJ Lawyers Miss Deadline, Outcome Could Sink Their Case
According to court documents from both sides of the issue, the Department of Justice missed a September deadline to respond to a series of "Requests for Admission" filed by Duarte in August.
The Cornell Law School Legal Information Institute explains that,
"In a civil action, a request for admission is a discovery device that allows one party to request that another party admit or deny the truth of a statement under oath. If admitted, the statement is considered to be true for all purposes of the current trial."
The rules of procedure for federal courts state that if a party admits that certain facts are true or if that party fails to respond on time, the facts will be deemed admitted -- true -- for the entire court procedure.
These facts are called "Deemed Admissions," and they take place automatically unless they are denied by the court deadline. A hearing on the issue will be held Friday, Oct. 30.
Also In This Article:
The full text of the following sections is available to premium subscribers of Wine Executive News.
DoJ Pleads To Withdraw The Deemed Omissions, Duarte Opposes
DoJ Says Case Will Be Gutted If Not Allowed To Withdraw Deemed Admissions
DoJ: It "Misremembered" The Deadline
Duarte Contends DoJ Had Plenty of Attorneys and No Excuse To Miss Deadline
Sides File Dueling Summary Judgment Requests
Complete Court Documents Available To Premium Wine Executive News Subscribers
All Previous Premium Articles Available For You Online
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