Duarte Nursery Inc. et al v. United States Army Corps of Engineers et al

Filing 342

CONSENT DECREE signed by District Judge Kimberly J. Mueller on 12/7/2017 GRANTING 337 Motion. (Attachments: # 1 Appendices 1-3). CASE CLOSED. (York, M)

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ROBERT G. DREHER
Acting Assistant Attorney General

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Andrew J. Doyle (FL Bar No. 84948)
John Thomas H. Do (CA Bar No. 285075)
Trial Attorneys
United States Department of Justice
Environment and Natural Resources Division
P.O. Box 7611
Washington, DC 20044
Attorneys for the Defendant and Counterclaim-Plaintiff

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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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DUARTE NURSERY, INC., a
California Corporation; and
JOHN DUARTE, an individual,
Plaintiffs,

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No.

ANSWER AND COUNTERCLAIM

v.
UNITED STATES ARMY CORPS OF
ENGINEERS,

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Defendant.

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UNITED STATES OF AMERICA,
CounterclaimPlaintiff,

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v.
DUARTE NURSERY, INC., a
California Corporation; and
JOHN DUARTE, an individual,

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CIV. S-13-2095 LKK/DAD

CounterclaimDefendants.

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In the first part of this pleading, infra pp. 2-16

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(“Answer”), the United States Army Corps of Engineers (“Corps”)

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responds to the Complaint for Declaratory and Injunctive Relief

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(“Duarte’s Complaint,” ECF No. 1) filed by Duarte Nursery, Inc.

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and John Duarte (collectively “Duarte”).

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In the second part of this pleading, infra pp. 16-29

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(“Counterclaim”), the United States of America (“United States”),

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by the authority of the Attorney General and at the request of

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Secretary of the United States Department of the Army, acting

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through the Corps, asserts a claim for injunctive relief and

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civil penalties against Duarte under the Clean Water Act.

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ANSWER
The Corps asserts defenses to Duarte’s Complaint and answers
each numbered paragraph as follows:

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JURISDICTION
1.

Paragraph 1 constitutes Duarte’s legal conclusion to

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which no response is required.

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required, the Corps denies that Duarte has properly invoked the

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limited subject matter jurisdiction of this Court.

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To the extent that a response is

INTRODUCTION
2.

With respect to the first sentence of paragraph 2, the

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Corps admits that Duarte Nursery, Inc. owns real property on

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Paskenta Road in rural Tehama County, a few miles south of the

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city of Red Bluff.

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sufficient to form a belief as to the truth of the remaining

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allegations in the first sentence of paragraph 2 and therefore

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denies the same.

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sufficient to form a belief as to the truth of the allegations in

The Corps is without knowledge or information

The Corps is without knowledge or information

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the second sentence of paragraph 2 and therefore denies the same.

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The third sentence of paragraph 2 constitutes Duarte’s legal

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conclusion to which no response is required.

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a response is required, the Corps denies the third sentence of

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paragraph 2.

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3.

To the extent that

With respect to the first sentence of paragraph 3, the

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Corps admits that Exhibit A to Duarte’s Complaint is a true and

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correct copy of a letter that the Corps issued to Duarte on or

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about February 25, 2013.

The remaining allegations in the first

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sentence of paragraph 3 contain Duarte’s characterization of

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Exhibit A, which speaks for itself, and the Corps denies any

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allegations contrary to the plain meaning of Exhibit A.

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Corps denies the allegations in the second and third sentences of

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paragraph 3.

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4.

The

Paragraph 4 is not directed to the Corps and relates

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entirely to the defendants or claims that were dismissed by this

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Court’s Order of April 23, 2014 (ECF No. 27) and thus requires no

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response.

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5.

The Corps denies the allegations in the first sentence

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of paragraph 5 to the extent they are directed to the Corps.

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With respect to the second, third, fourth, and fifth sentences of

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paragraph 5, they constitute Duarte’s characterization of

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Duarte’s Complaint to which no response is required.

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extent that a response is required, the Corps denies the

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allegations in these sentences to the extent they are directed to

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the Corps.

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Corps and relates entirely to the defendants or claims that were

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dismissed by this Court’s Order of April 23, 2014 (ECF No. 27)

To the

The balance of paragraph 5 is not directed to the

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and thus requires no response.

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VENUE

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6.

Paragraph 6 constitutes Duarte’s legal conclusion to

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which no response is required.

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required, the Corps admits that venue is proper in the United

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States District Court for the Eastern District of California

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assuming, for the sake of argument, that Duarte has properly

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invoked the limited subject matter jurisdiction of this Court.

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To the extent that a response is

PARTIES

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Plaintiffs

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7.

The Corps admits that Duarte Nursery, Inc. owns the

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property that is the subject of Duarte’s Complaint.

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without knowledge or information sufficient to form a belief as

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to the truth of the remaining allegations in paragraph 7 and

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therefore denies the same.

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8.

The Corps is

The Corps admits that John Duarte is the President of

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Duarte Nursery, Inc.

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information sufficient to form a belief as to the truth of the

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remaining allegations in paragraph 8 and therefore denies the

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same.

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Defendants

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9.

The Corps is without knowledge or

The Corps admits the allegations in the first sentence

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of paragraph 9.

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constitute Duarte’s legal conclusion, which require no response,

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and characterize 33 U.S.C. § 1344(a) and 33 C.F.R. § 326.3, which

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speak for themselves as to their content and meaning.

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10-16.

The remaining allegations in paragraph 9

Paragraphs 10 through 16 are not directed to the

Corps and relate entirely to the defendants or claims that were
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dismissed by this Court’s Order of April 23, 2014 (ECF No. 27)

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and thus require no response.

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LEGAL BACKGROUND
17-35.

Paragraphs 17 through 35 constitute Duarte’s

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characterization of the Clean Water Act and associated

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regulations, case law, and guidance documents which speak for

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themselves as to their content and meaning.

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through 35 also contain Duarte’s legal conclusions to which no

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response is required.

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36-38.

Paragraphs 17

Paragraphs 36 through 38 are not directed to the

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Corps and relate entirely to the defendants or claims that were

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dismissed by this Court’s Order of April 23, 2014 (ECF No. 27)

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and thus require no response.

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39-43.

Paragraphs 39 through 43 constitute Duarte’s

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characterization of the United States Constitution, case law, and

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a treatise which speak for themselves as to their content and

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meaning.

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conclusions to which no response is required.

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Paragraphs 39 through 43 also contain Duarte’s legal

FACTUAL ALLEGATIONS
44.

The Corps admits the allegation in the first sentence

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of paragraph 44 that Duarte Nursery, Inc. owns property located

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on Paskenta Road in rural Tehama County, south of the city of Red

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Bluff and roughly three miles west of Interstate 5.

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the shorthand “Property,” so this Answer does as well.)

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Corps admits the allegation in the first sentence of paragraph 44

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that the Property includes Tehama County Assessor’s Parcel

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Numbers (“APN”) 037-070-35-1 and 037-070-37-1, but the Corps

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denies that the Property is limited to these two parcels.
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(Duarte uses
The

The

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Corps is without knowledge or information sufficient to form a

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belief as to the truth of the remaining allegations in the first

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sentence of paragraph 44 and the allegations in the second

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sentence of paragraph 44 and therefore denies the same.

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45.

The Corps is without knowledge or information

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sufficient to form a belief as to the truth of the allegations in

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paragraph 45 and therefore denies the same.

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46.

The Corps admits the allegations in paragraph 46 that

an environmental consultant was retained in approximately 2012

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regarding the Property.

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information sufficient to form a belief as to the truth of the

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remaining allegations in paragraph 46 and therefore denies the

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same.

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47.

The Corps is without knowledge or

The Corps admits the allegation in paragraph 47 that in

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November 2012 the Property contained wetlands.

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the allegations in paragraph 47 that wetlands were avoided, and

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that no deep ripping has taken place on the Property while it has

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been owned by Duarte Nursery, Inc. or under the control of John

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Duarte.

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to form a belief as to the truth of the remaining allegations in

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paragraph 47 and therefore denies the same.

The Corps denies

The Corps is without knowledge or information sufficient

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48.

The Corps denies the allegations in paragraph 48.

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49.

The Corps denies the allegations in paragraph 49.

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50.

The Corps admits the allegation in paragraph 50 that on

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or about February 25, 2013, the Corps issued a true and correct

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copy of Exhibit A to Duarte’s Complaint to Duarte.

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allegations in paragraph 50 purport to quote Exhibit A, which

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speaks for itself, and the Corps denies any allegations contrary
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The remaining

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to the plain meaning of Exhibit A.
51.

Paragraph 51 constitutes Duarte’s characterization of

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Exhibit A to Duarte’s Complaint, which speaks for itself, and the

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Corps denies any allegations contrary to the plain meaning of

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Exhibit A.

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52.

The Corps admits that allegation in paragraph 52 that

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on or about March 21, 2013, the Corps received a written

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communication from Duarte.

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paragraph 52 constitute Duarte’s characterization of such

The remaining allegations in

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communication, which speaks for itself, and the Corps denies any

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allegations contrary to the plain meaning of such communication.

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53.

The Corps admits the allegation in paragraph 53 that on

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or about April 18, 2013, the Corps communicated in writing to

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Duarte.

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of its subparts, constitute Duarte’s characterization of such

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communication, which speaks for itself, and the Corps denies any

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allegations contrary to the plain meaning of such communication.

The remaining allegations in paragraph 53, including all

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54.

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55-60.

The Corps denies the allegations in paragraph 54.
Paragraphs 55 through 60 are not directed to the

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Corps and relate entirely to the defendants or claims that were

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dismissed by this Court’s Order of April 23, 2014 (ECF No. 27)

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and thus require no response.

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61.

To the extent that the allegations in paragraph 61 are

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directed to the Corps, the Corps denies these allegations.

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the extent that the allegations in paragraph 61 are not directed

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to the Corps and relate entirely to the defendants or claims that

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were dismissed by this Court’s Order of April 23, 2014 (ECF No.

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27), these allegations require no response.
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To

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62.

To the extent that the allegations in paragraph 61 are

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directed to the Corps, the Corps denies these allegations.

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the extent that the allegations in paragraph 61 are not directed

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to the Corps and relate entirely to the defendants or claims that

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were dismissed by this Court’s Order of April 23, 2014 (ECF No.

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27), these allegations require no response.

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63.

To

The Corps is without sufficient knowledge or

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information sufficient to form a belief as to the truth of the

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allegations in paragraph 63 that Duarte left wheat crop

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unattended, resulting in its total loss, at a cost to Duarte

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Nursery, Inc. of at least $50,000 in planting costs, and

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therefore denies these allegations.

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remaining allegations in paragraph 63 are directed to the Corps,

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the Corps denies these allegations.

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remaining allegations in paragraph 63 are not directed to the

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Corps and relate entirely to the defendants or claims that were

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dismissed by this Court’s Order of April 23, 2014 (ECF No. 27),

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these allegations require no response.

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64.

To the extent that the

To the extent that the

The Corps is without sufficient knowledge or

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information sufficient to form a belief as to the truth of the

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allegations in paragraph 64 that Duarte did not make necessary

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preparations for farming the Property in the Fall of 2013, and

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therefore denies these allegations.

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remaining allegations in paragraph 64 are directed to the Corps,

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the Corps denies these allegations.

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remaining allegations in paragraph 64 are not directed to the

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Corps and relate entirely to the defendants or claims that were

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dismissed by this Court’s Order of April 23, 2014 (ECF No. 27),
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To the extent that the

To the extent that the

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these allegations require no response.
65.

With respect to the allegations in the first sentence

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of paragraph 65, to the extent that these allegations are

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directed to the Corps, the Corps is without knowledge or

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information sufficient to form a belief as to the truth of these

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allegations and therefore denies the same.

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the allegations in the first sentence of paragraph 65 are not

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directed to the Corps and relate entirely to the defendants or

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claims that were dismissed by this Court’s Order of April 23,

To the extent that

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2014 (ECF No. 27), these allegations require no response.

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respect to the allegations in the second sentence of paragraph 65

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(and Duarte’s citation to and quotation from case law), they

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constitute Duarte’s legal conclusion to which no response is

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required.

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denies any allegation in the second sentence of paragraph 65 that

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is directed to the Corps.

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66.

With

To the extent that a response is required, the Corps

Paragraph 66 constitutes Duarte’s legal conclusion,

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which requires no response, and characterizes 33 C.F.R.

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§ 326.3(c)(3) and 326.5(a), which speak for themselves as to

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their content and meaning.

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required, the Corps denies that actions referenced in 33 C.F.R.

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§ 326.3(c)(3) and 326.5(a) are dependent upon whether the Corps

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had previously issued to Duarte a true and correct copy of

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Exhibit A to Duarte’s Complaint.

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67.

To the extent that a response is

Paragraph 67 is not directed to the Corps and relates

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entirely to the defendants or claims that were dismissed by this

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Court’s Order of April 23, 2014 (ECF No. 27) and thus requires no

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response.
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68.

The Corps admits the allegation in the first sentence

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of paragraph 68 that the Corps disseminated to other state and

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federal agencies a true and correct copy of Exhibit A to Duarte’s

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Complaint.

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of paragraph 68 that Exhibit A “labeled” Duarte as “violators,”

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this allegation constitutes Duarte’s characterization of Exhibit

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A, which speaks for itself, and the Corps denies any allegation

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contrary to the plain meaning of Exhibit A.

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the remaining allegations in the first sentence of paragraph 68

With respect to the allegation in the first sentence

To the extent that

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are directed to the Corps, the Corps denies these allegations.

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To the extent that the allegations in paragraph 68 are not

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directed to the Corps and relate entirely to the defendants or

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claims that were dismissed by this Court’s Order of April 23,

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2014 (ECF No. 27), these allegations require no response.

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respect to the allegations in the second sentence of paragraph

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68, the Corps denies these allegations to the extent that they

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are directed to the Corps.

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the second sentence of paragraph 68 are not directed to the Corps

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and relate entirely to the defendants or claims that were

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dismissed by this Court’s Order of April 23, 2014 (ECF No. 27),

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these allegations require no response.

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69.

With

To the extent that the allegations in

The Corps incorporates by reference its responses to

paragraphs 1 through 68 of Duarte’s Complaint.
70.

Paragraph 70 constitutes Duarte’s legal conclusion to

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which no response is required.

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required, the Corps denies paragraph 70 to the extent that it is

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directed to the Corps.

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directed to the Corps and relates entirely to the defendants or

To the extent a response is

To the extent that paragraph 70 is not

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claims that were dismissed by this Court’s Order of April 23,

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2014 (ECF No. 27), paragraph 70 requires no response.

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71.

Paragraph 71 constitutes Duarte’s legal conclusion to

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which no response is required.

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required, the Corps denies paragraph 71 to the extent that it is

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directed to the Corps.

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directed to the Corps and relates entirely to the defendants or

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claims that were dismissed by this Court’s Order of April 23,

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2014 (ECF No. 27), paragraph 71 requires no response.

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72.

To the extent a response is

To the extent that paragraph 71 is not

Paragraph 72 constitutes Duarte’s legal conclusion to

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which no response is required.

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required, the Corps denies paragraph 72 to the extent that it is

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directed to the Corps.

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directed to the Corps and relates entirely to the defendants or

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claims that were dismissed by this Court’s Order of April 23,

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2014 (ECF No. 27), paragraph 72 requires no response.

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73.

To the extent a response is

To the extent that paragraph 72 is not

Paragraph 73 constitutes Duarte’s legal conclusion to

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which no response is required.

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required, the Corps denies paragraph 73 to the extent that it is

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directed to the Corps.

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directed to the Corps and relates entirely to the defendants or

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claims that were dismissed by this Court’s Order of April 23,

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2014 (ECF No. 27), paragraph 73 requires no response.

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74.

To the extent a response is

To the extent that paragraph 73 is not

The Corps incorporates by reference its responses to

paragraphs 1 through 73 of Duarte’s Complaint.
75.

Paragraph 75 constitutes Duarte’s legal conclusion to

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which no response is required.

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required, the Corps denies paragraph 75 to the extent that it is

To the extent a response is

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directed to the Corps.

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directed to the Corps and relates entirely to the defendants or

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claims that were dismissed by this Court’s Order of April 23,

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2014 (ECF No. 27), paragraph 75 requires no response.

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76.

To the extent that paragraph 75 is not

Paragraph 76 constitutes Duarte’s legal conclusion to

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which no response is required.

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required, the Corps denies paragraph 76 to the extent that it is

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directed to the Corps.

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directed to the Corps and relates entirely to the defendants or

To the extent a response is

To the extent that paragraph 76 is not

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claims that were dismissed by this Court’s Order of April 23,

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2014 (ECF No. 27), paragraph 76 requires no response.

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77.

Paragraph 77 constitutes Duarte’s legal conclusion to

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which no response is required.

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required, the Corps denies paragraph 77 to the extent that it is

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directed to the Corps.

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directed to the Corps and relates entirely to the defendants or

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claims that were dismissed by this Court’s Order of April 23,

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2014 (ECF No. 27), paragraph 77 requires no response.

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78.

To the extent a response is

To the extent that paragraph 77 is not

Paragraph 78 constitutes Duarte’s legal conclusion to

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which no response is required.

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required, the Corps denies paragraph 78 to the extent that it is

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directed to the Corps.

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directed to the Corps and relates entirely to the defendants or

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claims that were dismissed by this Court’s Order of April 23,

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2014 (ECF No. 27), paragraph 78 requires no response.

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To the extent a response is

To the extent that paragraph 78 is not

FIRST CAUSE OF ACTION
79.

The Corps incorporates by reference its responses to

paragraphs 1 through 78 of Duarte’s Complaint.
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80-82.

Paragraphs 80 through 82 constitute Duarte’s legal

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conclusions to which no response is required.

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response is required, the Corps denies paragraphs 80 through 82.

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To the extent a

SECOND CAUSE OF ACTION
83.

The Corps incorporates by reference its responses to

paragraphs 1 through 82 of Duarte’s Complaint.
84-86.

Paragraphs 84 through 86 constitute Duarte’s legal

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conclusions to which no response is required.

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response is required, the Corps denies paragraphs 84 through 86.

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To the extent a

THIRD CAUSE OF ACTION
87.

The Corps incorporates by reference its responses to

paragraphs 1 through 86 of Duarte’s Complaint.
88-90.

Paragraphs 88 through 90 are not directed to the

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Corps and relate entirely to Duarte’s Third Cause of Action that

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was dismissed by this Court’s Order of April 23, 2014 (ECF No.

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27) and thus require no response.

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FOURTH CAUSE OF ACTION
91.

The Corps incorporates by reference its responses to

paragraphs 1 through 90 of Duarte’s Complaint.
92-94.

Paragraphs 92 through 94 are not directed to the

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Corps and relate entirely to Duarte’s Fourth Cause of Action that

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was dismissed by this Court’s Order of April 23, 2014 (ECF No.

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27) and thus require no response.

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FIFTH CAUSE OF ACTION
95.

The Corps incorporates by reference its responses to

paragraphs 1 through 94 of Duarte’s Complaint.
96.

Paragraph 96 constitutes Duarte’s legal conclusion to

which no response is required.

To the extent a response is
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1
2

required, the Corps denies paragraph 96.
97.

The first sentence of paragraph 97 constitutes Duarte’s

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legal conclusion, which requires no response, and characterizes

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33 C.F.R. § 326.3(a)-(b), which speak for themselves as to their

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content and meaning.

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constitutes Duarte’s legal conclusion, which requires no

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response, and characterizes 33 C.F.R. pt. 326, which speaks for

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itself as to its content and meaning.

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is required, the Corps denies paragraph 97.

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98.

The second sentence of paragraph 97

To the extent a response

The first sentence of paragraph 98 constitutes Duarte’s

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legal conclusion, which requires no response, and characterizes

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33 C.F.R. § 326.3(b), which speaks for itself as to its content

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and meaning.

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Duarte’s legal conclusion, which requires no response, and

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characterizes 33 C.F.R. pt. 326, which speaks for itself as to

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its content and meaning.

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the Corps denies paragraph 98.

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99.

The second sentence of paragraph 98 constitutes

To the extent a response is required,

Paragraph 99 constitutes Duarte’s legal conclusion,

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which requires no response, and characterizes 33 C.F.R. pt. 326,

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which speaks for itself as to its content and meaning.

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extent a response is required, the Corps denies paragraph 99.

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To the

PRAYER FOR RELIEF
The remaining paragraphs of Duarte’s Complaint state

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Duarte’s prayer for relief, to which no response is required. To

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the extent a response is required, the Corps denies that Duarte

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is entitled to the relief it requests or to any relief

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whatsoever.

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ALL CLAIMS

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The Corps denies any allegation in Duarte’s Complaint,

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whether express or implied, that are not specifically admitted,

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denied, or qualified.

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Duarte’s Complaint remains unanswered, the Corps denies any such

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allegation.

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DEFENSES

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Without limiting or waiving any defenses available to it,
the Corps at this time asserts the following defenses, including
but not limited to affirmative defenses, against Duarte:

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12

To the extent that any allegation in

1.

Duarte has failed to properly invoke the limited

subject matter jurisdiction of this Court.

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2.

Duarte has failed to challenge reviewable “final”

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agency action within the meaning of the judicial review

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provisions of the Administrative Procedure Act, 5 U.S.C. §§ 702-

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06.

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3.

sovereign immunity.

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Duarte’s claims are barred in whole or in part by

4.

Duarte lacks standing to bring the claims alleged

against the Corps.

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5.

Duarte’s claims are not ripe.

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6.

Duarte’s claims are or may during this action become

7.

Duarte has failed to state a claim upon which relief

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moot.

can be granted.
8.

Duarte should recover nothing, or less than its demand,

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for equitable reasons, including but not limited to:

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conduct; the violations of the Clean Water Act that it is
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its own

1

responsible for; and application of the doctrines of unclean

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hands, estoppel, waiver, release, or laches.

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4

CONCLUSION OF ANSWER
WHEREFORE, the Corps respectfully requests that the Court

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deny all relief sought by Duarte; enter judgment in favor of the

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Corps; and award the Corps any appropriate relief.

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COUNTERCLAIM
The United States alleges as follows:

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NATURE OF THE ACTION
1.

This Counterclaim is a civil enforcement action

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commenced under sections 309 and 404 of the Clean Water Act

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(“CWA”), 33 U.S.C. §§ 1319 and 1344, and under 28 U.S.C. §§ 516

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and 519 to obtain injunctive relief and civil penalties against

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Duarte Nursery, Inc. and John Duarte (collectively “Duarte”) for

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the discharge of pollutants into waters of the United States in

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Tehama County, California without authorization by the Corps, in

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violation of CWA section 301(a), 33 U.S.C. § 1311(a).

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2.

The United States seeks:

(a) injunctive relief

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prohibiting Duarte from further unauthorized discharges of

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pollutants; (b) injunctive relief compelling Duarte to restore

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and mitigate the impacts of the unauthorized discharges of

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pollutants alleged in this Counterclaim; (c) civil penalties in

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favor of the United States and against Duarte; and (d) such other

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relief as the Court may deem appropriate.

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JURISDICTION AND VENUE
3.

This Court has jurisdiction over the subject matter of

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this action pursuant to 33 U.S.C. § 1319(b) and 28 U.S.C. §§ 1331

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and 1345.
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1

4.

Venue is proper in the United States District Court for

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the Eastern District of California pursuant to 33 U.S.C.

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§§ 1319(b) and 28 U.S.C. § 1391(b) and (c) because Duarte

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conducts business in this District; the waters of the United

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States into which pollutants were discharged without

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authorization are located in this District; and the cause of

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action alleged in this Counterclaim arose in this District.

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5.

The United States has provided notice of the

commencement of this action to the State of California pursuant
to 33 U.S.C. § 1319(b).

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PARTIES
6.

The counterclaim-plaintiff in this action is the United

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States of America, and authority to bring this action is vested

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in the United States Department of Justice pursuant to Section

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506 of the CWA, 33 U.S.C. § 1366, and 28 U.S.C. §§ 516 and 519.

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7.

The counterclaim-defendants in this action are Duarte

Nursery, Inc. and John Duarte.
8.

Duarte Nursery, Inc. is a corporation formed under the

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laws of California with a business address of 1555 Baldwin Road,

20

Hughson, California 95326.

21
22

9.

Road, Hughson, California 95326.

23
24

John Duarte is an individual residing at 1555 Baldwin

STATUTORY AND REGULATORY BACKGROUND
10.

Section 101(a) of the CWA, 33 U.S.C. § 1251(a),

25

provides that “[t]he objective of this chapter is to restore and

26

maintain the chemical, physical, and biological integrity of the

27

Nation’s waters.”

28
17

1

11.

Section 301(a) of the CWA, 33 U.S.C. § 1311(a),

2

prohibits the “discharge of any pollutant by any person” except,

3

inter alia, as authorized by a permit issued pursuant to section

4

404 of the CWA, 33 U.S.C. § 1344.

5

12.

Section 502(5) of the CWA, 33 U.S.C. § 1362(5), defines

6

“person” to include, inter alia, an “individual” and a

7

“corporation.”

8

13.

9
10
11

Section 502(12) of the CWA, 33 U.S.C. § 1362(12),

defines “discharge of a pollutant” as “any addition of any
pollutant to navigable waters from any point source.”
14.

Section 502(6) of the CWA, 33 U.S.C. § 1362(6), defines

12

“pollutant” to include, inter alia, “dredged spoil,” “biological

13

materials,” “rock,” “sand,” and “cellar dirt.”

14

15.

Section 502(14) of the CWA, 33 U.S.C. § 1362(14),

15

defines “point source” to include “any discernible, confined and

16

discrete conveyance . . . from which pollutants are or may be

17

discharged.”

18

16.

Section 502(7) of the CWA, 33 U.S.C. § 1362(7), defines

19

“navigable waters” as “the waters of the United States, including

20

the territorial seas.”

21

17.

33 C.F.R. § 328.3(a)(1), (5) and (7) define “waters of

22

the United States” to include, inter alia:

23

currently used, were used in the past, or may be susceptible for

24

use in interstate or foreign commerce (“traditional navigable

25

waters”); tributaries of traditional navigable waters; and

26

wetlands adjacent traditional navigable waters or their

27

tributaries.

28
18

all waters that are

1

18.

33 C.F.R. § 328.3(b) defines “wetlands” as “those areas

2

that are inundated or saturated by surface or ground water at a

3

frequency and duration sufficient to support, and that under

4

normal circumstances do support, a prevalence of vegetation

5

typically adapted for life in saturated soil conditions.”

6

19.

33 C.F.R. § 328.3(c) defines “adjacent” as “bordering,

7

contiguous, or neighboring.”

8

separated from other waters of the United States by man-made

9

dikes or barriers, natural river berms, beach dunes and the like

10
11

It further provide:

“Wetlands

are ‘adjacent wetlands.’”
20.

33 U.S.C. § 1319(b) authorizes the commencement of a

12

civil action for appropriate relief, including a permanent

13

injunction, against any person who violates 33 U.S.C. § 1311(a).

14

21.

33 U.S.C. § 1319(d) provides that any person who

15

violates 33 U.S.C. § 1311(a) shall be subject to a civil penalty

16

not to exceed $25,000 per day for each violation.

17

22.

Effective after January 12, 2009, 40 C.F.R. § 19.4

18

adjusts the $25,000 amount provided in 33 U.S.C. § 1319(d) to

19

$37,500.

20

23.

Each day that dredged or fill material remains in the

21

place where it was discharged without authorization constitutes a

22

separate violation of 33 U.S.C. § 1311(a).

23

GENERALLY APPLICABLE ALLEGATIONS

24

The Site

25

24.

Duarte Nursery, Inc. owns real property on Paskenta

26

Road in Tehama County, California, just south of the city of Red

27

Bluff and roughly three miles due west of Interstate 5 (“the

28

Site”).
19

1

25.

The Site is located on or near Sections 24 and 25,

2

Township 26 North, Range 4 West, and unsectioned portions of the

3

La Barranca Colorada Mexican Land Grant within Township 26 North,

4

Range 3 West, Mount Diablo Base & Meridian, Latitude 40.08274º,

5

Longitude -122.268048 º.

6

26.

The Site includes but is not limited to the following

7

parcels, as identified by their Tehama County Assessor’s Parcel

8

Numbers (“APN”):

037-070-35-1 and 037-070-37-1.

9

27.

The Site is approximately 500 acres in size.

10

28.

Duarte Nursery Inc. has owned or controlled the Site

11
12
13

since at least April 2012.
29.

John Duarte has been the President and co-owner of

Duarte Nursery, Inc. since at least April 2012.

14

Coyote Creek and Downstream Waters

15

30.

16

The northern portion of the Site contains or is

bordered by an aquatic feature, “Coyote Creek.”

17

31.

Coyote Creek carries water.

18

32.

Coyote Creek has a bed and bank.

19

33.

Coyote Creek is a stream.

20

34.

Coyote Creek originates generally west of the Site.

21

35.

The direction of the flow of water in Coyote Creek is

22

generally from west to east.

23

36.

Coyote Creek exceeds 10 miles in length.

24

37.

Coyote Creek’s watershed, or the area from which it

25
26
27
28

receives water, exceeds 16,000 acres.
38.

Approximately eight miles downstream (east) of the

Site, Coyote Creek joins another aquatic feature, “Oat Creek.”
39.

Oat Creek carries water.
20

1

40.

Oat Creek has a bed and bank.

2

41.

Oat Creek is a stream.

3

42.

The direction of the flow of water in Oat Creek is

4

generally from west to east.

5

43.

Oat Creek exceeds 20 miles in length.

6

44.

Oat Creek’s watershed, inclusive of Coyote Creek’s

7
8
9
10
11
12
13
14

watershed, exceeds 44,000 acres.
45.

Less than a mile downstream of Coyote Creek’s

confluence with Oat Creek, Oat Creek joins the Sacramento River.
46.

Coyote Creek and Oat Creek contribute flow to the

Sacramento River.
47.

The Sacramento River is the longest river in

California.
48.

From approximately two miles northwest of the city of

15

Redding, California the Sacramento River flows in a southerly

16

direction for over 300 miles before it reaches San Francisco Bay

17

and the Pacific Ocean.

18
19
20
21
22
23
24
25
26
27
28

49.

The Sacramento River’s watershed is approximately

27,500 square miles.
50.

The Sacramento River contributes flow to the Pacific

Ocean.
51.

The Sacramento River is currently used for interstate

commerce.
52.

The Sacramento River was used in the past for

interstate commerce.
53.

The Sacramento River is susceptible for use in

interstate commerce.
54.

The Sacramento River is navigable-in-fact.
21

1

55.

Coyote Creek, Oat Creek, and the Sacramento River are

2

critical habitat for, inter alia, two threatened species:

3

Central Valley Spring Run Chinook Salmon (Oncorhynchus

4

tshawytscha) and Central Valley Steelhead (Oncorhynchus mykiss).

5

50 C.F.R. § 223.102(c)(4) and (17); id. § 226.211(k) and (l).

6

The Endangered Species Act (“ESA”) defines “critical habitat” for

7

a threatened or endangered species, in pertinent part, as “the

8

specific areas within the geographical area occupied by the

9

species, at the time it is listed in accordance with the

10

provisions of section 1533 of this title, on which are found

11

those physical or biological features (I) essential to the

12

conservation of the species and (II) which may require special

13

management considerations or protections”; and “specific areas

14

outside the geographical area occupied by the species at the time

15

it is listed in accordance with the provisions of section 1533 of

16

this title, upon a determination by the Secretary that such areas

17

are essential for the conservation of the species.”

18

§ 1532(5)(A)(i), (ii).

19

pertinent part as “any species which is in danger of extinction

20

throughout all or a significant portion of its range.”

21

§ 1532(6).

22

which is likely to become an endangered species within the

23

foreseeable future throughout all or a significant portion of its

24

range.”

25

“subspecies” and certain “distinct population segment[s].”

26

1532(16).

27
28

56.

16 U.S.C.

The ESA defines “endangered species” in

Id.

The ESA defines “threatened species” as “any species

Id. § 1532(20).

The ESA defines “species” to include
Id. §

Central Valley Spring Run Chinook Salmon and Central

Valley Steelhead are anadromous fish, which means that they are
22

1

hatched in freshwater, spend most of their life in oceanic

2

waters, and return to freshwater to spawn.

3

57.

Critical habitat for Central Valley Spring Run Chinook

4

Salmon extends upstream from the confluence of Oat Creek with the

5

Sacramento River to the following location in Coyote Creek:

6

Latitude 40.0929º, Longitude -122.1621º.

7

§ 226.211(k)(1)(ii).

8
9

58.

50 C.F.R.

Critical habitat for Central Valley Steelhead extends

upstream from the confluence of Oat Creek with the Sacramento

10

River to the following location in Oat Creek:

11

Longitude -122.2168º.

12
13
14

59.

Latitude 40.0769º,

50 C.F.R. § 226.211(l)(1)(ii).

The Site is upstream of critical habitat for Central

Valley Spring Run Chinook Salmon and Central Valley Steelhead.
60.

Exhibit 1 to this Counterclaim is a map that fairly and

15

accurately depicts the flow path from Coyote Creek at the Site to

16

the Sacramento River.

17

Streams at the Site

18

61.

In addition to being bordered by Coyote Creek, the Site

19

contains -- or contained prior to the discharges of pollutants

20

alleged in this Counterclaim -- at least two additional streams.

21

62.

These streams carried water.

22

63.

These streams had a bed and bank.

23

64.

The direction of the flow of water in these streams was

24

generally from west to east.

25

65.

These streams joined Coyote Creek east of the Site.

26

66.

At least one of these streams may have contained

27

wetlands.

28
23

1
2
3

67.

These streams contributed flow to Coyote Creek and may

be regarded as branches of Coyote Creek.
68.

The discharges of pollutants alleged in this

4

Counterclaim had the effect of replacing portions of streams with

5

dry land or changing the bottom elevation of portions of streams.

6
7

69.

The discharges of pollutants alleged in this

Counterclaim destroyed portions of streams at the Site.

8

Wetlands at the Site

9

70.

In addition to streams, the Site contains -- or

10

contained prior to the discharges of pollutants alleged in this

11

Counterclaim -- other aquatic features.

12

71.

These aquatic features were inundated or saturated by

13

surface or ground water at a frequency and duration sufficient to

14

support, and under normal circumstances did support, a prevalence

15

of vegetation typically adapted for life in saturated soil

16

conditions.

17
18
19

72.

These aquatic features were “wetlands” within the

meaning of 33 C.F.R. § 328.3(a)(7), (b).
73.

Wetlands at the Site provided suitable habitat for,

20

inter alia, vernal pool fairy shrimp (Branchinecta lynchi), a

21

threatened species, and vernal pool tadpole shrimp (Lepidurus

22

packardi), an endangered species.

23

Endangered and Threatened Wildlife and Plants; Determination of

24

Endangered Status for the Conservancy Fairy Shrimp, Longhorn

25

Fairy Shrimp, and Vernal Pool Tadpole Shrimp; and Threatened

26

Status for the Vernal Pool Fairy Shrimp, 59 Fed. Reg. 48,136

27

(Sept. 19, 1994).

28
24

50 C.F.R. § 17.11(h);

1

74.

Since at least 2006, wetlands at the Site have been

2

designated critical habitat for vernal pool fairy shrimp.

3

C.F.R. § 17.95(h)(13); Endangered and Threatened Wildlife and

4

Plants; Designation of Critical Habitat for Four Vernal Pool

5

Crustaceans and Eleven Vernal Pool Plants, 71 Fed. Reg. 7,118,

6

7,141-42 (Feb. 10, 2006).

7

75.

50

Exhibit 2 to this Counterclaim is a true and correct

8

copy of a map, codified at 50 C.F.R. § 17.95(h)(13), depicting

9

areas of critical habitat for vernal pool fairy shrimp.

10
11
12
13
14

76.

The Site falls within the area marked as “Unit 6” on

Exhibit 2.
77.

Wetlands at the Site bordered, were contiguous to, or

neighbored Coyote Creek or another stream at the Site.
78.

The discharges of pollutants alleged in this

15

Counterclaim had the effect of replacing wetlands with dry land

16

or changing the bottom elevation of wetlands.

17
18

79.

Counterclaim destroyed wetlands at the Site.

19
20
21
22
23
24

The discharges of pollutants alleged in this

ADDITIONAL GENERALLY APPLICABLE ALLEGATIONS
80.

The Sacramento River is a traditional navigable water

under 33 C.F.R. § 328.3(a)(1).
81.

Coyote Creek and Oat Creek are “tributaries” of the

Sacramento River within the meaning of 33 C.F.R. § 328.3(a)(5).
82.

Streams at the Site are or were, prior to their

25

destruction, “tributaries” of Coyote Creek, Oat Creek, and the

26

Sacramento River within the meaning of 33 C.F.R. § 328.3(a)(5).

27
28

83.

Wetlands at the Site are or were, prior to their

destruction, “adjacent” to one or more tributaries within the
25

1

meaning of 33 C.F.R. § 328.3(a)(7), (c), and 40 C.F.R. §

2

230.3(s)(7).

3

84.

Coyote Creek, either alone or in combination with

4

similarly situated lands in the region, significantly affects the

5

chemical, physical, or biological integrity of the Sacramento

6

River.

7

85.

Oat Creek, either alone or in combination with

8

similarly situated lands in the region, significantly affects the

9

chemical, physical, or biological integrity of the Sacramento

10
11

River.
86.

Streams at the Site, either alone or in combination

12

with similarly situated lands in the region, significantly affect

13

or affected the chemical, physical, or biological integrity of

14

the Sacramento River.

15

87.

Wetlands at the Site, either alone or in combination

16

with similarly situated lands in the region, significantly affect

17

or affected the chemical, physical, or biological integrity of

18

the Sacramento River.

19

88.

At all times relevant to this Counterclaim, the

20

Sacramento River, Oat Creek, Coyote Creek, streams at the Site,

21

and wetlands at the Site constituted “waters of the United

22

States” and “navigable waters” within the meaning of 33 U.S.C.

23

§ 1362(7).

24
25
26

89.

Duarte Nursery, Inc. is a “person” under 33 U.S.C.

§ 1362(5).
90.

John Duarte is a “person” under 33 U.S.C. § 1362(5).

27
28
26

1
2
3
4

COUNT
91.

The United States repeats the allegations set forth in

Paragraphs 1 through 90 of this Counterclaim.
92.

As a result of earthmoving activities undertaken at the

5

Site, Duarte added pollutants to waters of the United States from

6

point sources without authorization.

7
8
9

93.

Beginning in approximately November 2012, Duarte

prepared much of the Site for planting.
94.

During such preparation, Duarte used mechanized

10

equipment to drag long metal shanks through the ground (“deep

11

ripping”).

12
13
14

95.

Deep ripping or other earthmoving activities occurred

throughout much of the Site.
96.

Deep ripping or other earthmoving activities resulted

15

in the placement of dredged spoil, biological materials, rock,

16

sand, cellar dirt, or other earthen material constituting

17

“pollutants” within the meaning of 33 U.S.C. § 1362(6) into

18

streams or wetlands at the Site.

19

97.

Equipment used during deep ripping or other earthmoving

20

activities constituted a “point source” within the meaning of 33

21

U.S.C. § 1362(14).

22
23
24

98.

Equipment operated in at least 15 acres of streams or

wetlands.
99.

The deep ripping or other earthmoving activities

25

resulted in the “discharge of any pollutant” within the meaning

26

of 33 U.S.C. § 1311(a).

27
28

100. The deep ripping or other earthmoving activities were
carried out by Duarte Nursery, Inc., John Duarte, or one or more
27

1

persons acting on behalf of or with the consent or knowledge of

2

Duarte.

3

101. At no time did Duarte or any person on Duarte’s behalf

4

apply for, secure, and comply with a CWA section 404 permit to

5

discharge pollutants at the Site.

6

102. Duarte violated 33 U.S.C. § 1311(a).

7

103. Duarte has allowed pollutants to remain in waters of

8
9
10
11

the United States.
104. Duarte remains in violation of 33 U.S.C. § 1311(a).
105. Duarte Nursery, Inc. and John Duarte are jointly and
severally responsible for the CWA violations alleged herein.

12
13
14
15
16
17
18
19
20

REQUEST FOR RELIEF
WHEREFORE, the United States respectfully requests that this
Court order the following relief:
Enjoin Duarte from further discharges of pollutants except
as in compliance with the CWA;
Compel Duarte to restore impacted waters of the United
States;
Require Duarte to mitigate for impacted waters of the United
States;

21

Assess and direct Duarte to pay civil penalties;

22

Award the United States the costs and disbursements of this

23
24
25

action; and
Grant the United States such other relief as the Court finds
appropriate.

26
27
28
28

1

Respectfully submitted,

2

ROBERT G. DREHER
Acting Assistant Attorney General

3
4
5

Dated:

May 7, 2014

___/s/ Andrew J. Doyle__________
Andrew J. Doyle (FL Bar No.84948)

6
___/s/ John Thomas H. Do_________
John Thomas H. Do (CA Bar No. 285075)
Trial Attorneys
United States Department of Justice
Environment and Natural Resources
Division
P.O. Box 7611
Washington, DC 20044
[phone] (phone; Doyle)
[phone] (phone; Do)
[phone] (facsimile; both)
[e-mail]
[e-mail]

7
8
9
10
11
12
13
14
15
16
17
18
19

Of Counsel:
Joshua Holmes
Assistant District Counsel
U.S. Army Corps of Engineers
Sacramento District
1325 J Street
Sacramento, CA 95814

20
21
22

Attorneys for the Defendant and
Counterclaim-Plaintiff

23
24
25
26
27
28
29

Sa
Sa

cr

am

en t o
Ri ver

_
^

Legend

Stream Flowline
Duarte Site

reek
ote C
Coy
Data Source:
USGS National Hydrography Dataset (Stream
Flowline) & USDA 2012 National Agriculture
Imagery Program (2012 NAIP)
Coordinate System: GCS_WGS_1984

Site

O at
Cree
k

en
en
am to R
am to R
iver
iv r

Sa c
r

0

1

§

1:100,000

2
Miles

Flow of Coyote Creek
from Site to Oat Creek
to Sacramento River

Date: 4/4/2014

Vernal Pool Critical Habitat
Verna! Pool Fairy Shrimp, Units 5 - 9

Map 2.

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;.

~ ~

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~ +_

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--- Highways
~—
~ _ _~ County Boundary
Final Cri#ical Habitat Unit
California
0
0

4
4

8
8

12

12
Wiles
16

20

wi~~~

Location Index