Duarte wins a round against the Corps of Engineers, judge OKs new charges

John Duarte and co-plaintiff Duarte Nursery won a round Thursday (Sept. 3), when U.S. District Court Judge Kimberly J. Mueller ruled that the U.S. Army Corps of Engineers (CoE) could be charged with violating Duarte’s First Amendment rights.

Previously, Duarte had sued the Corps in October 2014 charging Fifth Amendment violations alleging the taking of his property without due process.

Full text of judge’s order at this link for premium Wine Executive News Subscribers

Duarte files amended complaint

Immediately after the judge’s order, Duarte’s attorneys from the Pacific Legal Foundation filed an amended complaint charging  that the Corps filed a retaliatory lawsuit against Duarte when he went to the media to describe his struggles with the CoE. Those struggles began after Duarte plowed a field in Tehama County and planted wheat.

(For more details leading up to the Sept. 3 court actions, see: Plow Field, Go To Jail? Feds Threaten John Duarte. He Slugs Back)

Full text of Duarte amended complaint at this link for premium Wine Executive News Subscribers

Record indicates Corps waited to file counterclaim

The court record shows that even after Duarte filed suit   the Corps took no legal or other enforcement actions. Instead, the Corps fought Duarte’s charges alleging lack of jurisdiction and other procedural issues.

Tony Francois, Duarte’s attorney at the Pacific Legal Foundation, said that,

“The Second Amended Complaint alleges that the retaliation against Duarte Nursery and John Duarte (for suing the government, and making statements against the Army Corps in the press, on radio, and on television) was a substantial reason for the Army Corps and Justice Department bringing their lawsuit for supposed Clean Water Act violations.

“Prevailing on this claim will require the government to prove that they would have sued the Duartes and their company even absent the retaliatory motive. We do not think the government will be able to show this.”

Documents could indicate Corps culpability

On April 23, 2014, the judge rejected the Corps’ request to have the case dismissed. On May 7, 2014, the Corps filed a counterclaim. Duarte’s attorneys subsequently obtained documents they say indicate the counterclaim was retaliatory:

According to Judge Mueller’s Sept. 3 court order allowing the First Amendment violation claim,

“In May 2015, they [Duarte’s attorneys] received the following documents among others in response to a production request: correspondence surrounding the filing of the counterclaim, correspondence containing a third party’s observation that the counterclaim is retaliatory, and a deposition of Matthew Kelley of the Army Corps staff, who testifies about the unusual circumstances surrounding this litigation.”

The judge’s order allowing the First Amendment complain to be included in the trial concluded that,

“Plaintiffs’ allegations support some inference that defendants filed the counterclaim in retaliation, and that the counterclaim’s enforcement action would not have been filed without plaintiffs having first brought their initial claim. Plaintiffs plead injury of a violation of their rights to free speech. The claim is therefore legally sufficient….”

Francois said in a blog about the judge’s order,  that “Evidence discovered in the case shows that the Army Corps would not have referred this matter to the Justice Department, until our client sued the agency.”