Ripped? Not so much. U.S. Attorney promotes unsubstantiated & inflammatory allegations in Duarte plowing case

August 10, 2017 | Filed under Featured Articles | Posted by Lewis Perdue

The U.S. Department of Justice (DoJ) attorneys prosecuting the case against John Duarte’s Tehama County wheat farming case have consistently overstated their case by deliberately using inflammatory allegations such as ” deep ripping” to describe tillage that their own expert witness testimony puts in various reports at 7 to 14 inches.

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(Right click these and the image further down to get a somewhat clearer view. The poor reproduction quality in the court filings are typical of the field notes filed.)

Substantial parts of the federal government’s case against Duarte rest on charges that the land was “deep-ripped” to such an extent that it damaged the “duripan” water-barrier layer.

That, the DoJ asserts, altered the field’s hydrology and allowed surface water to drain from seasonally wet vernal pools, which the Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (CoE) regulate as wetlands.

No evidence of deep ripping

The DoJ has yet to offer evidence of deep ripping despite hundreds of pages of expert witness report.

That lack of evidence is especially obvious in the original field notes from the Oct. 27, 2015 declaration by Lyndon Lee — the DoJ’s lead expert — who failed to note any evidence of deep ripping.

His Oct. 27, 2015 document, which contains 27 different field assessment reports, fails to find tillage deep enough to reach the duripan. The image below, copied from one of Lee’s field assessments, is typical.

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Trying to conjure the ghost of Borden?

The DoJ’s repeated inflammatory overstatements appear calculated to exaggerate their case by inappropriately connecting the Duarte case to the Borden Ranch Partnership. Legal experts consider Borden the definitive Supreme Court precedent regarding deep ripping and is a casebook example of the practice.

Deep ripping. Photo: Modesto Bee

Image from the cover of an expert report prepared for the Corps of engineers shows a man standing at the bottom of a furrow in the Duarte wheat field that the Corps alleges was deep ripped. The main expert for thr CoE says furrows were 7 to 10 inches. Right click photo to view a larger image.

A law review summary of the Borden Ranch Partnership case can be found at this link.

In that case which did show clear evidence of the practice, DoJ attorneys wrote that contractors for the partnership used “a process known as “deep ripping,” which involves the use of bulldozers pulling four-to-seven-foot-long metal shanks through the ground to break up and redistribute essentially impermeable subsurface materials.” [Emphasis added].

None of the hundreds of pages of CoE expert reports offer any evidence of tillage greater than 14 inches. Most of the actual field reports (see Lee’s declaration, above) have no comment at all on tillage.

According to Peter Prows, an attorney for Duarte, “They [the DoJ] concede that the plowing was less than a foot deep. They also admit that the restrictive layer is much deeper than that. Yet they persist in claiming there was deep ripping here. Our challenge is to expose this farce to the judge.”

The DoJ has consistently ignored Wine Industry Insight’s requests by for comment.

Note: This sidebar indicates that the prosecution bias & inaccuracy extends even to the way the intermittent streams on the property are portrayed on a map of the region

CoE deep ripping regulations have two parts

The actual depth of tillage is not the only criteria used by the CoE to define deep ripping.

According to the Corps of Engineers Deep Ripping Regulation, excerpted below:

“Deep-ripping is defined as the mechanical manipulation of the soil to break up or pierce highly compacted, impermeable or slowly permeable subsurface soil layers, or other similar kinds of restrictive soil layers. [Emphasis added].

“Deep-ripping and related activities are undertaken to improve site drainage and facilitate deep root growth, and often occur to depths greater than 16 inches and, in some cases, exceeding 4 feet below the surface. As such, it requires the use of heavy equipment, including bulldozers, equipped with ripper-blades, shanks, or chisels often several feet in length.

“Deep-ripping and related activities involve extending the blades to appropriate depths and dragging them through the soil to break up the restrictive layer.” [Emphasis added]

As mentioned above, the DoJ’s principal expert, Lyndon Lee failed in his declaration to find evidence that Duarte’s tillage pierced the duripan. Despite that failure to find deep ripping or a violated duripan, Lee still states in his expert reports and testimony for the upcoming trial, that those conditions exist.

The dog that did not bark

In the process of examining Duarte’s field, the expert witnesses hired by the DoJ used heavy equipment to excavate a number of pits and trenches that penetrated the duripan underlying Duarte’s property.

But none of those pits exposed a cross section of the soil showing any penetration to — or damage of — the duripan.

This is an example of a cross-section perpendicular to the plow rows that could have allowed the CoE to determine the actual depth of Duarte’s tillage. Photo: Government of Western Australia

In one area, chips of what appeared to be duripan we found in a furrow, but there was no indication whether they came from Duarte’s tillage or from a previous plowing.

DoJ experts did not follow up on the discovery of those shards by digging a pit where they were found, which could have revealed whether Duarte’s tillage had scraped or penetrated the the duripan. That failure indicates either incompetence and a lack of critical thinking or a desire not to prove the lack of penetration.

Links to the full text of those reports can be found in the links, below.

Drainage is the big issue: in vernal pools and planting winter wheat

One fundamental issue in this part of the DoJ’s argument for harm resulting from Duarte’s plowing, was whether or not the hydrology of the area had been changed. Better drainage from penetration of the duripan would have allowed the vernal pools to lose water, drain, and destroy the flora and fauna that they supported.

But the same destruction of duripan that destroys vernal pool habitats also ruins the prospects for dryland (no irrigation) farming which is exactly what Duarte says his winter wheat planting was for.

According to the U.S. Department of Agriculture, winter wheat production represents 70-80 percent of total U.S. production. Spoiling the Duarte field duripan — especially during the severe drought that California was experiencing at the time — would have been a ruinous mistake for the wheat crop that had been planted.

The DoJ has made a number of unflattering statements about John Duarte in its filings, but none has alleged that he would be stupid enough to ruin his own wheat crop.

Expert witness evidence says no environmental harm was done

In addition to the lack of any evidence of deep ripping or damage to the duripan, a May 2017 expert witness report for Duarte (Second Supplemental Report of Diane S. Moore) presented evidence that there had been no damage done to vernal pools.

The report actually indicated an increase in vernal pool plant life and indicated that some of Lyndon Lee’s identification of various plant species in his report was inaccurate.

In court filings, Duarte’s legal team noted that they had invited the DoJ to have their experts accompany them in May to jointly investigate the evidence. DoJ declined the invitation.