John Duarte is out to prove that junk science unjustly railroaded his federal court case

“We had expert reports to argue with that covered same ground with less detail and passion. None of it mattered because summary judgement ruled that we were guilty before we could put on a defense. Then judge dismissed our expert reports before penalty phase.” — John Duarte

Farmer and rootstock nurseryman John Duarte believes that junk science unjustly railroaded his federal court case during which he six years fighting the EPA and Corps of Engineers.

 

In that case, the government’s contracted experts said Duarte’s wheat farming operations in Tehama County, California violated clean water laws.The judge ruled against Duarte and he eventually had to settle with the government because. He contends the government’s experts made massive errors which carried the day because the trial judge blocked Duarte’s own key expert evidence.

Correcting the record with peer review

Despite settling with the government in the court case, Duarte has not given up. Although  though he may be out of legal avenues to pursue, he believes the system has wronged him and he wants to show how that happened.

 

As a start to that process, Duarte commissioned his own peer review of the government’s case.

 

He retained three accomplished scientific experts (biographies below) who have, among them, 120 years of experience dealing with the soil, water, and environmental matters that Duarte says unjustly dragged him into court.

Biographies of Review Scientists (all .pdf)

• Biography: Alan Busacca
• Biography: David W. Smith
• Biography: Sidney W. Davis
• Publications: Sidney W. Davis.pdf

The three experts conducted their own peer-review of the government’s case.

 

Of course, the skeptical could argue that because Duarte paid these expert, they would be biased in his favor. The same could be said for the federal government’s experts.

 

However, the peer review puts both sides in the spotlight. And doing that means that reputations are at stake as other soil and environmental experts look at the peer review.

 

Duarte is no longer on trial here. But he feels that transparency will advance the discussion by putting the data, methods, and analysis of both sets of experts are on full display for wider scientific discussion and debate.

 

In a larger sense, U.S. courts are also on trial. That’s because courts allow reports and studies that are currently without. scientific peer-review. That process has proven invaluable in advancing quality in every area of research.

 

For more, see: Peer review helps prevent bad science from being published. So why do judges ignore it?

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The Full Peer Review Study

A PDF of the full study is available at the following link:

 

“Review, Analysis and Opinion of the U.S. Department of Justice Expert Team Report, Duarte Nursery, Inc. US Army Corps of Engineers/ United States v Duarte Nursery, Inc. et al”

 

The pdf at the link above has been annotated to draw attention to issues in the U.S. Department of Justice’s expert report.

 

The text below is excerpted complete and unedited except for additional paragraph breaks to aid readability and the addition of one case where [DoJ] was inserted to avoid confusion.

Executive Summary from the Duarte Expert Peer Review

 

This report is a review and critique of a document titled: US Department of Justice Expert Team report, Duarte Nursery, Inc. et al. US Army Corps of Engineers/United States v. Duarte Nursery, Inc., et al., prepared for Environment and Resource Defense Section, Washington D.C. regarding a dispute over farming operations on a property in Tehama County California and impacts or alleged impacts of farming operations on hydrology, wetlands, and water quality. In our review, we offer a very different set of interpretations and recommendations than those in the Expert Team report.

 

It is our opinion that the Duarte Site is an on-going farming and ranching operation and that the fundamental assumptions, design, and data collection of the Expert Team’s studies were deeply flawed such that their conclusions and recommendations should be set aside.

 

Absent in all the reports reviewed is a discussion by the experts on both sides of the case about Section 404(f)(1), the agricultural exemptions, and what is allowed under “normal” farming practices.

 

The Lee Report failed to present a case that the wetlands had been diminished in “impairment in flow and circulation and reduction in reach of wetlands” (§ 404(f)(1)).

 

Further, in our opinion the Lee Report’s interpretations are often contradicted by the supporting data they provide.

 

Nearly the entire Coyote Creek Watershed, what is represented by the Duarte Site and the offsite Reference Sites (Area 13 and Ag Area), has a history of on-going farming and ranching operations, based on publications and historic aerial photos supplied by both sides of the legal argument.

 

In the final analysis of all the previously developed reports surrounding the Duarte Site tillage issue, each party analyzing the tillage (Lee, Kelley, Skordal, Butterworth) agrees that deep ripping or deep tillage did not occur.

 

The Lee Report documents seven inches of tillage depth, while the Butterworth and Kelly Reports document less than that depth. Once it was discovered that deep ripping had not occurred, it is our opinion that the Lee Report should have recommended to proceed under § 404(f)(1) and recognize the exemptions therein.

 

The hydrogeomorphic assessment (HGM) based on inference from the Reference Sites are predicated on geology and soils that are different than the majority of those on the Duarte site, and consequently assessments of damages are, in our opinion, not credible and must be set aside.

 

The analysis on page 155 of the Lee Report states that “… although the depth of tillage, soil type and slowly permeable layers and gear used on the Duarte Site are not exactly the same as on the Borden Ranch Property, the effect of the tillage activity regardless of depth was functionally the same, breakup of the slowly permeable layer to alter the hydrologic conditions on which water / wetlands depend and set the site for vertical movement of water in the soil profiles to support crop production.”

 

This is where there is a departure from standard interpretations in site hydrology. The seven-inch tillage practice did nothing to alter the slowly permeable soil layers and the Duarte site hydrology is left performing as it did prior to tillage.

 

Had the initial tillage operation that created the furrows across the Duarte Site been allowed to finish with the seedbed preparation step, the furrows would have been reworked to a smoother surface, and what appears to be objectionable to the Lee Report would have been less apparent.

 

A second move to finish seedbed preparation (harrowing) would have likely left the site in a very similar condition as to what is seen in the Reference Areas, a condition used by the Lee Report against the farmer to assess damages in the comparison between the two. The recommended restoration methodology now being imposed will accomplish essentially what the seedbed finishing would have, antecedent the “cease and desist” order.

Introduction

At the request of Mr. John Duarte, we reviewed the document titled: US Department of Justice Expert Team report, Duarte Nursery, Inc. et al. US Army Corps of Engineers/United States v. Duarte Nursery, Inc., et al., prepared for Environment and Resource Defense Section, Washington D.C. and all appendices, photos, maps, etc. associated with that document.

 

The authors of the [DoJ] document we reviewed are Lyndon Lee, Ph.D., PWS; Richard A. Lis, Ph.D.; Wade L. Nutter, Ph.D., PH; Mark C. Rains, Ph.D., PWS; Scott Stewart, Ph.D., CPSS; W. Clark Hurst.They were retained by the U. S. Department of Justice (DOJ) in the action named in the document title.

 

In our comments below we will refer to the authors as the “Team of Experts” and the report itself and any of its appendant parts as the “Lee Report’. We also reviewed as necessary the salient parts of reports prepared for Mr. Duarte by Joel Butterworth, M.S.; Ren Fairbanks, B.S.; David B. Kelley, M.S.; Diane S. Moore, M.S.; and Thomas M. Skordal, B.S.

 

The report that follows here is the product of our review. In it, we offer a very different set of interpretations and recommendations than those in the Lee Report. It is our opinion that the Duarte Site is an on-going farming and ranching operation; reference sites chosen by the Team of Experts for the study are not representative of the Duarte site; and, the contention that hydrology has changed is not supported by the facts presented in the Lee Report.

 

The opinions offered here are based on standard practices of soil science mainly developed by the USDA Natural Resources Conservation Service (NRCS) (formerly the Soil Conservation Service) under the umbrella of National Cooperative Soil Survey (NCSS), including several federal agencies and the Land Grant Universities across the U.S.

 

It is from these standards that criteria for hydric soils were developed and from these were developed the rationale and rules that underpin the Clean Water Act, Section 404.

 

These standards and documents serve to provide due process to the regulated public. Other interpretations of soil functionality such as hydrologic soil group (USDA, 2007), runoff, infiltration, permeability (saturated hydraulic conductivity) related to erodibility are also based on NCSS standard interpretations.

 

The report is continued at this link.