FRIENDS OF MOON CREEK, an unincorporated association, CHERYL and ROBERT BALENTINE, the ESTATE OF DOUGLAS M. ANDERSON, TOM and MICHELE BOWYER, GEORGE A. TYLER, MARK and CYNTHIA MOESER, JOE F. STRUTHERS, and GAYLAN and HEATHER WARREN, Respondents,
DIAMOND LAKE IMPROVEMENT, ASSOCIATION, INC.; SHARON SORBY, individually and as COORDINATOR, PEND OREILLE COUNTY NOXIOUS WEED CONTROL BOARD; and PHIL ANDERSON, individually and as DIRECTOR, WASHINGTON DEPARTMENT OF FISH AND WILDLIFE, Petitioners.
ruling on summary judgment that Sharon Sorby did not enjoy
qualified immunity from the plaintiffs' claims under 42
U.S.C. § 1983, the trial court certified its order under
RAP 2.3(b)(4) as one "involv[ing] a controlling question
of law as to which there is substantial ground for a
difference of opinion." We granted discretionary review.
We conclude that Ms. Sorby enjoys qualified immunity and
AND PROCEDURAL BACKGROUND
Sorby is the coordinator of the Pend Oreille County Noxious
Weed Control Board. After properties bordering Diamond Lake
were flooded, the weed board, in conjunction with Diamond
Lake Improvement Association, considered eradicating reed
canary grass, Phalaris arundinacea, a noxious weed
growing along the banks of Moon Creek, to improve outflow
from the lake. In order to proceed, they obtained a permit
from the Washington State Department of Ecology that
authorized applying certain chemicals to noxious weeds. Ms.
Sorby also obtained a letter from the Washington State
Department of Agriculture appointing her and the weed board
as the department's limited agents to carry out weed
provide notice to residents or businesses adjacent to the
area the weed board expected to treat, Ms. Sorby consulted a
parcel map to obtain names and addresses. On May 3, 2012 and
June 12, 2012, she sent letters by United States mail to
persons she believed were entitled to notice, whom she
described as the "owners/taxpayers of the properties
bordering Moon Creek." Clerk's Papers (CP) at 24.
The first letter provided notice that the weed board and
improvement association would be inspecting banks along Moon
Creek in preparation for a joint project to remove reed
canary grass. The second provided details of the anticipated
herbicide application, stating in part that the applications
would be made by backpack sprayer and "[t]he anticipated
date of treatment is the week of June 18, 2012, specifically
Friday the 22nd, providing the wind is within tolerances to
prevent off-site drift." CP at 38. An enclosure to the
second letter, entitled "Herbicide Treatment Business
and Residential Notice, " stated, "The shorelines
along Moon Creek will be treated with an aquatic herbicide on
or between June 22 and June 30, " and, "The target
date is June 22." CP at 39. The second letter and its
enclosure both stated that treatment would be with an
herbicide with the active ingredient glyphosate, but the
enclosure also stated, "Product planned for use:
Sorby received a response to the notice from Cheryl
Balentine, who voiced concerns about the effects of the
herbicide on her garden and livestock. The only other
responses Ms. Sorby received were from two property owners
who did not object to the proposed application. None of her
letters was returned as undeliverable.
herbicide application was not performed during the time frame
originally projected. On the afternoon of July 5, 2012, Ms.
Sorby sent electronic mail to Ms. Balentine, stating:
I just wanted to let you know since treatment on Moon Creek
was not able to be performed 2 weeks ago, we will be
attempting treatment tomorrow with an air boat. The
applicators will be on-site at 6:30 AM.
256. The herbicide was applied on July 6, 2012, by air boat.
number of property owners claim the herbicide application
destroyed vegetation up to 100 feet from the banks, killed
animal and marine life in and around the stream, and
contaminated potable well water.
2015, Friends of Moon Creek, an unincorporated association;
10 individuals; and an estate, filed the action
below. They alleged, among other claims, a
violation of 42 U.S.C. § 1983. Their § 1983 claim
contends that Ms. Sorby deprived them of property in
violation of two federal constitutional rights: the Fifth
Amendment right against governmental taking of private
property without just compensation, and the Fourteenth
Amendment right against deprivation of property without due
process of law.
plaintiffs later moved for summary judgment in their favor.
Ms. Sorby filed a cross motion for summary judgment on her
defense of qualified immunity.
declarations filed in support of the plaintiffs' motion,
one of the plaintiffs contends he did not receive either of
Ms. Sorby's letters, although he admits the address to
which Ms. Sorby claims she mailed the letter is his. Three
plaintiffs admit receiving Ms. Sorby's letters but claim
they did not know whether the notice applied to them because
the letter did not include their names or an identification
of their property. One plaintiff testified that the reference
to the area to be treated as "Moon Creek" was
confusing because while the stream at issue flowed through
the real estate subdivision called "Moon Creek Estates
3d Addition, " was identified on the plat as "Moon
Creek, " and was locally called "Moon Creek, "
county maps locate Moon Creek several miles west.
ruling on the cross motions for summary judgment, the trial
court determined that Ms. Sorby's notice did not comply
with RCW 17.10.170, a provision of Washington's noxious
weed control law that requires notice to be provided by
certified mail. The trial court also concluded that Ms. Sorby
was ineligible for the qualified immunity defense. It denied
summary judgment on other issues, finding that genuine issues
of fact remained.
Sorby's request, the trial court certified its order on
qualified immunity under RAP 2.3(b)(4) as presenting a
controlling question of law on which there was a substantial
ground for a difference of opinion. Ms. Sorby moved for
discretionary review, which our commissioner granted.
purpose of Washington's weed control statutes is "to
limit economic loss and adverse effects to Washington's
agricultural, natural, and human resources due to the
presence and spread of noxious weeds on all terrestrial and
aquatic areas in the state." RCW 17.10.007. A
"noxious weed" is a plant that "when
established is highly destructive, competitive, or difficult
to control by cultural or chemical practices." RCW
17.10.010(1). A statutory duty is imposed on owners of land
to either eradicate or control the noxious weeds designated
for control by state, regional or county boards. RCW
17.10.140. Weed control board employees are authorized to
enter private land, with prior notice, to inspect and take
specimens of weeds. RCW 17.10.160. If a weed control board
finds that noxious weeds are not being controlled by an
owner, it notifies the owner that a violation of the chapter
exists and orders corrective action within a period of not
less than 10 days. RCW 17.10.170(1). If corrective action is
not taken by the owner within the time provided, the county
board may control the weeds, or cause their being controlled,
at the expense of the owner. RCW 17.10.170(3). It can also
issue a notice of civil infraction. RCW 17.10.170(2).
doctrine of qualified immunity shields government officials
like Ms. Sorby who perform discretionary functions "from
liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional
rights of which a reasonable person would have known."
Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct.
2727, 73 L.Ed.2d 396 (1982). It "balances two important
interests-the need to hold public officials accountable when
they exercise power irresponsibly and the need to shield
officials from harassment, distraction, and liability when
they perform their duties reasonably." Pearson v.
Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d
of the order on qualified immunity presents two questions.
The first is whether the facts the plaintiffs have alleged or
shown make out a violation of a constitutional right.
Id. at 232. The second is whether the right at issue
was "' clearly established'" at the time of
the defendant's alleged misconduct. Id. The
prevailing view is that once the defense of qualified
immunity is properly raised, the plaintiff has the burden of
showing the defendant violated a ...