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Friends of Moon Creek v. Diamond Lake Improvement, Association, Inc.

Court of Appeals of Washington, Division 3

February 6, 2018

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,
v.
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.

          SIDDOWAY, J.

         After 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 reverse.

         FACTS AND PROCEDURAL BACKGROUND

         Sharon 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 control.

         To 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: Touchdown." Id.

         Ms. 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.

         The 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.

         CP at 256. The herbicide was applied on July 6, 2012, by air boat.

         A 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.

         In May 2015, Friends of Moon Creek, an unincorporated association; 10 individuals; and an estate, filed the action below.[1] 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.

         The plaintiffs later moved for summary judgment in their favor. Ms. Sorby filed a cross motion for summary judgment on her defense of qualified immunity.

         In 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.

         In 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.

         At Ms. 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.

         ANALYSIS

         The 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).

         The 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 565 (2009).

         Review 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 ...


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