Lenard Beierle v. Dep't of Agriculture ( 2019 )

FILED
JULY 16, 2019
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
LENARD BEIERLE and AG AIR )
FLYING SERVICE, INC., a Washington
) No. 36145-4-III
Corporation, )
)
Appellant, )
)
v. ) UNPUBLISHED OPINION
)
WASHINGTON STATE DEPARTMENT )
OF AGRICULTURE, )
)
Respondent. )
KORSMO, J. — Lenard Beierle and Ag Air Flying Services, Inc., appeal from
administrative sanctions imposed after an aerial spraying application was found to have
drifted on to workers on nearby land. We affirm.
FACTS
Although this appeal is unusually factually-dependent, with error assigned to 17
findings of fact and 7 conclusions of law (several of which include findings of fact), the
circumstantial nature of the case suggests a generic view of the evidence will suffice.
The evidence developed at the hearing consisted of testimony from expert witnesses and
some of those present at the scene on August 27, 2014. There are also a number of
uncontested factual findings that permit a fair summary of the case.
No. 36145-4-III
Beierle, et al v. Dep’t of Agric.
Mr. Beierle, an employee of Ag Air Flying Services, received a work order to
spray a potato field in the Mattawa area. He applied one load of pesticides between 7:55
a.m. and 8:05 a.m., reloaded his plane, and applied a second load between 8:27 a.m. and
8:37 a.m. The pesticides were Mana Silencer and ORO WetCit. The main ingredient of
the Silencer is lambda-cyhalothrin (lambda). Farm workers were tying vines in an apple
orchard to the west of the potato field. The workers saw Beierle’s plane around 8:00 a.m.
and immediately thereafter many reported smelling a strong odor and experiencing
symptoms. Among the symptoms reported were scratchy eyes and throats, respiratory
discomfort, dizziness, skin rash, and nausea.1
Upon being accused that day of spraying the workers, Mr. Beierle immediately
requested an investigation by the Department of Agriculture (DOA); investigator Matt
West started an investigation that same day. He interviewed witnesses, collected samples
and weather station data, reviewed records, communicated with the Department of
Health, and generated aerial maps of the area. West found lambda in several of the
samples he took in the orchard, on worker clothing, and on a truck driven by a worker
who reported that the vehicle had been sprayed.
At the conclusion of the investigation, DOA issued a Notice of Intent determining
that Beierle had violated RCW 15.58.150(2)(c), WAC 16-228-1500(1)(b), WAC 16-228-
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It appears none of the workers suffered long-term health problems.
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1200(1), and WAC 16-228-1220(2) by exposing the farm workers to pesticide drift.
DOA sought a 90-day suspension of Beierle’s pesticide applicator license and a $7,500
fine.
The matter went to hearing. An administrative law judge (ALJ) found the
violations committed, but modified the penalty to $550 and a nine-day license suspension.
Both sides appealed to the Director of DOA. The Director affirmed the ALJ’s order.
Beierle then sought review in the Grant County Superior Court. Concluding that there
was sufficient evidence to support the findings, the superior court affirmed.
Mr. Beierle appealed to this court. A panel considered his appeal without hearing
argument.
ANALYSIS
This appeal challenges the evidentiary basis for numerous findings and the
sufficiency of the evidence to support the sanctions. We first note the standards of review
governing this appeal before turning, in the order stated, to the two issues presented.
Review of administrative hearing appeals is governed by well settled standards.
We review the final administrative decision, not that of the superior court. Alpha Kappa
Lambda Frat. v. Wash. State Univ., 152 Wn. App. 401, 413, 216 P.3d 451 (2009). The
nonprevailing party below bears the burden of proving the decision was incorrect. Id.Under the Washington Administrative Procedure Act, ch. 34.05 RCW, an appellate court
will reverse an administrative decision solely for specific, enumerated reasons. RCW
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34.05.570. As relevant here, those reasons include the situation where an agency’s order
is not supported by substantial evidence or is based on an error of law. RCW
34.05.570(3)(d), (e). Like the superior court, this court reviews an administrative
determination for substantial evidence and gives de novo review to the conclusions of
law. Heidgerken v. Dep’t of Nat. Res., 99 Wn. App. 380, 384, 993 P.2d 934 (2000).
Factual Findings
This appeal challenges 17 factual findings and portions of 7 conclusions2 that also
include factual determinations. Only two of those challenges have merit.
In evaluating a challenge to the sufficiency of the evidence to support a finding,
this court looks to see if the finding is supported by “substantial evidence” in the record
as a whole. RCW 34.05.570(3)(e). “Substantial evidence” is evidence sufficient “to
persuade a rational, fair-minded person that the finding is true.” Cantu v. Dep’t of Labor
& Indus., 168 Wn. App. 14, 21, 277 P.3d 685 (2012). This court views “the evidence and
any reasonable inferences in the light most favorable to the party that prevailed in the
highest forum exercising fact-finding authority.” Schofield v. Spokane County, 96 Wn.
App. 581, 586, 980 P.2d 277 (1999).
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Conclusions of Law 7, 14, and 15 are actually findings of fact and we will treat
them as such. Ferree v. Doric Co., 62 Wn.2d 561, 567, 383 P.2d 900 (1963). Each is
supported by the evidence.
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DOA concedes Mr. Beierle’s challenge to Finding of Fact 43: “There is
insufficient information in the record to determine whether either Mana Silencer or Oro
WetCit has an identifiable odor when sprayed from an aerial applicator.” Clerk’s Papers
(CP) at 648. Six farm workers testified that they smelled an odor shortly after observing
Beierle’s plane and the onset of their symptoms, although none could agree on what the
odor smelled like. Since the evidence suggests that the application does have an odor,
although perhaps difficult to describe, this finding is not supported by the evidence.
Finding of Fact 46 indicates that DOA properly handled all samples collected by
Mr. West during his investigation and that there was no evidence of improper handling.
CP at 648. However, DOA was unable to find one of the clothing samples when Beierle
desired to test it and a DOA lab manager testified it could not be located. Thus, to the
extent that this finding indicates all samples were properly handled, it is erroneous.
The remaining factual challenges are without merit and need not be discussed in
detail. Some of the challenges are to inferences drawn from the evidence or involve
credibility determinations. For instance, both sides presented evidence concerning
whether the pesticide particles could travel to the orchard, which was slightly more than
one-half mile from the potato field, given their size and the weather conditions at the time
of application. The DOA expert’s testimony indicated that it could, while Mr. Beierle’s
expert did not believe it was possible. The Director, like the ALJ, was free to credit the
testimony of the DOA expert. Given the supporting evidence showing the presence of
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the lambda on the workers and in the orchard, it is understandable that the Director
concluded that the DOA expert was correct.
The other challenges are similar in nature or are mere quibbles with the language
used in the findings. For instance, Beierle challenges Finding of Fact 4 which states:
“The next field to the west of the Timothy Field, also paralleling Road 24 SW, is the
Grant 24 apple orchard (Apple Orchard).” Mr. Beierle argues that the two fields are
separated by two roads, a strip of land, and an irrigation canal and are not immediately
adjacent to each other. This claim is without merit. The finding says that the orchard is
the next field. It does not indicate that the two fields abut. The finding is correct.
With the exception of the two noted findings, the remaining findings all are
supported by the testimony or by inferences properly drawn from the testimony.
Accordingly, substantial evidence supports them.
Violation Determination
Mr. Beierle next argues that some conclusions of law supporting the violation
determination are incorrect, largely for factual reasons. Since the conclusions were
reasonably drawn from the evidence, we affirm.
The typical burden of proof in an administrative proceeding is the preponderance of
the evidence standard. Thompson v. Dep’t of Licensing, 138 Wn.2d 783, 797, 982 P.2d
601 (1999). “The preponderance of the evidence standard requires that the evidence
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establish the proposition at issue is more probably true than not true.” Mohr v. Grant, 153
Wn.2d 812, 822, 108 P.3d 768 (2005).
Mr. Beierle challenges Conclusion of Law 16:
Because the Mana Silencer and Oro WetCit labels provide that an
application must avoid contact with human skin and eyes, and be conducted
under certain conditions to avoid drift, it is concluded that the Appellant
conducted the aerial application “inconsistent with labeling” in violation of
RCW 15.58.150(2)(c).
CP at 651.
RCW 15.58.150(2)(c) provides in part: “It shall be unlawful . . . For any person to
use or cause to be used any pesticide contrary to label directions.” The label for Silencer
directs: “Do not apply this product in a way that will contact workers or other persons,
either directly or through drift.” CP at 1722. The label for WetCit directs: “Do not get in
eyes or on clothing. Avoid contact with skin.” CP at 1858.
The evidence strongly supported the determination that the orchard workers were
sprayed with lambda. They reported being sprayed, smelling a strange odor, and they
suffered symptomology largely consistent with exposure to the pesticides. The
investigation found samples of lambda on the workers’ clothing, on a truck, and in the
orchard. Mr. Beierle applied the pesticides that day, and no one else had used similar
products within a mile of the field for at least a month. The evidence certainly supported
the determination that the orchard workers were exposed to the pesticides contrary to the
warnings on the labels.
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Mr. Beierle also challenges Conclusion of Law 17:
Also, given that the Appellant’s aerial application of the pesticides directly
impacted the Farm Workers in the Apple Orchard to the extent that the
Farm Workers left work and sought either medical treatment or recovery
time, it must be concluded that the Appellant applied pesticide “. . . in such
a manner as to endanger humans and their environment. . .” in violation of
WAC 16-228-1200(1) and “. . . caused damage or injury to . . . humans. . .”
in violation of WAC 16-228-1220(2).
CP at 652.
Two provisions of the Washington Administrative Code are at issue. “No person
shall handle, transport, store, display, apply, dispose of or distribute pesticides in such a
manner as to endanger humans and their environment.” WAC 16-228-1200(1). “No
person shall transport, handle, store, load, apply, or dispose of any pesticide . . . in such a
manner as to . . . cause damage or injury to . . . humans.” WAC 16-228-1220(2).
As explained previously, the evidence allowed the Director to conclude that the
orchard workers were sprayed with pesticide(s) containing lambda and that Mr. Beierle
was the one whose application of those pesticides in a nearby field was responsible for
accidentally spraying the workers. The investigation eliminated other possible causes
and the onset of the symptomology at the same time Mr. Beierle was spraying created a
strong case against him. The evidence supported the conclusion.
Based on the previous two conclusions, the Director entered one final conclusion
of law that is challenged by Mr. Beierle. Conclusion of Law 18 states:
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Based on the findings of fact and conclusions above, it is concluded that
the Department has shown by a preponderance of the evidence that the
Appellant violated RCW 15.58.150(2), WAC 16-228-1200(1) and WAC
16-228-1220(2), and the April 28, 2015 Notice of Intent should be
affirmed.
CP at 652.
Mr. Beierle presented evidence that he performed his application in an appropriate
manner and could not be the responsible party. DOA weighed the contrary evidence
presented after the investigation and found it sufficient to support a determination that
Mr. Beierle was the one who sprayed the workers. Since the evidence supported that
determination, the administrative adjudication has a solid basis in fact and in law.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
WE CONCUR:
QQ A.,�:r
Pennell, A.CJ.
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