Friends of Moon Creek v. Diamond Lake Improvement Ass'n ( 2018 )

FILED
FEBRUARY 6, 2018
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
FRIENDS OF MOON CREEK, an )
unincorporated association, CHERYL and ) No. 34938-1-III
ROBERT BALENTINE, the ESTATE OF )
DOUGLAS M. ANDERSON, TOM and )
MICHELE BOWYER, GEORGE A. )
TYLER, MARK and CYNTHIA )
MOESER, JOE F. STRUTHERS, and ) PUBLISHED OPINION
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
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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
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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.
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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
1
The original complaint is not included in our record. We are assuming the
original plaintiffs were the same parties identified in pleadings that are in the record.
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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.”
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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
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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 clearly established federal right. MARTIN A.
SCHWARTZ, SECTION 1983 LITIGATION (3d ed. 2014) at 154 & n.1291 (citing cases).
Courts are required to determine the right at issue, and whether it is clearly
established or not, on the basis of the specific context of the case. Tolan v. Cotton, ___
U.S. ___, 134 S. Ct. 1861, 1866-67, 188 L. Ed. 2d 895 (2014). “A Government official’s
conduct violates clearly established law when, at the time of the challenged conduct,
‘[t]he contours of [a] right [are] sufficiently clear’ that every ‘reasonable official would
have understood that what he is doing violates that right.’” Ashcroft v. al-Kidd, 563 U.S.
731, 741, 131 S. Ct. 2074, 179 L. Ed. 2d 1149 (2011) (alterations in original) (quoting
Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 97 L. Ed. 2d 523 (1987)).
While this does not require a case directly on point, “existing precedent must have placed
the statutory or constitutional question beyond debate.” Id. “[I]n the light of pre-existing
law the unlawfulness must be apparent.” Anderson, 483 U.S. at 640 (citation omitted).
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We review an order of summary judgment de novo, performing the same inquiry
as the trial court. Jones v. Allstate Ins. Co., 146 Wash. 2d 291, 300, 45 P.3d 1068 (2002).
Summary judgment is proper when there is “no genuine issue as to any material fact” and
“the moving party is entitled to a judgment as a matter of law.” CR 56(c). Where the
defense seeks summary judgment on the qualified immunity issue, the court must view
the evidence in the light most favorable to the plaintiff. Tolan, 134 S. Ct. at 1866-67.
A moving defendant meets the initial burden of demonstrating no genuine issue of
material fact by pointing out that there is an absence of evidence to support the plaintiff's
case. If a moving defendant makes this initial showing, then the plaintiff must set forth
specific facts demonstrating a genuine issue for trial. Young v. Key Pharm., Inc., 112
Wash. 2d 216, 225, 770 P.2d 182 (1989), overruled in part on other grounds by 130 Wash. 2d
160, 922 P.2d 59 (1996). The complete failure of proof concerning an essential element,
“‘renders all other facts immaterial.’” Id. (quoting Celotex Corp. v. Catrett, 477 U.S.
317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)).
To summarize, in this appeal we review whether the plaintiffs have demonstrated
that it was clearly established in July 2012 that (1) a government’s herbicide application
on private property can constitute a taking of property, or (2) application of an herbicide
can deprive the owner of the treated land of a protected property interest and Ms. Sorby’s
notice was constitutionally inadequate.
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1. The alleged Fifth Amendment “taking”
We first address whether it was clearly established in July 2012 that damage to
flora or fauna from the application of an herbicide can constitute a taking of private
property that requires the payment of just compensation under the Fifth Amendment.
The plaintiffs assume that a taking occurred and proceed with their argument from there.
But it is not clear now, nor was it in 2012, that spraying an herbicide that causes the type
of damage complained of constitutes a taking.
“The question of what constitutes a ‘taking’ for purposes of the Fifth Amendment
has proved to be a problem of considerable difficulty.” Penn Cent. Transp. Co. v. City of
New York, 438 U.S. 104, 123, 98 S. Ct. 2646, 57 L. Ed. 2d 631 (1978). There is no “‘set
formula’ for determining when ‘justice and fairness’ require that economic injuries
caused by public action be compensated by the government, rather than remain
disproportionately concentrated on a few persons.” Id. at 124. Whether a taking has
occurred depends largely on the individual circumstances of a case, and is essentially an
ad hoc inquiry. Id.
“The clearest sort of taking occurs when the government encroaches upon or
occupies private land for its own proposed use,” and decisions by the United States
Supreme Court establish that “even a minimal ‘permanent physical occupation of real
property’ requires compensation under the Clause.” Palazzolo v. Rhode Island, 533 U.S.
606, 617, 121 S. Ct. 2448, 150 L. Ed. 2d 592 (2001) (quoting Loretto v. Teleprompter
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Manhattan CATV Corp., 458 U.S. 419, 427, 102 S. Ct. 3164, 73 L. Ed. 2d 868 (1982)).
For example, it has long been established that government induced flooding can
constitute a taking. Pumpelly v. Green Bay & Miss. Canal Co., 80 U.S. 166, 181, 20 L.
Ed. 557 (1871). In Pumpelly, the state’s construction of a dam created a lake that
permanently submerged the plaintiff’s land. Id. at 176-77. Rejecting the government’s
contention that the damage was merely a consequential result of the dam’s construction,
the United States Supreme Court held that “where real estate is actually invaded by
superinduced additions of water, earth, sand, or other material, or by having any artificial
structure placed on it, so as to effectually destroy or impair its usefulness, it is a taking,
within the meaning of the Constitution.” Id. at 181.
Since Pumpelly was decided, the Supreme Court “has consistently distinguished
between flooding cases involving a permanent physical occupation, on the one hand, and
cases involving a more temporary invasion, or government action outside the owner’s
property that causes consequential damages within, on the other.” Loretto, 458 U.S. at
428 (citing cases). A temporary physical invasion is not automatically exempt from a
takings clause analysis. Time is “indeed a factor,” but other factors are relevant,
including “the degree to which the invasion is intended or is the foreseeable result of
authorized government action,” “the character of the land at issue and the owner’s
‘reasonable investment-backed expectations’ regarding the land’s use,” and the
“[s]everity of the interference.” Arkansas Game & Fish Comm’n v. United States, 568
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U.S. 23, 38-39, 133 S. Ct. 511, 184 L. Ed. 2d 417 (2012) (quoting Palazzolo, 533 U.S.
at 618).
Government action outside of property that causes consequential damage has
“long and consistently” been recognized as distinct from a taking. Batten v. United
States, 306 F.2d 580, 583 (10th Cir. 1962). “[G]overnmental activities which do not
directly encroach on private property are not a taking within the meaning of the Fifth
Amendment even though the consequences of such acts may impair the use of the
property.” Id. (citing Transp. Co. v. City of Chicago, 99 U.S. 635, 642, 25 L. Ed. 336
(1878); United States v. Willow River Power Co., 324 U.S. 499, 65 S. Ct. 761, 89 L. Ed.
1101 (1945)).
In Harris v. United States, 205 F.2d 765 (10th Cir. 1953), the court analyzed
whether herbicide drift that damaged crops on privately-owned farm ground was a taking
under the Fifth Amendment, and found that it was not. The court found the damages
were incidental, and thus, noncompensable, stating that it did “not understand that a
single isolated and unintentional act of the United States resulting in damage or
destruction of personal property amounts to a taking in a constitutional sense. It is, we
think, rather a tortious act for which the government is only consensually liable.” Id. at
768; see also Keokuk & Hamilton Bridge Co. v. United States, 260 U.S. 125, 43 S. Ct. 37,
67 L. Ed. 165 (1922) (holding that incidental damage to a plaintiff’s pier resulting from
non-negligent government blasting was not a taking).
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The spraying here could be said to have caused a physical invasion of sorts—the
herbicide directly touched land owned by plaintiffs and evidence was presented that it
seeped into the soil up to 100 feet from the banks. But this was a one-time occurrence,
and the plaintiffs have not presented evidence that it will cause permanent damage. The
plaintiffs have failed to identify any case in which spraying an herbicide was held to be a
constitutional “taking.”
We need not decide as a matter of law that there was no “taking.” We have no
doubt that there was no “clearly established right” to just compensation from herbicide-
caused damage to flora or fauna that would have been known to every weed control
official in July 2012.
2. The alleged violation of procedural due process
“To assess whether an individual was denied procedural due process, ‘courts must
engage in a two-step inquiry: (1) did the individual possess a protected interest such that
the due process protections were applicable; and, if so, then (2) was the individual
afforded an appropriate level of process.’” Hatfield v. Bd. of County Comm’rs, 52 F.3d
858, 862 (10th Cir. 1995) (quoting Farthing v. City of Shawnee, 39 F.3d 1131, 1135
(10th Cir. 1994)).
PROPERTY INTEREST
The plaintiffs testify in their declarations that a 100 foot plus wide zone of dead
plant life was left following the herbicide application, stream fish life was destroyed,
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animals and birds have left the area, and their water now has a nasty smell and taste.
They appear to contend that all of these harms deprive them of private property.
Significant in this case, no deprivation of property occurs within the meaning of
the due process clause when an unintended loss of or injury to property is the result of
negligent conduct on the part of state officials. Daniels v. Williams, 474 U.S. 327, 328,
106 S. Ct. 662, 88 L. Ed. 2d 662 (1986). “Injury caused by lack of due care is . . . not
‘the sort of abusive government conduct that the Due Process Clause was designed to
prevent.’” Mitchell v. Mills County, Iowa, 847 F.2d 486, 489 (8th Cir. 1988) (quoting
Davidson v. Cannon, 474 U.S. 344, 347-48, 106 S. Ct. 668, 88 L. Ed. 2d 677 (1986)
(citing Daniels, 474 U.S. at 331-33)). Thus in Mitchell, the plaintiffs’ § 1983 claim for
damage to their farm ground from wastewater runoff from a county road project was
dismissed on summary judgment where the plaintiffs “failed to produce evidence
sufficient to allow a reasonable trier of fact to conclude that county officials deliberately
damaged their property.” Id. at 489.
Focusing on Ms. Sorby’s intentional conduct, the plaintiffs have presented no
evidence that she deliberately damaged anything other than reed canary grass. Thus, the
first step of the deprivation analysis is only whether the plaintiffs possessed a protected
property interest in reed canary grass growing on their land. To determine whether Ms.
Sorby enjoys qualified immunity, the further question is whether it was clearly
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established as of July 2012 that applying an herbicide to eradicate noxious weeds could
deprive property owners of a protected property interest in the weeds.
Property interests do not arise out of the Constitution, but “[r]ather, they are
created and their dimensions are defined by existing rules or understandings that stem
from an independent source such as state law . . . .” Board of Regents of State Colls. v.
Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972). Plaintiffs have not
identified any § 1983 action in which a court has found a property owner to have a
protected property interest in noxious weeds or other uncultivated plants. We have
identified a few cases in which plaintiffs were held not to have a protected property
interest in more beneficial natural phenomena. In Coastal Habitat Alliance v. Public
Utility Commission of Texas, 294 S.W.3d 276, 287 (Tex. App. 2009), for example, the
court held that the plaintiffs had no vested property right in wildlife or the viewing,
enjoyment or hunting thereof, even when harm to the wildlife might affect their property
value or business interests. And a federal district held the plaintiffs who complained
about water use by defendant drainage districts had no property interest in water flowing
in a river. As the court observed, “There can be no taking of a public resource . . . .”
Delaware County Safe Drinking Water Coal., Inc. v. McGinty, No. 07-1782, 2008 WL
2229269, at *1 n.1 (E.D. Penn. May 27, 2008) (court order).
Whether the plaintiffs had a protected property interest in the reed canary grass
growing on their property is doubtful, but we need not decide that issue. We have no
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doubt that there was no “clearly established” property interest in noxious weeds that
would have been known to every reasonable weed control official in July 2012.
NOTICE
We turn last to the constitutional adequacy of the notice provided by Ms. Sorby.
Given the absence of a clearly established constitutional right, it is not necessary to the
result but is addressed as an alternative basis for our decision.
“An elementary and fundamental requirement of due process in any proceeding
which is to be accorded finality is notice reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency of the action and afford them
an opportunity to present their objections.” Mullane v. Cent. Hanover Bank & Trust Co.,
339 U.S. 306, 314, 70 S. Ct. 652, 94 L. Ed. 865 (1950). “The notice must be of such
nature as reasonably to convey the required information . . . and it must afford a
reasonable time for those interested to make their appearance.” Id.
The plaintiffs offer three reasons why they believe Ms. Sorby’s notice was
constitutionally deficient: (1) she addressed the notices to “Landowners and Residences
Along Moon Creek” rather than to each landowner by name, (2) she gave incorrect
information about the nature and dates of the spraying,2 and (3) the one e-mail
2
On the issue of the “nature” of the spraying, the plaintiffs point to the fact that
the herbicide applied was of a brand other than that identified in one of the notices
(although it contained the active ingredient identified by Ms. Sorby) and was applied
from an air boat rather than by backpack sprayer.
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notification that provided correct information was sent to only one of the landowners,
14 hours in advance. Br. of Resp’ts at 23.
The principal purpose of the notice required by Washington’s weed control
statutes is to make the owner aware of an impending entry on land, the purpose for the
entry, and to give the owner the opportunity to cure a violation, without government
intervention, liability for the cost, or issuance of an infraction. To that end, when a weed
board employee intends to enter private property, the statute requires only that “[p]rior to
carrying out the purpose for which the entry is made, the official making such entry or
someone in his or her behalf, shall make a reasonable attempt to notify the owner of the
property as to the purpose and need for the entry.” RCW 17.10.160. When a weed board
orders that a violation be cured and intends to act if it is not, the statute imposes only the
following requirements on notice:
The notice shall be in writing and sent by certified mail, and shall identify
the noxious weeds found to be present, order prompt control action, and
specify the time, of at least ten days from issuance of the notice, within
which the prescribed action must be taken. Upon deposit of the certified
letter of notice, the noxious weed control authority shall make an affidavit
of mailing that is prima facie evidence that proper notice was given.
RCW 17.10.170. If corrective action is not taken within the 10 day or greater time frame
afforded by the weed board, chapter 17.10 RCW does not require any further notice
before the weed board takes action to control the noxious weeds.
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Ecology’s permit required some information to be given to property owners about
the planned application of an herbicide. Relevant to mailed notice, the permit stated:
a. The Permittee must notify private residents/businesses immediately
adjacent to any treated area before chemical application, or as an
alternative to notification, post the treated area[.] The Permittee
may provide notice the same day as treatment.
b. If notifying under 1.a., the Permittee must provide notice to the
resident/business by a notification form, letter, flyer, or a personal
conversation. The notice must explain the purpose of the treatment,
identify the herbicide used, any re-entry or water use restrictions, and
provide the location of the treated area(s) in relation to the
residence/business.
CP at 33.
The weed board’s undertaking in this case was somewhat atypical. It appears the
weed board never intended to require property owners along Moon Creek to control the
reed canary grass themselves or, failing that, to suffer civil infractions or liability for the
cost. Perhaps for that reason, Ms. Sorby did not send the notice by certified mail. It has
already been determined that the notice she provided violated RCW 17.10.170 in that
respect. But the issue in this case is whether the notice was constitutionally sufficient.
As the plaintiffs concede, compliance with state law is not controlling. Cleveland Bd. of
Educ. v. Loudermill, 470 U.S. 532, 541, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985);
Danielson v. City of Seattle, 108 Wash. 2d 788, 797 n.3, 742 P.2d 717 (1987).
In a different context—whether laws requiring abatement of a vegetative nuisance
require a hearing before the government takes action to abate—one court has
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characterized property owners as having no constitutionally significant property interest
in weeds. Sobocinski v. City of Williamsport, 13 Pa. Commw. 425, 319 A.2d 697, 701
(1974). The court stated it “cannot think of a less ‘significant’ property interest than the
Uncultivated weeds and grass ‘taken’ from Appellant.” Id. In another case, Shoemaker
v. City of Howell, 795 F.3d 553 (6th Cir. 2015), the plaintiff homeowner challenged the
procedural constitutionality of a law that required him to mow the lawn between the
sidewalk and the curb. He did not claim to have a property interest in grass the city cut at
his expense, relying instead on a $600 fine imposed as the deprivation of property that
entitled him to procedural due process. In rejecting the homeowner’s argument that he
should have been given a pre-abatement hearing, the Sixth Circuit court found even the
$600 fine to be a “relatively minor” property interest. Id. at 561.
Notably, in Shoemaker, somewhat like this case, the notice of planned abatement
given to the homeowner did not comply with four of six notice requirements imposed by
city ordinance. But the court found it still satisfied the Fourteenth Amendment’s
requirement that it be reasonably calculated to apprise the homeowner of pending action
and give the homeowner an opportunity to present any objections. Id. at 560 (“Although
the notices in question were not perfect, the Constitution does not require strict adherence
to the City’s Ordinances.”). The court observed that if the homeowner had any questions,
the city’s notice provided him with contact information and a reference to applicable law
and “[a] simple investigation of the referred-to Ordinances or a call to City Hall would
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have answered [his] questions, but he made no such effort. He ‘should not be able to
now use [his] inaction against the [City] in claiming a violation of due process.’” Id.
(some alterations in original) (quoting Dubuc v. Twp. of Green Oak, 406 F. App’x. 983,
989 (6th Cir. 2011)).
As to the content of the notice, Ms. Sorby’s notice provided the material
information as to the noxious weed that would be controlled, the anticipated time frame, a
correct identification of the active ingredient to be used, and the intended product name
and manner of application. It provided recipients with the weed board’s telephone and
fax numbers, its street address, and her e-mail address. Both notices invited recipients to
contact the weed board with any questions. In some respects, it provided more details
than Washington weed control statutes or Ecology’s permit required.
While some owners claim not to have received the notice, “Mullane makes clear
. . . [that] the proper inquiry is not whether [an individual] received the notices but
instead whether the method of providing the notices was ‘reasonably calculated, under all
the circumstances,’ to inform him” of an action and his right to object. Peters v. Nat’l
R.R. Passenger Corp., 966 F.2d 1483, 1486 (D.C. Cir. 1992) (quoting Mullane, 339 U.S.
at 314-15). Plaintiffs do not discredit Ms. Sorby’s testimony about how she mailed the
notice since most of them admit receiving it. As for recipients who questioned whether
the notice applied to them because it did not include their name or identify their land, the
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proper inquiry is not what questions were in their minds. It is, again, whether her notice
was reasonably calculated to provide the required information.
While not perfect, the notice provided by Ms. Sorby was reasonably calculated to
apprise land owners of pending action by the government and to give them an
opportunity to present any objections.
We reverse the trial court's summary judgment on qualified immunity and remand
with directions to dismiss the plaintiffs ' claims against Ms. Sorby.
?})dh
oway,J. ~.~-
WE CONCUR:
Pennell, J.
20