STATE DEPARTMENT OF AGRICULTURE ITS DIRECTOR v. APPROXIMATELY ACRES OF BING AND LAPON CHERRIES (2007)

 ¶ 1 This appeal follows the confirmation by a superior court of the Washington State Department of Agriculture's (State) embargo of a cherry crop.   The appellants argue that the State did not have probable cause to believe the crop was tainted with a prohibited pesticide because the procedures the State used to sample the crop were flawed.   We agree with the trial judge that the State made an adequate showing of probable cause that the crop was tainted. And we affirm the summary judgment in favor of the State upholding the embargo.

FACTS

¶ 2 The facts material to this opinion are essentially undisputed and follow the court's memorandum opinion.

¶ 3 David Zamora was a pesticide inspector with the State.   He drove on Cascade Avenue in East Wenatchee, Washington, in June of 2003.   Mr. Zamora saw farm worker Jose Michel spraying with an air blaster in John Taylor's pear orchard.   He saw a 30- to 50-foot-high cloud of pesticide mist drift across the street to John Riedel's seven-acre cherry orchard.   Mr. Zamora watched the drift for some time and took pictures of it.   Mr. Michel told him the pesticide was Actara.

¶ 4 The active ingredient of Actara is thiamethoxam.   The federal Environmental Protection Agency had yet to determine a tolerance level for thiamethoxam on cherries.   The State, therefore, used a tolerance level of zero.   Mr. Zamora collected a sample from the pear orchard and one from a cherry tree at the edge of Mr. Riedel's orchard next to the  road.   The State laboratory tests confirmed trace amounts of thiamethoxam in both samples within a couple of days.

¶ 5 Two other State employees then entered the orchard with Mr. Riedel's permission and sampled more cherries.   They divided the orchard into three sections:  (1) closest to the street and the source of contamination, (2) the middle, and (3) farthest from the contamination source.   They collected samples in the direction of highest probable contamination to lowest.   They wore no gloves and did not wash their hands between sampling areas.   All the samples tested positive for thiamethoxam in decreasing concentrations.

¶ 6 The next day, at the State's suggestion, Mr. Riedel collected some cherries from the middle of his orchard and took them to a fruit packing facility to see if the thiamethoxam would wash off.   It did not.   The fruit still tested positive.

¶ 7 The State issued a notice of embargo on July 2, 2003.   Mr. Riedel agreed with the State to let the fruit rot on the trees and signed a form to that effect on July 2, 2003.   He also waived all causes of action against the State by signing this disposition form.   Neither the notice nor the disposition informs Mr. Riedel of his statutory rights or the State's obligations if he does not consent to an embargo.   Mr. Riedel's consent also relieved the State of the statutory requirement to petition the superior court for an order affirming the embargo.  RCW 69.04.120.   The State apparently filed a petition anyway;  we do not know since the petition is not part of our record.   A petition would have provided for a show cause hearing to challenge the embargo or the extent of the embargo.  Id. Mr. Riedel never asked for a show cause hearing.   And none was held.

¶ 8 No action was taken on the State's petition to affirm the embargo.   Sometime later, Mr. Riedel sued Mr. Taylor for damages.   Mr. Taylor is the pear grower whose chemicals drifted over Mr. Riedel's field.   Mr. Riedel also named the State as a defendant.   The State later filed an amended petition and summary judgment motion under an earlier 2003 cause number.   Both name Mr. Taylor, the State's  codefendant in Mr. Riedel's damages action, as a respondent and intervenor.   The State moved for summary judgment in April of 2005 based on its showing of probable cause to embargo Mr. Riedel's cherry crop.

¶ 9 Mr. Riedel and Mr. Taylor argued that the State's test results were inadmissible because its collection protocols were flawed and because the State violated Mr. Riedel's constitutional rights.   The court concluded that the State had made an adequate showing of probable cause to issue the embargo and granted its motion.

¶ 10 Mr. Riedel and Mr. Taylor both appeal.   The State appeals the court's refusal to strike declarations by Mr. Riedel's experts on the scientific validity of the State's test results.

DISCUSSION

John Taylor's Standing

¶ 11 The State argues that Mr. Taylor has no standing to challenge the summary judgment because his interest in the outcome is no more than speculative.   Mr. Taylor responds that the State claims immunity.   And he claims a direct interest in whether the State prevails on its immunity defense because Mr. Riedel has sued him for damages and the State is a codefendant.   Accordingly, there is the potential for contribution to Mr. Taylor by the State if Mr. Riedel prevails.

¶ 12 We review the question of standing de novo.  Wolstein v. Yorkshire Ins. Co., 97 Wash.App. 201, 205, 985 P.2d 400 (1999).

¶ 13 An aggrieved party is one who has a present, substantial interest in the subject matter of the litigation.  Tinker v. Kent Gypsum Supply, Inc., 95 Wash.App. 761, 764, 977 P.2d 627 (1999).   Only an aggrieved party may seek review.  RAP 3.1.

¶ 14 The procedural posture of this case is troublesome.   First, Mr. Taylor is apparently a party because Mr. Riedel  sued him and the State for damages.   But none of these pleadings are in this record, and so we do not know.

¶ 15 The subject matter of this appeal is whether the State's embargo should have been affirmed.   The embargo order was unopposed by the grower, Mr. Riedel.   We do not have the original petition (the petition filed in 2003).   It is not part of this record.   But we assume that Mr. Taylor was not named since the State argues that the embargo petition was of no concern to Mr. Taylor.   The State certainly did not need to join him.

¶ 16 The State did add Mr. Taylor when it amended the petition in 2005.   But that amendment would not relate back because:  (1) the statute of limitations had run.   The statute of limitations for a petition to affirm an embargo is 30 days.  RCW 69.04.120.  (2) Mr. Taylor cannot contest the petition because the cherries are no longer available.   And (3) no one claims that not including Mr. Taylor on the petition was a mistake he should have known about.  CR 15(c).

¶ 17 We do not have the original petition for the embargo and, therefore, do not know whether Mr. Taylor was named.   Again, we do not have a copy of the pleadings in Mr. Riedel's damages suit and therefore do not know what claims, if any, have been asserted against the State.   We cannot then review Mr. Taylor's claim of standing.   And we accordingly review the questions he raises.

¶ 18 Mr. Taylor is not properly before us if he is here solely as a party to the embargo petition, but neither is he bound by an order entered in the embargo proceedings.

Notice of Embargo-Probable Cause

¶ 19 The sale of adulterated food is illegal.  RCW 69.04.040(1).   The State can embargo food if it finds there is probable cause to believe it is adulterated.  RCW 69.04.110.   Here, the State embargoed Mr. Riedel's cherry crop because it believed the crop was adulterated.

¶ 20 A notice of embargo is issued pursuant to RCW 69.04.110.   The statute provides that the State petition the  superior court within 30 days for an order affirming the embargo.  RCW 69.04.120.   This petition also confers statutory jurisdiction on the court to allow the grower to show cause why the embargo should be lifted because some or all of the embargoed crop is not adulterated.  Id.

¶ 21 The court can do one of two things:  grant the petition if it is unopposed;  or grant a prompt hearing so the grower can show cause why the embargo should be modified or released.  Id. The hearing permits the grower to show that some or all of the crop is not adulterated in fact and for the State to rebut that showing.   The court then affirms, modifies, or releases the embargo.  Id. But the State need not file a petition if the grower acquiesces in the embargo and consents to the disposition of the fruit.  RCW 69.04.123.   And here Mr. Riedel acquiesced in the embargo and consented to let the fruit drop.

¶ 22 The parties, nonetheless, couch the issue as whether the State had probable cause to conclude that Mr. Riedel's orchard was adulterated.   Mr. Taylor argues that the State had to prove actual adulteration of all the cherries by reliable test results.   And here, he says, the scientific procedures were inadequate to do that.   They did not incorporate minimum safeguards against cross-contamination that would be necessary to prove that the entire orchard was affected.

¶ 23 The State responds that it did not have to prove actual adulteration in order to embargo the crop.   It argues that probable cause simply requires enough evidence to support a reasonable belief that the alleged fact likely exists, i.e., contamination with the proscribed chemical.

¶ 24 The trial court granted the State's motion for summary judgment.   So we view the evidence in a light most favorable to Mr. Riedel and Mr. Taylor.   If so viewed, we conclude that there is no genuine issue of material fact;  we affirm the summary judgment.  CR 56(c);  Matheson v. Wash. State Liquor Control Bd., 132 Wash.App. 280, 284, 130 P.3d 897 (2006), review denied, 158 Wash.2d 1023, 149 P.3d 378, No. 78645-3 (Dec. 6, 2006).

 ¶ 25 Probable cause does not require proof of actual facts.   The proponent must simply show that it has “reasonable grounds for suspicion supported by circumstances sufficiently strong to warrant a person of ordinary caution” to believe the alleged fact exists.  Adams County v. One 1978 Blue Ford Bronco, 74 Wash.App. 702, 706, 875 P.2d 690 (1994).

¶ 26 Here, the State's pesticide inspector, Mr. Zamora, personally saw a large cloud drifting over Mr. Riedel's cherry orchard from Mr. Taylor's pear orchard.   Mr. Taylor's worker immediately told Mr. Zamora the cloud was a pesticide containing thiamethoxam.   The tolerance level for thiamethoxam on cherries, at that time, was zero.   These facts support probable cause to embargo.   The State, nonetheless, followed up with further testing.   That testing confirmed that Mr. Riedel's cherries were, in fact, adulterated with thiamethoxam.   Those tests would have been relevant if the embargo had been challenged.   They were not, however, necessary to show probable cause.

¶ 27 Mr. Riedel and Mr. Taylor contend the evidence of flawed sampling raises questions of fact as to whether the State had probable cause to embargo.

¶ 28 Whether the collection and test data and the opinions of the growers' experts are relevant depends on the interpretation given to the Intrastate Commerce in Food, Drugs, and Cosmetics statute, chapter 69.04 RCW. We review the court's interpretation of statutes de novo.  Port of Seattle v. Pollution Control Hearings Bd., 151 Wash.2d 568, 587, 90 P.3d 659 (2004).

¶ 29 The State must petition the court to affirm its decision to embargo a crop.   And the grower then gets to show cause, but only if the grower refuses to consent to the embargo.  RCW 69.04.120.   The burden is on the grower.   Id. The grower must show that the embargo should be modified or released.   Id. But, again, the collection protocols and test results are not relevant at the probable cause stage.   The pesticide inspector, Mr. Zamora, had ample probable cause based on his observations and initial testing.   And, moreover, Mr. Riedel agreed to the embargo.

 Equal Protection

¶ 30 Mr. Taylor and Mr. Riedel claim for the first time on appeal that the State denied Mr. Riedel his constitutional right to equal protection of law by its disparate embargo practices.   They argue that the State did not embargo the crops of similarly situated growers.

¶ 31 The State responds that the issue cannot be raised for the first time on appeal.   First, the State argues there was no opportunity to develop a record on this question in the trial court.   And second, an embargo of Mr. Riedel's crop could not affect Mr. Taylor's constitutional rights, in any event.

¶ 32 Whether the statutes and court rules permit an issue to be raised for the first time on appeal is a question of law that we review de novo.  RAP 2.5(a);  Hutson v. Costco Wholesale Corp., 119 Wash.App. 332, 334, 80 P.3d 615 (2003).   We stand in the shoes of the trial court when we review an order granting summary judgment.   We make the same inquiry.   The moving party is entitled to judgment as a matter of law unless the nonmoving party presents evidence to the trial court sufficient to create a disputed issue of material fact.  CR 56(c);  Matheson, 132 Wash.App. at 284, 130 P.3d 897.

¶ 33 Persons similarly situated with respect to the legitimate purpose of the law are constitutionally entitled to receive like treatment.   In re Pers. Restraint of Ramsey, 102 Wash.App. 567, 573, 9 P.3d 231 (2000).   But Mr. Taylor cites to no authority for the proposition that equal protection prohibits a public safety agency from enforcing a statute in one case unless it can show the statute was enforced in every case.   And we find none.

¶ 34 The question presented to the trial court by the State's motion for summary judgment was whether the State had probable cause to embargo Mr. Riedel's cherries.   Necessarily, then, the question was not whether probable cause existed to embargo other growers' cherries.   Accordingly, there were no facts, argument, or authority one way  or the other before the trial court on the denial of equal protection of law.

¶ 35 There is, then, nothing for us to review.  State v. WWJ Corp., 138 Wash.2d 595, 602, 980 P.2d 1257 (1999).  RAP 2.5(a)(3) ¹ does not create original jurisdiction in this court for litigating every constitutional dispute.  WWJ, 138 Wash.2d at 602, 980 P.2d 1257.

¶ 36 Jurisdiction to review constitutional challenges to administrative agency orders lies in the superior court and is governed by the Administrative Procedure Act, chapter 34.05 RCW. The superior court will grant relief if it determines that (1) an agency order, or the statute on which the order is based, is unconstitutional on its face or as applied;  (2) the order is outside the statutory authority of the agency;  (3) the agency engaged in an unlawful procedure or decision-making process, or failed to follow a prescribed procedure;  or (4) the agency has erroneously interpreted or applied the law.   RCW 34.05.570(3)(a)-(d).

¶ 37 Whether or not other local cherries were adulterated or embargoed was (1) not a material fact and (2) not disputed in these summary judgment proceedings.   It was, then, not a question before the trial court.   And it is not, then, a question before us.  Becker v. Cashman, 128 Wash.App. 79, 83, 114 P.3d 1210 (2005) (in reviewing an order of summary judgment we stand in the shoes of the trial court).

Due Process

¶ 38 Mr. Riedel and Mr. Taylor claim that the State's flawed crop-sampling procedures violated due process of law.   As discussed above, neither the pre-embargo nor post-embargo sampling procedures are relevant to the determination of probable cause for the initial embargo.   And the “procedures” at issue in a procedural due process claim relate to administrative and judicial legal process, not the  validity of scientific data.   See Mathews v. Eldridge, 424 U.S. 319, 332, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).

¶ 39 Mr. Riedel also asserts that the State's notice of embargo violated procedural due process because it did not inform him of his right to a court hearing to challenge the scope of the embargo.   Instead, the State secured his waiver of all claims without informing of him of the process due.   The State responds that this claim is not properly before this court because it was not part of the summary judgment.

¶ 40 We agree with the State.   Our inquiry on review of a summary judgment order is the same as that of the trial court.  Coppernoll v. Reed, 155 Wash.2d 290, 296, 119 P.3d 318 (2005).   A party may ask us to affirm the judgment on any theory established by the pleadings and supported by the record, even if the trial court did not consider that theory.  RAP 2.5(a);  Coppernoll, 155 Wash.2d at 296, 119 P.3d 318;  LaMon v. Butler, 112 Wash.2d 193, 200-01, 770 P.2d 1027 (1989).

¶ 41 Mr. Riedel does articulate a legitimate procedural due process issue.   An agency order must include notice of the right to appeal and the procedures for seeking relief;  an initial order must explain the circumstances under which it will become final.  RCW 34.05.461(3).   The face of the State's notice of embargo and disposition order in this record is silent as to due process.   But the dispositive question on summary judgment, and the only issue properly before us, was whether Mr. Zamora's sighting of the chemical cloud combined with the zero tolerance level of thiamethoxam established probable cause to initiate embargo proceedings.   Accordingly, any constitutional deficiency in the notice here is not properly before us given the procedural posture of this case.

Cross-Appeal

¶ 42 The State cross-appeals the denial of its motion to strike the declarations of Mr. Riedel's expert witnesses.

¶ 43 The trial court may admit expert testimony that will help the trier of fact to understand technical  issues.  ER 702.   The judge has broad discretion in this.  Philippides v. Bernard, 151 Wash.2d 376, 393, 88 P.3d 939 (2004).   We will not disturb the court's decision absent an abuse of discretion.

¶ 44 The court did not abuse its discretion here by ruling that the State's objections to the witnesses' credentials went to weight, not admissibility.   In a timely statutory hearing of a grower's embargo challenge, the credentials evidence would certainly have been relevant on whether to modify the embargo and release parts of the orchard.   But the court would have had to affirm the embargo without actual negative cherry tests.

¶ 45 The court correctly denied the motion to strike.

¶ 46 We affirm the summary judgment finding probable cause for the embargo.

FOOTNOTES

1.   We may hear for the first time on appeal a claim of manifest error affecting a constitutional right.  RAP 2.5(a)(3).

SWEENEY, C.J.

WE CONCUR:  SCHULTHEIS and BROWN, JJ.