Summary of a Recent
Judicial Development in
Environmental Law

Writ of Mandate Vacated Because Applicator Failed
to Follow Pesticide Labeling

Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

In Tudor Ranch, Inc. v. California Department of Pesticide Regulation, No. E033994, 2004 WL 2352044 (Cal. Ct. App. 2004), the Court of Appeals for the Fourth District of California reversed the decision of the Superior Court of Riverside County, which had granted the plaintiff's petition for writ of mandate. The trial court ordered the California Department of Pesticide Regulation to set aside its decision finding that the plaintiff applied the pesticide Dormex when there was a reasonable possibility of damage to non-target crops or private property. In response to the trial court's holding, the Department successfully appealed to the instant court claiming that the trial court's holding should be vacated, and that the Department's decision should be reinstated.

Background

Tudor Ranch (Tudor), owner and operator of grape vineyards, applied the pesticide Dormex to one of its vineyards under a restricted materials permit issued by the Riverside County Office of the Agricultural Commissioner. Id. at *1. One of the subtitles to the permit stated that lemons were "highly susceptible to damage from Dormex drift" and "[d]efoliation of lemon leaves resulting directly or indirectly from an application of Dormex to the permittee's grapevines shall constitute a violation/conflict of these permit conditions and will result in administrative/civil enforcement actions." Id. Tudor's vineyard at issue was located directly north of a lemon tree orchard owned by Venus Ranches. Id. On December 25, 2000, Steve Hudson, general manager of Venus Ranches, noticed some problems with the lemons in the orchard located near Tudor's vineyard. Id. Hudson contacted the Commissioner to find out what was the cause. Id.

On January 6, 2001, Richard Bagdasarian, Inc. (Bagdasarian) applied Dormex to its grape vineyard as well, which were located northwest of Venus Ranches' lemon tree orchard and directly west of Tudor's vineyard. Id. Shortly thereafter, Hudson again called the Commissioner to report more lemon problems. Id. On January 16, 2001, Venus Ranches filed a report of loss against Tudor, and on January 17, 2001, it filed a report of loss against Bagdasarian. Id. at *2. Carolyn Brown, an agricultural standards investigator from the Commissioner's Office, investigated the damaged lemon trees, interviewed the pesticide applicators, and included both Dormex incidents in one Pesticide Episode Investigation Report. Id. at *1-2. In the report, Brown concluded, "[i]ndividually [the] incidences of drift may not have been considered to have caused substantial damage-leaf drop-to the lemon orchard. However, the accumulative effect of both incidences resulted in the leaf drop to the lemon orchard to be substantial." Id. at *2. For this reason, both Bagdasarian and Tudor were issued violations. Id.

On April 30, 2001, the Commissioner issued a violation notice to Tudor, alleging that "Tudor failed to exercise general standards of care in order to protect property south of Tudor's vineyard from Tudor's Dormex application on December 19, 2000." Id. at *3. Months later, the Commissioner proposed to fine Tudor $1,000 for the violation. Id. In response, Tudor requested an administrative hearing. Id. On December 4, 2001, the administrative hearing was held and hearing officer ruled against Tudor, but significantly reduced the amount of the fine. Id.

Following the issuance of the hearing officer's decision, Tudor petitioned for writ of mandate. Id. at *6. On April 24, 2003, the trial court heard oral arguments on the petition. Id. Ultimately, the court granted Tudor's petition and ordered the Department to set aside the administrative court's ruling because there was no substantial evidence to support the Director's decision. Id. The Department appealed seeking to have the Director's decision reinstated. Id.

Arguments

Tudor alleged: (1) that the evidence did not sufficiently support the Commissioner's decision to issue a violation of its permit; (2) that it did not receive a fair hearing on December 4, 2001; and (3) that the county failed to present evidence regarding whether there was substantial drift regarding defoliation or damage to the lemon crop. Id.

The Department sought to have the Director's decision reinstated because it was supported by substantial evidence. Id.

Analysis and Holdings

To correctly rule on a petition for writ of administrative mandamus, the trial court must review the administrative record to determine whether the agency's decision is supported by substantial evidence.

See id. at *7. A trial court may only reverse the agency's decision if a reasonable person could not reach the conclusion reached by the agency. Id. On review, the instant court stated that its standard of review was identical to the trial court's standard of review. Id.

The California Code of Regulations, title 3, section 6614, subdivision (b)(2) provides: "Notwithstanding that substantial drift will be prevented, no pesticide application shall be made or continued when . . . [t]here is a reasonable possibility of damage to non-target crops, animals, or other public or private property." Id. The trial court held that there was no substantial evidence to support the director's decision that Tudor had committed a violation. Id. To determine whether the trial court's decision was supported by substantial evidence, the instant court focused on "whether the lemon tree orchard and the lemons were a non-target crop or private property, and whether Tudor applied Dormex when there was a reasonable possibility of damage." Id. The court found that the lemons were not the intended target for Tudor's Dormex application, and the lemons were on Venus Ranches' private property. Id. Additionally, the court found that the evidence supported the Director's finding that "Tudor did not use the extreme care required by the Dormex label to avoid contact of the Dormex spray or drift with the foliage or the crops; thus, there was a reasonable possibility of damage occurring." Id. at *8. Therefore, the instant court reversed the trial court's grant of Tudor's petition for writ of mandate. Id. at *10.

The case was decided on October 20, 2004.