IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE 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 M OESER, JOE F. STRUTHERS, and GAYLAN and HEATHER WARREN ,

Respondent s ,

v. DIAMOND LAKE IMPROVEMENT , ASSOCIATION, INC.; SHARON SORBY, individually and as COORDINATOR, PEND OREILLE COUNTY NOXIOUS WEED CONTROL BOARD; and PHIL ANDERSON, individually and a s DIRECTOR, WASHINGTON DEPARTMENT OF FISH AND WILDLIFE ,

Petitioners

. )

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. 34938

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PUBLISHED OPINION

S IDDOWAY , J.

— After ruling on summary judgment that Sharon Sorby did not enjoy qualified immunity from the plain tiffs’ claims under 42 U.S.C. § 1983 , t he trial 

### FILED FEBRUARY 6 , 2018 In the Office of the Clerk of Court WA State Court of Appeals, Division IIINo. 349 38

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2 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 conc lude 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 con junction with Diamond Lake Improvement Association , considered eradicating
reed canar y grass, Phalaris arundinacea , a noxious weed growing along the banks of
Moon Creek , to improve outflow from the lake. In order to proceed, the y obtained a
p ermit from th e 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 agent s 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 letter s 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. ” C lerk’s P apers (CP) at 24. The first letter providedNo. 349 38

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3 notice that the weed board and improvement associati on 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 back pack 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 planne d 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 a pplication. None of her letters was returned as undeliverable. The herbicide application was not performed duri ng 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 o n 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.No. 349 38

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4 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 arou nd 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 compen sation, 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 immun ity.
In declarations filed in support of the plaintiffs’ motion, one of the plaintiffs
contends he did not receive either of Ms. Sorby’s letters, al though he admits the address to which Ms. Sorby claims she mailed the letter is his. Three p laintiffs admi t receiving Ms. Sorby’s letters but claim they did not know whether the notice applied to them

1 The origi nal 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.No. 349 38

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5 because the letter did not include their names or an identification of their property. One
p laintiff testified
that the reference to the area to be treated a s “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,” c ounty maps locate Moon Cree k several miles west

. In ruling on the cross motions for summary judgment , the trial court determ in ed
that Ms. Sorby ’s notice did not comply with R CW 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 c ourt certifi ed its order on qualifi ed immunity under RAP 2.3(b)(4) as presenting a controlling question of law on which there was a substantial groun d for a difference of opinion. Ms. Sorby moved for discretionary review, which our commissioner granted.
ANALYSIS Th e 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.”No. 349 38

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6 R CW 17.1 0 .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 contr ol 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 notic e , to inspect and take specimens of weeds. RCW 17.10.160. If a weed contr ol 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 with in a period of not less than 10 days . RCW 17.10.170 (1) . If corrective action is not take n by the owner within the time provided , t he 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 clear ly established statutory or constitutional rights of which a

reas onable person would have known. ” Harlow v. Fitzgerald , 457 U. S. 800, 8 1 8 , 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 fro m harassment, distraction, and liability when they p erform their dutiesNo. 349 38

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7 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
establish ed ’” 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 d efendant violated a clearly established federal right. M ARTIN A.
S CHWARTZ , S ECTION 1983 L ITIGATION (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 off icial’ 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. ’” Ashcrof t 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, “exis ting 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).No. 349 38

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8 We review an order of summary judgment de novo, performing the same inquiry
as the trial court. Jones v. Allstate Ins. Co. , 146 Wn.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 judgmen t 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 demonstrati ng a genuine issue for trial. Young v. Key Pharm., Inc. , 112
Wn .2d 216, 225, 770 P.2d 182 (1989), overruled in part on other grounds by 130 Wn .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 a n herbicide can deprive the owner of the treated land of a protected property interest and Ms. Sorby’s notice was constitutionally inad equate.No. 349 38

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9 1. The alleged Fifth Amendment “t aking ” We first address whether it was clearly established in July 2012 that damage to
flora or fauna from the application of a n herbicide can constitute a taking of private property that requires the payment of jus t compensation under the Fifth Amendment. The plaintiffs assume that a taking occurred and proceed with their argument from there.
But i t is not clear now, nor was it in 2012, that spraying a n herbicide that causes the type
of damage complained of consti tutes a taking.

“ The questi on 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 (19 78) . 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. W hethe r 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 d ecisions by the United States Supreme Court establish that “even a minimal ‘permanent physical occupation of real property’ requires c ompensation under the Clause.” Palazzolo v. Rhode Island , 533 U.S. 606, 617, 121 S. Ct. 2 448, 150 L. Ed. 2d 592 (2001) (q uoting Loretto v. TeleprompterNo. 349 38

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10 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. Pum

pelly 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 resu lt 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 dest roy 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 gove rnment action outside the owner’ s property that causes consequentia l damages within, on the other. ” Loretto , 458 U.S. at 428 (citing cases). A temporary physical invasion is not automaticall y ex empt from a takings c lause 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 o f authorized government action,” “ the character of the land at issue and the owner’s

‘ reasonable investment

- backed e xpectations’ regarding the land’ s use ,” and the “[s] everity of the interference. ” Arkansas Game & Fish Comm’ n v. United States , 568No. 349 38

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11 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
S tates , 306 F.2d 580, 583 (10th Cir. 1962)

. “[G] overnmental activities which d o 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. 3 36 (1878) ; United States v. Willow River Power Co. , 324 U.S. 499, 65 S. Ct. 761, 89 L. Ed. 1101 (1945) ).
I n Harris v . United States , 205 F

. 2d 765 ( 10 th Cir

. 1953 ), the court analyzed whether herbicide drift that damaged crops on privately

- owned farm gro und 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 i n damage or destruction of personal property amounts to a ta king in a constitutional sense. It is, we think, rather a tortious act for which the governmen t 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).No. 349 38

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12 The spraying here could be said to have caused a physical invasion of sorts

— the
herb icide 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 a n herbicide was held to be a constitutional “ taking. ”
W e need not decide as a matter of law that there was no “taking.” We have no
doubt that there was no “ clearly established right ” t o just compensation from herb icide

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 p rocess “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. ’ ” H atfield v. B d

. 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))

. P ROPERTY INTEREST The plaintiffs testify in t heir declarations that a 100 foot plus wide zone of dead plant life was left follo wing the herbicide application, stream fish life was destroyed,No. 349 38

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13 animals and birds have left the area, and their water now has a nasty smell and taste

. They appear to contend t hat all of these harms deprive them of private property. Significant in this ca se, n o deprivation of property oc curs within the meaning of the d ue p rocess c lause 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 C ounty , 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 4 8 9. Focusing on Ms. Sorby’s intentional conduct, t he plainti ffs have presented no evidence that she deliberately damage d any thing 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 the ir land. To determine whether Ms. Sorby enjoys qualified immunity, the further question is whether it was clearlyNo. 349 38

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14 established as of July 2012 that applying an herbic ide to eradicate noxious weeds c ould deprive property owners of a protected property inter est 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 independe nt source such as state law . . . . ” Board of Reg ents of State Colls. v. Roth , 408 U.S. 564, 5 77 , 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 uncultiv ated 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. Pub l ic Utility Commission of Texas , 294 S.W.3d 276, 287 (Tex. App. 20 09) , 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. A nd 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 C

ounty Safe Drinking Water Coal., I nc. 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 . W e have noNo. 349 38

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15 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

. N OT I C E 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.
“A n elementary and fundamental requirement of due process in any proceeding which is to b e 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). “T he notice must be of such nature as reasonably to convey the required info rmation . . . and it must afford a reasonable time for those interested to make their appearance .” Id. The plaintiffs offer thr ee reasons why they believe Ms. Sorby’s notice was constitutionally deficient: (1) s he addressed the notices to “Landowners and Residences Along Moon Creek” rather tha n to each landowner by name, (2) she gave incorrect information about the nature and date s 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.No. 349 38

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16 notification that provided correct information was sent to only one of the landowner s, 14 hours in advance. Br. of Resp’ts at 23. The principal purpose of the notice required by Washington’s weed control
statut e s is to make the owner aware of an imp ending entry on land, the purpose for the entry, and to give the o wner the opportunity to cure a violation, without gov ernment intervention, liability for the cost , or issuance of an infraction . To that end, when a w eed 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 17.10.1 60

. 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 depo sit 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 ac tion is not taken within the 10 day or greater time fra me 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.No. 349 38

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17 Ecology’s permit required some information to be given to property owners about the planned application o f an herbicide . Re levant to mailed notice, the permit stated :

a. The Permitte e 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 app ears the weed board never intend ed 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 Wn. 2d 788, 79 7 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 hasNo. 349 38

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18 character ized property owners as having no constitutionally significant property interest in weeds. Sobocinski v. City of Williamsport , 13 Pa. Commw. 425, 31 9 A.2d 697, 701 (1974)

. T he court stated it “ cannot think of a less ‘significa nt’ property interest than the
U ncultivated weeds and gr ass ‘taken’ from Appellant

. ” Id. In another case , Shoemaker v. City of Howell , 795 F.3d 553 (6th Cir. 2015) , the plaint iff 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 impos ed 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, t he Sixth Circui t c ourt found even the $600 fine to be a “relatively minor” proper ty 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 F ourteenth 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 refe rred

- to Ordinances or a call to City Hall wouldNo. 349 38

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1 9 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) (q uoting 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 identi fication 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 question s
. In some respects, it provided more details than Washington weed control statutes or Ecology’s permit required. While some owner s claim not to have received the notice , “ Mullane makes clear

. . . [that] the pr oper inquiry is not whether [an individual] received the notices but instead whether the metho d of providing the notices was ‘ reasonably calculated, u nder all the circumstances,’ to inform him” of an action and his right to object. Peters v. Nat’ l
R.R. Pa ssenger 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
t he notice applied to them because it did not include their name or identify their land, t heNo. 34938-1-III Friends of Moon Creek v. Diamond Lake Improvement Ass 'n

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