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 

MOESER, JOE F. STRUTHERS, and 

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.

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No. 34938-1-III

PUBLISHED OPINION

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 

FILED

FEBRUARY 6, 2018

In the Office of the Clerk of Court

WA State Court of Appeals, Division III
No. 34938-1-III

Friends of Moon Creek v. Diamond Lake Improvement Ass’n

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 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 
No. 34938-1-III

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3

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 
No. 34938-1-III

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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).
No. 34938-1-III

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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 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 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 

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 an herbicide 

can deprive the owner of the treated land of a protected property interest and Ms. Sorby’s 

notice was constitutionally inadequate.
No. 34938-1-III

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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 
No. 34938-1-III

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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).
No. 34938-1-III

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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 herbicidecaused 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 
No. 34938-1-III

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14

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 
No. 34938-1-III

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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,2and (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 Wn.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 
No. 34938-1-III 

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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. 

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