No. 461 July 3, 2024 569

IN THE COURT OF APPEALS OF THE 

STATE OF OREGON

CREEKSIDE VALLEY FARMS, LLC, 

and Paul H. Kuehene,

Petitioners,

v.

DEPARTMENT OF AGRICULTURE,

Respondent.

Oregon Department of Agriculture

190723; A177927

Argued October 25, 2023.

Richard P. Brown argued the cause for petitioners. Also 

on the briefs were John T. Bridges and Brown, Tarlow, 

Bridges, & Palmer, PC.

Robert Koch, Assistant Attorney General, argued 

the cause for respondent. Also on the brief were Ellen F. 

Rosenblum, Attorney General, and Benjamin Gutman, 

Solicitor General.

Before Shorr, Presiding Judge, Mooney, Judge, and Pagán,

Judge.

MOONEY, J.

Reversed and remanded.

Pagán, J., dissenting.
570 Creekside Valley Farms v. Dept. of Agriculture

MOONEY, J.

	 Petitioners seek review of a final order of the Oregon

Department of Agriculture (the department) imposing civil 

penalties for multiple violations of ORS 634.372(4), which 

provides, in part, that “[a] person may not: ** * [p]erform 

pesticide application activities in a faulty, careless or negligent manner.” They raise eight assignments of error, all 

of which essentially challenge the department’s conclusion 

that each petitioner committed eight separate pesticide violations. We conclude that the department’s interpretation 

of its rule defining what constitutes a violation is plausible.

We conclude, however, that substantial evidence and reason 

do not support the department’s conclusion that petitioners 

made eight separate decisions to apply pesticide to eight 

separately managed radish fields, resulting in eight separate acts constituting eight statutory violations. We therefore reverse and remand.

FACTS AND PROCEDURAL HISTORY

The relevant facts are undisputed. Petitioners are 

Creekside Valley Farms, LLC (an agricultural operation 

and leaseholder of the subject property) and Paul Kuehene, 

Creekside’s sole member and registered agent. Kuehene is 

licensed by the department as a Private Pesticide Applicator, 

and Creekside is licensed as a Commercial Pesticide 

Operator. The agricultural property at the heart of this 

matter consists of 461 acres which, in 2019, were dedicated 

to the cultivation of radish crops for purposes other than 

human consumption. Petitioners do not dispute that the pesticide, Witness Herbicide, was applied to the radish crops 

on May 9, 2019, and again on May 27, 2019, at Kuehene’s 

direction. They agree that those applications violated ORS 

634.372(4).

The department investigated the use of Witness 

Herbicide on the farm after receiving a formal complaint. 

It obtained and executed an administrative search warrant that authorized the department to take field samples

in connection with its investigation. In anticipation of the 

sampling, the lead investigator, Odenthal, reviewed arial 

maps of the property that he obtained from Google Earth. 
Cite as 333 Or App 569 (2024) 571

He identified and marked the perimeter of the farm on one

such map with a blue line, and he used yellow lines to identify what he characterized as eight separate fields within

that perimeter. The map that he completed, shown below, 

identified the fields as:

NW Corner 28 acre

Circle 1 100 acres

N Center 18 acres

Circle 2 170 acres

SE 32 acres

NE 7 acres

East 23 acres

Circle 3 83 acres

Following an administrative contested case hearing, an 

ALJ issued two proposed orders,1 concluding that, by 

1 One order pertained to Creekside and the other to Kuehene. The orders 

contain minor variations in referring to Creekside (through its employees) applying the herbicide versus Kuehene ordering and supervising the application, and 

some details specific to Kuehene’s knowledge as a private pesticide applicator. The

orders are identical in all ways relating to the issues presented in this petition for 

review.
572 Creekside Valley Farms v. Dept. of Agriculture

applying Witness Herbicide to the radish fields, Creekside

and Kuehene had each committed eight violations of ORS 

634.372(4). The proposed orders noted that “because the 

eight separate radish fields were managed separately, each

act of applying Witness pesticide to each separate field is

considered a separate act and therefore a separate violation 

under OAR 603-057-0500(11).” Petitioners were assessed a 

$10,000 fine for each violation, resulting in an $80,000 fine

each for Creekside and Kuehene. Petitioners filed exceptions, and the Director of the department issued final orders

that deleted text from the proposed orders relating to the 

definition of a “field,” but otherwise adopted the proposed

orders. This petition for judicial review followed.

STANDARD OF REVIEW

We review the department’s order in this contested 

case for substantial evidence, abuse of discretion, and errors 

of law. ORS 183.482(8). Our decision turns on the requirement of substantial evidence, focusing in particular on 

that requirement’s component of substantial reason. As the 

Supreme Court recently explained:

“Implicit in the requirement that orders be supported by 

substantial evidence is an additional requirement that 

they be supported by substantial reason. An order is supported by substantial reason when it articulates a rational 

connection between the facts and the legal conclusions it 

draws from them. Among other purposes, the substantialreason requirement ensures meaningful judicial review.”

SAIF v. Coria, 371 Or 1, 12, 528 P3d 785 (2023) (internal 

quotation marks and citations omitted). Meaningful review 

requires us to do more than simply verify that the department 

gave an explanation for its conclusions. Meaningful review 

requires us to read the content of the explanation to ensure 

that it supplies the required “rational connection between the 

facts and the legal conclusions it draws from them.” Id.

ANALYSIS

In evaluating whether the department lawfully 

assessed eight pesticide violations against each petitioner, 

we begin with the department’s interpretation of what 

constitutes a violation. OAR 603-057-0500(11) defines
Cite as 333 Or App 569 (2024) 573

“violation” as “an act or omission” that “does not comply 

with a provision of ORS chapter 634 that relates to pesticide application, sale, or labeling[.]” In the final orders, the

department noted that “the key to determining how many 

violations occurred is determining how many distinct acts 

or omissions occurred.” In summarizing the way the department makes that determination, the final order stated:

“Department staff testified that, when a pesticide is applied

unlawfully to fields that are in commercial agricultural

production, the Department treats each unlawful pesticide 

application to a distinguishable field as a separate violation. Department staff further testified that, in attempting to determine how many separate fields exist at a given

site, the Department evaluates any physical barriers that 

separate the fields, and whether the fields are managed

separately or as a single unit. If a person is making separate decisions about how to grow crops in different areas, 

then the person is committing a separate ‘act’—and, therefore, a separate violation—each time the person decides to 

unlawfully apply a pesticide to a given area (in this case, 

to a given field). That determination is made by examining

whether, as a factual matter, the areas in question have 

any physical divisions, and whether they are managed separately or as a single unit.”

We defer to an agency’s plausible interpretation of 

its own rule, including an interpretation made in the course 

of applying the rule, if that interpretation is not inconsistent 

with the wording of the rule, its context, or any other source 

of law. Papas v. OLCC, 213 Or App 369, 377, 161 P3d 948 

(2007). “Act or omission” is not defined in ORS chapter 634

or the relevant administrative rules. The dictionary defines

an “act” as “a thing done or being done.” Webster’s Third New 

Int’l Dictionary 20 (unabridged ed 2002). The department’s 

interpretation of “act” as including each decision to apply 

pesticides to separate fields is a plausible interpretation of

the term and is consistent with the State Pesticide Control 

Act’s purpose of regulating the application and use of pesticides in the public interest. ORS 634.005.

	 In assessing the number of fields involved, the department’s policy is to consider (1) physical characteristics of the 

property such as roads, fences and other barriers, irrigation 
574 Creekside Valley Farms v. Dept. of Agriculture

systems, and crop heights, and (2) whether the property is 

managed as separate fields or as a unified piece of property.

It is certainly plausible to think that different physical characteristics of the property might make it necessary to make 

different decisions about whether and how to apply pesticide 

to different parts of the property because of those characteristics. The second inquiry of the department’s policy—

considering how the property is actually managed—provides 

additional information that, in conjunction with information 

about the physical characteristics of the property, provides 

a plausible way of determining how many decisions were 

made that resulted in separate acts, each of which violated 

ORS 634.372(4). We conclude that the department reasonably 

interpreted its rule and that its interpretation merits our 

deference.

We turn to the department’s application of its rule 

in this case to conclude that petitioners separately managed 

the acreage as eight separate agricultural fields and that

they made eight separate decisions that resulted in eight 

separate pesticide applications in violation of the law. As 

noted above, we review findings of fact for substantial evidence and the application of the law to the facts for substantial reason. “Substantial evidence supports a finding when

the record, viewed as a whole, permits a reasonable person 

to make the finding.” Gage v. Fred Meyer Stores - Kroger Co., 

329 Or App 360, 362, 540 P3d 592 (2023), adh’d to on recons, 

330 Or App 669, ___ P3d ___ (2024).

	 The final order noted a number of factors that were

considered in determining that the farm was comprised of 

eight separately managed fields, including: manmade and

natural barriers, including farm roads, a line of trees, and a 

slough with water; crop growth height; and the use of center 

pivot versus big gun irrigation systems. The findings of fact

with respect to the presence of those features are supported 

by substantial evidence, particularly the photographs and 

the testimony of department investigators about their 

observations of the property. The department specifically

relied on the following observations made by Odenthal in 

concluding that the acreage was divided into and separately 

managed as eight radish fields:
Cite as 333 Or App 569 (2024) 575

“Circle l and NW Corner fields - The Circle 1 field was

separated from the NW Corner field by a road and field

growth around the edge. The Circle 1 field was irrigated

with a center pivot irrigation system. The NW Corner field

was irrigated with a big gun irrigation system.

“NW Corner and N Center fields - The NW Corner field

was separated from the N Center field by trees and a slough

with water in it.

“Circle 2, NE, and N Center fields - The Circle 2 field

was irrigated with a center pivot irrigation system. The 

NE and N Center fields were triangular shaped. The NE

and N Center fields were irrigated with a big gun irrigation

system. The Circle 2 field was separated from the NE and

N Center fields by the edge of the circle pattern where the

center pivot irrigation ended.

“The SE and Circle 2 fields - The SE field was separated

from the Circle 2 field by a road and trees. The Circle 2 field

was irrigated with a center pivot irrigation system. The SE 

field was irrigated with a big gun irrigation system.

“The Circle 3 and East fields - The Circle 3 field was

irrigated with a center pivot irrigation system. The East 

field was irrigated with a big gun irrigation system. The

crop growth in Circle 3 was higher than the crop growth 

in the East field. The Circle 3 field was separated from the

East field by the edge of the circle pattern where the center

pivot irrigation ended.”

(Footnotes omitted.) We cannot say that the department’s 

description of the physical characteristics of the property and 

irrigation systems is not supported by substantial evidence in 

the record. And for our purposes here, we assume the descriptions to be true, as far as they go. But we reject the notion 

that each constellation of characteristics described above 

and attributed to certain areas within the acreage supports 

the department’s conclusion that those areas are separately 

managed and that, therefore, the decision to apply pesticide 

to each area was separately made and executed.

The problem with the department’s analysis is twofold. First, the physical characteristics and layout of the 

acreage does not provide evidence of the decision or decisions that petitioners made about applying pesticide to the 

crops in May 2019. The argument that the layout of the farm 
576 Creekside Valley Farms v. Dept. of Agriculture

requires it to be managed as eight separate fields and that,

therefore, eight decisions and eight pesticide applications 

were necessarily made in May 2019 assumes too much. The 

department did not explain how the presence of multiple 

watering systems, providing water to a contiguous, irregularly shaped farm, led it to conclude that areas within the 

farm were separately managed. The final order identified

no evidence that the different types of irrigation equipment 

were independently used to achieve separate goals or that 

separate decisions were made about when or how much to 

irrigate different sections of the acreage. The evidence certainly supports an inference that petitioners use different 

types of irrigation equipment to deliver water to the acreage, but that does not lead to a nonspeculative conclusion 

about how petitioners decided to, or did, apply pesticide in 

May 2019. This is particularly notable with respect to the 

distinction between Circle 2 and the NE and N fields where

the use of different irrigation systems was the only factor 

identified by the department as separating them. Indeed,

soil and plant samples from those three areas were combined 

together in the testing process, returning one result for what 

the department characterized as three separate fields.

Without engaging in the additional inquiry about 

what decisions were actually made and how the property 

was managed, the department assumed the thing that 

required proof by substantial evidence—that eight decisions 

were made, resulting in eight acts of applying the prohibited 

pesticide and, thus, eight statutory violations. And the fact 

that the ALJ did not believe Kuehene’s testimony that the 

acreage was managed as a single unit does not supply evidence that there were eight decisions to apply pesticide to 

eight separate sections of the farm.

The second problem with the department’s analysis 

is that, even if physical characteristics alone were sufficient

evidence of the human decisions to apply pesticide, when the 

record is considered as a whole, the department’s application 

of its rule and policy to the farmland in question was inherently inconsistent and failed to otherwise rationally support 

its conclusion that there were eight separate statutory violations. There are inconsistencies in the department’s use of 
Cite as 333 Or App 569 (2024) 577

topography in different ways at different points across the 

acreage with no explanation for why it did so. For example, 

the department used a row of trees to justify treating the NW 

field as separate from the N Center field, and yet it did not

use the very same line of trees that extended into and across 

Circle 2 to divide that circle into separate fields.2 Similarly, 

the presence of farming roads in some locations was used to 

support the conclusion that fields were separate, but other

roads through other areas were not mentioned at all. This disparate treatment renders the decision to find eight violations

unsupported by substantial reason.

The most that can be said is that certain physical characteristics of the acreage and irrigation equipment 

appeared to the investigator to reflect eight areas or fields.

But attributing different significance to the same line oftrees

and slough without explanation for that disparate treatment 

does no more to explain the department’s conclusion that 

petitioners made eight separate decisions to apply pesticide 

than the fact that they use different irrigation equipment to 

deliver water to the various reaches of the acreage.

	 The defining characteristics that the department

identified in finding eight separate areas do not support a

finding of eight acts or omissions. The department did not

supply a rational connection between the facts on which it 

relied and its legal conclusion that there were eight separate 

violations. We therefore reverse and remand.3

Reversed and remanded.

PAGÁN, J., dissenting.

Petitioners admitted to intentionally using illegal 

pesticide on over 400 acres of farmland. Having no defense to 

the allegation of misuse, the only issue petitioners contested 

2 The department asserts in its answering brief that the tree line through 

Circle 2 was not sufficient to outweigh the irrigation evidence; however, the final

order did not rely on that rationale, and it did not acknowledge the continuation 

of the slough and tree line.

3 We are not persuaded by petitioners’ assertion that the department’s 

approach to tallying violations deprived petitioners of fair notice of how many violations they were exposed to, thus violating their right to due process. Petitioners 

had notice of what activity was prohibited (the unlawful use of pesticides) and 

had the opportunity to be heard on the issue of their violation. Sachdev v. Oregon 

Medical Board, 312 Or App 392, 402, 494 P3d 1018, rev den, 368 Or 637 (2021).
578 Creekside Valley Farms v. Dept. of Agriculture

was how many violations occurred on that large swath of 

farmland. The Department of Agriculture provided an 

expert to testify on the issue. That expert visited the farmland, spoke with witnesses, looked at the equipment used 

on all the fields, and then applied the department’s internal guidelines for discerning how many violations occurred. 

That expert concluded that there were eight fields, primarily

because each one of those fields had its own irrigation management system, and the fields tended to be separated by

either man-made or natural barriers. To rebut that expert, 

petitioners offered their own witnesses from the farm, who 

testified simply that there was only one field, despite the

barriers and separate irrigation systems. The ALJ hearing 

these witnesses decided that the expert was more credible. The department then adopted that ALJ’s findings and

explained that it used the ALJ’s credibility finding to support its decision to find eight separate violations. Thus, in my

view, the department’s decision is supported by substantial 

evidence, and having explained how that evidence allowed it 

to find eight violations, is supported by substantial reason.

Jenkins v. Board of Parole, 356 Or 186, 195-96, 335 P3d 828 

(2014). To the extent the majority concludes either that the 

department failed to provide substantial reasoning for its 

conclusions, or that the case law on our standard of review 

requires the department to do more than provide a rationale 

for its reasoning, I dissent.

Our appellate courts are sending mixed messages when reviewing a state agency’s decision under ORS 

183.482(8). On the one hand, “[o]ur review for substantial 

evidence [under ORS 183.482(8)] does not entail or permit 

the reviewing tribunal to reweigh or to assess the credibility 

of the evidence that was presented to the factfinding body.”

WaterWatch of Oregon v. Water Resources Dept., 324 Or App 

362, 384, 527 P3d 1, rev den, 371 Or 332 (2023) (citations 

and internal quotation marks omitted). “In other words, to 

the extent that the substantial reason requirement inheres 

in an agency’s duty to make findings of fact and conclusions

of law, the substantial reason requirement concerns the 

reviewability of the agency’s orders.” Jenkins, 356 Or at 195-

96 (emphasis added). Focusing on reviewability provides a 
Cite as 333 Or App 569 (2024) 579

particular heft to the deference we give to the agency. Or, as 

the Supreme Court stated before Jenkins:

“On judicial review, the court will not substitute its judgment for that of the agency in drawing an inference, but 

the court must be satisfied that agency judgment has actually been exercised. Sometimes a rational nexus between 

an evidenced fact and an inference drawn from it is obvious from common experience (e.g., we may infer from the 

fact of a wet street that it recently rained). In other cases, 

however, and particularly in cases involving expertise, the 

reasoning is not obvious (e.g., we may infer from present 

meteorological conditions that it will snow tomorrow). In 

such an inference, we will not assume the existence of a 

rationale. Rather, we look to the order to state the rational 

basis of the agency’s inference. The explanation need not be 

complex, but it should be sufficient to demonstrate the existence of a rational basis and to allow for judicial review.”

City of Roseburg v. Roseburg City Firefighters, 292 Or 266, 

271-72, 639 P2d 90 (1981) (footnote and citations omitted).

On the other hand, we have interpreted ORS 

183.482(8) to require that the agency explain or justify what 

may be considered “inherent inconsistencies.” See, e.g., SAIF 

v. Coria, 371 Or 1, 14, 528 P3d 785 (2023) (remanding agency 

decision because the order failed to address inconsistencies); 

The Boeing Company v. Cole, 194 Or App 120, 123-24, 93 P3d 

824 (2004) (explaining that “when there are inconsistencies 

in an expert’s testimony, the board must provide an explanation as to the basis for its reliance on that testimony”).

The two positions are plainly inconsistent. Either 

we are deferential and looking only to see that the agency 

explained its rationale sufficient for review, or we are

reviewing the agency’s decision for its persuasive weight. 

For me, the tension is relieved by adhering to the deference, 

examining whether the agency explained its reasoning, and 

ensuring that the agency in fact exercised its discretion.

Here, instead, the majority would have required the 

department to provide in its final order an explanation of

“inherent inconsistencies” in the expert’s testimony, such 

as why a row of trees was used to separate one field but

may not have been for another. In my view, such an inquiry 
580 Creekside Valley Farms v. Dept. of Agriculture

necessarily oversteps the limitations of our review and 

spurns the deference we are supposed to provide agencies. 

The ALJ was presented with two evidentiary presentations 

on the issue of how many fields existed and was required

to make a credibility finding. Following that finding, the

department explained why the expert was more credible, 

explained how the expert used internal guidelines to make 

their conclusions, and why those conclusions would justify 

imposing a violation for each field separately under the

appropriate regulations. That is all that is needed under 

ORS 183.482(8) for us to determine that the “agency judgment has actually been exercised.” Jenkins, 356 Or at 196 

(quoting City of Roseburg, 292 Or at 271).

Finally, to the extent the majority believes that 

the explanation is not sufficient under ORS 183.482(8), the

only remedy is to send it back to the department to provide 

a full explanation for its reasoning. See id. at 195 (“If an 

agency order that is subject to ORS 183.470(2) does not contain [substantial reasoning], then the appellate court will 

reverse and remand the order for the agency to correct the 

deficiency.”); Coria, 371 Or at 14 (“Therefore * ** we remand 

the case to the board to explain its reasoning.”).

I would conclude that the department’s decision is 

supported by substantial evidence and substantial reasoning and would affirm.