The opinion
Filed 9/8/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
JUANA VASQUEZ ET AL.,
Plaintiffs and Respondents,
A154922
v.
DEPARTMENT OF PESTICIDE (Alameda County
REGULATION, Super. Ct. No. RG17847563)
Defendant and Respondent;
DOW AGROSCIENCES LLC,
Intervener and Appellant.
Defendant Department of Pesticide Regulation (Department) regulates
the use of pesticides, including 1,3-Dichloropropene (1,3-D), which is used in
agriculture. The only company that produces 1,3-D for use in California is
intervener Dow AgroSciences LLC (Dow). As a condition of Dow’s continued
registration of 1,3-D products, the Department maintains a “township cap
program,” which sets limits on the amount of the pesticide that may be used
each year to reduce cancer risks to bystanders living and working near areas
where 1,3-D is applied.
Juana Vasquez, Californians for Pesticide Reform, and Pesticide Action
Network North America (collectively, plaintiffs) filed a petition for a writ of
mandate and complaint against the Department, claiming that the township
cap program (1) is an underground regulation in violation of the
Administrative Procedure Act (APA) (Gov. Code, § 11340 et seq.) and (2) fails
1
to incorporate recommendations from the California Office of Environmental
Health Hazard Assessment (OEHHA) as required under Food and
Agriculture Code 1 sections 12980 and 12981. The trial court granted
plaintiffs’ motion for summary judgment and issued a judgment and writ of
mandate declaring the township cap program void and directing the
Department to engage in formal rulemaking to replace it.
On appeal, Dow contends that the trial court erred by granting
summary judgment in favor of plaintiffs and instead should have granted the
Department’s cross-motion for summary judgment, which Dow joined. 2 We
agree with plaintiffs that the court correctly determined that the township
cap program is an underground regulation. We also agree with the parties
that in light of this holding, we need not address whether sections 12980 and
12981 apply to the program in its current form. 3 We therefore affirm.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
A. The Regulatory Scheme
Division 7, chapter 2 of the Food and Agriculture Code and its
implementing regulations in title 3, division 6 of the California Code of
Regulations “establish a comprehensive program under which the
1All further undesignated statutory references are to the Food and
Agriculture Code.
2Although the Department is technically a respondent because it did
not appeal, it submitted briefing in which it also argues that the trial court
erred by granting summary judgment to plaintiffs.
3The applicability of sections 12980 and 12981 will depend on the
contours of any final adopted regulation. We deny as unnecessary Dow’s and
the Department’s requests for judicial notice of legislative history of
sections 12980 and 12981 and various Department documents. (See Adams
v. Bank of America, N.A. (2020) 51 Cal.App.5th 666, 673, fn. 4.)
2
Department regulates the manufacture, distribution, sale, and use of
pesticides.” 4 (Californians for Alternatives to Toxics v. Department of
Pesticide Regulation (2006) 136 Cal.App.4th 1049, 1056 (Californians for
Alternatives).) A pesticide cannot be sold in California unless it is registered
with the Department. (§ 12811.) The Department will register a pesticide
only if it is federally registered as a pesticide and meets additional state
requirements. (Californians for Alternatives, at pp. 1056–1057; 7 U.S.C.
§ 136a, subd. (a); § 12815.)
Upon registering a pesticide, the Department may place “[a]ppropriate
restrictions . . . upon its use including, but not limited to, limitations on
quantity, area, and manner of application.” (§ 12824.) The Department must
then engage in an informal “continuous evaluation” of all registered
pesticides to ensure they are safe. (§ 12824; Regs., § 6220; Californians for
Alternatives, supra, 136 Cal.App.4th at p. 1058.) As part of this evaluation,
the Department assesses a pesticide’s risk to human health and determines
whether mitigation measures, which may include additional conditions of
registration, can be adopted. If the risk cannot be mitigated sufficiently, the
Department may cancel a registration. (See § 12825.)
The Department also has the option to designate a pesticide as a
restricted material. (§ 14004.5.) This designation may be based on, among
other criteria, “[d]anger of impairment of public health” and “[h]azards to
applicators and farmworkers.” (§ 14004.5, subds. (a) & (b).) To use a
restricted material, an operator must first obtain a permit from the local
county agricultural commissioner (commissioner). (§§ 26, 14006.5; Regs.,
§ 6420.) Thus, “[r]egistration of a restricted material is not in itself a right to
4All further references to regulations are to title 3 of the California
Code of Regulations.
3
use the pesticide, but rather a [D]epartment determination that under
appropriate local conditions the commissioner can grant a use permit for the
material.” (Regs., § 6442, subd. (a).)
When deciding whether to issue a restricted-material permit, a
commissioner must “determine if a substantial adverse environmental impact
may result from the use of such pesticide.” (Regs., § 6432, subd. (a).) If such
a risk exists, but there is a “feasible mitigation measure” that would
“substantially reduce the adverse impact,” the permit must be “conditioned
on the utilization of the mitigation measure.” (Ibid.) In making these
determinations, a commissioner must rely on his or her knowledge of “local
conditions.” (Ibid.)
After an operator procures a restricted-material permit from a
commissioner, the operator must obtain a written recommendation from a
licensed pest control adviser “covering each agricultural use application of a
pesticide that requires a permit.” (Regs., § 6426; see id., § 6556.) A
commissioner may require the operator to submit a “notice of intent”
providing information about the planned pesticide application at least
24 hours before it occurs. (Id., § 6434, subd. (b).)
Each commissioner is “responsible for local administration” of efforts to
enforce pest control requirements, but the Department is “responsible for
overall statewide enforcement and shall issue instructions and make
recommendations to the commissioner. Such instructions and
recommendations shall govern the procedure to be followed by the
commissioner in the discharge of his [or her] duties.” (§ 2281.) Under this
authority, the Department issues recommended permit conditions for various
pesticides designated as restricted materials.
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B. 1,3-D’s Use in California
1,3-D is the active ingredient in soil fumigant products that are
generally injected into the soil before planting. The pesticide is used to
improve growing conditions for a variety of crops in California, including
nuts, grapes, and strawberries. It is designated as a restricted material.
(Regs., § 6400, subd. (e).) When it is applied, 1,3-D volatizes into the air, and
people can be exposed to it through inhalation.
1,3-D has been used in California agriculture for several decades. Dow
is the only producer of 1,3-D for use in the state, although several soil-
fumigation products containing the chemical are available.
The regulatory controls governing 1,3-D’s use in California have arisen
in the context of a technical bureaucratic environment, which we take some
time to explain. In 1990, after 1,3-D was detected in the air at “levels of
concern,” the Department prohibited its use. Five years later, 1,3-D was
reintroduced as another soil fumigant, methyl bromide, was phased out.
Reintroducing 1,3-D was conditioned on “strict control measures, including
amended pesticide labels, reduced application rates, buffer zones, lengthened
reentry intervals, and Dow control of distribution and use, in close
consultation with the . . . commissioners.”
“Since 1999, the key mechanism that has been used to restrict use” of
1,3-D is the township cap program, which is a condition of registration of
Dow’s 1,3-D products. As the registrant, Dow is “responsible for tracking,
reporting, and ensuring township caps are observed.” The condition limits
the amount of 1,3-D that can be applied each year in a given 36-square-mile
region, or “township.” Originally, the township cap was 90,250 adjusted
pounds of 1,3-D per year. In 2002, the Department revised the condition so
that townships could “bank” unused amounts under the cap for use in future
5
years, permitting increased applications of up to 180,500 adjusted pounds per
year. The condition was based on a target air concentration of 1,3-D of no
more than .14 parts per billion (ppb), a figure derived from a health risk
assessment performed in the late 1990’s.
The revisions to the township cap program that are at issue were
developed over several months beginning in 2015. In August of that year,
after performing an updated health risk assessment of 1,3-D, the Department
submitted a draft “Risk Characterization Document” to OEHHA for review
and comments. The two state entities disagreed on whether the risk
assessment should be based on a “systemic” or “portal of entry” mode of
action for cancer development. The former, which OEHHA advocated,
assumes that a chemical will interact with the body systemically, and it
results in a lower target air concentration of 1,3-D. The latter, which the
Department used, assumes a chemical will interact with the body at the point
of entry, and it results in a higher target air concentration of the chemical.
A few months later, in December, the Department issued its final risk
characterization document, entitled “1,3-Dichloropropene Risk
Characterization Document, Inhalation Exposure to Workers, Occupational
and Residential Bystanders and the General Public” (final risk
characterization document). The document, which is almost 300 pages long,
addressed “risks arising from inhalation exposure” to both workers and
occupational and residential bystanders, and it contained calculations for
both systemic and portal of entry modes of action.
In August 2016, the Department provided OEHHA with a draft Risk
Management Directive. The draft proposed to revise the target air
concentration of 1,3-D to .56 ppb—a substantial increase from the previous
figure of .14 ppb—and, based on the higher concentration, to increase the
6
annual township cap to 136,000 adjusted total pounds of 1,3-D. OEHHA
responded that it did “not believe that the proposed cap can assure adequate
health protection for all residents of a given township,” reiterating its
objection to the portal of entry mode of action.
In October 2016, the Department issued an internal memorandum
entitled “Risk Management Directive and Mitigation Guidance for Cancer
Risk from 1,3-Dichloropropene (1,3-D)” (final risk management directive). In
it, the Department confirmed its determination “that it is appropriate to use
a portal of entry mechanism as opposed to the [systemic] mechanism that
was selected previously.” The Department also confirmed its decision “to set
the regulatory target concentration necessary to initiate and guide the
development and adoption of mitigation measures to address cancer risk to
bystanders (nearby workers and residential/public)” at .56 ppb. The
document noted that “[r]isk management decisions to address cancer risk to
handlers of 1,3-D (workers involved in the application), as well as acute,
seasonal, and chronic (non-cancer) exposures identified in the [final risk
characterization document] will be issued at a later date after further
analysis and consideration.”
The final risk management directive also addressed the measures the
Department would take to “achiev[e] the . . . regulatory target concentration.”
The document stated that, “[e]ffective January 1, 2017, [Department] staff
will make the following revisions to the township cap program”: (1) changing
the township cap to 136,000 adjusted total pounds per year; (2) eliminating
banking of unused 1,3-D; and (3) prohibiting use of 1,3-D in the month of
December due to seasonal conditions. In addition, the Department stated
that if ongoing “air monitoring shows one-year average air concentrations
7
that are between 0.27 and 0.56 ppb,” it would “consider more stringent
mitigation measures.”
Two months later, in December 2016, the Department entered a
memorandum of understanding (MOU) with Dow that “establishe[d] a new
Updated Management Program for the distribution and application of [1,3-
D].” The MOU provided that, “effective in January 2017,” the updated
program would “be implemented through the permit system for restricted
materials operated by the [commissioner] of each county where 1,3-D is
used.” Specifically, after “issuance of a restricted materials permit by the . . .
[local commissioner],” 1,3-D products could be applied “only upon the
recommendation of a licensed pest control advisor,” which Dow had to
approve. Dow agreed to take particular steps to ensure “the township caps
are not exceeded,” consisting primarily of following various directives on how
to evaluate recommendations of pest control advisors that were submitted to
it. For example, Dow agreed not to approve a recommendation unless the
company first “ensure[d] . . . that the amount of 1,3-D to be applied pursuant
to the recommendation will not cause the township limit of 136,000 adjusted
pounds per year to be exceeded.” In addition, the MOU provided that if
another party were to “introduce[] a 1,3-D soil fumigant product in California
that is produced from 1,3-D not manufactured by [Dow], . . . [the Department
would] require that [third party] to discharge the same tasks and duties for
its product that are to be discharged by [Dow] under [the MOU].”
The MOU also addressed “enforcement” of the revised township cap
program. Dow and the Department “acknowledge[d] that provisions of the
[MOU] may be construed as rules, regulations, limitations[,] or conditions for
permitting within the meaning of . . . Section 14027, and that a violation of
any requirement, limitation[,] or prohibition” could result in an action for
8
civil penalties. The parties agreed that “[i]n this regard,” if “an applicator,
registrant[,] or other person other than [Dow] or its contractor” committed a
violation, it would “not be construed as a violation by [Dow].” In addition, the
MOU provided that if it was “not carried out effectively,” the Department
could “exercise its authority to instruct [commissioners] to suspend the
further issuance of restricted material permits for 1,3-D until another equally
effective management plan [could] be implemented or, if the Department
concludes that the continued use of 1,3-D results in serious uncontrollable
adverse effects to the environment,” the agency could “initiate a proceeding to
cancel [1,3-D’s] registration(s) pursuant to . . . Section 12824.”
On January 10, 2017, the Department sent a letter to the
commissioners enclosing revised “Recommended Permit Conditions” for 1,3-
D. The letter explained that, effective January 1, the Department had
“updated” the township cap program based on the final risk management
directive. According to the letter, the “changes include[d]” (1) establishing a
single cap of 136,000 adjusted pounds and eliminating banking;
(2) prohibiting use of 1,3-D in December; and (3) requiring notices of intent
submitted by operators to a commissioner to “document the amount of 1,3-D
left available in a township.”
The revised “Recommended Permit Conditions” were not set forth in a
freestanding document. Instead, they were in Appendix J to the third volume
of the Department’s “Pesticide Use Enforcement Program Standards
Compendium,” which addresses several other pesticides designated as
restricted materials. Revised Appendix J stated that the “recommended
permit conditions . . . should be used in addition to” product labeling and the
applicable statutory and regulatory provisions. It also directed that “[w]hen
requirements differ the most stringent requirements should be followed.
9
[Commissioners] can use more restrictive conditions based on the local use
conditions.” (Boldface omitted.)
The second section of revised Appendix J, entitled “Conditions for All
Application Methods,” identified particular conditions on the use of 1,3-D.
Some of these conditions addressed the notice of intent an operator must
submit to a commissioner before a particular application of 1,3-D.
Specifically, a commissioner could not accept a notice of intent unless the
operator provided a Dow-approved recommendation of a pest control advisor.
The notice of intent itself had to contain information “[i]n addition to [that]
required in [Regulations] section 6434,” including the “[s]tarting [adjusted
total pounds] balance available in the township prior to the proposed
application.” And the notice of intent had to “be denied if the proposed
application [adjusted total pounds] exceeds the available use limit balance in
a township.” The conditions also included various “restrictions” on the use of
1,3-D, including no use in the month of December.
C. Procedural History
Shortly after the January 2017 letter was sent to the commissioners,
plaintiffs initiated this action by filing a petition for a writ of mandate and
complaint against the Department. The pleading alleged that plaintiff
Vasquez, a strawberry harvester, worked and lived near fields treated with
1,3-D. The cause of action at issue alleged that the Department violated the
APA “by adopting underground regulations regarding 1,3-D” without formal
rulemaking. Plaintiffs sought a declaration that the existing regulations
were invalid and a writ of mandate compelling the Department to promulgate
lawful regulations in their stead. The Department answered the petition and
complaint, and Dow was permitted to intervene as a defendant in the action.
10
Subsequently, the Department, joined by Dow, and plaintiffs filed
cross-motions for summary judgment. The Department contended that
plaintiffs’ claim failed “because the challenged actions—the Department’s
internal guidance document dated October 6, 2016[,] and referred to as the
‘Risk Management Directive,’ and the Department’s January 10, 2017 letter
to County Agricultural Commissioners with attached revised recommended
permit conditions—are not regulations subject to [APA] requirements . . . , as
a matter of law.” Plaintiffs, on the other hand, sought summary judgment on
the basis there were no triable issues of material fact as to their claim that
the Department “adopted its township cap program as an underground
regulation without complying with the [APA].”
In February 2018, the trial court issued a “preliminary tentative
decision” concluding that plaintiffs could not prove their claim. The
preliminary decision was based on the court’s conclusions that (1) “[t]he
township cap program was adopted and modified as part of the registration
and re-registration of 1,3-D,” and “the issuance and renewal of certificates of
registration is outside the scope of the APA”; and (2) “[t]he township cap
program was implemented as a ‘recommendation’ to [the commissioners]”
such that it was not a generally applicable rule requiring rulemaking under
the APA. The court gave the parties an opportunity to submit supplemental
briefs before it issued a final ruling, however, because it had considered
aspects of the regulatory structure the parties had not addressed.
After the parties submitted supplemental briefing, the trial court
reversed course and issued a final order granting plaintiffs’ motion for
summary judgment and denying that of the Department and Dow. In
May 2018, the court entered a judgment declaring the township cap program
void and issued a writ of mandate directing the Department to engage in
11
rulemaking to “address potential cancer risks to bystanders from the use of
1,3-D, consistent with the APA . . . , no later than one year following the date
the writ is issued.” 5 Dow appealed.
II.
DISCUSSION
Dow, joined by the Department, claims that the township cap program
is not a regulation subject to the APA’s rulemaking requirements. We
conclude that the trial court correctly held that the program is an
underground regulation.
A. General Legal Standards
“The APA subjects proposed agency regulations to certain procedural
requirements as a condition to their becoming effective,” including public
notice and opportunity for comment. (Morning Star Co. v. State Bd. of
Equalization (2006) 38 Cal.4th 324, 332–333 (Morning Star); Tidewater
Marine Western, Inc. v. Bradshaw (1996) 14 Cal.4th 557, 568 (Tidewater).)
Thus, “any regulation not properly adopted under the APA is considered
invalid.” (Reilly v. Superior Court (2013) 57 Cal.4th 641, 649.) It is
undisputed that the Department must comply with the APA in adopting
regulations. (See § 14; Californians for Pesticide Reform v. Department of
Pesticide Regulation (2010) 184 Cal.App.4th 887, 905.) The issue here is
whether the township cap program qualifies as a regulation.
Under the APA, “[n]o state agency shall issue, utilize, enforce, or
attempt to enforce any guideline, criterion, bulletin, manual, instruction,
order, standard of general application, or other rule, which is a regulation as
5The writ provides that “until formal rulemaking is completed,” the
township cap of 136,000 adjusted total pounds and the prohibition on
December applications remain in place “as interim measures to address
potential cancer risks to bystanders from the use of 1,3-D.”
12
defined in [Government Code s]ection 11342.600, unless [the same] has been
adopted as a regulation and filed with the Secretary of State pursuant to this
chapter.” (Gov. Code, § 11340.5, subd. (a).) In turn, “regulation” is defined as
“every rule, regulation, order, or standard of general application or the
amendment, supplement, or revision of any rule, regulation, order, or
standard adopted by any state agency to implement, interpret, or make
specific the law enforced or administered by it, or to govern its procedure.”
(Id., § 11342.600.)
“A regulation subject to the APA thus has two principal identifying
characteristics. [Citation.] First, the agency must intend its rule to apply
generally, rather than in a specific case. The rule need not, however, apply
universally; a rule applies generally so long as it declares how a certain class
of cases will be decided. [Citation.] Second, the rule must ‘implement,
interpret, or make specific the law enforced or administered by [the agency],
or . . . govern [the agency’s] procedure.’ ” (Tidewater, supra, 14 Cal.4th at
p. 571.) Here, the trial court concluded that the township cap program is a
regulation under Tidewater because it “is a rule that applies generally to all
end users of 1,3-D products” and “implements the law enforced or
administered by [the Department].”
A motion for summary judgment is properly granted if “there is no
triable issue as to any material fact and . . . the moving party is entitled to a
judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) Whether
an agency action qualifies as a regulation under the APA is a question of law,
and thus resolution of the issue through summary judgment is particularly
appropriate. (County of San Diego v. Bowen (2008) 166 Cal.App.4th 501, 517;
see Archer v. Coinbase, Inc. (2020) 53 Cal.App.5th 266, 278.) We review a
grant of summary judgment de novo. (Aguilar v. Atlantic Richfield Co. (2001)
13
25 Cal.4th 826, 860.) Although we independently consider whether summary
judgment was properly granted, “ ‘it is the appellant’s responsibility to
affirmatively demonstrate error,’ ” and “review is limited to issues adequately
raised and supported in the appellant’s brief.” (Christoff v. Union Pacific
Railroad Co. (2005) 134 Cal.App.4th 118, 125–126.)
B. The Agency Rule at Issue
We begin by addressing the contours of the pertinent agency rule. The
trial court determined that the rule at issue was the revised township cap
program, whose “two primary components” are “(1) the ‘annual limit’ and
(2) the ‘prohibition in December.’ ” The court also concluded that the
program, while set out in the October 2016 final risk management directive,
the MOU, the January 2017 letter to the commissioners, and/or revised
Appendix J, was “implemented . . . as a condition of the registration of 1,3-D.”
Certain aspects of this ruling are not at issue. First, it is undisputed
that the township cap program amounts to a condition of 1,3-D’s continued
registration. Second, plaintiffs do not challenge the trial court’s
determination that the December prohibition did not require rulemaking
under the APA. 6 Accordingly, we focus on whether the annual cap on 1,3-D’s
use in a particular township, as a condition of Dow’s continued registration of
the pesticide, qualifies as a regulation.
On appeal, Dow and the Department fail to grapple with this framing
of the relevant rule. Both parties claim that plaintiffs in fact “challenge[d]
two discrete [Department] documents as supposed ‘underground
regulations,’ ” the final risk management directive and revised Appendix J.
6Specifically, the trial court concluded that the December prohibition is
“similar to a labeling issue” and therefore not a regulation under the APA.
(See Patterson Flying Service v. Department of Pesticide Regulation (2008)
161 Cal.App.4th 411, 429 (Patterson).)
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According to Dow and the Department, the revisions to the township cap
program were implemented and are enforceable solely through the MOU, but
since plaintiffs did not challenge that document in the petition it is “outside
the scope of this litigation.” In its final order, however, the trial court
explicitly rejected these arguments, and neither Dow nor the Department
attempts to explain why the court thereby erred.
In our view, the trial court correctly refused to take such a constrained
view of plaintiffs’ claims. A regulation subject to the APA may exist even if
the agency never “promulgate[s] a written policy” setting forth the rule at all.
(Morning Star, supra, 38 Cal.4th at p. 336.) In Morning Star, for example,
although the agency’s interpretation of a governing statute was never set
forth in a particular document, “the record establishe[d] that [the agency’s
interpretation had] been as fixed and far reaching as would be the case if a
written policy had been issued.” (Ibid.) The Supreme Court rejected the
notion that the lack of a written policy was significant, stating that it
“decline[d] to endorse an approach that would allow an agency to avoid APA
requirements simply by driving its regulations further underground.” (Ibid.)
In other words, the form of an agency rule is not necessarily determinative of
whether it qualifies as a regulation. Rather, the focus is on whether, as
actually applied, it meets the Tidewater requirements. Thus, even if we
assumed that the MOU is the only document that “implemented” or made
“enforceable” the township cap program, that does not mean the MOU itself
is the rule at issue. Rather, it is merely one of the documents that
memorializes the rule.
Consistent with this view, the petition challenged “revised permit
conditions for 1,3-D effective January 1, 2017,” that were “[publicly] released”
on January 10 and “had been announced in” the final risk management
15
directive. Although the petition elsewhere characterized the risk
management directive and revised Appendix J as “underground regulations”
themselves, plaintiffs’ motion for summary judgment made clear their
position that “the actions of [the Department] to implement a township cap
program” amounted to a regulation. Thus, we find it of little significance that
the petition did not specifically refer to the MOU. This is particularly true
since, as the trial court found, Dow and the Department had “a fair
opportunity” in their briefing below to respond to the identification of the
relevant agency rule. (Cf. Laabs v. City of Victorville (2008) 163 Cal.App.4th
1242, 1258 & fn. 7 [where defendant moves for summary judgment, allowing
plaintiff to expand claims in opposition without amending pleading “allows
nothing more than a moving target”].)
In short, we agree with plaintiffs and the trial court that the agency
rule at issue is the revised township cap program, and particularly the
annual cap on the amount of 1,3-D that may be applied in a township.
Therefore, we turn to address whether that program—not the final risk
management directive, revised Appendix J, or the MOU individually—
qualifies as a regulation under Tidewater.
C. The First Tidewater Requirement
As we have said, the first characteristic of a regulation subject to the
APA is that “the agency must intend its rule to apply generally, rather than
in a specific case.” (Tidewater, supra, 14 Cal.4th at p. 571.) The trial court
concluded that the township cap program applies generally under Tidewater
because it “limits whether any potential user of a 1,3-D product can use it in
a township given the aggregate use of the product to date.” The court also
noted that “[t]he MOU states that if any other producer or registrant
introduces a 1,3-D product then [the Department] must require that new
16
producer or registrant to discharge the same tasks and duties that [Dow] has
under the MOU,” and revised Appendix J “states that it applies generally to
‘pesticide products containing the active ingredient . . . [1,3-D],’ ” not just
Dow’s products. In other words, the annual limit affects not just Dow but all
California users of 1,3-D, as well as any future other registrants of a product
containing the chemical. 7
Initially, we consider and reject Dow’s suggestion that conditions of
registration categorically are not subject to rulemaking. Dow points to a
provision that exempts from APA rulemaking procedures any “regulation
that is directed to a specifically named person or to a group of persons and
does not apply generally throughout the state” (Gov. Code, § 11340.9,
subd. (i)), implying that any condition “to continued registration of a
particular chemical . . . by a particular company” would meet the exemption.
The Department, proceeding from its incorrect framing of the issue as
“whether the MOU itself is a regulation under the APA,” argues more directly
that this exemption applies because “the MOU is ‘directed to’ a single
entity—[Dow], the registrant.” But the trial court determined the exemption
did not apply, reasoning that the township cap program was “directed” not
just to Dow but to users of 1,3-D products generally, and an interpretation
otherwise “would be unreasonable and unworkable” because it would cause
the exemption to “disappear[]” if another manufacturer of 1,3-D entered the
California market. Neither Dow nor the Department attempts to explain
7In concluding that the township cap program is a regulation, the trial
court gave “some weight” to the fact the Department previously promulgated
through formal rulemaking similar regulations to address the use of methyl
bromide. We need not address the parties’ dispute about whether this
analysis was proper, as we ultimately review the court’s result, not its
reasoning. (Carnes v. Superior Court (2005) 126 Cal.App.4th 688, 694.)
17
why the court’s reasoning was incorrect, and their arguments that this
exemption applies are thus forfeited.
In suggesting that conditions of registration generally do not qualify as
regulations, Dow also states that the fact “the relevant Food & Agricultural
Code sections governing [the Department’s] authority to place conditions on a
pesticide regulation do not require APA rulemaking procedures” is “ ‘strong
evidence that the Legislature did not intend to require’ APA rulemaking for
those discrete actions.” This argument “lack[s] persuasive force,” however,
“because the APA does not have to be referenced in a statute . . . before it
applies: It applies generally to any regulation meeting the APA definition,
absent an exemption.” (Savient Pharmaceuticals, Inc. v. Department of
Health Services (2007) 146 Cal.App.4th 1457, 1469; Morning Star, supra,
38 Cal.4th at p. 335.) Moreover, Dow again fails to acknowledge that the
trial court ruled against it on the issue, by specifically refusing to find “an
implied exception” of “the pesticide registration process” from the APA’s
rulemaking requirements. Any claim the court thereby erred is thus forfeited
as well.
Relying on Patterson, Dow and the Department also urge that a
condition of a specific party’s registration of a specific pesticide is not
generally applicable under Tidewater. The Patterson appellants challenged a
fine imposed on a company “for failing to follow the label directions when it
made an aerial application of pesticides.” (Patterson, supra, 161 Cal.App.4th
at p. 417.) The fine was imposed under section 12973, “which provides: ‘The
use of any pesticide shall not conflict with labeling registered pursuant to
this chapter which is delivered with the pesticide or with any additional
limitations applicable to the conditions of any permit issued by the director or
commissioner.’ ” (Patterson, at p. 417.) The Fifth District Court of Appeal
18
rejected the appellants’ claim that the labeling “was an ‘underground
regulation’ pursuant to which it was improper to impose a penalty.” (Id. at
p. 429.) The court reasoned that the fine was in fact imposed for violating
section 12973, and the labeling itself “[was] not intended to apply generally
rather than to a specific pesticide; it [was] not approved or registered to
implement, interpret[,] or make specific the law enforced by the agency.
Rather, the labeling [was] intended to accurately inform the user of the
purposes for which the pesticide may be used, the manner in which it may be
used, and the hazards involved in its use.” (Patterson, at p. 429.)
We decline to read Patterson’s statement that pesticide labeling is “not
intended to apply generally rather than to a specific pesticide” (Patterson,
supra, 161 Cal.App.4th at p. 429) to mean that any agency rule addressing
only a particular pesticide can never qualify as a regulation. The line
between rules that “apply generally, rather than in a specific case”
(Tidewater, supra, 14 Cal.4th at p. 571) reflects the distinction between the
“adjudicatory determinations of an administrative agency [and the] . . .
actions undertaken by such an agency in its legislative capacity.”
(Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d
28, 34, fn. 2; see Tidewater, at pp. 571, 573–575.) 8 “Generally speaking, a
legislative action is the formulation of a rule to be applied in all future cases,
while an adjudicatory act involves the actual application of such a rule to a
specific set of existing facts.” (Strumsky, at p. 34, fn. 2.) The touchstone is
8 Under Tidewater, the distinction is more nuanced than simply
legislative versus adjudicative, in that a rule interpreting existing law (an
interpretive regulation) may require rulemaking even though it is not
“adopt[ed] . . . pursuant to delegated legislative power.” (Tidewater, supra,
14 Cal.4th at pp. 574–575; see Alvarado v. Dart Container Corp. of California
(2018) 4 Cal.5th 542, 556.) There is no question, however, that an agency’s
adjudicative actions do not qualify as regulations under the APA.
19
whether the rule will apply in more than one set of circumstances, not merely
whether it relates to a particular regulated item. (See Pitts v. Perluss (1962)
58 Cal.2d 824, 834 [“the distinction between the quasi-legislative and quasi-
judicial decision contemplates the function performed rather than the area of
performance”].) Other decisions Dow attempts to analogize to this case are
not to the contrary. (See Faulkner v. Cal. Toll Bridge Authority (1953)
40 Cal.2d 317, 321–324 [agency’s approval of bonds for construction of single
bridge not regulation because pertained to specific project]; Pacific Gas &
Electric Co. v. Department of Water Resources (2003) 112 Cal.App.4th 477,
505–507 [agency’s mechanism for recovering costs from “discrete project” not
regulation because would not apply in future].)
Similarly, the fact that Dow is the only registrant of 1,3-D for use in
California does not establish that the township cap program is insufficiently
general to qualify as a regulation. It may be that a condition of one party’s
registration of a single pesticide does not apply generally if it governs only
that party’s actions. Here, however, the MOU states that the township cap
program will apply to any other future registrants of 1,3-D products. And
more importantly, the MOU requires Dow to ensure “the township caps are
not exceeded” when deciding whether to approve the recommendation of a
licensed pest control advisor, and a Dow-approved recommendation is a
prerequisite to submitting a notice of intent to a commissioner. 9 In other
9 Similarly, revised Appendix J requires commissioners to reject a
notice of intent “if the proposed application [adjusted total pounds] exceeds
the available use limit balance in a township.” The parties disagree about
whether the recommended permit conditions are binding on the
commissioners, but we need not resolve this dispute. As Dow and the
Department point out, in theory a notice of intent cannot be submitted to a
commissioner without a Dow-approved recommendation of a licensed pest
control adviser. Thus, even if a commissioner could choose not to adopt all
20
words, every operator who wishes to apply 1,3-D must obtain Dow’s approval,
and Dow is required to withhold approval for any application that would
exceed the local cap in a given year. The program thus imposes statewide
limits on the use, and users, of 1,3-D.
The Department argues that, to the contrary, the MOU “does not place
restrictions on . . . end-users” because it “will impact 1,3-D use in a township
only when use exceeds the numeric limit on supply in that township.
Generally, any such impacts are speculative and depend on the user and the
township that [the] user is in. By contrast, [Dow] is the only entity with a
direct and immediate change to its obligations under the MOU.” But an
agency rule is no less “generally applicable” just because the specific parties
against which it could be enforced are not identified when it is promulgated.
The township cap program may never affect a given operator in the sense of
preventing the operator from using the amount of 1,3-D it wants to, but the
program still applies to all operators in the state who seek to use the
pesticide. Thus, while we agree with the Department that the program is not
generally applicable merely because it impacts the public at large by
protecting against the “risks of long-term exposure to 1,3-D” (see Faulkner v.
Cal. Toll Bridge Authority, supra, 40 Cal.2d at pp. 323–324), its impact on
users of 1,3-D is significantly more concrete.
Finally, accepting the Department’s argument would mean that an
agency could avoid formal rulemaking by contracting with a regulated party
to implement the rule. We agree with the trial court, however, that “a state
regulation that is implemented through a private intermediary is still a
regulation.” The fact that Dow happens to be the only registrant of 1,3-D in
the recommended permit conditions, Dow can still ensure township caps are
not exceeded.
21
California does not mean the Department can informally regulate the
pesticide at will so long as its rules are implemented as conditions of Dow’s
registration. In sum, the township cap program is a rule of general
application.
D. The Second Tidewater Requirement
For a rule to qualify as a regulation under the second prong of
Tidewater, it “must ‘implement, interpret, or make specific the law enforced
or administered by [the agency].’ ” (Tidewater, supra, 14 Cal.4th at p. 571.)
The trial court did not analyze this issue, viewing it as uncontested. We
agree there can be no real dispute that the township cap program implements
the law regulating pesticides, which the Department is responsible for
enforcing. (Californians for Alternatives, supra, 136 Cal.App.4th at p. 1056.)
The purpose of that law is “to provide for the proper, safe, and efficient use of
pesticides essential for production of food and fiber, and to protect the public
health and safety, as well as the environment, from harmful pesticides by
ensuring proper stewardship of those pesticides.” (Ibid., citing § 11501.)
Setting a township cap of 136,000 adjusted pounds as the maximum amount
of 1,3-D that may safely be applied in a given year “make[s] specific” the law
requiring the Department to regulate as “restricted materials” pesticides that
may be especially hazardous. (§ 14001 et seq.)
Dow claims that the township cap program nevertheless does not meet
the second Tidewater requirement because the documents describing the
program “simply provide guidance . . . regarding certain conditions . . . that, if
unsatisfied or violated, would potentially cause [the Department] to take
appropriate action against [Dow’s] product registrations.” According to Dow,
because in the MOU the Department did not promise either to cancel Dow’s
registrations if the company failed to enforce the township cap or not to
22
cancel the company’s registrations if it did comply with this condition, the
documents at issue did not affect the Department’s already-existing authority
over registrations. But Dow incorrectly focuses on the mechanism by which
the township cap program was implemented instead of on the program’s
practical effect. The program is a rule governing how 1,3-D will be used, not
a rule governing how the Department will register pesticides. As such, it
clearly implements and makes specific the law the Department administers.
III.
DISPOSITION
The writ of mandate and judgment in favor of plaintiffs are affirmed.
Plaintiffs are awarded their costs on appeal.
23
_________________________
Humes, P.J.
WE CONCUR:
_________________________
Banke, J.
_________________________
Sanchez, J.
Vasquez v. California Dept. of Pesticide Regulation A154922
24
Trial Court:
Superior Court of the County of Alameda
Trial Judge:
Hon. Winifred Y. Smith
Counsel for Intervener and Appellant:
Stanley W. Landfair, David R. Simonton, Robert S. Schuda, Jessica L.
Duggan, Dentons US; Trenton H. Norris, Sean M. SeLegue, Arnold & Porter
Kaye Scholer
Counsel for Plaintiffs and Respondents:
Michael Meuter, Aaron Voit, Daniel Nesbit, California Rural Legal
Assistance; Michael Freund, Michael Freund & Associates
Counsel for Defendant and Respondent:
Xavier Becerra and Rob Bonta, Attorneys General, Robert W. Byrne,
Senior Assistant Attorney General, Annadel A. Almendras, Supervising
Deputy Attorney General, Marc N. Melnick, Tamara T. Zakim, Deputy
Attorneys General
Vasquez v. California Dept. of Pesticide Regulation A154922
25