Case 2:21-cv-01580 Document 1-1 Filed 11/23/21 Page 1 of 65
`Case 2:21-cv-01580 Document 1-1 Filed 11/23/21 Page 1 of 65
`
`IN THE SUPERIOR COURT FOR THE STATE OF WASHINGTON
`IN AND FOR SKAGIT COUNTY
`
`CASE NO. 21-2-00607-29
`
`FIRST AMENDED COMPLAINT FOR
`TRESPASS, NUISANCE, STATUTORY
`WASTE, TIMBER TRESPASS, STRICT
`LIABILITY, NEGLIGENCE, BREACH OF
`AGREEMENT, AND FOR PERMANENT
`INJUNCTION
`
`))))))))))))))))))))))
`
`SANDHU FARM INC., a Washington
`corporation; JAGMOHAN 8S. SANDHU
`and KARMJIT K. SANDHU,husband and
`wife; INDERJIT SANDHU and
`CHARMJIT SANDHU,husbandand wife;
`and SHAMSHERS. SANDHU and
`DHARMVIR K. SANDHU,husbandandwife,
`
`Plaintiffs,
`
`Vs.
`
`FERROSAFE,LLC,an Arizona limited
`liability company registered to do business in
`Washington; and BNSF RAILWAY
`COMPANY,a Delawarecorporation
`registered to do business in Washington,
`
`Defendants.
`
`a)
`
`COME NOWPlaintiffs Sandhu Farm Inc., Jagmohan S. Sandhu, Karmjit K. Sandhu,
`
`Inderjit Sandhu, Charmjit Sandhu, Shamsher S. Sandhu, and Dharmvir K. Sandhu, by and
`
`through their attorneys of record, Wolf & Lee, LLP, and by way of Complaint for Trespass,
`
`FIRST AMENDED COMPLAINT FOR TRESPASS,
`NUISANCE, STATUTORY WASTE, TIMBER
`TRESPASS, STRICT LIABILITY, NEGLIGENCE,
`BREACH OF AGREEMENT, AND FOR
`PERMANENTINJUNCTION
`Page1 of 14
`
`WOLF & LEE, LLP
`230 E. Champion Street
`Bellingham, WA 98225
`Ph: (360) 676-0306/Fax: (360) 676-8058
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`Case 2:21-cv-01580 Document 1-1 Filed 11/23/21 Page 2 of 65
`Case 2:21-cv-01580 Document 1-1 Filed 11/23/21 Page 2 of 65
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`Nuisance, Statutory Waste, Timber Trespass, Strict Liability, Negligence, Breach of Contract,
`
`and for Permanent Injunction allege, claim, and pray as follows:
`
`I.
`
`PARTIES & JURISDICTION
`
`1.1
`
`Plaintiffs Jagmohan S. Sandhu, Karmjit K. Sandhu, Inderjit Sandhu, Charmyjit
`
`Sandhu, Shamsher S. Sandhu, and Dharmvir K. Sandhu (collectively “Sandhu”) own that real
`
`property located in Skagit County, Washington and legally described in Exhibits A-B, attached
`
`hereto and incorporated by reference. More particularly, Sandhu own that real property legally
`
`described in Exhibit A, and Shamsher S. Sandhu and Dharmvir K. Sandhu own that real
`
`property legally described in Exhibit B (collectively the “Sandhu Property”).
`
`1.2.‘
`
`Plaintiff Sandhu Farm Inc. (“Sandhu Farm’) is a Washington corporation that
`
`operates a blueberry farm on the Sandhu Property.
`
`1.3.
`
`Defendant Ferrosafe, LLC (“Ferrosafe”) is an Arizona limited liability company
`
`registered to do business in Washington that provides weed control services in Western
`
`Washington. Based upon knowledge andbelief, Ferrosafe provides weed control services for
`
`Defendant BNSF Railway Company’s (“BNSF”) railroad rights-of-way located in Western
`
`Washington, including the BNSFright-of-way adjacent to the Sandhu Property.
`
`1.4
`
`BNSFis a Delaware corporation, registered to do business in Washington.
`
`Based upon knowledge and belief, BNSF owns and operates a network of railroad rights-of-
`
`way in and aroundthe state of Washington, including a line that runs adjacent to the Sandhu
`
`Property.
`
`1.5
`
`This matter concerns damage to Sandhu’s blueberry plants and the Sandhu
`
`Property caused by pesticides applied by Ferrosafe on the BNSFright-of-way that invaded the
`
`FIRST AMENDED COMPLAINT FOR TRESPASS,
`NUISANCE, STATUTORY WASTE, TIMBER
`TRESPASS, STRICT LIABILITY, NEGLIGENCE,
`BREACH OF AGREEMENT, AND FOR
`PERMANENT INJUNCTION
`Page 2 of 14
`
`WOLF & LEE, LLP
`230 E. ChampionStreet
`Bellingham, WA 98225
`;
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`:
`Ph: (360) 676-0306/Fax: (360) 676-8058
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`Case 2:21-cv-01580 Document 1-1 Filed 11/23/21 Page 3 of 65
`Case 2:21-cv-01580 Document 1-1 Filed 11/23/21 Page 3 of 65
`
`Sandhu Property. Venue is proper pursuant to RCW 4.12.010(1), as the subject property is
`
`located in Skagit County. This Court has jurisdiction over the parties. This Court has
`
`jurisdiction over Ferrosafe and BNSF pursuant to RCW 4.28.185, based upon the transacting
`
`of business within the state, and/or committing a tort within thestate.
`
`IL.
`
`FACTS
`
`2.1
`
`Sandhu restate and incorporate by reference the allegations contained in
`
`paragraphs 1.1 through 1.5 herein.
`
`2.2
`
`The Sandhu Property consists of farmland, most of which is planted with mature
`
`blueberry plants. The Sandhu Property is bordered to the west by the BNSFright-of-way. A
`
`map depicting the Sandhu Property and BNSFright-of-way is attached hereto and incorporated
`
`by reference as Exhibit C.
`
`2.3.
`
`In 2017, Sandhu brought claims in Skagit County Superior Court Case No. 17-
`
`2-00609-5 (the “Action”) against Ferrosafe and its predecessor-in-interest, Rumble Spray,Inc.,
`
`seeking recovery of damageto their property caused by application of pesticides to the BNSF
`
`right-of-way adjacent
`
`to the Sandhu Property, which landed on and damaged Sandhu’s
`
`blueberry plants. The Action resolved through entry by the parties in a Settlement Agreement,
`
`a true and correct copy of which is attached hereto and incorporated by reference as Exhibit D
`
`(“Agreement”). Under the Agreement, Ferrosafe agreed, inter alia, as follows:
`
`“No wide
`
`spray-which means that no one should spray wide in the summer between Bow Hill Road and
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`Colony Road, Skagit County Washington, except for touchup work within fourteen feet from
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`the center of any rail line and only to meet the requirements of the BNSF and the Federal
`
`Railroad Administration.” Id. at p. 2, 3.
`
`FIRST AMENDED COMPLAINT FOR TRESPASS,
`NUISANCE, STATUTORY WASTE, TIMBER
`TRESPASS, STRICT LIABILITY, NEGLIGENCE,
`BREACH OF AGREEMENT, AND FOR
`PERMANENT INJUNCTION
`Page 3 of 14
`
`WOLF & LEE, LLP
`230 E. ChampionStreet
`Bellingham, WA 98225
`;
`,
`:
`Ph: (360) 676-0306/Fax: (360) 676-8058
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`Case 2:21-cv-01580 Document 1-1 Filed 11/23/21 Page 4 of 65
`Case 2:21-cv-01580 Document 1-1 Filed 11/23/21 Page 4 of 65
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`2.4
`
`Sandhu agreed to a general release in the Agreement, but only to claims arising
`
`from “the spraying of any herbicides along the BNSFrail line prior to the execution of this
`
`Agreement....” Id. at p. 1, 4 1.
`
`2.5
`
`In early June 2021, Plaintiff Jagmohan S. Sandhu observed that some of the
`
`leaves on the blueberry plants closest to the railroad tracks were crinkled and curled instead of
`
`smooth. Theirregular leaves were only observed on plants in the area of the field closest to the
`
`railroad tracks, while the most damage appeared to be concentrated in areas where the
`
`vegetation buffer between the Sandhu Property andthe railroad tracks wassparce.
`
`2.6
`
`Samples taken from affected plant tissue collected on June 8, 2021, tested
`
`positive for substances, including, but not limited to, sulfometuron-methyl, 2,4-D andtriclopyr.
`
`2.7
`
`Based upon knowledge and belief, sulfometuron-methyl, 2,4-D, triclopyr are
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`active ingredients in herbicides, including in terms of sulfometuron-methyl, Oust® Extra, and
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`are all toxic to plants, including blueberries. Sandhu have never applied herbicides containing
`
`sulfometuron-methyl, 2,4-D andtriclopyr to the Sandhu Property.
`
`2.8
`
`Based upon knowledge and belief, from 2016 through the present, Defendants
`
`or
`
`their predecessors-in-interest have periodically applied herbicides,
`
`including those
`
`containing sulfometuron-methy], 2,4-D andtriclopyr to the BNSFright-of-way adjacent to the
`
`Sandhu Property. Based upon knowledgeandbelief, such applications are made from a truck
`
`owned and operated by Ferrosafe with an adjustable spray boom attachmentthat is driven on
`
`the railroad tracks.
`
`FIRST AMENDED COMPLAINT FOR TRESPASS,
`NUISANCE, STATUTORY WASTE, TIMBER
`TRESPASS, STRICT LIABILITY, NEGLIGENCE,
`BREACH OF AGREEMENT, AND FOR
`PERMANENT INJUNCTION
`Page 4 of 14
`
`WOLF & LEE, LLP
`230 E. Champion Street
`Bellingham, WA 98225
`_
`.
`.
`_
`Ph: (360) 676-0306/Fax: (360) 676-8058
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`Case 2:21-cv-01580 Document 1-1 Filed 11/23/21 Page 5 of 65
`Case 2:21-cv-01580 Document 1-1 Filed 11/23/21 Page 5 of 65
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`2.9
`
`Sandhu have previously incurred damages, including crop loss, due to herbicide
`
`contamination on the Sandhu Property originating from the BNSF right-of-way, which was the
`
`subject of the Action.
`
`2.10 Based upon knowledge and belief,
`
`in 2021, Ferrosafe, by and through the
`
`approval and instructions of BNSF, applied herbicides to the BNSF right-of-way adjacent to
`
`the Sandhu Property that settled onto and caused damage to the Sandhu Property and blueberry
`
`plants, distinct from and subsequent to the damages that were the subject of the Action. Such
`
`applications were not subject to the general release contained in the Agreement.
`
`2.11
`
`In particular, on or about April 19 and May 11, 2021, Ferrosafe applied Oust®
`
`Extra, an herbicide containing the active ingredient sulfometuron-methyl, to the BNSF right-
`
`of-way adjacent to the Sandhu Property that settled onto and caused damage to the Sandhu
`
`Property and blueberry plants.
`
`2.12 Based upon knowledge and belief, wind speeds were in excess of 10 mph
`
`during some of the time periods that Ferrosafe was applying Oust® Extra around the Sandhu
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`Property on April 19 and May 11, 2019, based upon recorded information at the nearby Skagit
`
`Regional Airport.
`
`2.13
`
`The specimen label for Oust® Extrastates:
`
`injurious to plants at extremely low concentrations.
`This herbicide is
`Nontarget plants may be adversely effected from drift and run-off.
`
`2K
`
`Do not apply when wind speeds exceed 10 miles per hour at the application
`site.
`
`KK
`
`AVOID
`speed.
`increases with wind
`generally
`potential
`Drift
`APPLICATIONS DURING GUSTY WIND CONDITIONS. Applicators
`
`FIRST AMENDED COMPLAINT FOR TRESPASS,
`NUISANCE, STATUTORY WASTE, TIMBER
`TRESPASS, STRICT LIABILITY, NEGLIGENCE,
`BREACH OF AGREEMENT, AND FOR
`PERMANENT INJUNCTION
`Page 5 of 14
`
`WOLF & LEE, LLP
`230 E. ChampionStreet
`Bellingham, WA 98225
`;
`,
`:
`Ph: (360) 676-0306/Fax: (360) 676-8058
`
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`Case 2:21-cv-01580 Document 1-1 Filed 11/23/21 Page 6 of 65
`Case 2:21-cv-01580 Document 1-1 Filed 11/23/21 Page 6 of 65
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`need to be familiar with local wind patterns andterrain that could affect spray
`drift.
`
`3 3 2
`
`Understanding the risks associated with the application of OUST EXTRA
`HERBICIDEis essential
`to aid in preventing off-site injury to desirable
`vegetation and agricultural crops. The risk of off-site movement both during
`and after application may be affected by a numberofsite specific factors such
`as the nature, texture and stability of the soil, the intensity and direction of
`prevailing winds, vegetative cover, site slope, rainfall, drainage patterns, and
`other local physical and environmental conditions. A careful evaluation of the
`potential for off-site movement from the intended application site, including
`movement of treated soil by wind or water erosion, must be made prior to
`using OUST EXTRA HERBICIDE. This evaluation is particularly critical
`where desirable vegetation or crops are grown on neighboring land for which
`the use of OUST EXTRA HERBICIDEisnot labeled.
`If prevailing local
`conditions may be expected to result in off-site movement and cause damage
`to neighboring desirable vegetation or agricultural crops, do not apply OUST
`EXTRA HERBICIDE.
`
`A true and correct copy of the EPA-approved label is attached hereto and incorporated by
`
`reference as Exhibit E (citations at pp. 3, 4, 6, and 11).
`
`2.14
`
`Ferrosafe knew or should have known with substantial certainty that herbicides
`
`applied to the BNSF right-of-way in the manner and underthe conditions applied, were likely
`
`to become volatile and/or drift onto the Sandhu Property. Ferrosafe knew or should have
`
`known thatits actions were, and continue to be, without authority, permission,orright.
`
`2.15 Defendants’ continued application of herbicides has caused, and will continue to
`
`cause, damages and harm to the Sandhu Property.
`
`II.
`
`FIRST CAUSE OF ACTION — TRESPASS
`(Ferrosafe)
`
`3.1
`
`Sandhurestate and incorporate by reference paragraphs 1.1 through 2.15 herein.
`
`FIRST AMENDED COMPLAINT FOR TRESPASS,
`NUISANCE, STATUTORY WASTE, TIMBER
`TRESPASS, STRICT LIABILITY, NEGLIGENCE,
`BREACH OF AGREEMENT, AND FOR
`PERMANENT INJUNCTION
`Page6 of 14
`
`WOLF & LEE, LLP
`230 E. ChampionStreet
`Bellingham, WA 98225
`;
`,
`:
`Ph: (360) 676-0306/Fax: (360) 676-8058
`
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`Case 2:21-cv-01580 Document 1-1 Filed 11/23/21 Page 7 of 65
`Case 2:21-cv-01580 Document 1-1 Filed 11/23/21 Page 7 of 65
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`3.2
`
`Under Bradley v. American Smelting and Refining Co., 104 Wn.2d 677, 709
`
`P.2d 782 (1985),
`
`to recover under a trespass theory based on the deposit of airborne
`
`particulates onto plaintiff's land:
`
`a plaintiff must show: 1) an invasion affecting an interest in the exclusive
`possession of his property; 2) an intentional doing of the act which results in
`the invasion; 3) reasonable foreseeability that the act done could result in an
`invasion ofplaintiff's possessory interest; and (4) substantial damages to the
`res.
`
`Id. at 691. The intent element requires “a volitional act undertaken with the knowledge and
`
`substantial certainty that reasonably to be expected consequences would follow.”Id. at 683.
`
`3.3.‘
`
`Ferrosafe, and/or persons for whom Ferrosafe is vicariously liable, has
`
`unlawfully invaded Sandhu’s interest in the exclusive possession of the Sandhu Property by
`
`depositing pesticides onto the Sandhu Property without permission, authority, or right. Such
`
`acts were intentional and undertaken with the knowledge and substantial certainty that the
`
`herbicides would drift onto the Sandhu Property, and with a reasonable foreseeability that such
`
`acts would disturb Sandhu’s possessory interests. Such acts have caused substantial damage to
`
`and continue to infect the Sandhu Property and blueberry plants, which is ongoing and
`
`continuing in nature, and constitutes a continuing trespass. Sandhu have suffered, and will
`
`continue to suffer, damages from such trespass in an amount to be determinedbythetrier of
`
`fact herein.
`
`3.4
`
`Ferrosafe’s actions and trespasses have caused, and will continue to cause,
`
`Sandhu to suffer actual and substantial harm, and damages in an amount to be determined by
`
`the trier of fact herein, including, but not limited to, non-economic damages, including, but not
`
`limited to, emotional distress damages.
`
`FIRST AMENDED COMPLAINT FOR TRESPASS,
`NUISANCE, STATUTORY WASTE, TIMBER
`TRESPASS, STRICT LIABILITY, NEGLIGENCE,
`BREACH OF AGREEMENT, AND FOR
`PERMANENT INJUNCTION
`Page7 of 14
`
`WOLF & LEE, LLP
`230 E. ChampionStreet
`Bellingham, WA 98225
`;
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`:
`Ph: (360) 676-0306/Fax: (360) 676-8058
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`Case 2:21-cv-01580 Document 1-1 Filed 11/23/21 Page 8 of 65
`Case 2:21-cv-01580 Document 1-1 Filed 11/23/21 Page 8 of 65
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`IV.
`
`SECOND CAUSEOF ACTION — NUISANCE
`(Ferrosafe)
`
`4.1
`
`4.2
`
`Sandhurestate and incorporate by reference paragraphs1.1 through 3.4 herein.
`
`Ferrosafe, and/or persons for whom Ferrosafe is vicariously liable, intentionally
`
`applied pesticides to the BN right-of-way in such a mannerthat the pesticides invaded the
`
`Sandhu Property. Such acts have unreasonably interfered with Sandhu’s use and enjoyment of
`
`their property and constitute a nuisance under RCW 7.48.010 and Riblet v. Ideal Cement Co.,
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`57 Wn.2d 619, 358 P.2d 975 (1961). Ferrosafe’s application of pesticides to the BNSFright-
`
`of-way in such a mannerthat the pesticides drifted onto the Sandhu Property was unreasonable.
`
`Such acts have damaged Sandhu’s blueberry plants and crop, substantially interfering with
`
`Sandhu’s use and enjoyment of the land and injured plants, and Sandhu’s ability to farm
`
`blueberries in the affected area. Sandhu have suffered, and will continue to suffer, damages
`
`from such nuisance in an amountto be determinedbythetrier of fact herein.
`
`4.3
`
`Ferrosafe’s actions and nuisances have caused, and will continue to cause,
`
`Sandhu to suffer actual and substantial harm, and damages in an amount to be determined by
`
`the trier of fact herein, including, but not limited to, non-economic damages, including, but not
`
`limited to, emotional distress damages.
`
`V.
`
`THIRD CAUSE OF ACTION — TIMBER TRESPASS
`UNDER RCW 64.12.030
`(Ferrosafe)
`
`5.1
`
`5.2.
`
`Sandhurestate and incorporate by reference paragraphs 1.1 through 4.3 herein.
`
`Ferrosafe, and/or persons for whom Ferrosafe is vicariously liable, have injured
`
`trees, timber, and/or shrubs on the Sandhu Property without lawful authority. Such actions by
`
`Ferrosafe were “willful” and were not casual or involuntary.
`FIRST AMENDED COMPLAINT FOR TRESPASS,
`NUISANCE, STATUTORY WASTE, TIMBER
`TRESPASS, STRICT LIABILITY, NEGLIGENCE,
`BREACH OF AGREEMENT, AND FOR
`PERMANENT INJUNCTION
`Page8 of 14
`
`WOLF & LEE, LLP
`230 E. ChampionStreet
`Bellingham, WA 98225
`;
`,
`:
`Ph: (360) 676-0306/Fax: (360) 676-8058
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`Case 2:21-cv-01580 Document 1-1 Filed 11/23/21 Page 9 of 65
`Case 2:21-cv-01580 Document 1-1 Filed 11/23/21 Page 9 of 65
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`5.3
`
`Sandhu are entitled to recover all damages caused by Ferrosafe, and/or persons
`
`for whom Ferrosafe is vicariously liable, for timber trespass under RCW 64.12.030, in an
`
`amount to be determined by the trier of fact herein, including economic damages, including,
`
`but not limited to, the lost production value of the injured blueberry plants, and non-economic
`
`damages, including, but not limited to, emotional distress damages, and further entitled to have
`
`all such damagestrebled based upon the willful acts of Ferrosafe, all of which were not casual
`
`or involuntary.
`
`VI.
`
`FOURTH CAUSE OF ACTION — STRICT LIABILITY
`(Ferrosafe)
`
`6.1
`
`6.2
`
`Sandhu restate and incorporate by reference paragraphs 1.1 through 5.3 herein.
`
`Ferrosafe’s application of herbicides is an abnormally dangerousactivity subject
`
`to strict liability under Langan v. Valicopters, Inc., 88 Wn.2d 855, 567 P.2d 218 (1977).
`
`In
`
`determining whether an act is “abnormally dangerous” for purposes of strict liability, the
`
`following factors are considered:
`
`(a) Whether the activity involves a high degree of risk of some harm to the
`person,land or chattels of others;
`
`(b) Whether the gravity of the harm which mayresult from it is likely to be
`great;
`
`(c) Whether the risk cannot be eliminated by the exercise of reasonable care;
`
`(d) Whetherthe activity is not a matter of commonusage;
`
`(e) Whether the activity is inappropriate to the place where it is carried on;
`and
`
`(f) The value ofthe activity to the community.
`
`Id. at 861.
`
`FIRST AMENDED COMPLAINT FOR TRESPASS,
`NUISANCE, STATUTORY WASTE, TIMBER
`TRESPASS, STRICT LIABILITY, NEGLIGENCE,
`BREACH OF AGREEMENT, AND FOR
`PERMANENT INJUNCTION
`Page 9 of 14
`
`WOLF & LEE, LLP
`230 E. ChampionStreet
`Bellingham, WA 98225
`;
`,
`:
`Ph: (360) 676-0306/Fax: (360) 676-8058
`
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`Case 2:21-cv-01580 Document 1-1 Filed 11/23/21 Page 10 of 65
`Case 2:21-cv-01580 Document1-1 Filed 11/23/21 Page 10 of 65
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`6.3.
`
`Ferrosafe’s application of pesticides to the BNSF right-of-way adjacent to the
`
`Sandhu Property involves a high degree of risk of injury to Sandhu, whoselandis planted with
`
`blueberries susceptible to herbicides. The gravity of harm which would result from herbicide
`
`drift onto the Sandhu Property is likely to be great, as herbicides applied by Ferrosafe are toxic
`
`to blueberries. The risk of drift or contamination of the Sandhu Property cannot be eliminated
`
`by the exercise of reasonable care. The application of the herbicides in the manner and of the
`
`type used by Ferrosafe is not a matter of common usage in the community. The application of
`
`herbicides toxic to blueberries is inappropriate in a right-of-way located adjacent to and above
`
`a blueberry field. The social value of applying herbicides to control weeds on the BNSFright-
`
`of-way is outweighed by the risk of harm to Sandhu. Ferrosafe isstrictly liable for damages
`
`proximately caused by its herbicide spraying activities.
`
`6.4
`
`Ferrosafe’s application of herbicides to the BNSFright-of-way is the proximate
`
`cause of damage to Sandhu,including, but not limited to, injury to Sandhu’s blueberry plants.
`
`6.5
`
`Ferrosafe’s actions have caused, and will continue to cause, Sandhu to suffer
`
`actual and substantial harm, and damages in an amount to be determined bythetrier of fact
`
`herein, including, but not limited to, non-economic damages, including, but not limited to,
`
`emotional distress damages.
`
`VIL
`
`FIFTH CAUSE OF ACTION — NEGLIGENCE
`(Ferrosafe)
`
`7.1
`
`7.2
`
`Sandhurestate and incorporate by reference paragraphs1.1 through 6.5 herein.
`
`7US.C. § 136j(2)(G) of the Federal Insecticide and Environmental Pesticide
`
`Control Act declares that
`
`it
`
`is unlawful “to use any registered pesticide in a manner
`
`inconsistent with its labeling.”
`FIRST AMENDED COMPLAINT FOR TRESPASS,
`NUISANCE, STATUTORY WASTE, TIMBER
`TRESPASS, STRICT LIABILITY, NEGLIGENCE,
`BREACH OF AGREEMENT, AND FOR
`PERMANENT INJUNCTION
`Page 10 of 14
`
`WOLF & LEE, LLP
`230 E. ChampionStreet
`Bellingham, WA 98225
`;
`,
`:
`Ph: (360) 676-0306/Fax: (360) 676-8058
`
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`Case 2:21-cv-01580 Document 1-1 Filed 11/23/21 Page 11 of 65
`Case 2:21-cv-01580 Document1-1 Filed 11/23/21 Page 11 of 65
`
`7.3.
`
`RCW 15.58.150(2)(c) of the Washington Pesticide Control Act provides that:
`
`“Tt shall be unlawful: .
`
`.
`
`. [fJor any person to use or cause to be used any pesticide contrary to
`
`label directions or to regulations of the director if those regulations differ from or further
`
`restrict the label directions .
`
`.
`
`. .”
`
`74
`
`RCW 17.21.150(4) declares that it is a violation of the Washington Pesticide
`
`Application Act to “[o]perate[] in a faulty, careless, or negligent manner.”
`
`7.5 WAC 16-228-1220(5) provides that:
`
`“No person shall apply pesticides if
`
`weather conditions are such that physical drift or volatilization may cause damage to adjacent
`
`land, humans,desirable plants or animals.”
`
`7.6 WAC 16—228—1220(2) provides that: “No person shall transport, handle, store,
`
`load, apply, or dispose of any pesticide, pesticide container or apparatus in such a manneras to
`
`pollute water supplies or waterways, or cause damage or injury to land, humans, desirable
`
`plants and animals, or wildlife.”
`
`7.7
`
`Under pertinent statutes, an herbicide is included within the definition of a
`
`“pesticide.”
`
`7.8
`
`At all material times hereto, Ferrosafe owed Sandhu a duty to use reasonable
`
`and ordinary care in applying herbicides on the BNSF right-of-way to avoid injury to the
`
`Sandhu Property. Ferrosafe breached this duty by,
`
`inter alia, applying herbicides against
`
`labeling instructions and in weather conditions conducive to drift, and/or in a manner that
`
`resulted in drift onto the Sandhu Property. Additionally, Ferrosafe breached a legal duty to
`
`Sandhu byfailing to comply with applicable laws and regulations, including 7 U.S.C. § 136),
`
`RCW 15.58.150, RCW 17.21.150, and WAC 16-228-1220. Ferrosafe’s breaches were the
`
`FIRST AMENDED COMPLAINT FOR TRESPASS,
`NUISANCE, STATUTORY WASTE, TIMBER
`TRESPASS, STRICT LIABILITY, NEGLIGENCE,
`BREACH OF AGREEMENT, AND FOR
`PERMANENT INJUNCTION
`Page 11 of 14
`
`WOLF & LEE, LLP
`230 E. ChampionStreet
`Bellingham, WA 98225
`;
`,
`:
`Ph: (360) 676-0306/Fax: (360) 676-8058
`
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`Case 2:21-cv-01580 Document 1-1 Filed 11/23/21 Page 12 of 65
`Case 2:21-cv-01580 Document1-1 Filed 11/23/21 Page 12 of 65
`
`proximate cause of damage to the Sandhu Property from herbicide drift. Such actions and
`
`inactions by Ferrosafe constitute negligence.
`
`7.9
`
`Sulfometuron-methyl, 2,4-D and triclopyr, which are all toxic to blueberries,
`
`would not ordinarily be found in blueberry plant tissue in the absence of negligence. Atall
`
`material times hereto, herbicides containing sulfometuron-methyl were applied by Ferrosafe to
`
`the BNSFright-of-way within the exclusive control of Ferrosafe.
`
`In addition, and based upon
`
`knowledge andbelief, Ferrosafe has applied herbicides containing 2,4-D andtriclopyr to the
`
`BNSFright-of-way adjacent to the Sandhu Property.
`
`In no way did Sandhu contribute to the
`
`occurrence of sulfometuron-methyl, 2,4-D and triclopyr in the blueberry plant tissue. Such
`
`actions and/or inactions by Ferrosafe entitle Sandhu to an inference of negligence under the
`
`doctrine of res ipsa loquitur and constitute negligence.
`
`7.10
`
` Ferrosafe’s negligence has caused Sandhu to suffer actual and substantial harm
`
`and damages in an amountto be determinedbythe trier of fact herein.
`
`Vill.
`
`SIXTH CAUSE OF ACTION — BREACH OF AGREEMENT
`(Ferrosafe )
`
`8.1
`
`8.2
`
`Sandhu restate and incorporate by reference paragraphs 1.1 through 7.10 herein.
`
`Under the Agreement, Ferrosafe agreed to refrain from spraying wide during the
`
`summer months.
`
`8.3
`
`The work by Ferrosafe, including, but not limited to, the spraying that occurred
`
`in April and May 2021, was, based upon knowledge and belief, wide spraying that occurred in
`
`the summer months, and therefore a breach of the Agreement.
`
`FIRST AMENDED COMPLAINT FOR TRESPASS,
`NUISANCE, STATUTORY WASTE, TIMBER
`TRESPASS, STRICT LIABILITY, NEGLIGENCE,
`BREACH OF AGREEMENT, AND FOR
`PERMANENT INJUNCTION
`Page 12 of 14
`
`WOLF & LEE, LLP
`230 E. ChampionStreet
`Bellingham, WA 98225
`;
`,
`:
`Ph: (360) 676-0306/Fax: (360) 676-8058
`
`— N
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`Case 2:21-cv-01580 Document 1-1 Filed 11/23/21 Page 13 of 65
`Case 2:21-cv-01580 Document1-1 Filed 11/23/21 Page 13 of 65
`
`8.4
`
`Ferrosafe’s breach of the Agreement has caused, and will continue to cause,
`
`Sandhu to suffer damages in an amount to be determined by the trier of fact. At all times,
`
`Sandhu have complied with the Agreement.
`
`IX.
`
`SEVENTH CAUSE OF ACTION — PERMANENT INJUNCTION
`(Ferrosafe and BNSF)
`
`9.1
`
`9.2
`
`Sandhurestate and incorporate by reference paragraphs1.1 through 8.4 herein.
`
`Ferrosafe’s and BNSF’s continued application of herbicides has caused, and
`
`will continue to cause, Sandhu to suffer irreparable and long-lasting damage to the Sandhu
`
`Property and Sandhu’s plants.
`
`Such actions constitute breaches and violations of the
`
`Agreement, statutes, and commonlaw asset out herein.
`
`9.3.
`
`In addition to all other relief to which they may be entitled, Sandhu are entitled
`
`to equitable relief, including, but not limited to, this Court’s inherent authority, RCW Chapter
`
`7.40, and equity, statute, and law, prohibiting Ferrosafe and BNSF from applying, or causing
`
`the application of any herbicide on the BNSFright-of-way adjacent to the Sandhu Property,or,
`
`alternatively, requiring Ferrosafe and BNSFto apply such products in a mannerorat times that
`
`do not cause damageto plants on the Sandhu Property.
`
`WHEREFORE,havingstated claimsfor relief, Sandhu pray as follows:
`
`1.
`
`for judgment against Defendants in the amountofall damages found bythetrier
`
`of fact herein, including, but not limited to, non-economic damages, including, but not limited
`
`to, those for emotional distress;
`
`2.
`
`3.
`
`for judgmenttrebling all damages found bythetrier of fact herein;
`
`for a permanent, and where applied for a temporary,
`
`injunction prohibiting
`
`Ferrosafe and BNSF from applying, or causing the application of, any herbicide on the BNSF
`FIRST AMENDED COMPLAINT FOR TRESPASS,
`WOLF & LEE, LLP
`NUISANCE, STATUTORY WASTE, TIMBER
`230 E. ChampionStreet
`TRESPASS, STRICT LIABILITY, NEGLIGENCE,
`Bellingham, WA 98225
`BREACH OF AGREEMENT, AND FOR
`;
`,
`:
`PERMANENT INJUNCTION
`Ph: (360) 676-0306/Fax: (360) 676-8058
`Page 13 of 14
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`Case 2:21-cv-01580 Document 1-1 Filed 11/23/21 Page 14 of 65
`Case 2:21-cv-01580 Document 1-1 Filed 11/23/21 Page 14 of 65
`
`right-of-way adjacent to the Sandhu Property, or, alternatively, requiring Ferrosafe and BNSF
`
`to apply such products in a manner or at times that do not cause damage to plants on the
`
`—_
`
`ie)
`
`Sandhu Property;
`
`4.
`
`for an award of Sandhu’s attorneys’
`
`fees and costs against Defendants as
`
`allowed bystatute, including, but not limited to, RCW 4.24.630, contract, law, or equity; and
`
`3:
`
`for such otherrelief as the Court deems just and proper.
`
`. gard
`DATEDthis 2 2 day of November, 2021.
`
`AZEC
`
`Mark J. Lee, WSBA #19339
`Haylee J. Hurst,WSBA #51406
`Elizabeth Slattery, WSBA #56349
`of Wolf & Lee, LLP
`Attorneys for Plaintiffs
`
`FIRST AMENDED COMPLAINT FOR TRESPASS,
`NUISANCE, STATUTORY WASTE, TIMBER
`TRESPASS, STRICT LIABILITY, NEGLIGENCE,
`BREACH OF AGREEMENT, AND FOR
`,
`PERMANENTINJUNCTION
`Page 14 of 14
`
`WOLF & LEE, LLP
`230 E, ChampionStreet
`Bellingham, WA 98225
`,
`=
`-
`Xe
`;
`76-
`Ph: (360) 676-0306/Fax: (360) 676-8058
`
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`Case 2:21-cv-01580 Document 1-1 Filed 11/23/21 Page 15 of 65
`Case 2:21-cv-01580 Document1-1 Filed 11/23/21 Page 15 of 65
`
`EXHIBIT A
`
`Parcel Nos. P48422, P48400, P48404, P48442, P48443, P48445:
`
`THAT PORTION OF SECTION 27, TOWNSHIP 36 NORTH, RANGE 3 EAST,
`W.M., LYING SOUTHERLY AND WESTERLY OF THE COLONY ROAD AND
`KALLSTROM ROAD AND LYING NORTHEASTERLY OF THE EASTERLYLINE
`OF THE BURLINGTON NORTHERN RAILROAD RIGHT-OF-WAY (FORMERLY
`THE SEATTLE & MONTANA RAILROAD RIGHT-OF-WAY).
`
`EXCEPTING THE NORTHEAST QUARTER OF THE SOUTHEAST QUARTER
`LYING WEST OF COLONY ROADIN SECTION 27, TOWNSHIP 36 NORTH,
`RANGE 3 EAST OF W.M.
`
`SITUATE IN SKAGIT COUNTY, WASHINGTON.
`
`Parcel No. P48635:
`
`THAT PORTION OF THE EAST % OF THE NORTHEAST % OF SECTION 34,
`TOWNSHIP 36 NORTH, RANGE3 EAST, W.M., LYING EASTERLY OF THE
`GREAT NORTHERN RAILROAD RIGHT-OF-WAY EXCEPT THOSE
`PORTIONS THEREOF, IF ANY, LYING WITHIN THE FOLLOWING
`DESCRIBED TRACTS:
`
`(1) THE SOUTH 87.15 FEET OF THE SOUTHEAST % OF THE NORTHEAST %
`OF SAID SECTION 34,
`
`(2) THE COUNTY ROAD KNOWN AS KALLSTROM ROAD.
`
`SITUATE IN SKAGIT COUNTY, WASHINGTON
`
`

`

`Case 2:21-cv-01580 Document 1-1 Filed 11/23/21 Page 16 of 65
`Case 2:21-cv-01580 Document1-1 Filed 11/23/21 Page 16 of 65
`
`Parcel No. P48437:
`
`EXHIBIT B
`
`THE NORTHEAST QUARTER OF THE SOUTHEAST QUARTER LYING WEST
`OF COLONY ROADIN SECTION 27, TOWNSHIP 36 NORTH, RANGE 3 EAST
`OF W.M.
`
`SITUATE IN SKAGIT COUNTY, WASHINGTON.
`
`Parcel No P48710:
`
`THAT PORTION OF THE NORTHWEST QUARTER OF THE NORTHWEST
`QUARTER IN SECTION 35, TOWNSHIP 36 NORTH, RANGE 3 EAST OF W.M.,
`LYING SOUTHWESTERLY OF THE COUNTY ROAD, EXCEPT THAT
`PORTION THEREOF LYING EASTERLY OF THE FOLLOWING DESCRIBED
`LINE:
`
`BEGINNING AT A POINT ON THE SOUTH LINE OF SAID SUBDIVISION
`WHICH IS 660 FEET EAST OF THE WEST LINE THEREOF; THENCE NORTH
`PARALLEL WITH THE WESTLINE OF SAID SUBDIVISION TO A POINT
`WHICH IS 825 FEET SOUTH AND 660 FEET EAST OF THE NORTHEAST
`CORNER THEREOF; THENCE NORTH 88*38'32” EAST PARALLEL WITH THE
`SOUTH LINE OF SAID SUBDIVISION, A DISTANCE OF 39 FEET; THENCE
`NORTH 0*15'15" WEST A DISTANCE OF 487.08 FEET, MORE OR LESS, TO
`THE SOUTH LINE OF THE COUNTY ROAD AND THE TERMINAL POINT OF
`THE LINE BEING DESCRIBED.
`
`ALSO, EXCEPT THAT PORTION DESCRIBED AS FOLLOWS:
`
`BEGINNING AT THE ABOVE DESCRIBED TERMINAL POINT; THENCE
`SOUTH 00*05'19” WEST, A DISTANCE OF 124.00 FEET; THENCE NORTH
`89*54'41” WESTA DISTANCE OF 79.00 FEET; THENCE NORTH 25*20'34”
`WESTA DISTANCE OF 276.04 FEET; THENCE NORTH 48*21'09” EAST A
`DISTANCE OF 64.00 FEET TO SAID SOUTH RIGHT OF WAYLINE OF THE
`COLONY ROAD; THENCE SOUTH 41*38’51” EAST ALONG SAID SOUTH
`RIGHT OF WAYLINE A DISTANCE OF 225 FEET TO THE POINT OF
`BEGINNING.
`
`ALSO, INCLUDING THAT PORTION OF THE SOUTHWEST QUARTER OF
`THE NORTHWEST QUARTEROF SECTION 35, TOWNSHIP 36 NORTH,
`RANGE 3 EAST OF W.M., MORE PARTICULARLY DESCRIBED AS
`FOLLOWS:
`
`BEGINNING AT THE WEST QUARTER CORNER OF SAID SECTION 35;
`THENCE NORTH0*05'15” WEST ALONG THE WESTLINE OF THE
`
`

`

`Case 2:21-cv-01580 Document 1-1 Filed 11/23/21 Page 17 of 65
`Case 2:21-cv-01580 Document1-1 Filed 11/23/21 Page 17 of 65
`
`NORTHWEST QUARTEROF SAID SECTION, 709.57 FEET TO THE
`EASTERLY LINE OF THE GREAT NORTHERN RAILWAY RIGHT OF WAY
`AND THE TRUE POINT OF BEGINNING; THENCE CONTINUE NORTH
`0*05'15” WEST 624.03 FEET TO THE NORTHWEST CORNER OF THE
`SOUTHWEST QUARTER OF THE NORTHWEST QUARTER OF SAID
`SECTION; THENCE NORTH 88*38'32” EAST ALONG THE NORTHLINE OF
`SAID SOUTHWEST QUARTER OF THE NORTHWEST QUARTER 781.75
`FEET; THENCE SOUTH 87*09'25” EAST 423.39 FEET; THENCE SOUTH
`21*04'41” EAST 75 FEET, MORE OR LESS, TO THE CENTERLINE OF AN
`EXISTING DRAINAGE DITCH; THENCE SOUTHWESTERLY TO THE POINT
`OF BEGINNING.
`
`SITUATE IN SKAGIT COUNTY, WASHINGTON.
`
`

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`Case 2:21-cv-01580 Document 1-1 Filed 11/23/21 Page 18 of 65
`Case 2:21-cv-01580 Document1-1 Filed 11/23/21 Page 18 of 65
`
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