68 Cal.App.5th 672
Cal. Ct. App.2021Background:
- The California Department of Pesticide Regulation (DPR) conditions registration of 1,3‑D products on a township cap program that limits annual 1,3‑D use per 36‑square‑mile township to reduce bystander cancer risk.
- Dow AgroSciences (sole 1,3‑D registrant) implements the cap via an MOU requiring Dow approval of pest‑control‑advisor recommendations and tracking to prevent caps being exceeded; DPR issued related guidance and revised permit conditions in 2016–2017.
- Plaintiffs (Vasquez et al.) sued, alleging the township cap program is an "underground regulation" adopted without APA notice-and-comment rulemaking and thus invalid; they sought a writ directing DPR to engage in formal rulemaking.
- The trial court granted plaintiffs summary judgment, declared the township cap program void, and ordered DPR to conduct formal rulemaking (allowing interim measures pending that process).
- On appeal, Dow (joined by DPR) argued the program is not a regulation subject to the APA because it is a condition of a particular registrant’s registration and/or internal guidance; the Court of Appeal affirmed the trial court.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the township cap program is a “regulation” under the APA | The cap is a generally applicable rule implemented statewide through registration conditions and Dow’s approval role | The program is internal guidance/a condition directed to Dow (a specific registrant), not a general regulation | Yes. The program is a regulation subject to APA rulemaking; summary judgment for plaintiffs affirmed |
| Whether a condition tied to a single registrant is exempt from APA as not generally applicable | The MOU and permit conditions bind all users (via Dow approval and future registrants) and thus apply generally | The MOU is directed to Dow only; exemption for rules directed to specific persons applies | No exemption. The cap applies broadly to users and future registrants and is generally applicable |
| Whether the program "implements, interprets, or makes specific" DPR’s pesticide laws (Tidewater second prong) | The township cap concretely specifies allowable annual use to carry out DPR’s duty to protect public health | The documents are mere guidance tied to registration enforcement and do not change DPR’s registration authority | Yes. The cap implements DPR’s statutory pesticide‑safety mandate |
| Remedy and effect | Plaintiffs sought vacatur and mandatory rulemaking | DPR/Dow argued no APA rulemaking required | Court’s judgment voiding the underground regulation and ordering formal rulemaking was affirmed; interim cap/prohibitions remain until rulemaking completes |
Key Cases Cited
- Morning Star Co. v. State Bd. of Equalization, 38 Cal.4th 324 (agency cannot avoid APA by keeping policies unwritten)
- Tidewater Marine Western, Inc. v. Bradshaw, 14 Cal.4th 557 (two‑part test for what constitutes a regulation under the APA)
- Reilly v. Superior Court, 57 Cal.4th 641 (regulations not adopted under the APA are invalid)
- Patterson Flying Service v. Department of Pesticide Regulation, 161 Cal.App.4th 411 (labeling/guidance may not be an underground regulation in some contexts)
- Californians for Alternatives to Toxics v. Department of Pesticide Regulation, 136 Cal.App.4th 1049 (overview of DPR’s pesticide registration and control authority)
- Strumsky v. San Diego County Employees Retirement Assn., 11 Cal.3d 28 (distinguishing legislative‑type rules from adjudicative actions)