United States v. Corbin Farm Service

• Decision Date: 23 January 1978
• Docket Number: Crim. No. S-77-179.
• Court: U.S. District Court — Eastern District of California
• Parties: UNITED STATES of America, Plaintiff, v. CORBIN FARM SERVICE, Patrick William Feeney, Frank Harry Michaud, Jr., and John Richard Harris, Defendants.

444 F. Supp. 510

UNITED STATES of America, Plaintiff, v. CORBIN FARM SERVICE, Patrick William Feeney, Frank Harry Michaud, Jr., and John Richard Harris, Defendants.

Crim. No. S-77-179.

United States District Court, E. D. California.

January 23, 1978.

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Herman Sillas, U. S. Atty., Richard W. Nichols, Chief Asst. U. S. Atty., Sacramento, Cal., for plaintiff.

Francis E. Coats, Hewitt, McBride, Kenward & Coats, Yuba City, Cal., for defendants Corbin Farm Service and John Richard Harris.

Donald Cole Byrd, Geis, Meckfessel & Hopkins, Willows, Cal., for defendant Patrick William Feeney.

O. Douglas Memmot, Willows, Cal., for defendant Frank Harry Michaud, Jr.

OPINION

MacBRIDE, Chief Judge.

Defendants are charged in a twelve count information with misdemeanor violations of a Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), 7 U.S.C. § 136 et seq., and the Migratory Bird Treaty Act (MBTA), 16 U.S.C. § 703 et seq.; the alleged violations arise from the application of a registered pesticide to an alfalfa field and the subsequent death of a number of American widgeon, a water fowl protected under the MBTA. Defendants have responded with a number of pretrial motions.

The defendants are Corbin Farm Service (CFS), a dealer and distributor of pesticides; John Richard Harris, a CFS employee who provided pesticide advice to farmers with the expectation that they would purchase from CFS; Patrick William Feeney, the owner of the alfalfa field; and Frank Harry Michaud, Jr., the licensed aerial operator who sprayed the field.

The twelve count information alleges in Count 1 that CFS, through its agents and employees, violated FIFRA by causing a registered pesticide to be applied in a manner contrary to its labeling. Count 2 alleges that Harris, Feeney and Michaud also violated FIFRA by applying or causing the pesticide to be applied contrary to its labeling. Finally, Counts 3 through 12 charge Harris, Feeney and Michaud with violations of the MBTA because of the death of American widgeon; each count alleges the death of one bird.

Defendants attack the information on a number of points. This court will examine the challenge to the FIFRA counts first, then the attack on the MBTA, and finally the remaining pretrial motions.

MOTIONS TO DISMISS THE FIFRA COUNTS

Defendants CFS, Harris and Michaud move to dismiss the FIFRA counts on the ground that the statute and the label are unconstitutionally vague in that they fail to describe the proscribed conduct sufficiently to enable affected persons to know in advance the activities they may legally pursue. Section 136j(a)(2)(G) of FIFRA provides:

(a) In general —

. . . . .

(2) It shall be unlawful for any person —

. . . . .

(G) to use any registered pesticide in a manner inconsistent with its labeling . . ..

The label on the pesticide applied to Feeney's field states in pertinent part:

For water fowl protection do not apply . . . on fields where water fowl are known to repeatedly feed.

This quote from the label appears in the briefs of the United States and the defendants, not in the information. Since the parties agree on the quotation, this court will assume that it is correctly quoted.

The vagueness doctrine is essentially a reflection of

"the underlying principle . . . that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed."

Colten v. Kentucky, 407 U.S. 104, 110, 92 S.Ct. 1953, 1957, 32 L.Ed.2d 584 (1972), quoting United States v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 812, 98 L.Ed. 989 (1954). The Colten Court added:

The root of the vagueness doctrine is a rough idea of fairness. It is not a principle designed to convert into a constitutional dilemma the practical difficulties in drawing criminal statutes both general enough to take into account a variety of human conduct and sufficiently specific to provide fair warning that certain kinds of conduct are prohibited.

Id. Two justifications support the vagueness doctrine. First, vague laws trap the innocent — it is essential that laws "give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly." Second, vague laws impermissibly delegate policy decisions as to what is prohibited to police, judges and juries for resolution on an ad hoc basis with the danger of arbitrary and discriminatory application — laws must "provide explicit standards for those who apply them." Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298-2299, 33 L.Ed.2d 222 (1972).

In evaluating whether a statute is void for vagueness, the court should not be too demanding. In United States v. National Dairy Products Corp., 372 U.S. 29, 32-33, 83 S.Ct. 594, 597-98, 9 L.Ed.2d 561 (1963), holding that the words "unreasonably low prices" in the Robinson-Patman Act were not vague, the Court stated:

The strong presumptive validity that attaches to an Act of Congress has led this Court to hold many times that statutes are not automatically invalidated as vague simply because difficulty is found in determining whether certain marginal offenses fall within their language. citations Indeed, we have consistently sought an interpretation which supports the constitutionality of legislation. citations Void for vagueness simply means that criminal responsibility should not attach where one could not reasonably understand that his contemplated conduct is proscribed. citations In determining the sufficiency of the notice a statute must of necessity be examined in the light of the conduct with which a defendant is charged.

Thus, if people of ordinary intelligence "must necessarily guess at its meaning and differ as to its application," a statute is void for vagueness. Id.

Defendants CFS and Harris point out that at least some of the words or phrases challenged as vague are part of the label rather than the statute itself. Since the label was written by the manufacturer and submitted to the EPA for approval, defendants urge that it is not entitled to the presumption of validity that attaches to a congressional enactment. FIFRA provides that a manufacturer seeking registration of a pesticide must file a complete copy of the label with the EPA. 7 U.S.C. § 136a(c)(1)(C). The Administrator of the EPA registers the pesticide if he determines that its label complies with the Act's requirements. Id. § 136a(c)(5)(B). If the label does not comply with the Act, the Administrator is required to deny registration. Id. § 136a(c)(6).

It is clear that the label itself was not enacted by Congress and is not entitled to the "strong presumptive validity" applicable to congressional action. The label was, however, examined by the Administrator under the procedures set forth by Congress. The label should be accorded a presumption of validity like that attaching to an administrative regulation adopted pursuant to power granted by Congress. E. g., Ramirez v. Immigration and Naturalization Service, 550 F.2d 560, 563 (9th Cir. 1977); United States v. Boyd, 491 F.2d 1163, 1167 (9th Cir. 1973). It may be that the label, written as it was by a private manufacturer, should not be accorded the full measure of presumptive validity that would attach to a regulation prepared by the agency itself, but the Act requires the Administrator to examine such labels and determine their conformity to the Act. This court will not assume that the Administrator failed to carry out his responsibilities. Accordingly, this court will presume that the label is valid, giving substantially the same weight to that presumption as it would to a regulation.

Defendants attack the statute itself and the labeling on a number of grounds, each testing a particular word or phrase for vagueness. This court will examine each of these contentions seriatim, applying the vagueness doctrine as set forth in the Supreme Court decisions above.

(1) "inconsistent with its labeling"

Defendant Michaud asserts that the FIFRA prohibition on the use of a pesticide "in a manner inconsistent with its labeling" is vague because of the word "inconsistent." It is difficult to discern the source of the asserted vagueness. Both Black's Law Dictionary and Webster's Dictionary define "inconsistent" to mean "contrary to" or "incompatible with." It is clear enough that, if one applies a pesticide in a way contrary to the directions on the label, one has violated the statute. The legislative history of this provision includes some discussion of the word "inconsistent."

It is the belief of the Committee that the use of the word "inconsistent" should be read and administered in a way so as to visit penalties only upon those individuals who have disregarded instructions on a label that would indicate to a man of ordinary intelligence that use not in accordance with such instructions might endanger the safety of others or the environment. Thus, for example, it would be expected that use of a general, unrestricted pesticide registered for use on enumerated household pests to exterminate a pest not specified on the label would not be inconsistent with the labeling. On the other hand, the use of even a general use pesticide in a manner inconsistent with a specified caution or restriction on the label should be considered inconsistent with the labeling.

S.Rep.No.838, reprinted in 1972 U.S.Code Cong. & Admin.News pp. 3993, 4008. Defendants here are charged with a use inconsistent with a specific instruction on the label. This court finds no unconstitutional vagueness in the word "inconsistent."

Michaud also states that the word "inconsistent" is vague when viewed in the context of the "four different labels in a very short time span" that he asserts have been used on this pesticide. It may be that there have been a number of different labels on the particular pesticide and even that the application of the pesticide might have been...