Barkhurst v. Sundstrom et al

Filing 21

ORDER denying 12 Motion for Partial Summary Judgment. Signed by Judge Robert J. Bryan. (JL)

Case 3:20-cv-05828-RJB Document 21 Filed 11/18/21 Page 1 of 13

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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ROSSITER W. BARKHURST,
Plaintiff,
v.
CYNDIE SUNDSTROM, a married
individual and WASHINGTON STATE
DEPARTMENT OF FISH AND
WILDLIFE, an agency of the State of
Washington,

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CASE NO. 20-5828 RJB
ORDER ON PLAINTIFF’S
MOTION FOR PARTIAL
SUMMARY JUDGMENT

Defendants.

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This matter comes before the Court on Plaintiff’s Motion for Partial Summary Judgment.

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Dkt. 12. The Court has considered the pleadings filed in support of and in opposition to the

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motion and the file herein.

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This case arises from Defendant Cyndie Sundstrom’s stop of a vehicle in which Plaintiff

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was a passenger to conduct an inspection of the Canadian geese in Plaintiff’s possession. Dkt. 1.

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Sundstrom is a biologist with the Washington State Department of Fish and Wildlife

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(“WDFW”). Id. The Plaintiff now moves for partial summary judgment on his search and

ORDER ON PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT - 1

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seizure claims brought pursuant to the federal and state constitutions. For the reasons provided

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below, the motion (Dkt. 12) should be denied.
I.

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RELEVANT FACTS AND PROCEDURAL HISTORY

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A. FACTS

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On February 13, 2019, Plaintiff Rossiter W. Barkhurst, and his father Ross P. Barkhurst,

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were hunting geese on property Ross P. Barkhurst owns in Pacific County, Washington. Dkt. 14,

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at 1. This region of Washington, which is part of the “Pacific Flyway,” is visited by seven

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species and subspecies of Canadian Geese. Dkt. 16, at 13. From smallest to largest they are: the

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Cackling, the Aleutian, the Taverner, the Lesser, the Dusky, the Western, and the Vancouver.

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Dkt. 16, at 14. Harvesting Dusky Canadian Geese (“Dusky geese”) was not legal at the time of

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these events. Dkt. 16, at 14. The remaining species and subspecies could be hunted. Id.

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According to WDFW Officer Todd Dielman, on any given day, eight out of ten geese flying in

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the area that these events occurred are Dusky geese. Dkt. 16, at 33.

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Sundstrom, a biologist for over 23 years, was in the area searching for collared geese and

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monitoring hunting areas where she knew that Dusky geese congregate at that time of year. Dkt.

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16, at 8-10. WDFW officials perform field checks to confirm that harvested geese are not Dusky

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geese. Dkt. 16, at 8. Sundstrom stopped her WDFW marked truck in a public area, set up her

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spotting scope, and started scanning property that she now knows is owned by Ross P. Barkhurst.

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Dkt. 16, at 9-11. She states that she was about a mile away. Dkt. 13, at 9. She noticed a person

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with a gun in a blind with a spread of goose decoys in the field. Dkt. 16, at 11. Sundstrom also

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noticed a “tall slender gentleman” who was not actively hunting but was standing some distance

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away by a metal building. Dkt. 16, at 11-12. (Ross P. Barkhurst is 5’10” and his son, Rossiter

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W. Barkhurst, is 5’8” tall. Dkt. 14, at 3.) While she was watching, she saw one goose shot and

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picked up by the person actively hunting. Dkt. 16, at 15. According to Sundstrom, the hunter

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fired without time to identify his target appropriately. Dkt. 16, at 13. Sundstrom also observed

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the “tall slender gentleman” picking up additional geese and moving them around on the ground

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by the building. Dkt. 16, at 15. This indicated to her that he was “in possession of harvested

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geese.” Dkt. 16, at 15.

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Sundstrom saw the active hunter pick up two geese. Dkt. 16, at 15. She states that “after he

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got to the second goose and went over [and] picked it up, both geese, as he picked them up,

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breast toward [her,] [she] could see they were most likely a Dusky goose.” Dkt. 16, at 15. She

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notes that they “were very dark” and the “right size.” Dkt. 16, at 15.

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Eventually, the “tall slender gentlemen” got onto an ATV with a cart and drove out to the

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blind; the two tore it down and picked up the decoys. Dkt. 13, at 13. She watched the shorter

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gentlemen pick up four geese and place them in the cart. Dkt. 16, at 16. Sundstrom could see

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the breasts of each one, and she believed three of the four “would be classified as very dark

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geese.” Dkt. 16, at 16. According to Sundstrom, the two men returned to the building and

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packed up the truck she thought was black. Dkt. 13, at 18.

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While acknowledging that true identification cannot be made without measuring the culmen

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(the upper portion of the bill) and using a Munsell “soil chart” to determine the breast color,

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Sundstrom felt through her experience that at least some of these geese in the Barkhursts’

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possession were Dusky geese based on their size and breast color. Dkt. 13, at 13-14. Sundstrom

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states that while Cackling geese can have dark breasts like the Dusky, they are much smaller,

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like a mallard duck. Dkt. 13, at 14. She notes that the Taverner can be dark, but have a grayish

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cast to them; they also do not have as robust a body and the wing shapes are different than the

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Dusky. Dkt. 13, at 14 and 18. According to Sundstrom, Lesser and Western geese have very

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white to light grey breasts (although the Western goose is much bigger than the Lesser). Dkt. 13,

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at 15. She states that the Vancouver can also have a dark breast, but is much larger than the

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other birds. Dkt. 13, at 14. Sundstrom does concede that in the late 1990s she was aware of a

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subpopulation of the Lesser geese she observed near Ocean Shores that had a dark breast. Dkt.

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13, at 16. She noted these geese had blue collars on, so she thinks that they were part of a

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population from Alaska because she was aware of a study on similar birds that had been given

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blue collars. Id. The geese here did not have blue collars. Id. While the Plaintiff points to a

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study from 2000 that one-third to one-half of geese identified at a check stations were

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misidentified, Sundstrom had not heard of that study. Dkt. 16, at 35.

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Sundstrom waited for the two men to drive by in their truck; they did not. Dkt. 16, at 17.

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She decided to drive around to where she thought they may exit the property. Dkt. 16, at 17.

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Eventually, she saw the black truck pull onto Highway 105. Dkt. 16, at 17-18. She states that

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when she got on the highway, she tried to get close to them to get a license plate number. Dkt.

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16, at 18. She turned her headlights on, realized that they were on bright, and pulled back the

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headlight switch. Dkt. 16, at 18.

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According to Ross P. Barkhurst, who was driving the truck, his son told him that the vehicle

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behind them was flashing its lights four or five times at them and he “took this as a signal to pull

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over.” Dkt. 14, at 2. Sundstrom states that “next thing I know they’re pulling over.” Dkt. 16, at

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18. She made a “fast decision” to pull over with them, and they ended up on a “very precarious

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corner.” Dkt. 16, at 18.

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At that point, Sundstrom states:
[T]here were cars coming, so I did not initially open my car door. And, I believe
it was the passenger who exited the vehicle first, and I thought, well, he's getting
out. Okay. So, I step out, and he's walking toward me, and I thought I better
identify myself. I said, “Hi, I'm Cyndie Sundstrom with the Department of Fish

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and Wildlife.” Then he gave me a look like he could not hear me. So, I stepped
closer and said, “My name is Cyndie Sundstrom,” you know, in a louder voice.
“Do you mind if I check your geese?” And he just said, “Don’t mind,” “Yes,”
“Sure.” There was something in the affirmative. And then I said, “Do you mind if
we find a safer location?” So, he got back in the car, or truck, I'm sorry, and I let
them pick the spot.ꞏ So he pulled out; I followed. They found a pull-out, and I
pulled back in behind them.
Dkt. 16, at 19-20.
Sundstrom indicates that they all got out of their vehicles and she noticed that the shorter

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man was reaching over the bed of the truck on his tiptoes and she asked if he would like her to

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jump up into the truck and get the geese for them. Dkt. 16, at 20. He agreed. Id. She then

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asked them to identify which geese belonged to which man. Dkt. 16, at 21. They did so. Id.

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Sundstrom examined the geese using a caliper to measure the culmen (the upper portion of the

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bill) and a “soil chart” to determine the breast color. Dkt. 16, at 21. She indicated that both

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measurements are needed to be able to confirm the type of specie or subspecie. Dkt. 16, at 21.

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Based on that criteria, Sundstrom found that seven of the eight geese were Dusky Geese. Dkt.

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16, at 22.

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Sundstrom states that she let the Barkhursts know that she was going to have to call

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enforcement. Dkt. 16, at 23. According to Ross P. Barkhurst, Sundstrom, she said, “I am going

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to have to hold you,” and so he did not feel free to leave. Dkt. 14, at 3.

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Sundstrom called Officer Todd Dielman because so many Dusky Geese had been taken and

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she was not permitted to handle a situation where more than one had been taken. Dkt. 16, at 23.

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Officer Dielman indicated that he was getting off a boat with other officers and was about 20

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minutes away. Id. While they waited, Sundstrom and the Barkhursts further examined the

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geese, sexed them, and discussed how to tell an adult from a juvenile. Dkt. 16, at 24. Three

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WDFW officers arrived, including Officer Todd Dielman and Officer Thomas Bolt. Dkt. 16, at

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24-25. After the officers arrived, Sundstrom turned the interaction with the Barkhursts over to

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the officers and stepped away. Id., at 25.

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After discussing the situation, Officer Bolt issued citations to both Barkhursts for violation of

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RCW 77.15.400.2B, unlawful hunting of wild birds in the second degree. Dkt. 19, at 4-5, and 7.

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These charges were ultimately dismissed. Dkt. 14, at 3.

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B. PROCEDURAL HISTORY

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This case was originally filed in Thurston County Superior Court on July 15, 2020 and was

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removed on August 18, 2020. Dkt. 1. A related case, based on the same event, brought by Ross

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P. Barkhurst, the Plaintiff’s father, was also filed in Thurston County and removed to this Court

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on August 18, 2020. Ross P. Barkhurst v. Sundstrom, Western District of Washington Case

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number 20-5825 RJB, Dkt. 1.

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The complaints in both cases are nearly identical and make claims for violation of

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Barkhursts’ search and seizure rights under the Fourth Amendment to the U.S. Constitution,

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violation of their search and seizure rights under the Washington State Constitution, common

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law invasion of privacy, negligent infliction of emotional distress, and outrage. Dkt. 1-3; and

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Ross P. Barkhurst v. Sundstrom, Western District of Washington Case number 20-5825 RJB,

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Dkt. 4, at 5-9. The Barkhursts seek a declaration that their rights were violated, damages,

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attorneys’ fees, and costs. Id.

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C. PENDING MOTION

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In the pending motion, Plaintiff Rossiter W. Barkhurst moves for partial summary judgment

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on his claims for violation of his search and seizure rights under both the federal and state

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constitutions. Dkt. 12. He argues that Sundstrom’s stop of his automobile and subsequent

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detention of him was unconstitutional. Id. The Defendants oppose the motion (Dkt. 15), the

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Plaintiff has filed a reply (Dkt. 17), and the motion is ripe for consideration. Qualified immunity

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is not at issue in this motion.
II.

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DISCUSSION

A. SUMMARY JUDGMENT STANDARD

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Summary judgment is proper only if the pleadings, the discovery and disclosure materials

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on file, and any affidavits show that there is no genuine issue as to any material fact and that the

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movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56 (a). The moving party is

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entitled to judgment as a matter of law when the nonmoving party fails to make a sufficient

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showing on an essential element of a claim in the case on which the nonmoving party has the

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burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1985). There is no genuine issue

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of fact for trial where the record, taken as a whole, could not lead a rational trier of fact to find

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for the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586

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(1986)(nonmoving party must present specific, significant probative evidence, not simply “some

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metaphysical doubt.”). Conversely, a genuine dispute over a material fact exists if there is

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sufficient evidence supporting the claimed factual dispute, requiring a judge or jury to resolve

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the differing versions of the truth. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 253 (1986);

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T.W. Elec. Service Inc. v. Pacific Electrical Contractors Association, 809 F.2d 626, 630 (9th Cir.

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1987).

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The determination of the existence of a material fact is often a close question. The court

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must consider the substantive evidentiary burden that the nonmoving party must meet at trial –

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e.g., a preponderance of the evidence in most civil cases. Anderson, 477 U.S. at 254, T.W. Elect.

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Service Inc., 809 F.2d at 630. The court must resolve any factual issues of controversy in favor

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of the nonmoving party only when the facts specifically attested by that party contradict facts

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specifically attested by the moving party. The nonmoving party may not merely state that it will

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discredit the moving party’s evidence at trial, in the hopes that evidence can be developed at trial

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to support the claim. T.W. Elect. Service Inc., 809 F.2d at 630 (relying on Anderson, supra).

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Conclusory, non-specific statements in affidavits are not sufficient, and “missing facts” will not

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be “presumed.” Lujan v. National Wildlife Federation, 497 U.S. 871, 888-89 (1990).

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B. CLAIMS UNDER 42 U.S.C. § 1983 GENERALLY
In order to state a claim under 42 U.S.C. § 1983, a complaint must allege that (1) the

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conduct complained of was committed by a person acting under color of state law, and that (2)

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the conduct deprived a person of a right, privilege, or immunity secured by the Constitution or

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laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled on other

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grounds, Daniels v. Williams, 474 U.S. 327 (1986). Section 1983 is the appropriate avenue to

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remedy an alleged wrong only if both of these elements are present. Haygood v. Younger, 769

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F.2d 1350, 1354 (9th Cir. 1985), cert. denied, 478 U.S. 1020 (1986).

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A plaintiff must set forth the specific factual bases upon which he claims each defendant

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is liable under 42 U.S.C. § 1983. Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). Vague

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and conclusory allegations of official participation in a civil rights violations are not sufficient to

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support a claim under § 1983. Ivey v. Board of Regents, 673 F.2d 266 (9th Cir. 1982). A

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defendant cannot be held liable under 42 U.S.C. § 1983 solely on the basis of supervisory

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responsibility or position. Monell v. New York City Dept. of Social Services, 436 U.S. 658, 694

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n.58 (1978); Padway v. Palches, 665 F.2d 965 (9th Cir. 1982).

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C. FEDERAL CLAIM: VIOLATION OF THE FOURTH AMENDMENT

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The Fourth Amendment to the United States Constitution guarantees “[t]he right of the

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people to be secure in their persons, houses, papers, and effects, against unreasonable searches

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and seizures[.]” “[A] search or seizure is ordinarily unreasonable in the absence of individualized

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suspicion of wrongdoing.” Tarabochia v. Adkins, 766 F.3d 1115, 1121 (9th Cir. 2014)(quoting

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United States v. Fraire, 575 F.3d 929, 931 (9th Cir.2009)). “A seizure under the

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Fourth Amendment occurs only when a reasonable person would not feel free to leave or decline

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the officer’s requests.” Reynaga Hernandez v. Skinner, 969 F.3d 930, 938 n. 2 (9th Cir. 2020).

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“Because stopping an automobile and detaining its occupants, even if only for a brief period and

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for a limited purpose, constitutes a seizure under the Fourth Amendment, an official must have

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individualized reasonable suspicion of unlawful conduct to carry out such a stop” unless an

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exception applies. Tarabochia, at 1121.

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Considering the facts in the light most favorable to the non-moving party, the motion for

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partial summary judgment on the federal claim (Dkt. 12) should be denied. The Plaintiff has

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failed to show that there are no issues of material fact or that he is entitled to a judgment as a

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matter of law on his federal constitutional claim.

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Under RCW 77.12.071, employees of the WDFW, “in carrying out their duties . . . on

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public lands . . . may collect samples of tissue, fluids, or other bodily parts of . . . wildlife.” The

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parties do not dispute that Sundstrom was an employee of WDFW or that part of her duties

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included collecting samples of wildlife. Pursuant to Washington Administrative Code Section

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220-416-060, “[i]t is unlawful for hunters [in this area] to fail to comply with the directions of

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authorized personnel related to the collection of goose subspecies information pursuant to RCW

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77.12.071.” Accordingly, Sundstrom was authorized to give the Barkhursts directions to collect

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information on the geese they possessed. Arguably, when she flashed her headlights at the truck

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Plaintiff was a passenger in, she was giving them a direction to stop. See U.S. v. Munoz, 701

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F.2d 1293, 1295 (1983)(noting that stop was initiated by fish and game official by “waving”

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Munoz over during a roving patrol).
The issue, then, is whether Sundstrom had reasonable suspicion to conduct the stop.

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When determining whether there was reasonable suspicion for a stop, courts “must look at the

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totality of the circumstances of each case” to see whether the official has a “particularized and

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objective basis for suspecting legal wrongdoing.” United States v. Raygoza-Garcia, 902 F.3d

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994, 1000 (9th Cir. 2018)(internal quotations and citation omitted). This allows officials “to

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draw on their own experience and specialized training to make inferences from and deductions

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about the cumulative information available to them that might well elude an untrained

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person.” Id.

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Considering the totality of the circumstances, Sundstrom has pointed to “particularized

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and objective basis for suspecting legal wrongdoing” justifying the stop. Sundstrom has been a

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biologist for more than 23 years with the WDFW observing geese in the area. Based on that

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experience, she was aware that Dusky geese congregate in the area and was aware in how they

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differ in appearance from other geese. Sundstrom states that she watched the Plaintiff shoot a

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goose that she suspected was a Dusky goose, through a spotting scope from a mile away. She

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then watched both men move geese that she felt were the right color and size to be Dusky geese.

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Sundstrom watched them get into a pickup truck and leave. While she acknowledges that she

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lost sight of them for a few minutes, they eventually exited the property at one of the points she

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knew they could exit the property. Sundstrom, if believed, had reasonable suspicion that the

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Plaintiff or someone in the vehicle had engaged in legal wrongdoing. That the parties moved to

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a second, safer location does not change the analysis. While the Plaintiff hotly contests whether

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Sundstrom could properly identify a Dusky goose from that distance, that is an issue of fact.

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The Plaintiff points to Tarabochia v. Adkins, 766 F.3d 1115 (9th Cir. 2014), arguing that

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it is dispositive of the issues in this case. In Tarabochia, the court held that fish and game

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officials that stopped the Tarabochias on a public highway, without any reason to believe that a

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crime had been committed, violated the plaintiffs’ Fourth Amendment rights. Id. In that case,

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fish and game officials received a report that the Tarabochias, who were commercial fishermen,

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had been seen loading fish into their truck that day. Id. Rather than conducting an inspection at

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the dock, the fish and game officials waited until the Tarabochias were on the highway and then

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stopped them. Id. The Tarabochia court found that it was “undisputed that [the fish and game

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officials] had no reason to believe the salmon had been taken in violation of applicable fish and

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game laws.” Id. The fish and game officers there did not have any “reasonable suspicion” that

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the Tarabochias had engaged in illegal conduct. Id. Rather, they relied on the administrative

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search exception to the Fourth Amendment, which the court found inapplicable. Id.

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Contrary to the situation in Tarabochia, Sundstrom presents evidence that she watched

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the Plaintiff shoot at least one bird she felt was a Dusky goose, and watched both men handle

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what she reasonably believed were Dusky geese. If believed, this was not a suspicionless stop

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like in Tarabochia. Sundstrom has pointed to “individualized reasonable suspicion of unlawful

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conduct to carry out [the] stop.” Tarabochia, at 1121.

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Moreover, her further detention of the Barkhursts was arguably justified. There is

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evidence that, once the parties were stopped, she asked to see the geese in the Barkhursts’

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possession. The Barkhursts consented. She then asked them to separate the geese based on who

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had shot the birds. After that occurred, she conducted further field analysis and confirmed that

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seven of the eight birds were Dusky geese. At that point, she had at least reasonable suspicion of

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unlawful conduct in order to justify detaining them until the enforcement officers arrived. While

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the Plaintiff argues that the WDFW enforcement officers who arrived at the scene questioned the

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constitutionality of the stop based on Tarabochia, whether the officers understood the nuances of

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the case is immaterial. Sundstrom has pointed to sufficient issues of fact on the Plaintiff’s

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federal fourth amendment claim to defeat Plaintiff’s motion for summary judgment.

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D. VIOLATION OF THE WASHINGTON STATE CONSTITUTION

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Article 1, Section 7 of the Washington Constitution provides that “[n]o person shall be

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disturbed in his private affairs, or his home invaded, without authority of law.” “It is well

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established that in some areas, article I, section 7 provides greater protection than its federal

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counterpart—the Fourth Amendment.” York v. Wahkiakum Sch. Dist. No. 200, 163 Wn.2d 297,

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306 (2008). While the Plaintiff argues that the Washington constitution provides greater

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protection than the federal constitution, he fails to argue for a different analysis. Instead, the

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Plaintiff relies on federal case law in his motion, maintaining that if the federal constitution was

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violated the state constitution was as well.

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The Plaintiff’s motion for summary judgment (Dkt. 12) on his claim for violation of the

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Washington constitution should be denied. In Washington, an investigative stop, including a

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traffic stop, that is based on reasonable suspicion of criminal activity, is a recognized exception

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to Article 1, Section 7 of the Washington Constitution. State v. McLean, 178 Wash. App. 236,

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244 (2013). For purposes of the Washington Constitution, “[a] reasonable suspicion exists when

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specific, articulable facts and rational inferences from those facts establish a substantial

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possibility that criminal activity . . . has occurred or is about to occur.” Id. At a minimum, there

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are issues of fact as to whether Sundstrom had “reasonable suspicion” that criminal activity had

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occurred in the circumstances here for purposes of the Washington constitutional claim.

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III.

ORDER

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Therefore, it is hereby ORDERED that:

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Plaintiff’s Motion for Summary Judgment (Dkt. 12) IS DENIED.

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The Clerk is directed to send uncertified copies of this Order to all counsel of record and

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to any party appearing pro se at said party’s last known address.
Dated this 18th day of November, 2021.

A
ROBERT J. BRYAN
United States District Judge

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