1 HON. DAVE NEEDY HEARING DATE: May 1, 2020, 10:30 a.m. 2 3 4 5 6 7 SUPERIOR COURT OF WASHINGTON FOR SKAGIT COUNTY 8 9 10 FAMILIAS UNIDAS POR LA JUSTICIA, AFLCIO and UNITED FARM WORKERS OF AMERICA, labor organizations, 11 Petitioners, No. 20-2-00368-29 PETITIONERS’ REPLY TO AGENCIES’ RESPONSE 12 vs. 13 14 WASHINGTON STATE DEPARTMENT OF LABOR & INDUSTRIES and WASHINGTON STATE DEPARTMENT OF HEALTH, 15 Respondents. 16 17 I. INTRODUCTION 18 Familias Unidas Por La Justicia, AFL-CIO and United Farm Workers of America seek 19 this Court’s order requiring the Washington State Department of Labor and Industries (L&I) 20 and the Department of Health (DOH) (“agencies”) to enact emergency rules to protect 21 farmworkers who have been deemed “essential” workers, but who are not adequately protected 22 while performing that “essential” work. The agencies have failed to carry out their duties to 23 PETITIONERS’ REPLY TO AGENCIES’ RESPONSE - 1 Columbia Legal Services 711 Capitol Way S #706 Olympia, WA 98501 (360) 943-6260 (360) 754-4578 (fax) 1 adopt emergency rules that will actually protect farmworkers even in the face of undisputed 2 evidence that people who are in too-close proximity to each other, people who are not afforded 3 adequate opportunities to practice hand washing and other personal hygiene practices in spaces 4 that are environmentally cleaned, are at risk of contracting and spreading COVID-19. 5 COVID-19 is a once-in-a-century pandemic. As of today, it has killed 786 people in 6 Washington since the identification of the first case in late January.1 Farmworkers, who work to 7 provide our nation with food and who must work to sustain their families and their 8 communities, deserve the protection of the law, which requires that the agencies promulgate 9 enforceable, specific mandates to protect the health of farmworkers and their communities. 10 II. ARGUMENT 11 a. The Unions Have a Right to Challenge the Agencies’ Failure to Adopt Emergency Rules. 12 Contrary to the agencies’ assertion, Agencies’ Resp. at 2, the unions did not petition for 13 14 15 16 17 18 rulemaking under RCW 34.05.330, the process for requesting permanent rules. Instead, the unions specifically asked for emergency rules under RCW 34.05.350(1)(a). PAR 001. They did so because the COVID-19 crisis is moving much too quickly for the permanent rulemaking process to handle.2 Notably, now that the agencies have decided to adopt rules on temporary worker housing, they are doing so using the emergency rulemaking process – the only process 19 1 20 21 22 https://www.arcgis.com/apps/opsdashboard/index.html#/3614241b1c2b4e519ae1cf52e2c3d560 This case was filed on April 15, 2020 at which time 567 people in Washington had died of COVID-19. Petition at ¶5.46. 2 The agencies correctly note that the unions would have to wait 60 days for the agencies to consider a permanent rulemaking petition. RCW 34.05.330(1). Even if an agency initiates permanent rulemaking, that process can take months, with requirements to file a preproposal statement of inquiry, file a proposed rulemaking notice, publish 20days’ notice for and hold a public hearing, respond to public input, and finally file a rulemaking order. RCW 34.05.320, .345, .380. 23 PETITIONERS’ REPLY TO AGENCIES’ RESPONSE - 2 Columbia Legal Services 711 Capitol Way S #706 Olympia, WA 98501 (360) 943-6260 (360) 754-4578 (fax) 1 that makes any sense at this juncture and which the current pandemic warrants use of to protect 2 the health and safety of farmworkers during transportation and at work sites. 3 This case is one of first impression. There are no reported Washington decisions about 4 the reviewability of a state agency’s failure to adopt emergency rules.3 If the agencies’ assertion, 5 Agencies’ Resp. at 11, that an agency has unbridled, unreviewable discretion whether to adopt 6 emergency rules is correct, then no court could ever review such a refusal. No court could ever 7 hold that an agency’s refusal to adopt an emergency rule was arbitrary and capricious, no matter 8 the circumstances--no matter if a virus with no cure or proven treatment, like SARS-CoV-2, 9 threatens the lives of every state resident. In a functioning democracy, this cannot be true. 10 Exhaustion of administrative remedies cannot be required because the unions have shown 11 these remedies would be patently inadequate; the exhaustion of remedies would be futile; or the 12 grave irreparable harm that would result from having to exhaust administrative remedies would 13 clearly outweigh the public policy requiring exhaustion of administrative remedies. RCW 14 34.05.534(3). Exhaustion is excused if a state agency has already rendered a decision that is it 15 unlikely to change. Orion Corp. v. State, 103Wn.2d 441, 458, 693 P.2d 1369 (1985) (If available 16 administrative remedies are inadequate, or vain and useless, they need not be pursued before 17 judicial relief is sought). Here, the agencies have made clear, Agencies’ Resp. at 6-7, they will 18 not be issuing emergency rules on transportation or work site safety. 19 20 3 21 22 The New Jersey Court of Appeals considered this question and held that a request for emergency rule making failed, not because there was no right to ask, but because petitioners had not met their burden under New Jersey’s APA that an emergency existed. Baer v. Klagholz, 339 N.J.Super. 168, 228, 771 A.2d 603 (2001) (emergency rule making under New Jersey APA requires showing of “imminent peril.” Record before court does not support “imminent peril”, citing cases where imminent peril shown.). 23 PETITIONERS’ REPLY TO AGENCIES’ RESPONSE - 3 Columbia Legal Services 711 Capitol Way S #706 Olympia, WA 98501 (360) 943-6260 (360) 754-4578 (fax) 1 Using the permanent rulemaking process would also cause grave irreparable harm to 2 farmworker and community lives and health. The Proposed Agency Record speaks volumes 3 about the threat to farmworkers and rural communities from COVID-19 that is quickly 4 developing into a full-on health crisis that will strain communities beyond their capacity to 5 address if not stemmed now. 6 The Governor’s characterization of COVID-19 as “a public disaster” is correct. PAR 169. 7 That public disaster is unfolding in rural Washington State. Researchers at the University of 8 Texas at Austin concluded that there is an extremely high probability of epidemic in 9 Washington’s rural agricultural counties. PAR 003, 263-271. When the unions filed this petition 10 on April 15, there had been an outbreak of the disease at a farm labor camp in the Canadian 11 Okanogan Valley, with 20 confirmed cases and 63 additional workers in isolation. PAR153-54, 12 272. The unions warned that this outbreak was a harbinger, and indeed, last week, the Chelan- 13 Douglas Health District found that 53 out of 63 H-2A farmworkers from Mexico living in a farm 14 labor camp near Wenatchee tested positive for COVID-19. Declaration of Zach Williams, ¶¶8, 15 14, 17-18.4 A worker at the Wallula, Washington Tyson meat packing plant, Guadalupe Olivera, 16 died on April 20 of COVID-19, and more than 100 workers and their family members are 17 5 infected. The Tyson plant is now temporarily closed. Id. Major apple producer First Fruits had 18 three confirmed cases as of a week ago.6 19 20 21 22 4 https://www.wenatcheeworld.com/news/coronavirus/expanded-testing-planned-after-remarkable-rate-of-cases-inagriculture-housing/article_8f1809a2-84f5-11ea-be6a-dbdd2a598250.html. 5 https://www.seattletimes.com/business/meat-plant-work-takes-a-toll-in-southeastern-washington-where-tysonplant-halts-work-after-90-plus-coronavirus-cases-1-worker-death/. 6 https://www.union-bulletin.com/news/health_fitness/coronavirus/prescotts-firstfruits-farms-has-three-positivecovid-19-cases/article_57e475c9-0040-5af5-b2cc-71f0551cadc6.html. 23 PETITIONERS’ REPLY TO AGENCIES’ RESPONSE - 4 Columbia Legal Services 711 Capitol Way S #706 Olympia, WA 98501 (360) 943-6260 (360) 754-4578 (fax) 1 The conditions in which farmworkers work and live is particularly conducive to the 2 transmission of COVID-19. Two University of Washington epidemiologists say, among other 3 things, that farmworkers are working in communities with medical infrastructure that can be quickly overwhelmed, that asymptomatic transmission means that these workers can infect their 4 coworkers and the communities they live in for days without realizing it, and that a requirement 5 for reduction in numbers of farmworkers traveling to and from work in vans and buses and 6 frequent cleaning would make the disease less likely to spread. PAR 276-278. Farmworkers are 7 afraid to seek medical care due to a wide-spread fear of work-place retaliation, and many cannot 8 seek medical care because of cost and lack of insurance. PAR 261-262, Galarza Decl. at ¶¶2-6, 24. Ramon Torres, President of Familias Unidas, declared that workers are typically not being 9 provided with cleaning supplies in the fields. PAR 281. 10 The agencies’ failure to make rules without clear, specific, mandatory standards on 11 transportation and workplace safety will prolong the disaster. The danger to public health 12 outweighs the public policy in favor of exhaustion of administrative remedies. As a result, this 13 14 15 16 17 18 19 20 21 22 Court can find the unions have shown an exception to the administrative exhaustion requirement. b. The Agency Fails to Satisfy its Duty to Protect Workers Under RCW 49.17.050(4). i. The State’s Fact Sheets Offer “Suggestions” at the Expense of Clear Standards. On April 16, 2020, L&I issued a final version of its Fact Sheet related to agricultural workplaces: “Coronavirus (COVID-19) Prevention in Agriculture and Related Industries.” Soiza Decl. ¶11, Ex. 1. On the same day, L&I also issued a final version of its Fact Sheet titled, “Food Processing-Warehouse Coronavirus (COVID-19) Fact Sheet.” Id., Ex. 2. Both Fact Sheets inform agricultural employers that they must implement social distancing, but those mandates are quickly followed by lists of suggestions, none of which are required to be implemented as outlined below. 23 PETITIONERS’ REPLY TO AGENCIES’ RESPONSE - 5 Columbia Legal Services 711 Capitol Way S #706 Olympia, WA 98501 (360) 943-6260 (360) 754-4578 (fax) 1 L&I Assistant Director Anne Soiza states that the Fact Sheets “were developed using the 2 agency’s best information at the time from researchers and federal authorities and more than 50 3 separate parties commented” including researchers and state agency personnel. Id. Ms. Soiza 4 says that exposure to COVID-19 is a recognized hazard “at all worksites in Washington State.” 5 Id. ¶15. She further states that employers “are required” to take steps to protect their employees 6 that “would include specific social distancing procedures, specific personal protective equipment 7 (PPE) to wear face masks or N95 respirators, and engineering controls like barriers between 8 workstations or sinks that employees use.” Id. 9 If the Fact Sheets actually required this, Petitioners would not be before this Court. A 10 review of the first Fact Sheet demonstrates the gulf between Ms. Soiza’s declaration that certain 11 protections are mandated and the suggestive, nonmandatory language in the Fact Sheet itself. Far 12 from mandating the use of face masks or N95 respirators and barriers between workstations or 13 sinks, this Fact Sheet puts the “facemask policy” and “use of physical barriers” bullet points 14 directly under the bolded banner: “Suggestions for mandatory alternate protections for tasks 15 when six-foot spacing is not feasible.” Id. at Ex. 1 at 2 (emphasis added). In fact, the bullet point 16 for facemasks states: “If facemasks are used it must be in combination with physical barriers or 17 some other engineering control.” Id. (emphasis added). 18 The first Fact Sheet is littered with “Suggestions.” For example, the Fact Sheet suggests 19 “[i]n the field, [employers could] assign and enforce tasks to maintain a distance of at least six 20 feet between people,” id. at Ex. 1 at 1, and that they could “[h]old meetings, breaks, lunches and 21 other gatherings outdoors or in large enough areas to maintain six-foot distancing.” Id. at Ex. 1 at 22 23 PETITIONERS’ REPLY TO AGENCIES’ RESPONSE - 6 Columbia Legal Services 711 Capitol Way S #706 Olympia, WA 98501 (360) 943-6260 (360) 754-4578 (fax) 1 2. This Fact Sheet makes clear that employers still have the option of assigning all field tasks 2 with less than six-foot distancing and holding meetings where workers are crowded together.7 3 L&I’s Food Processing-Warehouse Fact Sheet suffers from the same defects. Under a 4 nearly identical header, “Suggestions to achieve social distancing of at least six feet of physical 5 separation,” L&I informs employers that on processing floors and in breakrooms they may, if 6 they choose: “[s]tagger break and lunch times to prevent the gathering of groups of workers in 7 limited areas;” “[a]ppoint social distance safety monitors to ensure strict distancing 8 requirements;” or, “[p]ost signs that are readable from a far distance that inform visitors and 9 workers of social distancing practices.” Id. at Ex. 2 at 2. 10 ii. The Fact Sheets are Invalid Unadopted Rules, and the Failure to Adopt Their Content as Emergency Rules is Arbitrary and Capricious. 11 In light of the COVID-19 emergency, the reliance on guidance rather that enforceable rules 12 is arbitrary and capricious. The APA definition of a rule is found in RCW 34.05.010(16): 13 (1) "Rule" means any agency order, directive, or regulation of general applicability (a) the violation of which subjects a person to a penalty or administrative sanction; …(d) which establishes, alters, or revokes any qualifications or standards for the issuance, suspension, or revocation of licenses to pursue any commercial activity, trade, or profession; … 14 15 16 17 Here, the Agencies contend that the Fact Sheets apply generally to all agricultural operations 18 and subject those operations to sanctions and revocation of licenses if violations are found. 19 20 21 22 7 L&I also gives agricultural employers a choice about whether the employer should: “notify co-workers who have come within six feet of a worker” ill with COVID-19, id. at 3, and the choice to “[s]eek and follow local health department and medical authority advice regarding sick employees”; and to: “[m]onitor employees, contractors, suppliers, customers and visitors entering the worksite for symptoms of the disease — consider testing temperatures or a short questionnaire.” Id. All of the above are under the bolded banner. “Suggestions for ensuring that sick employees are not at work.” Id. 23 PETITIONERS’ REPLY TO AGENCIES’ RESPONSE - 7 Columbia Legal Services 711 Capitol Way S #706 Olympia, WA 98501 (360) 943-6260 (360) 754-4578 (fax) 1 Therefore the Fact Sheets, as interpreted by the Agencies are “rules.” 8 But, anything that fits the 2 definition must be put into a rule and follow the rulemaking process in the APA or it is 3 unenforceable by the agency. Hillis v. Dep't of Ecology, 131 Wash.2d 373, 399–400, 932 P.2d 4 139 (1997); RCW 34.05.570(2)(c) (“The “remedy when an agency has made a decision which 5 should have been made after engaging in rule making procedures is invalidation of the action.”). 6 The APA provides a mechanism designed for the threat we face; it provides for emergency 7 rule making. RCW 34.05.350(1) provides: 15 If an agency for good cause finds: … That immediate adoption, amendment, or repeal of a rule is necessary for the preservation of the public health, safety, or general welfare, and that observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the public interest; … the agency may …adopt, amend, or repeal the rule on an emergency basis. *** (2) An emergency rule adopted under this section takes effect upon filing with the code reviser, unless a later date is specified in the order of adoption, and may not remain in effect for longer than one hundred twenty days after filing. Identical or substantially similar emergency rules may not be adopted in sequence unless conditions have changed or the agency has filed notice of its intent to adopt the rule as a permanent rule, and is actively undertaking the appropriate procedures to adopt the rule as a permanent rule. This section does not relieve any agency from compliance with any law requiring that its permanent rules be approved by designated persons or bodies before they become effective. 16 Here, the agencies have not followed the emergency rule making processes set forth in RCW 8 9 10 11 12 13 14 17 34.05.350 or the permanent rulemaking process, and because the Fact Sheets were not adopted through this process and filed with the code reviser, they invalid and unenforceable.9 If the 18 agencies attempt to enforce the Fact Sheets, they can expect the employer to raise this defense, 19 20 21 22 8 “[C]onduct contrary to the agency’s written opinion does not subject a person to penalty or administrative sanctions.” Washington Educ. Ass'n v. Washington State Pub. Disclosure Comm'n, 150 Wn.2d 612, 619, 80 P.3d 608, 611 (2003). Rather, agency rules are enforceable, and violations of rules “subject[] a person to a penalty or administrative sanction.” Id. at 619 (citing RCW 34.05.010(16)(a)). 9 The agencies’ fact sheets are also not “interpretive statements,” which must be entitled “interpretive statements” by the agency head or its designee and must be submitted to the code reviser for publication. See RCW 34.05.010(8); 34.05.230(4). 23 PETITIONERS’ REPLY TO AGENCIES’ RESPONSE - 8 Columbia Legal Services 711 Capitol Way S #706 Olympia, WA 98501 (360) 943-6260 (360) 754-4578 (fax) 1 i.e., that suggestions in the Fact Sheets are unadopted rules and therefore, invalid.10 The 2 agencies’ failure to find good cause to adopt emergency rules in this pandemic is arbitrary and 3 capricious agency action ripe for judicial review. iii. Protection from Airborne Particles Requires Specific Standards and the Agencies’ Failure to Make Specific Enforceable Standards Is Arbitrary and Capricious. 4 5 The agencies’ decision to use the general duty clause as the basis for its COVID-19 6 standards means that it fails to meet its duty under the more specific requirements of RCW 7 49.17.050(4). Agencies’ Resp. at 14-16. That provision, specifically promulgated to deal with 8 situations in which there are harmful “airborne particles,” requires L&I to “set a standard which 9 most adequately assures, to the extent feasible, on the basis of the best available evidence, that 10 no employee will suffer material impairment of health . . .” By creating this duty, which is 11 unique under the Washington Industrial Safety and Health Act (“WISHA”), see generally RCW 12 49.17.050, the legislature regarded a situation with harmful airborne particles and the like as one 13 in which a specific standard was required. 14 The general duty clause (RCW 49.17.060(1)), by contrast, does not meet the level of 15 specificity required by 49.17.050(4) because of the difference between what is required by L&I 16 to uphold a citation in each of the situations. In order to support a citation under the “general 17 duty” clause, L&I has to list “particular steps the employer should have taken to avoid the 18 citation . . . [and] must demonstrate the feasibility and likely utility of those measures,” and it 19 must also prove the presence of the hazard in the workplace. SuperValu, Inc. v. Dep't of Labor & 20 21 10 22 There are 35,793 farms in Washington, Agencies’ Resp. at 2, and while the agencies and intervenors say that the Fact Sheets are enforceable, that is no guarantee that all 35,793 farms will comply with the “suggestions” and will not contest L&I’s enforcement powers under the Fact Sheets. 23 PETITIONERS’ REPLY TO AGENCIES’ RESPONSE - 9 Columbia Legal Services 711 Capitol Way S #706 Olympia, WA 98501 (360) 943-6260 (360) 754-4578 (fax) 1 Indus., 158 Wn.2d 422, 433-34, 144 P.3d 1160 (2006). On the other hand, if L&I uses a specific 2 rule to issue a citation, it need only show that the specific steps in the rule were not followed. Id. 3 at 433. The actions required by the rule are presumed to be feasible, with the burden on the 4 employer to show they were not feasible in a particular circumstance. Id. at 434. This means that 5 L&I has “increased difficulty” enforcing a general duty violation as opposed to a specific rule 6 violation. Id. Put simply, when it comes to harmful airborne particles, the legislature wanted L&I 7 to lay out specific standards that had been assessed for feasibility and scientific validity up front. 8 With specific rules, employers and workers would know what the standards were from the start. 9 Specific rules would eliminate uncertainty about what is required and disagreement about the 10 standards after a citation was issued. In turn, this makes the standards more readily enforceable. 11 When it comes to harmful airborne particles, L&I must make specific rules, rather than relying 12 on the general duty provision. L&I’s failure to do so is incorrect as a matter of law. 13 The agency’s failure to make any specific rules on COVID-19 and farmworkers despite 14 its statutory duty to do so is arbitrary and capricious under the APA. Agency action contrary to 15 law is arbitrary and capricious by definition. See Rios v. Washington Dep't of Labor & Indus., 16 145 Wn.2d 483, 508, 39 P.3d 961 (2002); Children’s Hosp. & Med. Ctr. v. Wash. State Dep’t of 17 Health, 95 Wn. App. 858, 871, 975 P.2d 567 (1999)) (agency’s determination which is based on 18 erroneous interpretation of statutes is arbitrary and capricious); Helland v. King Cty Civil Serv. 19 Comm’n, 84 Wn.2d 858, 864, 529 P.2d 1058 (1975) (holding, in the pre-Administrative 20 Procedure Act context, that when an agency is wrong as a matter of law, its resulting conclusions 21 are arbitrary and capricious). 22 23 PETITIONERS’ REPLY TO AGENCIES’ RESPONSE - 10 Columbia Legal Services 711 Capitol Way S #706 Olympia, WA 98501 (360) 943-6260 (360) 754-4578 (fax) 1 c. In Addition to Addressing Workplaces, Any Rules About COVID-19 Must Address Worker Transportation. 2 The proposed emergency rules are silent about worker transportation to and from their 3 work site or to and from nearby towns. Drs. Hajat and Karr wrote that the number of workers in 4 vehicles should be reduced so individuals can practice social distancing and so that the spread of 5 the disease can be contained. PAR 277 at ¶11. L&I’s failure to make rules on worker 6 transportation is arbitrary and capricious. 7 The agencies’ April 8, 2020 Temporary Worker Housing Supplemental Fact Sheet did 8 not require employers to follow these public health measures. PAR 160-163. The Fact Sheet did 9 not require that workers be kept six feet apart while being transported, did not require cleaning 10 every time the vehicle was used, did not make the employer responsible for cleaning the 11 vehicles, and did not specify how the vehicles were to be cleaned. PAR 0160. Instead, it is 12 suggested that workers not to sit next to each other and that buses be cleaned once a day; how 13 and by whom is not specified. Id. In any case, these were only “Suggestions to Meet Social 14 Distancing Expectations.” Id. If school buses are used, workers sitting in each row, but not next 15 to each other, would still be within six feet of each other.11 No one in this crisis would willingly 16 get on ordinary school bus with dozens of strangers so long as they were enough seats that sitting 17 next to others was not required, but sitting in back of or in front of strangers was required, and 18 farmworkers should not be required to do so to feed their families. 19 20 11 21 22 Federal regulations govern school bus design. In larger buses, seat belts are not required, nor are they required in Washington school buses. WAC 392-145-021. In the absence of seat belts, school buses rely on built-in “compartmentalization” to minimize injury to students in an accident; “Through compartmentalization, children are protected from crashes by strong, closely-spaced seats that have energy-absorbing seat backs.” https://www.nhtsa.gov/road-safety/school-buses. 23 PETITIONERS’ REPLY TO AGENCIES’ RESPONSE - 11 Columbia Legal Services 711 Capitol Way S #706 Olympia, WA 98501 (360) 943-6260 (360) 754-4578 (fax) 1 d. The Unions Sought an Order Requiring the Adoption of Workplace Protection Emergency Rules. 2 The agencies’ argument that the Unions failed to request emergency rulemaking related 3 to workplace protections – face masks and field sanitation – is incorrect. Agencies’ Resp. at 13. 4 The unions filed their request for emergency rulemaking on April 6, 2020. At that time, L&I had 5 only one comprehensive Fact Sheet, issued on April 3, 2020, that purported to contain 6 protections from COVID-19 in the fields, in their housing, and in all other “related operations.” 7 PAR 0005-10 ((COVID-19) Prevention in Agriculture, Temporary Worker Housing and Related 8 Operations). The unions specifically requested that “the guidance provided for the workplace in 9 the April 3, 2020 draft document, along with other measures, . . . be converted into emergency 10 regulations.” PAR 0003. 11 12 13 14 15 16 17 18 19 20 21 e. The Court May Grant Injunctive Relief. The unions are entitled to declaratory judgment, which is an available remedy under the APA. Rios v. Dep’t of Labor & Ind., 145 Wn.2d 483, 489-90, 39 P.3d 961 (2002) (Granting petitioners declaratory judgment and injunctive relief on their claims under the APA and WISHA). The Unions are also entitled it injunctive relief as to their request for an order requiring the Agencies to engage in emergency rulemaking. This injunctive relief is warranted. Injunctive relief is available to the unions under CR 65, because they have demonstrated that they have (1) a clear legal or equitable right, (2) a well-grounded fear of immediate invasion of that right, and (3) that the acts complained of are either resulting in or will result in actual and 22 23 PETITIONERS’ REPLY TO AGENCIES’ RESPONSE - 12 Columbia Legal Services 711 Capitol Way S #706 Olympia, WA 98501 (360) 943-6260 (360) 754-4578 (fax) 1 substantial injury. Lyft, Inc. v. City of Seattle, 190 Wn. 2d 769, 784, 418 P.3d 102, 110 (2018) 2 (citing Tyler Pipe Indus., 96 Wn.2d at 792, 638 P.2d 1213). 3 The unions have association standing to seek on behalf of their farmworker members 4 emergency rulemaking to protect their members’ health and lives. They have petitioned for 5 emergency rule making that has been denied as to transportation and work site rules they seek to 6 prevent their members from contracting COVID-19 simply because they responded to the call to 7 continue working to provide food for the nation in this crisis. They have a legal and equitable 8 right to emergency rule making in the context of this pandemic which is causing a current and 9 continues to create a well-grounded fear of the immediate invasions of that right. The failure of 10 the Agencies to promulgate emergency rules, the only mechanism that will legally require 11 compliance by agricultural employers of farm workers, has placed farmworkers in a position 12 where continuing to work will cause actual and substantial injury to them and to their 13 communities. 14 15 16 17 III. CONCLUSION Because of the foregoing, this Court should grant the petitioners’ request for Declaratory Judgment and Injunctive Relief. DATED this 29th day of April, 2020 18 COLUMBIA LEGAL SERVICES 19 s/Amy L. Crewdson Amy L. Crewdson, WSBA #9468 Andrea Schmitt, WSBA #39759 Xaxira Velasco Ponce de Leon, WSBA #55646 711 Capitol Way South, #706 Olympia, WA 98501 (360) 943-6260 20 21 22 23 PETITIONERS’ REPLY TO AGENCIES’ RESPONSE - 13 Columbia Legal Services 711 Capitol Way S #706 Olympia, WA 98501 (360) 943-6260 (360) 754-4578 (fax) 1 2 amy.crewdson@columbialegal.org andrea.schmitt@columbialegal.org xaxira.poncedeleon@columbialegal.org 3 BARNARD, IGLITZIN & LAVITT 4 5 6 7 s/Kathleen Phair Barnard Kathleen Phair Barnard, WSBA #17896 18 West Mercer Street, Ste. 400 Seattle, WA 98119-3971 (206) 257-6002 barnard@workerlaw.com 8 Attorneys for Petitioner Familias Unidas por la Justicia 9 10 MARTINEZ AGUILASOCHO & LYNCH 11 14 s/Charlotte Mikat-Stevens Charlotte Mikat-Stevens, WSBA # 55765 P.O. Box 1998 Bakersfield, CA 93303 (661) 859-1174 cmikatstevens@farmworkerlaw.com 15 Attorneys for Petitioner United Farm Workers of America 12 13 16 17 18 19 20 21 22 23 PETITIONERS’ REPLY TO AGENCIES’ RESPONSE - 14 Columbia Legal Services 711 Capitol Way S #706 Olympia, WA 98501 (360) 943-6260 (360) 754-4578 (fax)