Mitch Yawn v. Dorchester County
1f4th191
| 4th Cir. | 2021Background
- In 2016 Dorchester County approved aerial pesticide spraying to abate mosquitoes after DHEC warned of Zika; trucks could not reach some target areas so the County contracted Allen Aviation for aerial spray.
- The County issued public press releases; it also provided the pilot with maps marking known beehive locations and the pilot testified he shut off the sprayer when over those locations.
- County staff ordinarily phoned local beekeepers as a courtesy; Appellants (Yawn and Stanley) were on the call list but did not receive a personal call and were unaware of the press release, so they did not take protective measures.
- The morning after spraying Appellants discovered mass bee deaths. Clemson DPR found bee behavior consistent with pesticide exposure, collected samples that showed no residue (likely due to degradation), and could not rule out the aerial spray as the cause.
- Appellants sued under the Fifth Amendment Takings Clause (plus state claims). The district court granted summary judgment for the County; the Fourth Circuit affirmed, holding the losses were incidental, not an intended or foreseeable taking.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the aerial spray and resulting bee deaths constituted a Fifth Amendment taking | Appellants: county action killed private property (bees) and requires just compensation | County: spray was police-power public-health action; bee deaths were incidental and not a taking | No taking; affirmed — loss incidental to police-power action |
| Whether government action taken to protect public health is per se exempt from Takings Clause | Appellants: district court erred if it adopted a per se police-power exemption | County: action was for public health and implemented with precautions; losses incidental | Court: police-power actions are not per se exempt, but here precautionary measures and lack of intent/foreseeability defeat the taking claim |
| Whether the bee deaths were intended or a foreseeable, natural result of authorized action | Appellants: pesticide is highly toxic to bees so deaths were foreseeable | County: County took specific precautions (public notice, pilot maps, turn-off practice); deaths were not the natural/probable result of properly implemented spray | Held: deaths were neither intended nor foreseeable given the County’s measures; claim fails |
Key Cases Cited
- Ark. Game & Fish Comm’n v. United States, 568 U.S. 23 (U.S. 2012) (takings analysis is fact-specific; courts must assess intent and foreseeability)
- Chicago, B. & Q. Ry. Co. v. People of State of Illinois, 200 U.S. 561 (U.S. 1906) (incidental injuries from legitimate governmental powers typically do not constitute a taking)
- Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Plan. Agency, 535 U.S. 302 (U.S. 2002) (warns against adopting per se takings rules)
- Lucas v. S.C. Coastal Council, 505 U.S. 1003 (U.S. 1992) (limits on police power cannot swallow private property rights without compensation)
- Moden v. United States, 404 F.3d 1335 (Fed. Cir. 2005) (contamination claims require intent or that invasion be direct, natural, or probable result)
- In re Chicago, Milwaukee, St. Paul & Pac. R. Co., 799 F.2d 317 (7th Cir. 1986) (accidental, unintended governmental injuries are torts, not takings)
- Ridge Line, Inc. v. United States, 346 F.3d 1346 (Fed. Cir. 2003) (property loss is compensable only if government intended invasion or it was the natural consequence of authorized activity)