Yawn v. Dorchester Cnty.

• Decision Date: 11 June 2021
• Docket Number: No. 20-1584,20-1584
• Citation: 1 F.4th 191
• Parties: Mitch Randall YAWN; Juanita Mae Stanley, d/b/a Flowertown Bee Farm and Supplies, Plaintiffs - Appellants, v. DORCHESTER COUNTY, Defendant - Appellee and Town of Summerville; Allen Aviation, Inc.; Al Allen, Defendants.
• Court: U.S. Court of Appeals — Fourth Circuit

1 F.4th 191

Mitch Randall YAWN; Juanita Mae Stanley, d/b/a Flowertown Bee Farm and Supplies, Plaintiffs - Appellants,

v.DORCHESTER COUNTY, Defendant - AppelleeandTown of Summerville; Allen Aviation, Inc.; Al Allen, Defendants.

No. 20-1584

United States Court of Appeals, Fourth Circuit.

Argued: May 6, 2021

Decided: June 11, 2021

ARGUED: J. David Breemer, PACIFIC LEGAL FOUNDATION, Sacramento, California, for Appellants. Amanda R. Maybank, MAYBANK LAW FIRM, LLC, Charleston, South Carolina, for Appellee. ON BRIEF: W. Andrew Gowder, Jr., AUSTEN & GOWDER, LLC, Charleston, South Carolina; Michael T. Rose, MIKE ROSE LAW FIRM, PC, Summerville, South Carolina; Kathryn D. Valois, PACIFIC LEGAL FOUNDATION, Palm Beach Gardens, Florida, for Appellants. Roy P. Maybank, Marshall A. Earhart, MAYBANK LAW FIRM, LLC, Charleston, South Carolina, for Appellee.

Before KING and THACKER, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Affirmed by published opinion. Judge Thacker wrote the opinion, in which Judge King joined. Judge Traxler wrote a concurring opinion.

THACKER, Circuit Judge:

Juanita Stanley and Mitch Yawn ("Appellants") sued Dorchester County, South Carolina (the "County"), seeking compensation pursuant to the Takings Clause of the Fifth Amendment for the death of their bees. According to Appellants, because the bees died after the County sprayed pesticide in an effort to kill mosquitos, the bees’ death amounted to a taking of Appellants’ private property. The district court granted the County's motion for summary judgment, holding that there was no taking because the loss of Appellants’ bees was only an incidental consequence of the County's action. We affirm.

I.

A.

In 2016, South Carolina state government officials from the Department of Health and Environmental Control ("DHEC") "urged local jurisdictions to bolster their mosquito control programs heading into the summer months in preparation for a possible Zika virus outbreak." J.A. 195.^* The Zika virus is a mosquito born illness with the potential "to cause serious fetal brain defects" and was confirmed to be present in South Carolina as of May 2016. Id.

By August 2016, three cases of travel related Zika virus were reported in the County. The DHEC responded to the confirmed cases by directing the head of the County's Mosquito Abatement Division, Clayton Gaskins, to spray pesticide in targeted areas within a certain radius of the Zika-infected individuals’ homes. As a result, Gaskins set about to deploy the County's two spray trucks to treat the areas with pesticide.

However, upon visiting the treatment areas, Gaskins determined that there were multiple heavily wooded places within the target areas that could not be reached by the spray trucks. Thus, Gaskins consulted with his supervisor and the County Administrator as to the best course of action. The three of them determined that aerial pesticide spray should be recommended to the County Council because of the inability of the trucks to fully access the DHEC's target areas, as well as numerous citizen reports of excessive mosquitos in the area. According to the 2016 County Council Chairman, the Council had heard from constituents favoring the use of aerial spray to combat the spread of the Zika virus. See J.A. 113 (describing the first Council discussion on aerial spraying where a constituent "begged and pleaded" for the aerial spray to be conducted). Ultimately, the County Council approved aerial spray and established a contract with Allen Aviation to conduct the spray.

The aerial spray was scheduled to take place on August 28, 2016, between the hours of 6:30 a.m. and 8:30 a.m. In accord with South Carolina law, the County issued a press release on August 26, 2016, to notify the citizens of the upcoming aerial spray. The press release was issued to numerous media outlets, including local television stations, newspapers, radio stations, and social media platforms. But Appellants were not aware of the press release prior to the aerial spray.

Additionally, although not required by law or County policy, as a courtesy, Gaskins took it upon himself to call local beekeepers before the pesticide sprays. As local beekeepers, Appellants were on the call list, and had been previously called about upcoming sprays. However, they did not receive a call from Gaskins prior to the August 28 aerial spray. Thus, Appellants did not implement protective measures for their bees before the spray as they had successfully done in the past.

In preparing for the aerial spray, the County provided Allen Aviation with mosquito abatement zone maps, as well as a map that included the location of all beekeepers in the area. During discovery, the pilot who conducted the spray, an Air Force veteran and certified agriculture pilot, testified in a deposition that he used the maps provided by the County with markers to identify the beehive locations in order to determine when to turn off the sprayer during the flight. The pilot also testified that he specifically remembered turning off the sprayer as he approached the beehive locations marked on the map.

Nonetheless, the morning after the aerial spray, Appellants discovered mounds of dead bees surrounding their hives. Appellants contacted Clemson University, Department of Pesticide Regulation ("Clemson DPR"), the entity responsible for regulating and investigating pesticide use and complaints pursuant to state law. The Clemson DPR investigated and found "bees with behaviors consistent with pesticide exposure" as well as "very active bees flying around the yard." J.A. 150. The investigation included collecting and testing representative samples of dead bees and soil from around the hives, which the Clemson DPR discovered did not contain pesticide residue. However, the report indicated the lack of pesticide residue "likely occurred due to the time which elapsed between the application and when the samples were obtained, combined with [the pesticide]’s ability to rapidly degrade under typical environmental conditions." Id. at 152. Thus, although the investigation "found no [regulatory] violations occurred" during the August 28 aerial spray, it also did not rule out the aerial spray "as a cause for the loss of the bees." Id. at 152–53.

B.

Appellants filed a lawsuit against the County on January 27, 2017, alleging that the aerial spray of pesticide and subsequent death of the bees amounted to a taking pursuant to the Takings Clause of the Fifth Amendment. Appellants also brought claims pursuant to the South Carolina state constitution and the South Carolina Tort Claims Act. The County moved for summary judgment on December 16, 2019. Concluding there was no taking, the district court granted the County's motion for summary judgment on the Takings Clause claim.

The district court began its takings analysis by noting the distinction between the power of eminent domain and police power. See J.A. 249 (explaining police power "extends to all matters affecting the public health or the public morals" (quoting Stone v. Mississippi , 101 U.S. 814, 818, 25 L.Ed. 1079 (1879) )). The district court held:

It is undisputed that the spray was conducted to prevent the spread of disease, a matter that would affect public health. Such an action fits squarely within the state's police power. "If the injury complained of is only incidental to the legitimate exercise of governmental powers for the public good, then there is not taking of property for the public use, and a right to compensation, on account of such injury, does not attach under the Constitution." Chicago, B. & Q. Ry. Co. v. People of State of Illinois , 200 U.S. 561, 593–94, [26 S.Ct. 341, 50 L.Ed. 596] (1906). The loss of [Appellants’] bees was unintentional; it was an unfortunate consequence to a proper exercise of [the County]’s police power. Because [the County] was exercising its police power, and not its power of eminent domain, the Takings Clause is not implicated.

J.A. 252. Therefore, the district court concluded Appellants "are not entitled to federal compensation" and granted summary judgment in favor of the County on the Takings Clause claims. Id. Appellants’ state law claims were remanded to state court for further consideration.

II.

"We review the district court's grant of summary judgment de novo ...." Providence Square Assocs. v. G.D.F., Inc. , 211 F.3d 846, 850 (4th Cir. 2000). Summary judgment "is appropriate where there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law." Id. (quoting Semple v. City of Moundsville , 195 F.3d 708, 712 (4th Cir. 1999) ).

III.

A.

"The Takings Clause is ‘designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole’ " by requiring just compensation when private property is taken for public use. Ark. Game & Fish Comm'n v. United States , 568 U.S. 23, 31, 133 S.Ct. 511, 184 L.Ed.2d 417 (2012) (quoting Armstrong v. United States , 364 U.S. 40, 49, 80 S.Ct. 1563, 4 L.Ed.2d 1554 (1960) ). When reviewing Takings Clause jurisprudence, the Supreme Court has "recognized ... that no magic formula enables a court to judge, in every case, whether a given government interference with property is a taking." Id. Indeed, because of "the nearly infinite variety of ways in which government actions or regulations can affect property interests, the Court has recognized few invariable rules in this area." Id.

Appellants contend the district court erred because its ruling "amounts to the conclusion that, when government interferes with property to preserve public health, safety or welfare, it is immune from the Takings Clause." Appellants’ Br. 19. In essence, Appellants argue that the district court adopted a per se rule excusing the Government from Takings Clause analysis when it acts pursuant to the police power. In Appellants’ view, this violates the Supreme Court's caution against "the temptation to adopt...