Flowertown Bee Farm and Supplies sued the South Carolina County of Dorchester, their town, Summerville, and the aviation contractee who sprayed a mosquito control chemical called Naled, alleging it killed millions of their bees.
Appeals Counsel Pacific Legal summarizes Flowertown's version of events leading to Yawn v. Dorchester County:
"Beekeeping has been a part of Juanita Stanley’s family for generations... Together with her husband, Mitch Yawn, she opened Flowertown Bee Farm and Supplies on 14 acres of land they own in Dorchester County, South Carolina... 46 hives with several million healthy honeybees.
Then one day in late August, the County sprayed a highly toxic pesticide over their property in an effort to kill mosquitoes. Even though there were no cases of mosquito-borne Zika virus in the County at the time, the County feared media reports of a potential for mosquito-borne spread of the Zika virus... County did not call Flowertown to warn them of the aerial spray—the first time the County sprayed by air rather than by truck. The next morning, Juanita Stanley discovered that the government’s one aerial spray destroyed millions of bees, Flowertown’s business, and the couple’s livelihood."
Local Charleston Post & Courier newspaper reported that the suit came after Mr. Mitch Yawn and Ms. Juanita Stanley declined to submit a claim to the South Carolina Insurance Reserve Fund. Attorneys Mike Rose and Andrew Gowder are reported to have advised against since the claimed initial mention of $20,000 settlement would not fully compensate Flowertown for damages.
Flowertown's argument against the state rests on the Due Process and Equal Protection Clauses of the Constitution. From Pacific Legal:
"When the government destroys valuable, non-harmful private property to serve a public good, it must still pay for it. Represented by PLF free of charge, Juanita and Mitch are fighting back to stop [the] government from using public health and safety as an excuse to avoid paying for property it destroys."
The State claims that fears of the Zika virus were related to a "serious health concern" in 2016 and were relayed from concerned citizens through "numerous calls."
"Therefore, [The] Defendant hired Allen Aviation to perform various aerial sprays of a mosquito-killing agent... [and] states that the purpose... was to stop the spread of the Zika virus."
The State as the defendant is further claiming that a public information officer placed notices "with numerous television news channels and in Charleston, South Carolina's Post and Courier newspaper" and that the Mosquito Abatement Coordinator "made a courtesy call to various beekeepers to inform them that an aerial spray was to take place, in order to give beekeepers further opportunity to protect their bees from the chemicals."
The District Court's judgment states that the Dorchester County Abatement Coordinator Scott Gaskins "admitted that he made a mistake and did not call Plaintiffs on this occasion."
Dorchester County's Mosquito Control program allows residents to request a mosquito spraying but does not appear to have a way to request a "no-spray zone" exclusion like some other counties in the state, such as Horry. Dorchester's mosquito abatement map divides the county into 50 spray zones for "more efficient spraying."
Horry County has a similar Mosquito Control Program headed by James Brock. Brock told UncoverDC that he broadcasts notices to county residents prior to spraying, usually on television and Facebook, advising that "no-spray zones" can be requested. "We have a good rapport with [local] beekeepers," he said. When bee populations are reported to the county, the location is mapped out with a GPS program tied to an abatement map that keeps track of all reported bee populations to be avoided when spraying.
The official Horry County website explains:
"Beekeepers and organic farmers may wish to avoid the insecticides used with adult mosquito control. Problems may arise if these insecticides come into contact with honey bees, as honey bees are susceptible to many insecticides. In fact, pesticides are a major cause of honey bee deaths. Horry County has chosen to grant courtesy no-spray requests to organic farmers as well by not fogging within approximately 100 ft of the approved location."
Dorchester County published a press release claiming that a "Non-Agricultural Follow-Up Pesticide Investigation" conducted by Clemson University found that "Dorchester County and its consultants followed all rules and regulations for aerial spraying." It did not rule out the aerial spray as a potential cause for the loss of the bees.
The Charleston South Carolina District Court ruled against Flowertown, saying the loss of bees was incidental to the spraying and did not amount to a "Taking" by the state through Eminent Domain under the Constitution's Fifth Amendment. It instead saw the spraying as a "Police Power" and that such power "extends to all matters affecting the public health," quoting Stone v. Mississippi. According to the judgment, no entitlement to federal compensation would be due to Flowertown.
Flowertown's side said the ruling "amounts to the conclusion that... [government] is immune from the Takings Clause" any time it "interferes with property to preserve public health, safety, or welfare," while the state argued that no affirmative act of taking the bees for public use occurred; it was neither intentional nor foreseeable.
The District Court's opinion also quotes Lech v. Jackson, a case in which police caused significant damage to a citizen's home during the pursuit of a criminal, rendering it uninhabitable:
"...When the state acts to preserve the 'safety of the public,' the state ‘is not, and, consistent[ ] with the existence and safety of organized society, cannot be, burdened with the condition that the state must compensate [affected property owners] for pecuniary losses they may sustain in the process."
"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."
Pacific Legal's Kady Valois has lessons and takeaways from the Yawn v. Dorchester County case in her op-ed for the Post & Courier Tuesday:
"How far the government can push private property rights before compensation is required is a fundamental question even our Founding Fathers wrestled with. Their answer to this problem was to include the Fifth Amendment and 12 special words that make up its takings clause in the Bill of Rights: 'Nor shall private property be taken for public use, without just compensation.'
Courts ever since have disagreed on how to apply these words practically. However, they have generally concluded that in times of crisis, the government can avoid paying for any destruction of property it causes as long as the government’s actions aim to protect the safety and welfare of its citizens. But this governmental exception, also known as the police powers exception, is not written in stone. And its undoing is critical to preserving property rights everywhere."
Even if the courts have not forced officials to compensate Flowertown for the damage they undeniably caused, perhaps individual discretion will result in a change of path in the future. Though there is no law requiring it, public service announcements are being made by abatement coordinators. As Valois points out in her op-ed, future judges in similar cases can still favor property owners:
"This is where Flowertown’s bees reemerge as the hero of their own story. While the Fourth Circuit denied Flowertown compensation for their bees’ deaths, the court included language that undermines the police power exception for future victims of the government’s property destruction. If we have learned nothing else, we’ve learned there will always be another crisis and another excuse for the government to avoid paying for what it destroys."
Yawn v. Dorchester may have implications on future rulings and citizen efforts to hold governments and those who act on their behalf responsible for the property damage that they cause. When UncoverDC reached out to Valois for comment, she said that language in the court's ruling "can and most likely will be used in future cases." She added:
"Generally, the government has a great deal of discretion to act under its police powers, and courts have appeared reluctant to extend liability to the government when it is utilizing these powers during a crisis. That being said, Yawn is a step in the right direction. The Fourth Circuit expressly said that government actions taken pursuant to the police power are not per se exempt from the takings clause... Moving forward, the goal will be to get other courts to agree with the Fourth Circuit and to ultimately have a court rule that the government is liable in an instance where it caused harm to a private party."
The United States Department of Agriculture (USDA) calls bumblebees "vitally important pollinators of wild plants and agricultural crops worldwide." A three-year interdisciplinary study by the agency reported that "the relative abundances of four species have declined by up to 96% and that their surveyed geographic ranges have contracted by 23–87%, some within the last 20 years." As to the reason for the decline in the bumblebee population, the study says, "a national assessment of the geographic scope and possible causal factors of bumblebee decline is lacking."