The facts that compelled the U.S. Court of Appeal to conclude as it did in Yawn v. Dorchester County, No. 20-1584 (June 11, 2011) are pretty straightforward.
In response to a threatened public health viral crisis (no, not COVID, but Zika [remember that one?]), the county decided to spray insecticide. Some areas could not be reached by truck, so it was decided that aerial delivery was the way to go. The county put out press releases, and called local beekeepers to allow them to cover their hives (the insecticide, you see, doesn't discriminate between mosquitos and bees, and is equally fatal to the latter unless the hive is covered). The pilot even testified that he had a map of the location of beehives, and that he turned off the sprayers as he approached those areas.
But Yawn, a beekeeper, did not get the warnings. The result: lots of dead bees. Slip op. at 5 ("the morning after the aerial spray, Appellants discovered mounds of dead bees surrounding their hives"). There's no direct evidence that the pesticide killed the bees, but an investigation concluded that the the dead bees were "consistent with pesticide exposure." Id.
A federal lawsuit, including both a takings claim as well as a claim under South Carolina tort law, followed.
The district court entered summary judgment in favor of the county, concluding that the pesticide spraying was "squarely within the police power" and that the injury to Yawn's bees was only incidental, and therefore no taking: "[b]ecause [the County] was exercising its police power, and not its power of eminent domain, the Takings Clause is not implicated." On to the Fourth Circuit.
Barista's note: before we go further, disclosures. The property owners are represented by my law firm (Pacific Legal Foundation) and as co-counsel with my friend and colleague W. Andrew Gowder.
First, the good news. The appeals court rejected the district court's conclusion that the mere fact that the court was (validly) exercising its police power in the furtherance of the public health was not blanket immunity from takings liability. As the court put it, "[t]hat Government actions taken pursuant to the police power are not per se exempt from the Takings Clause is axiomatic in the Supreme Court’s jurisprudence." Slip op. at 8.
That's a point we've often made, most recently in the context of COVID restrictions, and in this amicus brief in the "SWAT takings" case. The entire regulatory takings doctrine would make no sense if all the government need do to avoid liability is show that the regulations claimed to effect a taking are valid exercises of the police power. Indeed, the takings doctrine pretty much presumes that the taking is the consequence of an otherwise valid exercise of power. To conclude, as the district court did, that the regulation can't be a taking because it isn't an exercise of eminent domain power simply gets you into a self-proving rule. And of course regulatory takings claims are not based on the government's exercise of eminent domain power. In those instances, the government acknowledges it is taking property and has an obligation to provide compensation. Not so in regulatory takings.
The Fourth Circuit didn't exactly say it that way (instead, the opinion puts it in terms of takings remedies not putting direct limits on government's ability to act for the public good), but who's complaining? That's the good.
Now the not-so-good. The court nonetheless affirmed the district court's conclusion that the bee apocalypse was not a taking. Why? Because "the death of Appellants' bees was neither intentional nor foreseeable." Slip op. at 9. Concluding that bee death was merely a consequential damage resulting from a valid exercise of the county's police power, the court held that "[i]f the invasion is not intended or foreseeable, then it does not constitute a taking." Slip op. at 9.
Relying on dicta in Chicago, B. & Q. Railroad and Arkansas Game and Fish cases, (and otherwise notable for the lack of on-point Supreme Court authority, presumably because there isn't any), and adopting the Federal Circuit's tort/takings distinction, the court held that because the invasion here was unintentional, there could be no takings liability. Slip op. at 9 ("Here, the death of Appellants' bees was plainly unintentional."). The court rejected the owners' argument that the bee deaths were foreseeable because the insecticide is highly toxic to all insects, including bees:
Appellants argue that the death of the bees was nonetheless foreseeable because of an “explicit warning in the pesticide use instructions stating that dispersal of the substance is ‘highly toxic’ to bees.” Appellants’ Reply Br. 10 (citing J.A. 157). But this frames the foreseeability analysis too narrowly. The question is not simply whether applying the pesticide to bees would foreseeably result in their death, but rather, whether the bees would die despite the County’s specific efforts to avoid exposing the bees to the pesticide. We conclude that it was not foreseeable that the press release would fail to reach Appellants, leaving Appellants and their bees unprepared for the spray. Appellants testified that they had previously successfully taken protective measures prior to sprays of which they were aware, such as closing the hive entrances and laying a damp bed sheets across the hives. Thus, previous sprays did not result in the death of Appellants’ bees. And the fact that the spray in question was conducted aerially while previous sprays were conducted via truck is likewise not enough to conclude that the bees’ death was foreseeable. This is because there is no evidence that Appellants’ protective measures would have been ineffective in this instance had they known about the spray, especially given the pilot’s effort to avoid direct exposure by turning off the sprayer. Indeed, this spray did not kill other local beekeepers’ bees.The death of Appellants' bees is undoubtedly a tragedy, but we cannot conclude that it was the foreseeable or probable result of the County’s action when it is a clear outlier in terms of collateral damage arising out of the County’s mosquito abatement effort.
Slip op. at 10.
To us, this approach presents two potential problems.
First, identifying the property alleged to have been taken. If it was the invasion of the owner's airspace that resulted in injury to his other property, as in United States v. Causby, 328 U.S. 256 (1946), then foreseeability does not seem to count for all that much, as long as the invasion was "substantial" and "direct." See id. at 265-266 ("In this case as in Portsmouth Co. v. United States supra, the damages were not merely consequential. They were the produce of a direct invasion of respondents' domain."). Maybe the single incursion here, not being the "regular" flights in Causby that resulted in takings liability when those incursions resulted in dead chickens instead of dead bees, was not considered substantial. But since a single invasion is, according to Arkansas Game, not an automatic exemption, you might think the Fourth Circuit would at least walk through the factors which the Arkansas Game opinion laid out, instead of Penn Centralizing the foreseeability factor alone. In Arkansas Game, for example, the Court told us to look at the length of the invasion, the foreseeabilty of the consequences, the character of the property, the owner's investment-backed expectations regarding use of the property, and the severity of the interference. Arkansas Game, 568 U.S. at 38-39. Or was the property alleged to have been taken limited to the bees themselves?
Second, as noted above, the Fourth Circuit adopted the Federal Circuit's very torty approach, which looks at whether the alleged condemnor predicted the consequences of its actions. In these cases, the court looks at the "direct, natural, or probable" result of the government action, which sounds to us an awful lot like a tort analysis despite the Federal Circuit's disclaimer in Moden v. United States, 404 F.3d 1335, 1345 (Fed. Cir. 2005) (the sole case on which the Fourth Circuit cited in its opinion) that "the government's liability for a taking does not turn, as it would in tort, on its level of care." Id. Sure does to us, sorry.
But this is not the only approach that courts have taken. In California and a few other states, for example, inverse condemnation liability does not look at predictability or foreseeability, but on causal connection.
Public entities are not strictly or otherwise automatically liable for any conceivable damage bearing some kind of connection, however remote, to a public improvement. To succeed on an inverse condemnation action, a plaintiff must ordinarily show — assuming the public entity made reasonable assumptions about the public improvement in question –– that the damage to private property was substantially caused by inherent risks associated with the design, construction, or maintenance of the public improvement.
City of Oroville v. Superior Court, 446 P.3d 304, 307 (Cal. 2019).
The most notable example is in wildfire cases, but the California courts also apply this analysis in physical flood cases as well. If that analysis were applicable, it would not venture (unnecessarily, in our view) into the tort sphere, and would not make takings liability turn on the implied reasonableless of the government's beliefs about what might happen. Instead, takings would turn on a factual question about whether the damage was substantially caused by the government's action.
Yawn v. Dorchester County, No. 20-1584 (4th Cir. June 11, 2011)
