Honeybee Deaths ‘Collateral Damage’ in Zika Control, Court Says

June 11, 2021, 6:02 PM

A South Carolina county defeated a honeybee seller’s claims it should be liable for “mounds of dead bees” that appeared after it applied pesticides to try and combat mosquitoes and the Zika virus, with the Fourth Circuit calling the bee deaths on Friday unforeseen “collateral damage.”

Mitch Randall Yawn and Juanita Mae Stanley, doing business as Flowertown Bee Farm and Supplies, alleged their bees were unconstitutionally taken because Dorchester County sprayed pesticides in their area without warning them of the spray and the potential harm to their product.

The U.S. District Court for the District of South Carolina granted the county summary judgment, holding no taking occurred under the Fifth Amendment.

The U.S. Court of Appeals for the Fourth Circuit affirmed, saying their claim failed because the death of the bees wasn’t a natural or intended consequence of the county’s mosquito control program.

“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,” Judge Stephanie D. Thacker said.

Three cases of Zika were reported in the county in 2016. The county responded by spraying pesticides in targeted areas within a specified radius of the infected individuals’ homes.

The head of the county’s mosquito abatement division called local beekeepers to notify them about the sprays, but Flowertown didn’t receive a call before an aerial spray in August 2016, the court said.

Yawn and Stanley contacted Clemson University’s pesticide regulation department, which is responsible for investigating pesticide use and complaints pursuant to state law. The university’s investigation found no violations on the day of the spray, but didn’t rule out an aerial spray as the bees’ cause of death, the court said.

Judge Robert B. King joined in the opinion.

Judge William B. Traxler Jr. wrote a concurring opinion. He said that, at most, the county was negligent in its implementation of its mosquito control plan, which would limit Yawn and Stanley to remedies available under the state’s Tort Claims Act.

The Pacific Legal Foundation, Austen & Gowder LLC, and Rose Law Firm represented Yawn and Stanley. Maybank Law Firm LLC represented Dorchester County.

The case is Yawn v. Dorchester County, 4th Cir., No. 20-1584, 6/11/21

To contact the reporter on this story: Sylvia Carignan in Washington at scarignan@bloombergindustry.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Steven Patrick at spatrick@bloomberglaw.com

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