UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-1584

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.

Appeal from the United States District Court for the District of South Carolina, at Charleston. Margaret B. Seymour, Senior District Judge. (2:17-cv-00440-MBS)

Argued: May 6, 2021 Decided: June 11, 2021

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.

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.

2 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

∗ Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this appeal.

3 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 Cou