Summary of a Recent
Judicial Development in
Environmental Law

Aerial Spraying of Pesticides Was Not Illegal Search and Seizure
or Unconstitutional Taking

Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

In Perry v. Southeastern Boll Weevil Eradication Foundation, 154 Fed. App'x 467 (6th Cir. 2005), the United States Sixth Circuit Court of Appeals affirmed the district court's ruling granting the defendants' motion to dismiss for failure to state a claim. The plaintiffs brought § 1983 and § 1985 actions against the defendants for conducting a boll weevil eradication program in a manner that caused the plaintiffs' personal injuries and property damage. The court held that aerial spraying of pesticides did not constitute a Fourth Amendment search or seizure of property owners, and that the plaintiffs' federal takings claims were not ripe.

Background

On July 30, 2001, the plaintiffs, a group of Tennessee citizens, sued the defendants for allegedly spraying the insecticide malathion on their persons and property, causing personal injuries and property damages. Id. at 470-71. The defendants, the Southeastern Boll Weevil Eradication Foundation, the Tennessee Boll Weevil Eradication Foundation, and various flying services and their respective employees, carried out their pesticide spraying responsibilities as authorized by federal and Tennessee legislation to eradicate the boll weevil. Id. at 470. The plaintiffs brought action pursuant to 42 U.S.C. § 1983, alleging that the defendants violated the Fourth, Fifth, Ninth, and Fourteenth Amendments. Id. at 471. The defendants moved to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing that the plaintiffs had failed to state a claim. Id. at 470. The district court found that the plaintiffs had failed to allege conduct sufficient to support their claims. Id. The plaintiffs appealed. Id.

Arguments

The plaintiffs argued that the defendants' spraying of malathion on their persons and property constituted an unreasonable search and seizure in violation of the Fourth Amendment. Id. at 474. The plaintiffs also alleged that the spraying constituted an unconstitutional taking in violation of the Fifth Amendment. Id. at 475.

Analysis and Holdings

The plaintiffs argued that the defendants' spraying of malathion on their persons and property constituted an unreasonable search and seizure in violation of the Fourth Amendment. Id. at 474. However, when the court looked at the statement of facts, it found only a bare assertion that the plaintiffs were searched. Id. They "did not plead in their complaint anything from which a court could infer a search." Id. Additionally, to state a claim for an unconstitutional seizure, the plaintiffs needed to allege that the state exercised some authority over them. Id. However, the plaintiffs failed to allege that "the defendants willfully sprayed malathion on the plaintiffs' properties in order to control the physical movement of the plaintiffs." Id. For these reasons, the plaintiffs failed to state a Fourth Amendment claim upon which relief could be granted. Id.

The plaintiffs also argued that the defendants' spraying constituted an unconstitutional taking in violation of the Fifth Amendment. Id. at 475. Before a party can allege a federal takings claim, the party must first exhaust state procedures for obtaining compensation. Id. Tennessee law allows an aggrieved individual to file an inverse condemnation action to recover the value of property allegedly taken by the state government. Id. The plaintiffs failed to exhaust Tennessee's inverse condemnation procedure or explain why the procedure was inadequate. Id. Therefore, the plaintiffs' unconstitutional takings claim was not ripe for adjudication. Id.

The case was decided on November 15, 2005.