Polk County’s Mosquito Spraying May Be Unlawful
by Kemp Brinson
File this one in the “not an earth-shattering crisis but interesting to think about file.” Polk County has sprayed for mosquitoes in the past and have only recently implemented a formal policy at the Commissioner level for spraying. Some interesting legal arguments can be made that activities like this are unlawful (policy or not). I’m curious as to how others respond to this. I’ll present this like a Q&A.
What is Polk County’s mosquito spraying program?
At the last Board of County Commissioners meeting, the Commissioners voted on a formal Mosquito Control Policy. According to an article in the Ledger, the County has been spraying for mosquitoes since the 50s without a policy. Anecdotally, I have heard spray vehicles in my neighborhood. They come by at night driving fairly slowly – maybe 15 mph or so – and the “psssssst” of the sprayers is pretty obvious.
According to the County’s site, they do regular monitoring of mosquito levels using mosquito traps. The County is divided into 43 treatment zones that are treated only when levels in that zone are above normal “background.” During peak mosquito season, a single location will get sprayed no more often than once per week. The pesticide is said to kill 90% of mosquitoes within 600 feet of the path of the truck.
Mosquitoes are bad. What’s the problem?
Fundamentally, it’s a private property rights issue. I never granted the government the right to spray chemicals on my property. Why should they be allowed to?
More personally – I have a LOT of wildlife in my yard – on purpose. We have deliberately planted native butterfly host plants to attract butterflies and refrain from using pesticides. As a result, we have tremendous numbers of butterflies of several different species. A colony of bees recently took up residence, and a second colony is constructing a hive as I type1. Other insects and spiders abound. This is exactly how we want it. We do not keep dirty standing water in our yard and we are not the cause of any mosquito problems. We don’t want to wake up tomorrow and find all of our butterflies and bees dead.
But aren’t there legitimate public health issues, such as disease, and nuisance concerns that trump that argument?
Maybe. Keep reading.
Why might government pesticide spraying be unlawful?
My source for this theory is a 1999 article2 published in the Stanford Environmental Law Journal by Stetson University Law School professor Royal C. Gardner. It is available online from the Social Science Research Network. The article was focused specifically on aerial spraying for medflies, which are a danger to citrus crops, but the same logic may apply here.
The legal theory involved is based on the “takings” clause of the Fifth Amendment to the U.S. Constitution which prohibits a government from taking property without providing just compensation to the owner. The argument goes like this: the government is behaving as if it has an easement to spray pesticides on my property, much as the power company has an easement to run a power line over it. But I have never granted such an easement. Because the government has “taken” this easement without providing me with just compensation, the Fifth Amendment “takings” clause has been violated.
Another theory to challenge this type of activity is based on the Fourth Amendment, which protects us against warrantless searches and seizures. This post is primarily focused on the Fifth Amendment argument, but the Fourth Amendment argument has some merit, too. I suspect however, that the Fourth Amendment argument may fail on the grounds that a pesticide application is neither a “search” not a “seizure,” but one could make the argument. According to the Gardner article, the Fourth Amendment has been used in a similar case successfully3.
Is it that easy?
Definitely not. We’re in largely uncharted legal waters here, and there is no guarantee about what a court may do with an argument like this. There have been some related cases based on other theories, but they come out both ways. Plus, the takings clause cannot generally be used to prevent an intrusion, only to compensate you for one. How much does a few nights of spraying a year decrease the value of your property? Probably not much. Some might even say that it increases it. These are just a few of many hurdles to a case like this.
Does the public health/nuisance argument help the County?
Perhaps. There are a couple of defenses to a takings action that might apply, notably “necessity” and “nuisance.”
The nuisance defense allows what would otherwise be a “taking” if the government is correcting a public nuisance. The destruction of a condemned building or chopping of a diseased tree would fall under this category. The County’s chief difficulty with this type of defense would probably be that ALL properties in a zone are sprayed, not simply the ones that contain the source of the nuisance. The nuisance defense only allows the government to act where the nuisance is located. It’s an open question whether a mosquito infestation in one’s general area is sufficient to consider that person’s property a nuisance.
The necessity defense allows the government to act if there is imminent danger of some sort of public harm. The classic example is firefighting: Firefighters can destroy your property in order to block a fire from spreading into other adjacent areas.
How these arguments shake out is open for debate.
What can I do?
Well, unless you want to go guns blazing into court (I certainly don’t – I spend enough time there already), you can ask the County not to spray near your house. The new policy has a procedure for that. The contact for the County’s mosquito control program is listed on their web site as: Telephone: (863) 534-7377 or E-Mail: email@example.com.
I am curious as to whether they will avoid coming within 600 feet of your property, however, as their equipment supposedly reaches that far. In my case, they would have to avoid several streets a block or two away from me in addition to my own. I’m skeptical they keep track of things that well, but kudos to them if they do.
What do you think? Should the County be allowed to spray pesticides on your property?