Case of the Day – Friday, July 31, 2015

THE DEMOCRATIC PEOPLE’S REPUBLIC OF HOWELL, MICHIGAN

The Mayor of Howell?

The Mayor of Howell?

Like many American cities, the City of Howell, Michigan requires its property owners to keep their lawns mowed below a certain height. Violators of the ordinance are charged a fine as well as a fee for the costs associated with hiring a private contractor to mow or otherwise maintain the property. Such an ordinance, of course, occupies the same moral plane as laws that lock up three generations of families in a labor camp for life because somebody’s uncle tried to leave the country.

Or so David Shoemaker, a Howell homeowner, would have you believe. He complains that such an ordinance “makes the City look like North Korea rather than an American city.” Kim Jong Eun would be amused … or, if he was not, he’d have David shot to pieces with an anti-aircraft gun.

It seems that Shoemaker and his daughter planted a maple tree in their tree lawn, that strip of grass between the sidewalk and the street. The maple flourished for a few years, until the City came along to widen the curb. City workers hacked down the tree, and – when Shoemaker complained – they imperiously told him there was nothing he could do about it, because the City owned the tree lawn. Later, the same workers planted nine saplings in the tree lawn, and guy-wired them to a fare-thee-well.

Shoemaker was incensed, and he figured to get even. If the tree lawn was the City’s property, he reasoned, then city worker could just jolly well cut the grass on the tree lawn. He wasn’t going to do it. So Shoemaker stopped mowing the strip between the sidewalk and the street.

In North Korea, it’s illegal to name a baby “Kim Jong-Eun” (like anyone would want to). According to Shoemaker, Howell has an equally irrational and stupid ordinance, one that prohibits the owner or occupant of any lot in the City from “maintain[ing] on any such lot … any growth of weeds, grass or other rank vegetation to a greater height than eight inches.” The ordinance explicitly applies to any land “along the sidewalk, street or alley adjacent to the same between the property line and the curb.” Shoemaker’s act of civil disobedience promptly ran into a city inspector, who cited him under the ordinance when the grass in the tree lawn got to be high enough to harvest.

If you're looking to get even, tread very carefully.  It may cost you more than it's worth.

If you’re looking to get even, tread very carefully. It may cost you more than it’s worth.

No doubt the city inspector wanted to throw Shoemaker and his daughter into the gulag. But he was limited to fining Shoemaker, and charging him for the cost of mowing the lawn. After several infractions and city-sponsored mowings, Shoemaker was billed for $600.00 by the City.

Shoemaker filed suit against the City in federal court, asserting that Howell had violated both his procedural and substantive due process rights. Amazingly (to us), the district court granted summary judgment for Shoemaker on both claims. But down at the U.S. Court of Appeals for the Sixth Circuit, cooler heads prevailed.

Shoemaker argued that the City ordinance requiring him to mow the tree lawn violated his procedural and substantive due process rights. The Court held that while the citation for violating the ordinance didn’t expressly state appeal rights, the imposition on a property owner was so slight, a property owner was given a chance to avoid the fine by cutting the grass after the citation was served, and the standards of the ordinance – grass in excess of 8 inches high – were pretty straightforward. Anything you can settle with a yardstick isn’t very complex. The Court was not about to turn the fairly simple citation into a procedural due process violation.

Shoemaker claimed the statute violated his substantive due process rights as well. For those of you who had constitutional law right after lunch, and consequently fell asleep in a warm classroom with a full stomach, “substantive due process” is the doctrine that governmental deprivations of life, liberty or property are subject to limitations regardless of the adequacy of the procedures employed.” Which deprivations? Well, it “depends on the nature of the right being deprived.” Specifically, “[g]overnment actions that do not affect fundamental rights … will be upheld if they are rationally related to a legitimate state interest.”

There … that’s clear. If you had stayed awake in Con Law, and taken good notes, you might be nonetheless be forgiven for thinking that “fundamental rights” are what Justice Potter Stewart was thinking of when quipped about pornography in Jacobellis v. Ohio: “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it …”

What interested us about this decision was Shoemaker’s insistence that the tree lawn was owned by the City of Howell, and not by him. He said a city worker had told him that, and thus the matter was settled. The Sixth Circuit, not a court to take a litigant’s word for it, examined Michigan law on the topic.

The district court had granted summary judgment in favor of Shoemaker because the City owned the tree lawn in front of Shoemaker’s house, and “the right not to be forced by a municipal government to maintain municipal property” is a fundamental one. The ordinance infringed on that basic right.

Nonsense, the Court of Appeals said. Whitle Michigan cities possess “nominal” title to land designated for public use, the private property owners retain the usual rights of the proprietor. This relationship, the Court said, “reflects the reality that homeowners like Shoemaker have a special interest in the curb strips adjacent to their houses because these strips of land are, for all practical purposes, simply extensions of the homeowners’ lawns. The curb strips also provide a traffic and safety buffer between the street and the rest of the property. In other words, despite the City’s right of way over the curb strip for public use, Shoemaker retained both his property interest in and de facto use of the land in question.’

As for Shoemaker’s hyperbolic comparison of Howell’s lawn-cutting ordinance to Korea, the Court dryly observed that the notion “should come as a surprise to the citizens of both nations. On the one hand, North Korea is a totalitarian regime that notoriously tortures criminal defendants, executes non-violent offenders, and sends those accused of political offenses to forced labor camps. On the other hand, laws like Howell’s lawn-trimming ordinance “are ubiquitous from coast to coast.”

Shoemaker v. City of Howell, Case No. 13-2535 (6th Cir., July 28, 2015). Shoemaker and his minor daughter lived on East Sibley Street in Howell, Michigan, for 9 years. Early on, they planted a maple tree in the tree lawn, that strip of grass between the sidewalk and street.

During this time, the City undertook a citywide project to refurbish and landscape its streets. East Sibley Street next to the Shoemaker residence was among the areas where work was done. The City removed the Shoemakers’ maple tree replaced it with nine saplings. Shoemaker claims that when he protested the tree’s removal, City workers told him “that’s not your property, you have no say on what goes in or out of there.” Upset by the City’s unilateral remodeling of the curb strip, Shoemaker chose to protest the City’s actions via civil disobedience: he stopped mowing the curb strip.

The City received a complaint about Shoemaker’s uncut tree lawn. Based on the complaint, City Code Inspector Donahue visited the residence and left a door-hanger notice informing Shoemaker that his lawn was in violation of City Code § 622.02, which requires property owners and occupants to maintain the vegetation on their land. The Ordinance prohibits the owner or occupant of any lot in the City from “maintain[ing] on any such lot.., any growth of weeds, grass or other rank vegetation to a greater height than eight inches,” and applies to any land “along the sidewalk, street or alley adjacent to the same between the property line and the curb.” A violation of the Ordinance subjects the responsible party to fines.

The prisoner's last words: "I should have mowed my whole lawn."

The prisoner’s last words: “I should have mowed my whole lawn.”

On August 4, 2011, Donahue noticed vegetation that was taller than eight inches on the curb strip in front of Shoemaker’s house. As before, Donahue left a door-hanger notice informing Shoemaker of the violation and mailed another Notice of Ordinance Violation. He returned to the property on the next day to find that, although the lawn had been freshly mowed, the grass on the curb strip remained in excess of the Ordinance’s limitation.

Shoemaker told Donahue that he would not mow the curb strip because he had been told by City employees that the area was the City’s property and not his own. Donahue insisted that the property did in fact belong to Shoemaker. Shoemaker asked to be ticketed for the violation in order to challenge the Ordinance in court. Shoemaker was charged a total of $600 for his violations of the Ordinance, including $300 in grass-cutting services and $300 in fines.

Shoemaker filed suit against the City, asserting violations of his procedural and substantive due process rights. The district court granted summary judgment in favor of Shoemaker, finding that the City owned the curb strip in front of Shoemaker’s house, that “the right not to be forced by a municipal government to maintain municipal property” is a fundamental one, and the Ordinance “unconstitutionally infringes” on that right.

The City of Howell appealed.

Held:  The City did not violate Shoemaker’s procedural due process rights because it provided him with ample notice of the violation and an adequate opportunity to be heard. The City did not violate his substantive due process right, because Shoemaker continued to own the tree lawn, subject only to certain rights the City had to use the area for permissible purposes.

The Court weighed several factors in deciding exactly how much procedural process was due Shoemaker, including whether a private interest is affected by the official action, the risk of an erroneous deprivation of rights, the probable value, if any, of additional procedural safeguards, and the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

Clearly, a private interest was affected by the Ordinance, although it was a slight one. The constitution does not require strict adherence to the City’s Ordinances. What it does demand – that the notice as given be reasonably calculated to alert Shoemaker of the charges against him and any avenues available for challenging those charges – was accomplished by the notices distributed by the City, which explained what he had to do to avoid a fine.

There was little risk of erroneous deprivation under the Ordinance If the vegetation on the land in question is allowed to grow beyond eight inches tall, then the owner or occupier of that land has violated the Ordinance. Due to this objective, readily ascertainable standard, there is little chance of a wrongful application of the law. The ample means of challenging an alleged violation under the laws of the City and the state of Michigan further counsel against the need for additional procedures. Finally, the burden of added process here would be significant, and that the potential burden “militates against yet more process.”

The Court said that Howell did not violate Shoemaker’s substantive due process rights because Shoemaker had a shared ownership interest in and the de facto use of the curb strip. Under Michigan law, Shoemaker technically owned the property at all relevant times and the City simply possessed a right of way for public use. The erroneous reasoning of the district court relied entirely on the inaccurate determination that the City is the sole owner of the curb strip. Given Shoemaker’s shared ownership interest in the curb strip as well as his de facto use thereof, no substantive due process violation occurred.

Substantive due process holds that governmental deprivations of life, liberty or property are subject to limitations regardless of the adequacy of the procedures employed. The limitations the Constitution imposes on such governmental deprivations depends on the nature of the right being deprived. Government actions that do not affect fundamental rights will be upheld if they are rationally related to a legitimate state interest.

The district court acknowledged that the Supreme Court has always been reluctant to expand the concept of substantive due process, because guideposts for responsible decision-making in this unchartered area are scarce and open-ended. Despite this, the district court expanded the concept by identifying a new fundamental right: the right not to be forced by a municipal government to maintain municipal property.

unam150731The Court of Appeals observed that this “right” was predicated on the finding that the City owned the tree lawn, and that was wrong. Through a conveyance by a platting statute, the government does not receive title in the nature of a private ownership; it acquires no beneficial ownership of the land and has no voice concerning the use; and it does not possess the usual rights of a proprietor, but rather takes title only to the extent that it could preclude questions which might arise respecting the public uses, other than those of mere passage. “Simply put,” the Court of Appeals said, “the law vests the governmental entity with nominal title. We pause at this word ‘nominal’ to emphasize the obvious, i.e., that the property interest conveyed by these early platting statutes is a fee in name only.”

The reality, the Court ruled, is that homeowners have a special interest in the curb strips adjacent to their houses because these strips of land are, for all practical purposes, simply extensions of the homeowners’ lawns. The curb strips also provide a traffic and safety buffer between the street and the rest of the property. In other words, despite the City’s right of way over the curb strip for public use, Shoemaker retained both his property interest in and de facto use of the land in question.

Shoemaker suggested that the Ordinance was somehow “un-American.” The Court didn’t sit still for the argument. It said, “Shoemaker’s argument, like the district court’s opinion, relies on the erroneous assumption that the City is the sole owner of the curb strip. “Shoemaker specifically compares the requirement that he maintain the curb strip associated with his property to draconian mandatory public-labor measures adopted by regimes in troubled nations such as the Republic of the Congo, Uzbekistan, and Burma/Myanmar. These analogies are almost too outlandish to address. But even more hyperbolically, Shoemaker argues that the Ordinance ‘makes the City look like North Korea rather than an American city’. This final comparison should come as a surprise to the citizens of both nations.”

Indeed it does.

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And Now The News …

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oldtree150731Albuquerque, New Mexico, Journal, July 30, 2015: Disease, danger lead to decision to ax two trees

With 283 days of sun in a year, Santa Feans love what shade they can find. So it was with some dismay that museum officials discovered that two out of three of the large trees that shade the courtyard at the Palace of the Governors will most likely have to come down. This news comes just weeks after the word came out that a huge 100-year-old cottonwood named Willy in nearby Sena Plaza might have to be cut down, prompting “save-the-tree” wails from some residents. “We wish the trees were healthy. We check the trees every morning to make sure nothing untoward is happening,” said Andrew James Wulf, director of the New Mexico History Museum/Palace of the Governors. “People love their trees here.” One final consultation is planned with an expert from the State Forestry Division, he added, but he didn’t appear to be holding out much hope. Museum officials want to protect the trees, but they also want to protect the people who walk and sit beneath them, he said …

Allentown, Pennsylvania, WFMZ-TV, July 30, 2015: Man killed in tree-trimming accident

A man died after falling from a tree-trimming bucket in Bucks County. The man, who has not yet been identified by police was working in Northampton Township, Bucks County on Andrea Drive when he was thrown from the bucket he was working in. Police say the man was in the bucket truck removing trees from a property and at some point a portion of a tree being cut down was tied to the boom of the bucket truck. As the tree was being moved, the weight of the tree and the position of the truck caused the vehicle to flip onto its side. The man was ejected from the bucket, landed on the ground and the bucket landed on top of him, police said. Initially, 911 dispatchers were told the man was conscious and bleeding from the mouth. But police say when they arrived, the man was not breathing and CPR was provided by witnesses and members of the Northampton Township Volunteer Fire Company …

dope150731Scranton, Pennsylvania, WBRE-TV, July 30, 2015: Stately Susquehanna County tree gets inoculated against beetle

A towering Ash tree on Montrose Green in the shadow of the Susquehanna County Courthouse got a special house call Thursday from an expert tree care team. Top Notch Property Services of New Milford and a company called Arborjet combined to inoculate the tree with a special insecticide. “You just put the chemical, the amount that you need in there,” said Joe Pipitone, Sr. He pumped what’s called TREE-age made by Arborjet into eight injection sites of the tree. The insecticide is intended to ward off the Emerald Ash Borer or EAB. Damage caused by the destructive beetle is often tricky to detect until it’s too late. “It starts at the top of the tree and the actual larvae actually keep all the fracks inside the tree so it’s slowly working it’s way down. It’s a silent killer,” said Arborjet Mid-Atlantic Technical Manager Trent Dicks.The EAB which is native to Asia came to the U.S. in 2002. “It’s been devastating. It’s been working its way across the United States. It’s in over 25 states now and it’s literally killed millions of trees throughout the U.S.,” said Mr. Dicks. With EAB spreading to Susquehanna County just last year, the tree experts donated their time and product to protect the lone Ash standing on Montrose Green. “This is an historical tree. This tree replaced an Elm tree that was.. that died from the Dutch Elm disease,” said Mr. Pipitone. His son, Joe, added, “Any Emerald Ash Borer that will make contact with this tree will be killed by the tree rather than having the Emerald Ash Borer start to eat and lay eggs …”

Palm Springs, California, KESQ-TV, July 30, 2015: Drought is tough on trees but there are water wise ways to keep them alive

There are an estimated 12 million dead trees in California’s forests. In our current drought, we’re told time and time again we need to cut back on water. Inevitably when you do that, trees suffer. But even though our drought is relentless, there are ways to be water wise and save your trees. Gregg Gritters, the CEO of Vintage Landscape, has been landscaping in the valley for more than 13 years. He said this drought has been tough on our trees. “Homeowners need to prioritize their trees, they need to prioritize their landscape,” Gritters said …

Yahoo.com, July 30, 2015: 11 best shade producing trees to plant

When choosing a shade producing tree for your yard, it’s best to make an informed decision. Some trees will start out small but fill in year after year, while others might become less desirable over time. Still, some trees have thorns or drop messy seedlings, so be sure to factor in every characteristic of a tree when making a decision, not just how much shade it produces. Your climate zone and soil composition will also affect which tree you should choose, so make sure you know both before you make a selection. Below are 11 trees that produce shade, including some of their basic qualities to help begin your search and find a tree that you’ll enjoy …

 

stormtree150730Hannibal, Missouri, KHQA-TV, July 29, 2015: Trees are still in danger weeks after major storm

If your trees didn’t fall in the storm that hit two weeks ago, there’s still a chance that can happen. Some trees are still standing tall despite the major wind storm that hit the Tri-States more than two weeks ago. But are they? Kari Houle, a Horticulturist with the University of Illinois Extension Office, says if you take a closer look at the trees now, there’s a chance that a few more may be coming down. “If you know that it wasn’t leaning before and now it’s leaning; now we have to evaluate what’s going on,” Houle said. She also says if you haven’t established a relationship with your trees before, you must do it as soon as possible because paying attention now will save you time and money …

Toronto, Ontario, Star, July 29, 2015: Town of Milton mistakenly cuts down 100 trees on farm

A Milton farm owner is seeking answers from the town of Milton after 100 trees on her property were cut down by mistake. “(The town’s operations department) went onto my field, onto the private property, cut down a lot of the grass, a lot of the clover that I have growing for my bees and a hundred trees,” said Karin Tomosky-Chambers, who owns a 10-hectare farm next to the town of Milton Civic Operations Centre. Tomosky-Chambers is confused how her property was mistaken as municipal property because, in certain areas, a chain-link fence divides the two lands. After noticing the cut trees while planting new trees, she called the town of Milton. Jim Cartwright, operations manager for the town of Milton, said a student in that department made the mistake. The student was trimming grass along the property line of the Milton Civic Operations Centre the week of June 29, he said …

Cuttree150730Longmont, Colorado, Times-Call, July 29, 2015: Longmont: City owed $35,630 for Terry St. trees

Longmont is demanding $35,630 for the destruction of seven large trees near the corner of Terry Street and Ninth Avenue, according to documents obtained from the city through an open records request. Property management company Regel & Associates LLC, 655 S Sunset St., admitted earlier this month to cutting down the tall trees that previously stood in planters between Terry Street and the Ninth Avenue Liquor, 750 W. 9th Ave., parking lot. City officials first learned of the destroyed trees after a Times-Call article. The notices of violation from the city are addressed to real estate brokers Kathy and Ed Regel of Regel & Associates and Kathy Regel is addressed separately on one as she represents the property owners, Darlene & Mert King Family Ltd. Partnership LLLP. Another notice of violation is addressed to the Boulder-based contractor Taddiken Tree Company, 5717 Arapahoe Ave. The notices, dated July 28, cites a Longmont municipal ordinance that states it is illegal to destroy a tree on city property. The notices also assessed the individual value of each destroyed tree. Kathy Regel said in a previous interview with the Times-Call that Regel & Associates paid to have the trees cut down to deter homeless people from urinating, defecating and sleeping under them …

Los Angeles, California, KNBC-TV, July 29, 2015: Arborist examines fallen tree at Children’s Museum that injured nine children

An arborist on Wednesday examined a tree that came crashing down outside a children’s museum in Pasadena the day before, injuring at least nine children, but there was no word on what may have caused the tree to topple. Witnesses said there was “no warning” when the 75-foot pine tree snapped and fell to the ground in Brookside Park outside Kidspace Children’s Museum. Thirty-three campers, between the ages of five and seven years old, enrolled in the museum’s summer program were sent running in every direction when the tree fell. One of two children who were critically injured was upgraded to serious condition. At least seven others suffered minor injuries. Officials from the City of Pasadena Public Works Department Forestry Division expressed surprise and concern about the tree to a group of reporters during a news conference Wednesday. One said, “I’m not an arborist but I’ve walked by that tree for four years and I’ve never seen any concerns with it.” He also said the city regularly maintained the trees on the grounds and sent an arborist to examine them at least four times a year…

Worcester, Massachusetts, Worcester Magazine, July 30, 2015: Trees under attack: Worcester’s beetle battle rages on

August, according to those fighting the devastating Asian Longhorned Beetle (ALB) in Worcester, is “Tree Check Month.” In a city that has been devastated by a species of beetle that tunnels deep into trees and kills them from within, the best thing property owners and city officials can do is check the thousands of trees that lend color to a concrete jungle. The telltale sign that an ALB has been there is the dime-sized exit hole in the tree. These particular beetles favor the Maple tree, and they have leveled several thousand of them in Worcester over the past half dozen or so years …

falltree150729Los Angeles, California, KNBC-TV, July 28, 2015: Children injured by falling tree had ‘no warning,’ witness says

A 75-foot tree uprooted and fell onto kids at a summer day camp in Pasadena Tuesday, injuring eight children, two of them critically, officials said. The pine tree came crashing down about 4:45 p.m. as campers and their families were walking through Brookside Park outside the Kidspace Children’s Museum, officials with the Pasadena Fire Department said. “It’s just such a huge tree — no warning,” said witness Klea Scott. “Massive amounts of pine needles that we couldn’t see if there were more people in there.” Witnesses said children ran in every direction as the 75-year-old tree fell …

Lebanon, Pennsylvania, Lebanon Daily News, July 29, 2015: Lebanon City Council revives Shade Tree ordinance

Lebanon City Council on Monday night reinvigorated the city’s shade tree program by amending the existing Shade Tree Ordinance. The change gives enforcement authority to the public works department instead of a Shade Tree Commission as was previously the law. Without funding support from the city, in the past decade the commission had ceased to function. Under the changes, the five-member Shade Tree Commission will remain intact but will serve in an advisory capacity. A shade tree is categorized as any tree between a sidewalk and a curb. While the care of the tree is the responsibility of the property owner, the sidewalk is a public right-of-way, giving the city enforcement control over the tree, its care and its replacement — just as it has control over clearing a sidewalk of snow. The ordinance requires homeowners to take proper care of the tree by regularly pruning it to the standards of the National Arborists Association and replanting a new tree of a specified size and species when an old one dies …

wrongtree150729Waco, Texas, KWTX-TV, July 28, 2015: Landscaping company cuts wrong man’s trees down

A Central Texas landscaping company mistakenly cut down the wrong man’s trees in a resident’s backyard, leaving a large brush pile behind. “There’s absolutely nothing I can do, I can’t even cut the brush,” said Killeen resident Eric Buker. A big mess that’s now left for this disabled vet to sort out. Friday evening Buker came home to a brush pile covering his sidewalk from nearly twenty trees that once stood tall in his backyard. A site that shocked the disabled veteran. “Frustration, I mean it’s just pitiful,” said Buker. Buker says that his neighbor, Howard Lee, hired a company called “Total Services” listed online out of Gatesville to trim the parts of the trees on his property. But instead Buker says the company went through his backyard and cut them all down …

CBS News, July 28, 2015: Missing Vietnam vet found alive under a tree

Larry Shaddy, 66, was reported missing on July 20 from a veteran’s home in Springdale, Maryland. He was rescued seven days later from beneath a tree in the wooded area near his home (Video report) …

Beverly Hills, California, Canyon News, July 28, 2015: Some trees are all bark

Flowers provide color and texture. So does foliage. What is less often considered is that the bark of many trees and large shrubbery can be aesthetically appealing as well. Bark is usually thought of merely as something to cover up the trunks and limbs of the plants that provide all the colorful and textural flowers and foliage …

 

dangertree150728Stockton, California record, July 27, 2015: Neighbors relieved at tree’s demise

A flowering pear tree, whose falling limbs had been menacing a central Stockton neighborhood for several years, came down Monday, this time at the hands of a tree service company paid for by a councilmember and to the relief of residents in the area. On Monday, Linda Parker and Nancy Alders, who have been living in their homes in the 100 block of East Castle Street for 49 years and 27 years, respectively, said they watched as a three-person crew with Stockton Tree Surgery Co. removed the city-owned tree. Despite the tree’s beauty in the spring, the women wanted the deteriorating tree removed out of growing safety concerns. Alders said she spent the past two years trying to get the city to remove the tree because “she didn’t want to see someone killed” by its dropping limbs. The thick branches would come down barely missing people, she added …

Corpus Christi, Texas, KZTV, July 27, 2015: Troubleshooter: Tree trimmers

The Kitchen family says they wanted this big tree in their backyard cut down because its limbs were hanging over the roof and swimming pool. And they’re having the pool redone. So they hired DT Landscape Service to cut it down for $1000.00. The company butchered the tree and left the job half done …

massacre150728Atlanta, Georgia, WXIA-TV, July 27, 2015: Neighbors outraged over giant trees torn down in their community

Saturday morning, people who live on and near Prospect Ave., SE, awoke to the whine of chain saws stripping the trees bare, as crews prepared to slice through the main trunks. No one had seen any signs posted, notifying the community of an application to take down the trees. So David Roth and many others were surprised. And they were angry. “We asked the men if they had a permit to take down the trees,” Roth said Monday. “They said they did, however they couldn’t access them” because the paperwork was in the office and the office was closed on Saturday. The tree cutters “went from one tree to the next, and ended up taking down five, huge trees. Three poplars and two white oaks.” Roth said that by measuring the diameters of the trunks as they sat in sections on the ground, and by counting the rings, he believes the trees were each at least 150 years old — part of the original forest of what is now SE Atlanta, and a quarter-century older than the Ormewood Park neighborhood. The trees were on two, now-vacant lots where homes once stood underneath the shade of those trees; the developer is planning to build two, new homes on the lots. A City spokesperson told 11Alive News Monday that the City had, in fact, received an application to remove three trees from one of the two properties, but the City denied that application. The City was still trying to find out if there were any applications to remove the other two trees, and had not found them, as of Monday evening. The City is investigating, she said, and the developer could face “heavy, heavy fines,” in the thousands of dollars, if it turns out he destroyed the trees without permits …

St. Thomas, Virgin Islands, Virgin Islands Daily News, July 27, 2015: Trees showing stress of prolonged drought

Summer in the Virgin Islands typically is punctuated by the brilliant reds, vibrant pinks, vivid oranges and the occasional radiant yellows of the territory’s flamboyant trees. Not so this dry, dusty year. The prolonged drought is stressing the trees out, and many of the oldest, biggest specimens can be almost denuded of leaves and blossoms during the time of year the trees are at their peak beauty. According to Agriculture Commissioner nominee Carlos Robles, the drought could spell the end for some of the trees. “Nutrients are moved throughout the system of the tree by water, so if the available water is minimal, it creates that much more stress on the tree and ultimately it gets to a permanent wilting point,” he said. “That means you lose the tree.” Once a tree reaches the permanent wilting point, the tree is too far gone to recover, according to Robles …

Washington, D.C., Washington Post, July 27, 2015: Learn about D.C. trees — and the Tree Witness Protection Program

In front of the U.S. Capitol building, beside the Reflecting Pool, there’s a bur oak that’s a member of the Witness Tree Protection Program. This tree didn’t stumble upon a hit by the elm mob. The curiously named National Park Service program identifies trees that have borne witness to history. Well over 100 years old, this bur oak was a shoo-in, says Melanie Choukas-Bradley, author of “City of Trees: The Complete Field Guide to the Trees of Washington, D.C.” “It was witness to the history of the Capitol and the building of the National Mall,” she says. “It’s one of my favorite trees to show people, because it has these giant acorns with fuzzy caps that even adults can’t help picking up and marveling at …”

 

bed150727New York City, WPIX-TV, July 27, 2015: Large tree falls into Great Neck home, trapping woman for 2 hours

Authorities saved a 20-year-old college student after a nearly 5,000-pound tree fell into her house and trapped her inside for two hours early Monday. A large tree unexpectedly fell over, struck the roof and collapsed into a second story bedroom of 11 Wooleys Lane East home shortly after midnight Monday, according to the Great Neck Fire Department. The victim, who was asleep at the time, became entrapped by the tree and debris that came to rest on top of her, fire officials said. According to Chief James Neubert of the Great Neck Fire Department, neighbors were awakened by her screams and the pain she was in was “tremendous.” Several fire departments along with the Nassau County police responded to the scene and were able to free the victim about two hours after the non-storm related incident …

Manchester, New Hampshire, WMUR-TV, July 26, 2015: UNH researchers track spread of invasive tree

University of New Hampshire scientists have tracked the spread of an exotic tree native to Asia that has invaded white pine and other forests in the state. Their research points to a single tree planted on campus in the early 1970s. The New Hampshire Agricultural Experiment Station researchers analyzed the 25-year spread of the castor-aralia in the Durham area. They found it is capable of spreading via seed from planted trees to urban and natural forests in southeastern New Hampshire. The large, deciduous tree can grow to be 100 feet tall. It’s capable of invading forests of sugar maple, beech and red oak, in addition to pine. Little research has been done on the earliest stages of exotic tree invasions. Most invasions are not detected until they are well developed. The researchers say much can be learned from studying the early stages of tree invasions. According to the National Park Service, Harvard University’s Arnold Arboretum distributed the plant to universities across the country in 1972 to celebrate the arboretum’s centennial. Based on the age of UNH’s tree, researchers said it is likely that the tree was a gift from Harvard …

drought150727Modesto, California, Bee, July 26, 2015: Trees shouldn’t suffer just because lawns do

Watering cutbacks forced by drought conditions have a lot of people looking downward, focused on yellowing lawns. It’s much more important to look upward, examining trees to see if they’re suffering from the lack of water. After all, a lawn can be replaced with drought-tolerant plants, decorative rocks, bark or mulch – or, when the drought ends, new grass, if that’s important for children and pets. But trees we simply can’t live without. And as drought conditions and high summer temperatures make them more susceptible to pests and disease, they require care to stay healthy …

Livonia, Michigan, Observer & Eccentric, July 26, 2015: DTE tree trimmers expected in September

Trees along 14 mile in Birmingham shouldn’t suffer the same fate as those near Sacred Heart Academy in Bloomfield Hills. “As I understand it, Ground to Sky is dead,” said Birmingham City Manager Joe Valentine, on the controversial DTE Energy program that allowed cutting down healthy trees to protect power lines. “There is obviously some sensativity given what happened (in Bloomfield) so we are going to be spot checking to make sure trees are being properly trimmed.” In December, 2104 DTE contractors began carrying out a vegetation management program called Ground to Sky along Kensington Road in Bloomfield Hills and Bloomfield Township. Many trees in the public right-of-way were chopped down. Some residents came home to find trees had been chopped down in private yards without prior consent too. Bloomfield Township resident Joseph Gardella told The Eccentric that DTE cut down 24 trees in his yard alone. DTE was flooded with complaints and a lawsuit was filed on behalf of residents …

Casper, Wyoming, Star-Tribune, July 25, 2015: Opinion: Wyoming trees are in trouble

Trees are the lungs of this world. Trees provide the oxygen we need to survive. Wyoming trees are in trouble, and in Washington, a Wyoming senator is trying to do something about it. On June 25, Sen. John Barrasso introduced S.1691, his National Forest Ecosystem Improvement Act of 2015. Regrettably, the act is headed in the wrong direction. Meanwhile, more than 70 million trees are turned into clothing every year, through a pulping process that is criminally wasteful. By 2050, climate change may have denuded Yellowstone and Grand Teton national parks of trees, a recent study reveals. Rising temperatures portend increased bark-beetle populations that, along with hotter climes, contribute to wildfires that kill the famous conifers. The study suggests that the changes will devastate the wildlife in the two parks, which in turn voids a $502 million tourist industry …

ninja150724Boston, Massachusetts, Globe, July 23, 2015: With suspect in ‘tree ninja’ case behind bars, city replants in Brighton

For years the city refused to plant new trees along Winship Street in Brighton, fearing a man referred to by police as the “tree ninja” would hack the young saplings to death. The pattern of tree destruction had persisted for more than a decade. But with a suspect now behind bars, city workers recently replanted the foliage on neighborhood streets. It’s a welcome development for neighbors, who had long complained about the issue. “It’s great news,” said Mark Buccelli, a Winship Street resident. “Hopefully, this time, they will stay there.” Ryan Woods, a spokesman for the Parks and Recreation Department, said the city planted six trees last month in empty tree pits. It was with the encouragement of Boston Police to beautify the street and resupply trees destroyed there, Woods said. “They felt confident now that they would be safe.” Authorities say Joseph Rizza is in custody after being charged earlier this year with five counts of willful and malicious destruction of property. Police, who were on the lookout for such activity, said they caught him chopping a tree near the Brighton Elks Lodge. Rizza’s next scheduled court date is July 30, according to the Suffolk district attorney’s office …

Chico, California, Enterprise Review, July 23, 2015: Heritage tree splits in two in north Chico

One of the biggest tree in town, and quite possibly the largest, snapped in two this week leaving a pile of oak on the ground on the northwest corner of Cohasset and Eaton roads. The “Eaton Oak,” is a valley oak tree that may be 250 years old. The tree was “codominant,” meaning that there were two main trunks, explained Dan Efseaff, park and natural resource manager for the city of Chico. A split like the one noticed this week is almost inevitable. While the tree looked to be in great shape, at least by its size and longevity, having more weight on one side can cause a sudden split. One limb of the tree grew to touch the ground, which partially helped to support the tree. Over the years work was done on the tree, including the installation of cables to prevent a large break. Efseaff said the break shows the importance of careful pruning of trees, particularly a long-lived tree like a valley oak. These trees can live to 500 years. If the tree had been pruned 200 or even 125 years ago, the split may not have occurred now, he said …

Forty150724io9, July 23, 2015: How this tree growing 40 different fruits at once was made

This tree growing 40 different types of fruit—including varieties of peaches, plums, apricots, and almonds—may look like something plucked straight from the imagination, but it’s very real. And this is how it was made. Last year, we featured this 40-fruit tree from artist Sam Van Aken. We already knew how the tree was made, of course: chip grafting (like you see here) is a fairly simple, and a very old, agricultural process. It’s not so much the technique that makes the tree exceptional—it’s the scale. Managing to get 40 different varieties of stone fruit, with different growing and blossoming cycles, to work together is as much an organizational problem as an agricultural one. In a new interview with National Geographic, Van Aken explains exactly how the whole mapping process played out, both in the first tree above, and in the full dozen he’s created since. Right now, Van Aken says that they’re mostly in museums, but the plan is to plant them in places where people are likely to stumble on them, and then wonder over …

Rexburg, Idaho, Standard Journal, July 23, 2015: Maple tree at root of Ashton controversy: Group of local citizens say city council acted improperly on matter

A group of local residents are calling foul on the way Ashton City Council has responded to complaints from a business owner about a Norway maple tree on Main Street. In a letter to the city of Ashton, the four local resident signatories, Sheryl Hill, Christine Dexter, Letha Whitmore and Sara Reinke, cited inappropriate actions taken by the Ashton City Council at the July 8 meeting. During the July 8 meeting, after some discussion, the Ashton City Council members voted to remove the Norway maple tree at 511 Main St., in response to allegations from the business owner that the tree poses a safety risk to the public. The concerned citizens responded to the city council’s vote by informing the council via letter that the council did not comply with the stipulations outlined in the Ashton Tree Ordinance 8.24.010 when they voted to remove the tree. Reinke also sent her own letter to the city urging the city to return to a “conservative, care-taking intent” such as pruning and grooming the trees …

Canyon Lake, California, Friday Flyer, July 24, 2015: Three reasons to leave tree work to professionals

For the “do-it-yourself” homeowner, outsourcing tree work may seem like an unnecessary expense. But in reality, the costs of tackling tree care on your own can run high–damaged property, hospital bills, and a ruined landscape aren’t cheap. “Most homeowners simply don’t have the tools, knowledge or experience necessary to safely attempt their own tree work,” says Tchukki Andersen, staff arborist with the Tree Care Industry Association (TCIA). “We hear many unfortunate stories each year of homeowners getting severely injured or killed while attempting this dangerous, and often misunderstood, work on their own.” There are three reasons homeowners should leave tree work to the professionals …

weevil150723Accuweather, July 22, 2015: Worst weevil outbreak since 1968 threatens trees in northeastern US

Parts of the Northeast United States have been overrun this year by the yellow poplar weevil, a native insect that can damage yellow poplar, magnolia and sassafras trees. The insect is found from Massachusetts, New York, Michigan, Iowa and Missouri southward to the Gulf of Mexico, said Greg Hoover, an ornamental entomologist at Penn State University. It’s unclear why the number of weevils, which may be the largest since 1968, has dramatically increased. In the northern parts of the yellow poplar weevil’s range, cold spring weather can limit the size of this insect’s population, Hoover said. However, the cool spring in the Northeast this year didn’t limit the population. “In addition to Pennsylvania, this year’s outbreak has been reported in Maryland, North Carolina, Ohio, Virginia and West Virginia,” Hoover said …

Youngstown, Ohio, Vindicator, July 23, 2015: Threats to trees are humans with equipment

One of the most-dangerous pests of trees is humans, especially humans with equipment. Lawn mowers and weed trimmers can cause injuries that create a hazard when an injury leads to tree disease or death. Here’s why the damage is so dangerous and some ways to protect your trees. The site of injury is usually the root flare: the area where the tree meets the turf and gets in the path of the mower or trimmer. The root flare, like the rest of the trunk, is protected by bark, which guards the nutrient and water-transport system between the roots and leaves to keep the tree alive. Any damage to this transport system can affect tree health, and the tree could die. The bark layer can vary in thickness on different tree species. It can be more than an inch in thickness or less than 1/16 of an inch on young, smooth-barked trees such as maples and birches. This isn’t much protection against string trimmers and mowing equipment, especially on young, newly planted trees. Even when a tree tries to recover from a wound, leaves and branches often decline and die back, because food and water pathways were destroyed. Although a large wound is generally more serious than a smaller one, repetitive wounding adds up to greater trouble for the tree. If the damage extends completely around the base of the tree – this situation is called girdling – the tree ultimately dies. No matter what size the wound is, the damage done is irreversible …

car150723Manchester, New Hampshire, WMUR-TV, July 22, 2015: Woman, 3-year-old daughter trapped in car by fallen tree

A Bethlehem woman said she’s grateful she made it out alive after a tree and power lines fell on the car she was in Sunday with her 3-year-old daughter. Nicole McGrath said she and her daughter were leaving a concert at the town gazebo in Bethlehem when a storm moved in. “It was hailing a bit and visibility got really poor, so we actually stopped the car,” McGrath said. That’s when a 40-foot white birch gave way and fell onto McGrath’s car. “When the tree actually hit the car, I didn’t see it falling,” she said. “Just suddenly, there was a tree on the car …”

Westford, Massachusetts, Eagle, July 22, 2015: Thinning trees to save the forest

The sounds of buzz saws and heavy trucks often mean trouble for trees, but when the Westford Town Forest Committee conducts its thinning operation near the intersection of Cold Spring and Forge Village Roads, it will be for the good of two town forest parcels. Both parcels were donated to the town in the 1920s by Oscar R. Spaulding and were accepted at the Annual Town Meeting in February of 1926, but the forests haven’t been properly maintained over the years, according to Town Forest Committee member Hugh Maguire. “Most of our town forestlands have not been touched for 50-75 years,” Maguire said. “They have become so dense that new growth is not happening and several diseases are noticeable.” By cutting down some of the trees in the two parcels of Spaulding Forest, totaling approximately 13 acres, near the Tom Paul Trail, the town can promote the forest’s overall health. “If you let the trees all just grow and grow and grow… Mother Nature takes care of it with forest fires generated by lightning and all that,” Town Forest Committee member Jim Gozzo said. “But since we essentially fight all our fires and don’t let Mother Nature take its course, we have to kind of step in and do something …”

cotton150722Hudson Valley, New York, Time Warner Cable, July 21, 2015: Historic Balmville cottonwood in danger of collapse

For more than 300 years, a massive eastern cottonwood tree has been part of the Balmville community. “It’s the oldest cottonwood that we know of in the country,” said Richard Severo, a Town of Newburgh resident. Sitting on the corner of River Road and Balmville Road, the tree is filled with history. Some claim the tree grew when George Washington planted his walking stick while he and the Continental Army were encamped in nearby Newburgh during the final years of the Revolutionary War. But, science shows the tree is actually older than that, dating back to 1699, well before the American Revolution. The Balmville Tree is one of three trees listed on the National Register of Historic Places. “When George Washington made his headquarters here, the tree had already reached it’s maximum growth,” said Severo, who has lived next to the tree since 1974. “It’s a remarkable tree.” But now that remarkable tree is in danger of falling after officials with the DEC examined its stability on Monday, saying a large section is in danger of collapsing on to the road …

Brookhaven, Georgia, Reporter, July 21, 2015: Brookhaven considering reworking its tree ordinance

About a year after city officials adopted Brookhaven’s controversial tree ordinance, they’re reworking parts of it. “We said along this would be a work in progress,” Mayor Rebecca Chase Williams said. City arborist Kay Evanovich said the proposed changes, drafted after meetings with residents who thought the original law was too weak and with developers and builders, will help preserve Brookhaven’s tree canopy. The proposed revisions, she said, include adding a goal that the purpose of the law is to maintain a sustainable tree canopy in the city. “We’ve had issues come up with the loss of canopy,” she said. “We’re trying to stem that, and see if we can get some of the older growth preserved.” But several residents who have advocated for tree protection told members of City Council that even with the revisions, the city’s ordinance wouldn’t be strict enough. Others said the proposal needs more review and discussion. “Some of us don’t see this ordinance as ready for prime time,” Lissie Stahlman told council members …

forester150722Edmonton, Alberta, Journal, July 21, 2015: Forester fears for Edmonton’s boulevard trees

Forester Milton Davies spent an exasperating summer watching road contractors slice the roots of American elms on the boulevards throughout his neighborhood of Queen Alexandra. Buttress roots holding up 15-metre-tall, 10-tonne trees have been cut and left bare, delicate feeder roots that sent water and nutrients up the trunk have been torn out, all to lower the sidewalk, regrade and introduce rounded curbs for the south-side mature neighborhood. “The engineer wanted things pretty much flat and they dug out pretty much all the feeder roots for these trees,” Davies said, predicting fewer and smaller leaves, then dead spots in the trees. “Unless we see catastrophic failure, it will take several years before the symptoms appear. By then, they’ll be partway down the mortality spiral.” Most of the roots of American elms are in the first 45 centimeters of soil. In Queen Alexandra, contractors often dug 20 to 30 centimeters down to regrade the land, said Davies. The trees there are 80 to 85 years old now and could live 300 to 350 years with protection …

Bend, Oregon, The Bulletin, July 22, 2015: Trees may be the answer to cooling down streams

A state board is considering how much to increase the numbers of trees that must be left standing along small and medium streams on private timberlands to shade the water and keep it cool for salmon. A study known as RipStream has shown logging buffers on small and medium-sized streams under the Oregon Forest Practices Act don’t do enough to maintain shade, allowing water temperatures to rise more than twice the standard of 0.54 degrees set by the Oregon Environmental Quality Commission. The choice for the Oregon Board of Forestry, which is scheduled to vote Thursday in Salem, is that the more trees left standing, the better the chance of meeting the temperature standard, but the lower the profits for timberland owners. The board has the latitude to weigh the economic costs against the ecological costs. Current rules set buffers of 20 feet, with logging allowed within them. Buffers up to 100 feet are being considered. If they were imposed throughout western Oregon streams with salmon, steelhead and bull trout, private timberland owners could lose up to $227 million in land and timber values, according to the Department of Forestry. The action is part of a larger battle over the Oregon Forest Practices Act. When it was first enacted in 1971, it made Oregon a leader in protecting fish, wildlife and water on private timberlands, but it has since fallen behind logging rules in Washington, Idaho and California. While federally owned forests account for 60 percent of forest lands in Oregon, they contribute only 14 percent of the statewide harvest of 4.13 billion board feet because of restrictions on harvests to protect fish, wildlife and water. Privately owned forests account for 34 percent of the land, but with larger clear-cuts and smaller stream buffers allowed, they account for 64 percent of the timber harvest …

Dawsonville, Georgia, News, July 21, 2015: Tree surface roots

We receive calls all year long at the extension office about trees with large, exposed roots. Sometimes these roots will bust up sidewalks and driveways. The most common complaint from homeowners is that the surface roots interfere with the lawn. Exposed roots can cause uneven lumps in the turf, and they can also tear up a lawnmower with one pass. Contrary to popular belief, the roots of most trees grow within the top 8-12 inches of soil. Even trees like pines, which are often associated with “tap roots,” will still have relatively shallow root systems that extend out past the drip line. As with tree trunks, roots also expand in girth year to year. Over time, some of the older roots close to the soil surface will enlarge enough to become exposed. Natural soil erosion will also help make these roots more visible. At this point, there is little that can be done to hide the roots without seriously damaging the tree. Root pruning is often attempted, but should only be used when roots far from the trunk are damaging concrete areas. Some homeowners will try to spread new soil over the exposed roots and replant with grass seed. Given time, the tree roots will show through the new soil. Another popular solution is to spread a thick layer of mulch over the surface roots. This method can cause damage to the tree by starving the roots of oxygen. It is never a good idea to attempt to change the soil level underneath established trees …

truck150721London, Ontario, CJBK Radio, July 20, 2015: Man electrocuted cutting trees in Elgin County

A 51-year-old man has died after a metal saw he was using to prune trees came into contact with a power line. Fire officials say the man was cutting back trees on private property at Avon Drive and Highway 73 north of Aylmer, Ont. when the incident happened around 3 p.m. Monday. The man was reportedly on an aluminum ladder, which was sitting on wet ground at the time, making the situation worse …

LaCrosse, Wisconsin, Tribune, July 20, 2015: Why are some trees worth saving?

Trees in our Wisconsin communities have been a topic of discussion lately due to the emergence of the emerald ash borer. The Weigent-Hogan Neighborhood Association, the La Crosse Community Foundation, Coulee Partners for Sustainability, the city of La Crosse and community members recently worked together to treat eight trees along Losey Boulevard instead of removing them. This may have puzzled some people in the community because there has been so much news about the devastating effects of the ash borer. Was this an exercise in futility? What is the point of saving trees if they are only going to die later? Was this a bunch of environmentalists trying to save the Earth one tree at a time? The answers are mixed ...

branch150721New York City, New York Daily News, July 20, 2015: Two brothers, 8 and 9, injured in Bronx park after tree branch falls on them, with one brother’s ‘head caving in’

Two young brothers playfully filling water balloons in Bronx River Park on Monday were suddenly clobbered by a falling tree branch — one so hard his “head caved in” cops and family said. Justin and Edward Reyes, ages 9 and 8, were hanging out near a park playground in the park at E. 180th St. and Boston Road in West Farms when there was a resounding crack and the boys were walloped by the plummeting limb around 3:30 p.m., police and witnesses said. The brothers were dazed and bloody as emergency workers arrived. “(Justin’s) head caved in. It hit him that hard,” said the boys’ uncle Roberto Hernandez, 18. The young brothers were taken to Jacobi Medical Center, both conscious and alert, cops said. Family said Justin, whose leg was also broken, was in intensive care with an apparent skull fracture. Police said both boys were in stable condition …

Minneapolis, Minnesota, KARE-TV, July 20, 2015: Condemned tree gets new life

Some trees labeled as diseased and targeted for the chainsaw are getting new life in Minneapolis. It’s all because homeowners challenged the city’s findings and took matters into their own hands. Lynda Cannova came home three weeks ago to find her beloved backyard elm tree sprayed orange by the city, marking it for death. “I looked up to the canopy and I’m like ‘no, this tree is not diseased,” said Cannova, who lives in the Kingfield neighborhood. A Minneapolis Park Board tree inspector diagnosed the tree with the fatal Dutch elm disease, giving Cannova a deadline to have it removed. “Just like our health, I went and got a second opinion,” said Cannova. After a close inspection, Scott Henke with Rainbow Treecare saw no disease on Cannova’s tree nor the elm on the neighbor’s property, which was also marked for removal by the city. “We saw a little bit of staining in it, but it really didn’t look like the characteristic Dutch elm,” said Henke. “When it’s a situation where the tree is marked, I come into it assuming it is Dutch elm disease because they are very accurate.” Henke met with the inspector who marked the trees and a supervisor, all agreeing a mistake had been made …

Richmond, Virginia, RVA News, July 20, 2015: Don’t wait for a storm to damage your trees

Summer thunderstorms often bring strong winds that damage trees, but you can take action now to try to avoid or lessen storm damage later. Contact a certified arborist to inspect your trees and recommend if work is needed. If you don’t already have a tree care company, you can find one at this link: Trees Are Good–Find an Arborist. The ‘Search by Location’ Feature at this International Society of Arboriculture (ISA) website lets you search for certified arborists by country, then state, city or by ZIP code. An easy-to-read grid will list arborist names, whom they work for, and their credentials. If fallen limbs are blocking a sidewalk or are in the street, report the problem. Be sure to have the street address or intersection so crews can find the location. Never get close to a downed wire after a storm. It may still be live, and electric current travels. Dominion Virginia Power recommends that you get no closer than 30 feet …

New York City, Inhabitat.com, July 20, 2015: Tree branch water filter removes a surprising 99% of E.coli

Sometimes low-tech solutions make the most sense, particularly in developing countries with limited access to affordable technology. It often happens these same countries experience chronic water shortages, so MIT researchers designed a brilliant solution that relies on nature to clean up after itself. It turns out certain kinds of tree branches, when peeled, rival cilantro’s ability to scrub contaminated water clean of harmful bacteria. In an experiment, they found sapwood is capable of eliminating 99 percent of E.coli bacteria. The same properties that allow xylem tissue to transport sap from a tree’s roots to its crown traps bacteria and other particles over 20 nanometers in size …

Now, from the

Now, from the “More Than We Wanted to See” Department …

Berkeley, California, The Daily Californian, July 29, 2015: Environmentalists drop clothes at UC Berkeley to protest tree cutting in East Bay hills

Environmentalists shed their clothing Saturday morning on campus to rally against what they see as plans to cut down an estimated 450,000 trees in the East Bay hills. About 50 people participated in the rally, which took place in the Eucalyptus Grove on the west side of campus and was organized by Jack Gescheidt, founder of the TreeSpirit Project. The project aims to “raise awareness of the critical role trees play in our lives, both globally and personally” through photos of people, often naked, interacting intimately with trees, according to its website. Gescheidt said the plan is a joint effort by UC Berkeley, the city of Oakland and the East Bay Regional Park District that involves cutting down trees for reasons such as fire mitigation and invasiveness of the eucalyptus tree, which is a non-native species and one of the three species targeted for cutting. The three groups have independently and successfully applied for funding from the Federal Emergency Management Agency, and the cutting may start as early as next month, according to the TreeSpirit Project’s website

St.Croix, U.S. Virgin Islands, St. Croix Source, July 19, 2015: The Arboriculturists, Part Two: Four common tree maintenance mistakes

When the Source sat down with certified arboriculturist Clay Jones earlier this month to talk about preparing trees for hurricane season, Jones had some good news and some bad news. The bad news was that storm preparation is too often done by property-owners at the last minute. In order to ensure that trees pose no danger to life and property in high wind conditions, Jones said, the most effective approach is to maintain healthy trees and practice sound landscaping techniques year-round. The Source asked Jones and his consultant, St. John horticulturist Eleanor Gibney, to come up with a list of common tree-care errors they see residents make. Jones and Gibney identified four arboricultural and landscaping practices that represent the most widespread errors, practices that can damage tree health or endanger life and property in the territory. “The thing that seems to happen most is incorrect pruning techniques,” said Jones …
[Note: You can read Part 1 here]

tdown150720Broken Arrow, Oklahoma, Ledger, July 19, 2015: Touchdown tree served a purpose

Everyone who ever witnessed a football game at old Kirkland Field knows there’s a tree in the south end zone between the uprights. What you may not know is why a tree was planted there. You have to go back to the Great Depression of the 1930s to begin to understand why the “Touchdown Tree” was there. You can praise or blame the Civilian Conservation Corps (CCC). It was established in 1933 to help unemployed men get work through government service. By 1934, Oklahoma had 5,000 men in 26 camps around the state and one just south of the Kirkland Field end zone. The CCC enlistees did not like footballs flying into their camp. If one did, according to Joe Robinson, a former player in that era and later on the coach, the CCC members did not always return the pigskin. Someone hatched the idea of planting a tree to prevent the football from leaving the stadium grounds …

Davenport, Iowa, Quad City Times, July 19, 2015: 3 strange tree features are nothing to worry about

If you have properties with trees, you may notice, from time to time, some strange abnormalities on the leaves, wooly objects in the branches or green/gray patches on the trunks. Here are some questions about trees with answers from horticulturists at Iowa State University Extension and Outreach, Ames …

damage150717Sarasota, Florida, WWSB-TV, July 16, 2015: A neighbor’s tree falls on North Port woman’s home

Joyce Baker is an 85-year-old woman living on a limited income. So when her neighbors tree fell on her home, she had no idea what she would do. “I don’t think this is right. I think somebody should help me,” said Baker. During a recent wind storm the tree fell puncturing 12 holes in her roof and breaking six trusses over her garage. When we climbed up into the attic we could see the holes. Ms. Baker’s friend came and put in temporary patches to stop the leaking into her home. “Every roofer we’ve had come here said they don’t know the full damage until they take off the end of that roof and see what else happened,” says Baker. Ms. Baker is asking her neighbor, who according to property records is Joseph Dalton, to pay for the damages. But the reaction she got surprised her. “We’re not fixing or paying a thing for it because it’s an act of God,” said Baker, recounting what the property owners representative said. This issue brings up the question of whose responsible when a tree like this falls on someone’s home. Attorneys we spoke to said it’s not a straightforward issue. It entirely depends if the owner of the tree knew it was in bad enough shape to fall …

Racine, Wisconsin, Journal-Times, July 16, 2015: The root of it all: Planting cottonwood trees

The city of Racine has an ordinance against planting many types of trees in public parkways, as City Forester Matt Koepnick shared with me: “The following tree and shrub varieties shall not be planted in the parkway: birch, black walnut, box elder, buckthorns, catalpa, conifers, American elm, Siberian elm and slippery elm, honeysuckle (Tatarian, Morrow’s and Bella), mountain ash, poplars, silver maple, tree of heaven, willows, nor any non-hybrid species or unapproved cultivar of fruit-bearing or nut-bearing trees and shrubs and such others as may not be approved by the city forester.” There is no ordinance against planting cottonwood on private property, nor is there an ordinance about removal of trees. The city does have the ability to require removal of trees which pose a safety hazard to the public, or trees that are infested with emerald ash borer (ash trees only), Dutch elm disease, or oak wilt. Perhaps if the cottonwood were deemed a public nuisance or a safety hazard it could be removed, but if on private property it is unlikely the city would require removal …

bird150717Los Angeles, California, Times, July 16, 2015: Two men charged with animal cruelty for chopping down tree in Newport Beach, killing baby birds

Two men have been charged with animal cruelty for their role in cutting down a tree in May where migratory birds were nesting in Newport Beach. Stephen John Esser, 47, of Dana Point and David Roger Stanley, 40, of Downey have each been charged with misdemeanor counts of animal cruelty, unlawful possession and destruction of bird nests or eggs, unlawful taking of migratory nongame birds and harassing a bird or mammal, according to the Orange County District Attorney’s office. Esser and Stanley were employees of Tim Greenleaf Engineering, who were contracted to remove a tree as part of a home demolition. But neighbors said the ficus tree they were tasked with removing was well known in the Newport Beach neighborhood for housing nests of migratory birds. When the tree was chopped down, it housed about eight or nine birds nests of snowy egrets and black-crowned night herons with nestlings and fledglings. Neighbors approached the two men to tell them not to cut down the tree because of the nests, but they continued to cut it down. About 12 nestlings fell from the tree, and five did not survive…

Anaheim, California, Orange County Register, July 16, 2015: ‘Tree bags’ keep trees healthy with recycled water

First there was the tea bag, and now – during a statewide water shortage – there is the tree bag. San Clemente began this week using slow-release water bags, filled with recycled water produced at the city’s wastewater treatment plant, to irrigate trees in street medians that the city has quit watering due to statewide water restrictions. The city is prohibited from watering turf areas in street medians with potable water, officials said, and trees in the medians are also at risk since they don’t have their own irrigation system. Randy Little, the city’s maintenance superintendent, suggested tree bags like ones used in a city where he used to work, and this week Rod’s Tree Service, the city’s tree contractor, began wrapping the “Zip, Fill ‘n Go” tree-watering bags around median trees along Avenida Esplanade and Avenida Valencia. The bags’ slow-release bottom allows water to percolate directly into the soil beneath a tree, officials said. The city refills the bags as needed with recycled water and can discontinue their use during a rainy season …

Washington, North Carolina, Daily News, July 16, 2015: Tree work a dangerous deal for the average homeowner

Hurricane season started June 1. This year’s season is predicted to be a mild one, with a 70-percent likelihood of only six to 11 named storms.  While many might breathe a sigh of relief about the news, eastern North Carolinians are fully aware that all it takes is one storm to devastate a place (Hurricane Irene, 2011), and that a tropical storm might pack more of a punch than a hurricane, given the right circumstances (Tropical Storm Dennis, 1999).  When a storm blows through, the region’s trees take a hit: saturated ground and strong winds are a recipe for disaster and anything in a tree’s downward path is headed the same way — homes, vehicles and power lines. However, once the wind and waters recede and cleanup commences, homeowners would be wise to call in the professionals rather than tackling felled trees and limbs on their own …

invasive150716Melbourne, Florida, Florida Today, July 15, 2015: Satellite Beach may ban Brazilian peppers, other invasives

A trio of leafy, fast-growing noxious invaders — Brazilian pepper, Australian pine and melaleuca trees — are rooted squarely in the crosshairs of Satellite Beach city leaders. Wednesday night, the Satellite Beach City Council unanimously approved first reading of an ordinance banning these non-native tree species from all properties within city limits. If the ordinance passes during a second, final reading on Aug. 5, landowners will have until a Nov. 15 deadline to chop down the invasive trees from their yards and lots. City Council adopted a list of nuisance trees back in 2007, declaring that Brazilian pepper, Australian pine and melaleuca trees were “non-native noxious invasive species.” Council members decided not to set a removal deadline until all those exotics had been removed from municipal property, Building Official John Stone said. Those last remaining invasive trees have been cut down, Stone said. “We feel at this point that we have our house in order. Now, we’re going one step further and we’re saying, ‘We’ve done it. It’s time for you to do it …'”

New Orleans, Louisiana, Advocate, July 15, 2015: City Park tree-sitter pleads guilty, will do 100 hours of ‘nature-based’ community service

Jonathan “Lloyd” Boover, the Gentilly nature lover whose 12-day protest against construction of a new City Park golf course ended when he fell from his perch in a cypress tree on March 24, pleaded guilty Wednesday to criminal trespassing and resisting arrest. Under a plea deal, Municipal Court Judge Sean Early handed Boover, 32, a 30-day suspended sentence and ordered him to do 100 hours of community service. He will serve that sentence with a “nature-based charity” that has not yet been identified, said Boover’s attorney, Michael Kennedy. The protest Boover and some allies staged against the planned Bayou Oaks Golf Course ended for him with a trip to Interim LSU Hospital and then briefly to Central Lockup. He said he suffered a broken nose and a severely sprained ankle from his fall, which he said was prompted by generator fumes and hunger after authorities kept supporters and well-wishers at a distance from his 30-foot-high spot …

endanger150716Lake Arrowhead, California, Mountain News, July 16, 2015: Explosion of trees endangering forest

The snarl and whine of power equipment removing excess trees from drought-ravaged mountain forests was a common sound in the early 2000s, but those noises have been largely silent in the years since. As a result, thick stands of young cedar trees—resembling, as U.S. Forest Service spokesman John Miller said, a “four-foot-high lawn”—have sprouted, creating the need for a new round of forest thinning. The green carpet of trees is especially visible in spots on both sides of Highway 189 between Lake Gregory Drive and Twin Peaks, occurring, as Miller said, almost entirely on property that is privately owned …

Detroit, Michigan, Free Press, July 15, 2015: Oak wilt threatens Michigan trees; know the signs

This disease kills in a matter of weeks. It creeps from the top down, clogging vessels just beneath the surface. Transmitted by insects, it can infect and kill thousands. Is it the bubonic plague? Malaria, maybe? For red oak trees, the fungus ceratocystis fagacearum is just as lethal. Oak wilt, the same fungus responsible for Dutch elm disease, kills by blocking the tree’s vascular system, tubing used to collect food and water, said Bob Heyd, a forest health specialist from the Department of Natural Resources in Marquette. There are two ways oak wilt can spread: through spores entering a susceptible oak’s open wounds, and underground, through grafted roots. From April 15 until July 15, beetles responsible for transmitting spores are most active, Heyd said. They pose a serious threat to the trees. Humans unwittingly spread the disease by distributing infected firewood to friends and family …

Boulder, Colorado, Daily Camera, July 16, 2015: Seven deadly sins of tree care in Boulder County

Trees have been taking the brunt of nature’s fickle moods lately, so when humans compound the problem by treating the stately plants badly, gardeners shake their heads and mutter. Trees are used as billboards, planted in hell strips or moved often, like furniture; their roots are chopped, mowed, sliced or driven over. In short, they’re taken for granted by people who live under them. Despite all these things, trees still grow, but there are a few things we do that make their lives miserable. If you want to avoid harming your tree, take some tips from local foresters, who shared their lists of the seven deadly sins of tree care …

rescue150715Vineland, New Jersey, Daily Journal, July 14, 2015: Tree worker freed from bucket lift in Haddonfield

A 52-year-old contractor from Audubon was rescued Tuesday after a limb fell and crushed his leg while he was in a bucket lift attempting to remove a tree from a vacant property. The incident on the 400 block of Loucroft Road started shortly before 11 a.m. when a limb reportedly fell on the man while he was working in the lift, known as a cherry picker. Cory, a neighbor who declined to provide his last name, said he was outside when he heard what were “clearly urgent screams for help.” “I knew they were out there working; I heard the chainsaws,” he said. He ran next door to find the stricken man’s coworkers, who asked him to call 911. The injured man, whose identity was not immediately available, was still aloft in the bucket lift …

Falmouth, Maine, Forecaster, July 14, 2015: Dead trees a $50K ‘hiccup’ for Falmouth Route 1 project

Many newly planted shade trees along U.S. Route 1 have died and will have to be replaced, likely because of insufficient watering. Town Manager Nathan Poore on Friday said this is the first “hiccup” in the Route 1 reconstruction project, which has otherwise “gone quite well.” He said 52 shade trees were planted on the mile-long stretch of highway. He estimated a third or more of them have already died. “We felt it was important to get the word out there that the town is very much aware and in control of it,” Poore said. “We will certainly take all measures to ensure we have healthy trees that meet specifics of the contract.” Poore said the total cost of the tree project was “in the neighborhood of $50,000.” The total cost of the long-planned Route 1 project, which began last spring, is around $12.3 million …

water150715Sacramento, California, AgAlert, July 14, 2015: Trees wither as their water supply runs dry

As a third-generation fig farmer, Tonetta Gladwin said she has always been proud of her orchards, particularly when visitors tell her how beautiful her trees are. Lately, she gets emotional talking about how sickly those trees look from a lack of water and how she may lose them. “I don’t know that I can come back from this,” she said. “You become emotionally attached to your land and to your trees, and to watch them suffer, knowing you’re failing to take care of them—it’s hard.” Fig trees are used to desert conditions and are very resilient, she noted, but with zero water allocation this year and no access to groundwater, Gladwin said many of her younger trees will likely not make it. Eastern Merced County, where she and her husband Blair farm, historically has not been subject to major water restrictions, and growers such as the Gladwins have largely depended on surface-water deliveries with little need to tap the aquifer. “Never did I think that I wouldn’t have water,” she said …

Fresno, California, Bee, July 14, 2015: Weekly deep irrigation can help trees

During hot weather, most trees should be able to survive with weekly really deep irrigation that reaches well down into the root system, to a depth of at least one foot, more deeply for bigger trees. (Most trees have fairly shallow root systems). Sprinkler water from overhead-type sprinklers seldom penetrates more than three or four inches into the soil-deep enough to soak lawn grass roots, but not deep enough to soak tree roots. It takes time for water to penetrate deeply-about three to four hours to reach the one foot depth. Slow soaking is the only way to get water into the roots. After four years of severe drought, the soil in many gardens is bone dry and the soil surface has crusted over so that water runs off the crusted surface. Use a spading fork or a shovel to break up the top inch or two of crusted soil to help prevent water runoff. Trees usually extend their root systems just to the edge of what’s called the drip line (where rainwater naturally drips off the leaves onto the soil). The roots under the drip line absorb and carry water most efficiently; roots near the trunk absorb little moisture. Irrigation methods (soaker hoses, microsprinklers, bubbler attachments on hoses, PVC pipes with holes pounded upright into the soil so that a hose can be inserted, drip emitters) should be placed at the drip line …

Burlington, Vermont, Free Press, July 14, 2015: Hinesburg tree tally has economic value

Town officials will soon know which trees belong to the 36-square-mile municipality and how to better care for the saplings. A team of five people including volunteers, University of Vermont Extension interns and staff from the state Urban and Community Forestry program this week are taking an inventory of the publicly owned trees and their conditions. The inventory is part of a multi-year grant from the United States Department of Agriculture Forest Service. The grant will assist 20 Vermont communities in completing a public tree inventory, develop a management plan based on the results of the inventory and train municipal staff in tree care practices …

health150714Washington, D.C., Washington Post, July 9, 2015: Scientists have discovered that living near trees is good for your health

In a paper published last Thursday, a team of researchers present a compelling case for why urban neighborhoods filled with trees are better for your physical health. The research appeared in the open access journal Scientific Reports. The large study builds on a body of prior research showing the cognitive and psychological benefits of nature scenery — but also goes farther in actually beginning to quantify just how much an addition of trees in a neighborhood enhances health outcomes. “Controlling for income, age and education, we found a significant independent effect of trees on the street on health,” said Marc Berman, a co-author of the study and also a psychologist at the University of Chicago. “It seemed like the effect was strongest for the public [trees]. Not to say the other trees don’t have an impact, but we found stronger effects for the trees on the street …”

Jacksonville, Florida, Florida Times-Union, July 13, 2015: Environmental group sues over preservation money, but Jacksonville officials provide information to dispute claim

Local environmentalists filed a lawsuit on Monday saying the City of Jacksonville cannot account for $6 million in public money set aside for tree conservation, but city officials later provided information that disputes the claim. The lawsuit, filed by the Public Trust Environmental Legal Institute of Florida and three Duval County residents, focuses on a trust fund created to mitigate tree loss that occurs during property development. The lawsuit says the amount of money in the fund dropped from about $8 million in December 2014 to about $2 million in April 2015 without any explanation. However, a city spokesman said on Monday that the trust fund’s current balance is about $9.3 million …

bear150714CNN, July 12, 2015: Tranquilized bear falls from tree — and appears to be waving — in Colorado

Bear with us. The photograph is too good not to share. A 2-year-old bear was spotted in a tree at The University of Colorado Boulder on Friday. Colorado Parks and Wildlife tranquilized the animal. Glenn Asakawa, the school’s associate director of photo and video, captured what happened next, as the bear fell from the tree. “It looks like it’s waving,” he told CNN. “The body language says it all …”

San Gabriel, California, Valley Tribune, July 13, 2015: Deadly citrus disease found on kumquat tree in San Gabriel

State officials have started spraying pesticides and surveying citrus trees in western San Gabriel area after a tree infected with a bacterial disease was found in a neighborhood near Vincent Lugo Park and the Alhambra Golf Course recently. A kumquat tree was destroyed after officials from the California Department of Food and Agriculture and the U.S. Department of Agriculture confirmed it was infected with huanglongbing, also known as HLB or citrus greening. The disease, which affects plants’ vascular system, is spread by the Asian citrus psyllid insect. “At this point, the carrier of the disease is generally established so the conditions are there for the disease to spread,” said Steve Lyle, CDFA public affairs director. Infected trees have blotchy or yellowing leaves, yellow shoots on the tree or plant, and produce lopsided, small and bitter fruit. The disease is fatal to the trees. Citrus trees within a half-mile of the infected plant will be monitored, and CDFA crews will applying pesticide to the foliage and into the soil below the tree, officials said …

Sustainable Cities Collective, July 14, 2015: How to quantify the stormwater benefits of trees

Trees have the potential to provide significant stormwater benefits. Trees are also valued for many other benefits, and are already part of virtually all development. They can be integrated even into the densest urban areas – and many cities have tree requirement ordinances, so trees are not only desired, but also mandatory. It is therefore not surprising that the use of Tree Stormwater Control Measures (SCMs) is rapidly growing.With the increasing use of Tree SCMs, there is also a growing need to quantify tree stormwater benefits …

Vancouver, British Columbia, Vancouver Sun, July 13, 2015: B.C.’s surprising tree deficit

Trees give life. They create habitat for wildlife, oxygen that we breathe and shade from the sun’s burning rays. So, imagine my surprise when I learned that British Columbians are less likely to have trees on their property than other Canadians …

oak150713Mobile, Alabama, Press-Register, July 10, 2015: What we know a week later about butchered trees near Bienville Square

Just a little over a week since several oak trees were knocked down just outside of Bienville Square, many members of the community are still angry over the way the situation played out. On July 2, five of 9 oak trees were ripped down piece by piece by a construction company clearing the way for the new Hilton Garden Inn slated to cost $16 million. The area where the trees were will become a parking lot. Soon after, the remaining four trees were also torn down. That Thursday was right before the Independence Day weekend, and to some local residents, it felt like the wool was pulled over their eyes. “The greenery, the architecture is part of Mobile’s appeal,” said local businessowner Margo Alderton. “I’m very disappointed …”

Madison, Wisconsin, Wisconsin State Journal, July 12, 2015: Why are some of Madison’s maple trees dying?

There are several factors contributing to “maple decline” across Madison, says Dean Kahl, the city’s forestry operations supervisor. The drought in the summer of 2012 and a severe 2013-14 winter both damaged some of the city’s 20,000 maples. But Kahl says the main problem is a phenomenon known as root girdling. Root girdling occurs when young trees are planted too deeply in the ground. As the trees mature, the roots grow up in order to get oxygen from the air above the soil, instead of spreading out as they would in a healthy tree. The growing roots twist in a way that gradually prevents nutrients from moving from the tree’s leaves to its roots. Simultaneously, water taken in by the roots is prevented from reaching the leaves. “It’s a longstanding problem,” Kahl said. “Years ago, nobody really paid attention to it …

poplar150713Clarksburg, West Virginia, Exponent Telegram, July 13, 2015: Poplar trees throughout state being attacked by weevil

A bug that has been feeding on poplar trees throughout the state has finally stopped reproducing for the year, according to Lewis County Extension Agent Bruce Loyd. The bug is called the tulip poplar weevil, and Loyd said it is a species familiar to the state. “This is not an invasive or new insect,” Loyd said. “It’s been around for years, but this year the population is higher.” The weevil is a small black bug that is sometimes confused with a tick. Conditions have been right this year for the weevils to reproduce more heavily than normal, leading to an unusually high population this summer. Larvae from the weevils live inside the leaves of the poplar trees, and Campbell said they feed off the nutrients in the leaves …

Green Bay, Wisconsin, Press Gazette, July 11, 2015: Help your trees recover from stress

Trees are known to tolerate undue stress in our ecosystem. They are exposed to myriad harsh urban conditions, and one can be only amazed by the tree’s patience, adaptability and its selfless contributing personality to our community. However, trees have a limit to tolerance and can exhibit signs of decline in response to consecutive years of stress. From the drought of 2012 to insufficient snow cover from the past winter, our landscape trees are undergoing a cumulative stress effect. Stem girdling roots, poor site location, construction and road salt damage are other ongoing issues that can further aggravate a stressed tree to varying degrees of failure. Many residents in our region have reported varying signs of tree stress and decline this year — failure to leaf out in spring, sparse crown, sudden wilting of leaves and branch collapse, half dead crown, bark split, small leaf size, too many seed pods/cones and early fall coloration. In general, it is hard to diagnose the interaction of multiple stress effects on trees to provide a single remedy treatment. However, a holistic approach in tree maintenance practices can help them to naturally recover from its ongoing cumulative stress …

Youth Health magazine, July 12, 2015: Living near trees may boost annual salary to $20,000

Trees have become less-appreciated resources today with thousands of them cut down to give way for urban growth. However, a new study points out how they are incredibly important to our health and well-being. In fact, according to the results, living near or being surrounded by trees is equivalent to almost $20,000 annual salary increase …

bike150710Walnut Creek, California, Contra Costa Times, July 9, 2015: Hundreds of trees in Concord, Walnut Creek spared the ax

Pacific Gas & Electric will spare hundreds of trees in Concord and Walnut Creek the company had planned to chop down as part of its natural gas pipeline safety project. Last year, the utility said it needed to cut down more than 700 trees on public and private property in each city, ostensibly because they blocked access to natural gas pipelines or the roots were damaging the protective coating on the pipes, which could cause corrosion. After evaluating 135 trees on public property in Concord and 250 in Walnut Creek that the utility had targeted for removal, PG&E determined that only seven in Walnut Creek need to be removed, according to company spokesman Jeff Smith. By binding together to oppose the tree-cutting plan, Concord Mayor Tim Grayson said cities sent PG&E a strong message that it should collaborate with local governments on the pipeline project rather than dictate policy …

Savannah, Georgia, Morning News, July 10, 2015: Editorial – A cutting blow to city’s canopy trees

In a city shaded beneath 86,000 trees, the loss of one mighty oak may not seem tragic. But it was, not because of the massive void it leaves on a canopy of trees along a street. It’s tragic because it was unnecessary. The destructive chain of events leading to the demise of the estimated 120-year-old live oak began June 15 when a city crew responded to a sewer line break. According to a memo City Manager Stephanie Cutter sent to the mayor and city aldermen, the broken lateral line created “an emergency situation at a residence in the 600 block of East 37th Street.” In response, a city contractor used a backhoe to dig a 21-foot trench to connect the lateral line with the main line. The trench was 2 feet wide and 2 and a half feet deep. “A mistake was made during this work, and several major roots of a major, 47-inch diameter live oak on city property were cut during the trenching process,” Cutter’s memo said …

Lancaster, Ohio, Eagle Gazette, July 9, 2015: Trees can be damaged by weather and pests

The summer months are the time of year when the woods and fields are lush and green, gardens are producing their supply of fruits and vegetables, and lawn weeds are growing like, well, like weeds!With so much of the landscape covered in varying shades of green, wilting leaves on ailing trees or the bare branches of dead trees are quite easily spotted this time of year. I have received multiple calls recently from concerned residents regarding trees showing signs of distress or damage. Many people immediately associate disease or insect damage when they see a tree that fails to grow leaves in the spring or suddenly experiences wilting on part or all of its leaves during the growing season, but there are many factors in nature that affect tree health. Trees are one of the few living things that we regularly encounter that will generally outlive humans. When we plant a young tree, we hope that it will continue to provide shade for future generations long after we’re gone. Conversely, if you’re fortunate enough to have mature trees on your property, they may have sprouted from seeds long before you or I were born …

chestnut150710West Salem, Wisconsin, Coulee News, July 9, 2015: Scientists treat West Salem chestnut trees for blight

Scientists gave a local forest famous for its chestnuts an annual checkup of sorts last week. The results? Let’s just say the numbers alone wouldn’t tell the whole story. July 1 and 2 found about 15 scientists and students from University of Wisconsin-La Crosse, Michigan State University and West Virginia University swatting bugs, swabbing trees and collecting samples on a hilly 90-acre tract spread across land owned by a pair of local farm families and rented for research by the American Chestnut Foundation. Located a few miles north of West Salem, the stand was for a time known as the largest remaining uninfected stand of American chestnut trees. That was before chestnut blight took hold. There’s an old saying about the American chestnut. It says a squirrel could go from Maine to Florida on the unbroken canopy of chestnut trees without its feet once ever touching the ground. Although an obvious exaggeration and from a long time ago, the statement roughly describes the natural range of the majestic tree, once prized as a food source and for its timber. The West Salem chestnut stand is an isolated pocket of trees that escaped the early ravages of chestnut blight because it existed so far away from the tree’s natural range. The stand came to be as the result of farmer, Martin Hicks, planting eight or so chestnuts—reportedly sent from Pennsylvania– along a fencerow. Nature, probably in the form of squirrels, took care of the rest …

pic1-150709Modesto, California, Bee, July 8, 2015: PG&E tree-cutting in gas easements upsets Riverbank residents

Pacific Gas and Electric Co. says its Community Pipeline Safety Initiative is making its gas transmission lines in Riverbank and other communities safer. Some residents in the “City of Action” complain, however, that they are losing shade trees, landscaping features for their homes and pretty tree-lined streets. “People are upset,” Jerry Anderson said. A contractor for PG&E cut down five olive trees in front of Anderson’s ranchette at Santa Fe Street and Central Avenue in east Riverbank. The giant utility company first agreed to pay Anderson $750 for the olive trees, but may be reneging because the trees were in a city right-of-way, Anderson said. Now, he just has stumps in front of his home and his family will no longer be able to can the olives they had picked from the trees. “We started getting excuses,” Anderson said. He figures his home value has dropped $10,000 because the trees added appeal to the real estate. The loss of the trees also exposes the home to direct sunlight, which could increase his utility bills …

Reno, Nevada, KOLO-TV, July 8, 2015: Avoiding tree and utility problems

The weather isn’t just bringing floods to our area, but also destruction by dry trees. In the last two months, there have been more than a dozen trees-related power outages in northern Nevada. Every day, crews spread throughout northern Nevada to trim trees, some natural, many you’ve planted. “We do a lot of trimming. We’ve probably done almost 10,000 trees that we’ve touched and getting this cleared so far this year,” said Mark Young, an NV Energy utilities specialist and arborist. It’s part of NV Energy’s $4 million project to minimize tree-related outages. When the tree limb contacts the power line, it will start burning into the wood. “We maintain at least a minimum of 10 feet around the energized conductors ’til about 50,000 volts. Beyond, which is getting into transmission lines, that distance increases.” In just one season, trees like Siberian Elms can grow 8 to 10 feet and need trims every other year. The trims aren’t always attractive, but they’re effective in redirecting the growth of the tree away from power lines …

forest150709Muskego, Wisconsin, Patch, July 8, 2015: True tree enemies: Facts about the Emerald Ash Borer and Pine Sawyer Beetle

If a tree had the capability to feel fear, it would probably feel the emotion when meeting up with both of these insect offenders. Trees are often the target of many types of intruders, including moths and beetles. Many times it is when a tree is in a weakened state, or at the end of its life, that an insect will invade it. In each attack it is actually the larvae or “worm” that is doing the damage. As the larvae grow larger and mature, they expand and cause a wider extent of damage. When stressors such as environment or weather weaken a tree, this is when insects like the ones mentioned below will make their infestation apparent. Any tree or shrub can be the victim of an attack, but oaks, birches, maples, pines, honey locusts and crabapples are some of the worst species to be targeted …

New Canaan, Connecticut, New Canaanite, July 8, 2015: Bruce and Bheema Pauley to step Down as Tree Warden, ‘Deputy Tree Warden’ at month’s end

In some ways, the position of New Canaan tree warden never became just what Bruce Pauley envisioned. He took over the role in October 2010, in the wake of a powerful March nor’easter that snapped trees and power lines alike, and spent the first part of his tenure identifying and removing dangerous trees—rather than pruning and improving healthy ones. That unnamed winter storm was followed in succession by Tropical Storm Irene and Hurricane Sandy, which set the tone for Pauley’s role as tree warden in New Canaan. “I think we have pretty much gotten there,” Pauley said Wednesday evening, hours after notifying area tree companies that he would step down as tree warden at the end of this month. “There are always trees that have died or cracked or broken or rotted, and have to be removed, but we are reaching the point where more maintenance such as pruning can be effective in keeping the old trees we have.” Still and all, for Pauley, a third-generation New Canaanite who is selling the Millport Avenue home he and wife Elaine bought in 1973 and moving to Vermont—and who last year sold his own tree care business—the experience of working with trees in New Canaan and serving as tree warden has been a rewarding profession and life that has connected him equally with nature as it has with fellow residents …

Melville, New York, Newsday, July 8, 2015: Matt Lauer’s proposal to plant trees at Hamptons farm set for July 23 hearing

Matt Lauer’s proposal to plant 42 trees on his Hamptons horse farm — a plan opposed by a neighbor who says it will block his view of the “Today” host’s bucolic property — is scheduled for a July 23 Southampton Town Planning Board public hearing …

stump150708Longmont, Colorado, Times-Call, July 7, 2015: Property manager cut down Terry Street trees

The property management company for the shopping center on the northeast corner of Ninth Avenue and Terry Street in Longmont says it had six tall trees there cut down and that the city is mistaken when it says it was not the property manager’s call to make. Kathy Regel, broker with Regel & Associates, said the firm is the property manager for the center that includes a liquor store, a Family Dollar and a Tuesday Morning store, and they had the trees along the west side of the parking lot cut down for three reasons. “There were huge amounts of problems with the homeless. Also there was a limb hanging over the property that was dead, and then (the tree roots) were tearing up the asphalt,” Regel said. City forester Ken Wicklund said in an interview conducted in mid-June that if trees fall in the city’s right-of-way easement, there is a written landscape agreement that lists who is responsible for the tree. This particular property predates those landscape agreements, but the city had historically cared for those trees and they were the city’s to manage, Wicklund said then. Kim Shugar, natural resources manager for Longmont, said Monday that the city is still investigating the incident but that city officials hope to resolve the issue soon …

Flower Mound, Texas, Cross Timbers Gazette, July 7, 2015: Environment board supports tree mitigation changes

The removal of a section of Flower Mound’s land development regulations regarding tree mitigation was unanimously supported Tuesday evening by the town’s environmental conservation commission. In a unanimous vote, the ECC decided to require that in the future, non-residential projects must mitigate for the removal of protected, specimen and historic trees that were approved for removal during the development process. Boiled down, if the exception is removed, developers would have to plant a replacement tree or make a payment instead. “We’re not doing anything radical here,” said Commissioner Alton Bowman. “We’re just returning it to the way it was 15 years ago. I want to thank Councilman [Brian] Rountree for helping us out with that one. It’s just for the good of the town and we appreciate it very much.” The town’s goal is to have a 35 percent tree canopy …

bigtrees150708Cleveland, Ohio, WEWS-TV, July 7, 2015: Big trees causing big problems on Cleveland’s west side

Huge trees in a west side neighborhood are creating headaches for people trying to maintain their properties.  “I’m tired of dealing with it. I’m aggravated. It’s ruining my home,” said Betty Urban. She told newsnet5.com a big tree in front of her house has done all kinds of damage outside. “I have actually tripped on this myself,” she said as she showed us a slab of sidewalk coming up. “Some of the kids walking from school, they’ve tripped several times.” The Urbans also said a company came out and told them the roots have broken and blocked pipes pushing water inside to their basement. We did check with Cleveland Urban Forestry Department. The tree has been examined and the city said it’s not rotting, that it’s structurally sound. “It is something that we wouldn’t want to start knocking down or getting into that process if we don’t have to,” said Assistant Communications Director Dan Ball from the city of Cleveland …

East Lansing, Michigan, Michigan State University Extension Service, July 7, 2015: What’s up with the trees?

“My tree is dying. Can you tell me what’s killing it”? This is a common question with earnest interest. Unfortunately, it’s usually not precise enough for a credible response. When damaging agents are seen in the forest, it’s a good idea to learn what is happening. Photos of symptoms and the whole tree can be of great diagnostic use. Be sure that they clearly show the intended issue. A picture of a dead tree won’t be too helpful. It’s quite simple to attach a few images to an email message or bring them into an office. Photos can also help confirm tree species identification. Remember that it can be difficult to identify a person from just a picture of a finger! It’s similar for trees. Correct tree species identification is critical. In some cases, the genus is good enough but species identification is best. A lot of time can be misspent by chasing-down “pine” diseases when the affected is tree is a spruce …

Newark, New Jersey, Star Ledger, July 7, 2015: Man falls from tree while working, taken by medevac to hospital

A Trenton man working for a tree-cutting service fell approximately 30 feet from a tree but likely escaped more serious injury because he was wearing a safety harness, police said. Franklin police received a 911 call reporting that an individual had fallen from a tree at a residence on Canal Road, late Tuesday morning, police said. Upon arrival, officers from the department’s Emergency Services Unit learned that a 42-year-old male was performing maintenance on a tree when a branch broke, police said. The man fell roughly 30 feet to the ground but he was wearing a safety harness, police said. He complained of severe abdominal pains and a medevac helicopter was requested by emergency services unit personnel, according to police …

vandal150707Duluth, Minnesota, News-Tribune, July 6, 2015: Vandals break off newly planted trees in Superior

For the third time in the past few years, vandals have destroyed newly planted trees in Superior. “Something like three trees were snapped off on North 21st Street last year, and a couple of years before that six or eight trees on North 12th Street,” said Mary Morgan, the city’s director of parks, recreation and forestry. It was worse this time around: Vandals broke off 14 young trees along city streets over the Fourth of July weekend, Superior police said …

Yakima, Washington, Herald, July 7, 2015: Dead trees a lifeline for insect-eating woodpeckers

We know what you’re thinking: “Didn’t I just see a woodpecker in the newspaper?” Yep. A woodpecker clinging to a burned, dead tree in our nearby Cascades recently made the front page of the Yakima Herald-Republic. Well, at movie theaters this is the season of the summer sequel. And that’s what you’re getting here — a sequel, only this time without the popcorn. The June 11 article (by YH-R reporter Kate Prengaman) drew attention to the tremendous value charred trees provide for many species of wildlife, especially woodpeckers. The trees’ death sparks a population explosion of various insects and other agents that consume dead wood and bark, thereby performing an invaluable role in recycling forest nutrients. While, of course, becoming lunch themselves. The abundance of insects provides a veritable buffet for various species of woodpeckers, perhaps the most conspicuous of the wildlife dependent on standing dead trees …

wettree150707Dallas, Texas, KTVT-TV, July 6, 2015: Drought, then rain, toppling Texas trees

A giant pecan tree suddenly fell onto Drew Dodson’s house in Richardson. And it’s not even his tree. It once stood in his neighbor’s yard. “It broke from the roots,” Dodson said. “When it fell, it pulled this straight up.” Lucky for Dodson, he and his family were not home at the time. But he did have to hire crews to cut up what was left of the tree and remove it from his property. Dodson pulled off a tarp from his bathroom skylight to show more damage. “I could have been brushing my teeth right here when that tree fell,” he said. Hannah Davis is a certified arborist with Dallas Tree Surgeons. “I’ve never seen a pecan this big fall over,” she said. According to Davis, the number of calls Dallas Tree Surgeons has received about falling trees has jumped by as much as 40 percent this year. “We’ve never had a rash of isolated, a few days apart, giant trees falling like this,” she added. Davis said that you can blame the weather. The extended drought that Texas was in had weakened the trees, Davis explained. Then, with all the recent rain we had received, the trees became heavy and saturated — and toppled over

Springfield, Missouri, KYTV, July 6, 2015: Waterlogged trees could be hazards

Soggy and saturated ground is causing problems for trees in the Ozarks. Arborists say the wet weather has increased the amount of downed tree limbs and uprooted trees. “There’s definitely a lot of potential for tree damage onto houses and cars and wires and all kinds of things around here,” said Noel Boyer, master arborist for All About Trees. Boyer says downed tree limbs are what he sees most as a result of recent storms. “Last week, we were pulling trees off of houses and things where the weight of the water on the leaves and possibly an existing defect in the trees is causing it to fail and fall onto the house or on the ground,” he said. It’s a good idea to give the trees around your house a second look …

Vt150706Burlington, Vermont, Free Press, July 6, 2015: Tree dispute takes neighbors to Supreme Court

A maple tree at the center of an argument between two neighbors is the subject of a case appealed to the Vermont Supreme Court, which with a little help from Robert Frost offered a neighborly opinion. The issue at stake: a neighbor’s right to trim — or not. The tree in question is about 65 years old and 65 feet tall, and resides on the property of Bruce and Janet Alvarez. About half of the branches and roots from the tree now cross the property line and “encroach” onto the lot of Sheldon Katz and Claudia Berger, according to the high court’s opinion. Katz and Berger want to cut the parts of the tree that stretch into their property …

West Chester, Pennsylvania, Daily Local News, July 5, 2015: Chester Springs family works to save 270-year-old oak tree

Chester Springs resident Jim Helm has spent the last several weeks trying to save a historical estimated 270-year-old oak tree on his property from being destroyed by utility companies. The tree, which stands on the border of his property, extends into power lines which run along the road, making it vulnerable for unwarranted trimming and cutting by Verizon and PECO. Helm, along with his wife Jane, live on a historic property in West Vincent Township where their centuries-old barn from 1819 is protected by a historical commission. Efforts to protect their rare tree, one of few left in Chester County of that size and age, have proved more difficult …

church150706Auckland, New Zealand, New Zealand Gardener, July 1, 2015: The man who grew a church from trees

You’d think that with a passion for trees and an encyclopedic knowledge of them that Barry Cox would have enjoyed a long career in arboriculture. Not so; before the age of 10 (too young to understand the criteria required for the top job at the Vatican), Barry wanted to be the Pope. Instead, he settled for the revered position of head altar boy in his home town of Shannon, in Horowhenua. Connecting his love of trees with a desire for an income, Barry started Treelocations, a business that moves large trees (up to 6m tall) using a specially designed tree spade – a huge machine that resembles an apple corer. Mounted on the back of a truck, it works by digging down and under the tree to scoop up cleanly the whole plant, including its vast root ball. “I walked out my back door one day and thought, ‘That space needs a church’ – and so it began … “

Ashland, Kentucky, Independent, July 6, 2015: Ashlander shares tree-cutting experience

Ashland resident Yvonne Cubbison wants everybody to know their options when utility companies ask to cut back trees on their property. Cubbison came to the last Ashland Board of City Commissioners meeting to share her experience with officials and spread the word property owners can refuse to let a power company remove, or otherwise alter, a tree. She prefaced her talk by saying she is not a “tree hugger” or environmentalist, but just someone who enjoys the large water-maple tree in her yard that has been there for at least 75 years, according to library records. Cubbison detailed how a power-company worker said the tree needed to be “topped off” or trimmed because it posed a safety hazard for power lines stretching above her property. But she said she disagrees. The tree has never given her a reason to be alarmed since she moved into her house five years ago. The reason she didn’t want the utility to even trim the tree back is because of damaged trees she has seen around town, she said …

Asheville, North Carolina, Citizen-Times, July 5, 2015: Answer Man: Tree trimming rules?

Question: What are the instructions that Duke Power Company gives to the so-called tree trimming company Asplundh to cut limbs near its power lines? I have been watching the crews cutting trees in Haw Creek and there doesn’t appear to be any particular pattern to their cutting.
Answer: Duke Energy spokeswoman Meghan Musgrave said the crews the company contracts with do use a specified technique, to whit, “directional or targeted pruning.” “These methods are endorsed by the tree care industry as the best pruning techniques for tree health,” Musgrave said. “Directional pruning involves cutting a limb back to another limb (or lateral), so future growth is directed away from power lines. Crews only trim away from power lines; we do not trim around telephone or cable lines …”

This EAB's a fake!

This EAB’s a fake!

Phys.org, July 2, 2015: Insect decoys could protect ash trees

Emerald ash borers have no trouble reproducing themselves as they have now spread through half the United States, but duplicating effective emerald ash borer decoys is not quite as easy. Now, engineers have devised an inexpensive method to produce hundreds of these fake bugs to aid in monitoring and controlling this pest. Whether for monitoring, containment or eradication, emerald ash borer males must be lured into traps, but they are not easily fooled. Entomologists found that the males approach females from above and look for the sunshine reflecting off the female’s green carapace. However, simply placing a green plastic bug in the trap does not work because as the males approach they quickly recognize the fake, flying off before entering the trap. “We had tried two very different ways of making the decoys,” said Akhlesh Lakhtakia, Charles Godfrey Binder Professor in Engineering Science and Mechanics, Penn State. The female emerald ash borer decoys were produced using 3-D printing, but the males quickly became uninterested. This approach, does not replicate the fine structure of the elytra, the hardened forewing of the insect, which is apparently necessary to attract males. The other method required the biomimetic fabrication of a negative die and a positive die, which were used to stamp the decoys on a plastic sheet. The stamped decoys were cut out and first painted black and then metallic green. “My entomologist colleagues found that our biomimetically produced female emerald ash borer lures were 40 percent more successful than dead females,” said Lakhtakia …

Stroudsburg, Pennsylvania, Pocono Record, July 2, 2015: Tree pre-dating Revolutionary War cut down in central Pennsylvania

Residents of a central Pennsylvania town are up in arms over the removal of an almost 300-year-old tree. The Centre Daily Times reports crews began cutting down the burr oak tree off Shady Drive in Lemont at about 7 a.m. Tuesday. The tree pre-dated the Revolutionary War and was recognized by the National Arborist Foundation in 1976 during the area’s bicentennial celebration. State College borough arborist Alan Sam says he was asked to examine the tree in 2008 and determined it was in poor shape. Sam says he measured internal decay and found approximately 70 percent of the tree had been compromised. Township trees are typically cut down when they reach 33 percent compromised. College Township Manager Adam Brumbaugh called the tree’s removal “unfortunate …”

Burlington, Ontario, Post, July 2, 2015: Hydro One tree clearing frustrates Burlington residents

Hydro One is undertaking a clear-cutting of trees along corridors across the city to comply with safety regulations, but some residents are angry because of the resulting cosmetic changes to their neighbourhoods. The North American Electricity Reliability Corporation (NERC) introduced new tree trimming standards for all utilities following the 2003 blackout. Since 2007, Hydro One and others across the continent have been required to keep any vegetation encroaching on rights of way to within 4.5 metres of 230 kV lines — much of what’s seen along corridors in Burlington.“The standard calls for clear right of ways but allows individual utilities to implement their own vegetation management programs,” said NERC spokesperson Kimberly Mielcarek, explaining that the penalty for non-compliance can be upwards of $1 million a day. A former hydro worker for 30 years, Jerry Proskurnicki lives on Trailwood Drive, near Guelph Line and Upper Middle Road, and backs onto a corridor where trees are marked for removal. “Our feeling is if they’re cutting or clearing the lines somewhere in the boonies that’s fine but this is a community with all kinds of beautiful places,” he said. “Yes, they have the right to do it, we understand that, but I think there should be some logic,” he said. “Looking at some of the trees that they’re cutting, they’ll never reach that (hydro) line, ever …”

oak150702Mobile, Alabama, Press-Register, July 2, 2015: Hacked down oak trees incite furor downtown, but it’s on private property, Stimpson says

Five oak trees hacked down to their limbs sparked an uproar at the site for the Hilton Garden Inn under construction near Bienville Square. Workers cleared asphalt from the site early Thursday, and that’s when many noticed the trees. Cowart Hospitality Services, the developer of the $16 million hotel, was not completely in the wrong, Mobile Mayor Sandy Stimpson said. They were required to obtain permits for three of the trees that were larger than 24 inches in diameter, one of which they failed to secure from the city. Oak trees take on a special kind of allure for both residents and tourists. The regulations protecting them — when they can be pruned, treated or chopped down — is enshrined in city law. But those rules don’t pertain to private property, Stimpson …

Northampton, Massachusetts, Daily Hampshire Gazette, July 2, 2015: The puzzle tree: Independence Day musings on sycamores

I’ll be thinking about the eastern sycamore tree this Independence Day, an American tree on our national holiday. Although all trees might be said to be “created equal” from a moral perspective, each tree species has its own value to those who use trees. An early encounter with environmental education had a life-long influence on my attention to the sycamore, a tree I notice both in life and in poetry. At a summer nature camp when I was in elementary school I learned the names of some plants and animals that continue in my repertoire today. The largest of these is the eastern sycamore, a tree I was taught to recognize as the “puzzle tree” for the similarity of the large-flaked, variegated bark on its trunk to a jigsaw puzzle. This feature both makes the sycamore one of the most easily recognized trees and inspires views of a “spotted toad” on a “winy wave-engraven” bark in the words of poets Richard Wilbur and James Whitcomb Riley, respectively …

pepco150702Washington, D.C., WTOP Radio, July 2, 2015: Pepco tree trimming puts area neighborhoods on edge

Pepco’s aggressive tree trimming and removal near power lines has ignited bitter opposition in neighborhoods, particularly in Potomac and Rockville, Maryland. But Pepco insists it must cut trees to keep power flowing after severe weather. Birgit Stuart, of St. Michael’s, Maryland, doesn’t like the way Pepco crews went after the trees in her mother’s Rockville backyard this week. “It was their tactics and their attitude and the fact that they were terrorizing an 83-year-old widow, in not allowing her in her own backyard to watch what they were doing,” Stuart says. Pepco has easement rights and the Maryland State Public Service Commission has ordered that Pepco transmission lines be clear of trees and limbs in order to boost electric service reliability, particularly after severe storms. But Stuart says the tree-cutting crew that showed up at her mom’s house Monday morning included at least two security officers who, she charges, acted like bullies …

Rockaway, New Jersey, Record, July 1, 2015: Commercial building owner sues Ramsey for planting trees

A company that owns a commercial building on Lake Street has filed a lawsuit against the borough for planting trees near the property without its permission. According to court documents filed this month, Ramsey Ivy Properties is claiming that the borough’s Shade Tree Commission violated an agreement that said the commission must provide “advance notice of any plan for the planting of trees” on the property.Ramsey Ivy Properties owns a lot on Lake Street known the Pavilion. The borough owns an abutting parcel, known as the Gateway to Ramsey Property, situated between the Lake Street lot and Route 17. In the lawsuit, which was filed in Superior Court in Hackensack on June 19, the property owner is seeking reimbursement for its legal fees and the possible removal of commission members. Ramsey Ivy Properties is also asking for a court order requiring the commission to provide a tree-placement plan to its arborist and, if necessary, to remove and relocate trees the borough planted without permission …

San Francisco, California, SF Weekly, July 1, 2015: San Franciscans are tired of caring (and paying) for the City’s trees

In 2011, San Francisco began making property owners responsible for maintaining the trees along the city’s sidewalks. Facing a $380 million general fund deficit, City Hall had to slash budgets somewhere, and trees don’t compete well against priorities like transportation, homelessness, or policing. Since then, nearly 7,000 trees have been transferred, with another 12,657 on the list. Meanwhile, citizens have fomented a kind of slow-growth rebellion. On May 17, almost three dozen Mission District residents calling themselves Friends of Folsom Street Trees sent a letter to Mohammed Nuru, director of Public Works, urging a repeal of the transfer program on the grounds that it puts trees at risk and is based on outdated economics. Even more galling: “[Public Works] does not discuss that this plan makes property owners liable for public safety and damage caused by the street trees that [Public Works] planted …”

(File photo)

(File photo)

Scranton, Pennsylvania, WNEP-TV, July 1, 2015: Tree kills Bushkill man on way to work

A tree came down Wednesday morning in the Delaware Water Gap National Recreation Area and crushed the roof of a car. The driver in that car was on his way to work and was killed. That 80-foot tree fell down along Route 209 around 6 a.m. Wednesday, taking the life of a man from Bushkill who was on his way to work in New Jersey. That part of Route 209 in the Delaware Water Gap National Recreation Area was hammered by storms. The tree fell across both lanes and onto the car, killing the driver. “The trees were also filled with water, so combine that with the wet soft ground on a slope and that seems to be what caused the tree to come down,” said Delaware Water Gap National Recreation Area spokesperson Kathleen Sandt …

Lakeport, California, Lake County Record Bee, July 1, 2015: State to OK logging of dead, dying trees

The California Board of Forestry and Fire Protection adopted an emergency regulation for the removal of dead and dying trees at their June meeting. The adoption was made in response to the ever-growing number of drought-related dead and dying trees across the State that are mounting concerns over intensifying wildfire conditions. Under the regulation, drought has been added as a condition that can constitute an emergency action. This will allow individual landowners or Registered Professional Foresters (RPF; for projects that require an RPF) to apply for an exemption to cut and remove dead and dying trees of any size without the typical timber harvest plan preparation and submission requirements as well as completion and stocking report requirements. The US Forest Service, Forest Health Protection Program conducted special early season aerial surveys of Southern California and the Southern Sierras in April to get a preliminary assessment of forest conditions in some of the most severely drought-impacted areas of the State. Approximately 12.5 million dead trees were identified — 4 times that of all of California’s tree die-off in 2014. In 2014, an estimated 3.3 million trees died throughout the state, nearly double 2013 mortality rates …

oretree150701New York City, Daily News, June 29, 2015: Man killed when tree falls on car driving along historic Columbia River Gorge highway in Oregon; baby survives

A scenic Sunday drive along a historic Oregon highway turned tragic when a tree crashed onto a car, killing a man and hurting two passengers but miraculously leaving a 1-year-old baby unscathed. The Washington state man was driving east along the Historic Columbia River Highway just before 3 p.m. Sunday when a dead tree crashed down from a hillside, smashing into a maroon sedan, Multnomah County Sheriff’s Office Lt. Steve Alexander told the Daily News. The man, who has yet to be publicly identified, was killed, while two women were taken to the hospital with minor injuries. The baby, strapped into a back seat car seat, was unharmed, Alexander said …

Jacksonville, Florida, Times-Union, June 30, 2015: Editorial: Tragedies caused by falling trees must be prevented

Justice will finally be served for 18-year-old Aubrey Stewart, who was paralyzed when a mammoth limb fell on him. The incident occurred four years ago despite repeated calls to the city to remove the rotting tree. Florida Gov. Rick Scott recently signed a special bill that will allow the city to pay Stewart and his parents — Aubrey’s 24-hour caretakers — $3.3 million because of the city’s negligence. The special bill was needed because that amount exceeds the dollar figure state law says cities could pay in such situations. This tragic case is cautionary. The neighborhood had known the old oak — located on city-owned property — was dying at least two years before it dropped its giant limb on Aubrey Stewart. All the neighbors had called the city repeatedly to urge that it be cut down …

loraintree150701Cleveland, Ohio, WEWS-TV, June 30, 2015: Tree loggers unexpectedly drop tree into woman’s yard in Lorain damaging carport, fence

Lori Riegel-Kapalin keeps an eye on her retired neighbor, Juanita Stutt, often, chatting next door. Jaunita lives between Lori and Lori’s parents in Lorain. But, Lori had her eyes out Juanita’s back window Monday as she saw, and heard, a crash from what has always been known as King’s Woods behind their West 12th Street homes. “Amish workers were back there cutting trees,” said Riegel-Kapalin. “I heard a loud crash and I looked up and saw the power lines shake from the tree falling against them. I told her (Juanita) that she needs to run to the front of the house, it’s coming toward us.” Kapalin said the West Woods had been owned by the West family for many decades, but had recently been owned by Lorain National Bank. After having gone through Lorain Common Pleas Court, the property is currently under court-appointed control through an attorney, James Africa …

jaxtree150701Jacksonville, Florida, WTLV, June 30, 2015: Condition of tree determines where liability falls

Recent storms and high winds have left Michelle Carn to pay a $1,000 insurance deductible after a neighbor’s tree fell on her property. The Northside homeowner on Washington Avenue is frustrated. After all, the home next door is vacant and she has not been able to find the owner of it or the tree that fell on her home. “I just have to eat it. There is nothing I can do,” said Carn of the deductible cost, left with no option other than to make a claim on her homeowner’s insurance. “This is a question that comes up all the time,” said Matt Carlucci, a long term State Farm agent who said the question of liability is a question he is often asked when a tree falls. Carlucci said it depends on the health of the tree. “If my tree is green and healthy, has green leaves like all the trees around here, then your policy is going to have to pay for any damage to your home,” said Carlucci. “[You pay] nothing if the tree is diseased or rotten; the property owner bears responsibility for damage caused on a neighbor’s property …”

Kansas City, Missouri, WDAF-TV, July 1, 2015: Metro family says tree that fell on home is city’s responsibility

A Kansas City family is afraid to go home after a big tree fell on it during Thursday night’s storm. The family says it`s the city`s responsibility to remove, but the city disagrees (video report) …

Looking for an older news story we featured on this page?  Check our Prior News Links page.

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Case of the Day – Thursday, July 30, 2015

SHUT MY MOUTH!

When the Harrises moved in back about 1956, they thought their land extended back well beyond where it actually did. They tended to their land – including the part they thought was theirs but wasn’t – planting flowers, mowing the lawn, and finally nurturing a beautiful break of pine trees along what they thought was the property line.

doghouse150730

The Harrises eventually sold the land to their granddaughter, Melissa Watts-Sanders. She likewise believed that the land went back to the trees, and she maintained it as though she owned (which she thought she did). Making her own improvements, she installed a dog pen on the disputed property.

Or perhaps we should we say “soon-to-be disputed property.” Because it seems she had a new neighbor, Mindy Chambliss. Ms. Chambliss did things right. Among those right things was her hiring of a surveyor. The surveyor unsurprisingly found that the land with the dog pen on it really belonged to Mindy.

Ms. Chambliss was not a lawyer (or much of a speller, which is a rapidly-dying art in this day and age). However, she knew some impressive-sounding legal terms – “cease and desist” being among them – so she wrote Ms. Watts-Sanders a missive demanding that she “cease and desist” with the dog pen, and claiming the property she believed to be rightfully hers. In the letter, Ms. Chambliss officiously explained that her survey “does superscede [sic] the fact that the property was maintained for 49 years.”

Badspelling140909Maybe it was the spelling. Whatever the reason, Ms. Watts-Sanders was not suitably cowed by the letter, so Ms. Chambliss sued. When she did, Ms. Watts-Sanders defended by arguing that a new boundary line had been established over the years by acquiescence. Nonsense, said Ms. Chambliss. Pine trees did not a boundary make, and none of Ms. Watts-Sanders’ predecessors had ever expressed an intention to occupy the land. And, Ms. Chambliss said, proudly showing her “cease and desist” letter to the Court, she had told Ms. Watts-Sanders about the surveyor’s findings.

‘Say what?’ the court asked, looking at the letter. ‘You mean Ms. Watts-Sanders and her people had maintained the property for 49 years?’ Well, the Court said – notwithstanding Ms. Chambliss’s opinion – that really did mean something. In fact, given that Watts-Sanders and her predecessors people maintained and used the land for half a decade without any complaint from Chambliss’s predecessors, the case was pretty compelling that someone had acquiesced to the pine tree boundary.

The lesson here? Clients, let your lawyers be your mouthpiece. Ms. Chambliss’s smug “explanation” of what trumped what turned out to be an admission against her own interests, and ended up being a pretty costly law lecture.

There's a reason lawyers are called 'mouthpieces' ...

There’s a reason lawyers are called ‘mouthpieces’ …

Chambliss v. Watts-Sanders, Not Reported in S.W.3d, 2008-AR-0131.003, 2008 WL 241288 (Ark.App., Jan. 30, 2008). Ms. Chambliss and Ms. Watts-Sanders share a common backyard boundary. The dispute began after Ms. Chambliss ordered a survey which showed that Ms. Watts-Sanders had built a dog pen on Ms. Chambliss’s land. Ms. Watts-Sanders claimed property up to a row of pine trees planted on the disputed tract, but those trees were 23 feet east of the surveyed boundary line. Ms. Chambliss demanded that Ms. Watts-Sanders remove the dog pen, claiming to Ms. Watts-Sanders in writing that her survey superseded the fact that Watts-Sanders maintained the property for 49 years.

The property formerly belonged to Watts-Sanders’ grandparents, Vivian and Loren Harris. The Harrises bought the property in 1956 and built a house there. They later planted the pine trees and developed the flower bed toward the rear of the property. Mr. Harris cut the grass between the flower bed and the pine trees and that he treated the pine trees as the boundary between the two properties. No one except the Harrises used the disputed area since 1956. Ms. Watts-Sanders received the deed to the property from her grandmother in 2004. She noted that the pine trees were planted as close to in a line as possible and that the trees marked the boundary line between the properties.

Ms. Chambliss simply said too much.  Never write paragraph where a sentence will do.

Ms. Chambliss simply said too much. Never write a paragraph where a sentence will do.

Ms. Chambliss purchased her property in 2003, and thought her land went to the concrete edging of the flowerbed. She was unaware that Ms. Watts-Sanders claimed possession of the disputed property until she placed the dog pen. Ms. Chambliss claimed that she had maintained the disputed property since purchasing it in 2003 and that she never saw Watts-Sanders on the property. The trial court found that Watts-Sanders had established the row of trees as the boundary by acquiescence and quieted title to the disputed property in her name. It also awarded her $250 in damages for the cost of rebuilding the dog pen. Ms. Chambliss appealed.

Held: The decision in favor of Ms. Watts-Sanders was upheld. Ms. Chambliss argued that the tree line was not a physical and permanent boundary, there was no evidence that Watts-Sanders’ predecessors occupied the disputed property, and there was no proof that any of Watts-Sanders’s predecessors-in-interest took any actions to indicate that the disputed land belonged to them.

The Court noted that the mere existence of a fence or some other line, without evidence of mutual recognition, cannot sustain a finding of boundary by acquiescence. However, silent acquiescence is sufficient, and the boundary line usually can inferred from the parties’ conduct over so many years. A party trying to prove that a boundary line has been established by acquiescence need only show that both parties at least tacitly accepted the non-surveyed line as the true boundary line.

The takeaway for today?  Remember this ...

The takeaway for today is this …

Here, the Court said, the law merely required the boundary line to be some monument tacitly accepted as visible evidence of a dividing line, and the row of pine trees sufficed. The evidence was sufficient to show that Ms. Watts-Sanders and the Harrises occupied the disputed area, including evidence that Mr. Harris planted the pine trees and Ms. Chambliss’s own ill-advised admission that Ms. Watts-Sanders and the Harrises had maintained the disputed tract for forty-nine years.

Finally, evidence showed that only Ms. Watts-Sanders and her predecessors used the disputed tract. A boundary by acquiescence exists in cases where one party has used land belonging to another and the true landowner did nothing to assert his interest. Here, Ms. Watts-Sanders’ family’s use of the property remained undisturbed for almost 50 years. No one objected when her mother had one of the trees removed. Acquiescence can result from the silent conduct of the parties, and the fact that none of appellant’s predecessors used the property east of the tree line could be seen as tacit acceptance of the tree line as the boundary between the two properties.

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Case of the Day – Wednesday, July 29, 2015

CONTEMPTUOUS NEIGHBORS

contempt150729Contempt of court is the mechanism by which a court enforces compliance with its orders. Punishment can range from a reprimand to jail time. Regardless of whether the contempt is civil or criminal, it’s something that litigants and lawyers would agree is best avoided.

Some people, like George Reece and Gerry Smith, just can’t help themselves. The neighbors squabbled for years over boundaries and an old hemlock tree. Finally, in 2005, they buried the hatchet, agreeing to a settlement where Reece gave Smith some property, and Smith gave Reece some property. The settlement specifically provided that Reece got property next to a pond that included his beloved hemlock tree.

So much for congeniality. It wasn’t long before they were back at it. Smith accused Reece of trespassing, harassing him, assaulting him, and diverting rainwater to flood Smith’s land. Reece countered that Smith had cut down his beautiful hemlock and destroyed a custom wrought-iron gate. The court threw up its hands, found them both in contempt and sent them off to jail for 20 days – presumably not as cellmates – to contemplate their misdeeds.

Reece and Smith could have been the inspiration for Mad Magazine's famous warring spies.

Reece and Smith could have been the inspiration for Mad Magazine’s famous warring spies.

Both of them appealed. The Court of Appeals sided with Smith for procedural reasons, holding that the act of asking that the other party be held in contempt was a motion, not a new civil action. That being the case, Reece wasn’t entitled to counterclaim for contempt himself. If he felt strongly enough about the destroyed gate and hemlock tree, Reece could file his own motion for contempt, or start a separate lawsuit for trespass to trees.

It’s a cinch that Reece probably felt strongly about it after 20 days in jail, and it seems to us rather hyper-technical of the court not to consider Reese’s misstyled counterclaim to be a motion for show cause to hold Smith in contempt. To do so would have been more efficient, as well as a triumph of substance over form.

Reece v. Smith, 292 Ga.App. 875, 665 S.E.2d 918 (Ga.App. 2008). This case was the last in a series of appeals resulting from several years of litigation between Gerry Smith and George Reece, who live next door to each other (but obviously not in harmony).

Smith and Reece repeatedly petitioned the court to intervene in a property-line dispute. In 2005, they entered into a settlement agreement in which they agreed to get an accurate survey of the disputed property and, based upon the survey, to convey portions of their property to each other in settlement of the long-running dispute. Smith specifically agreed that certain property next to a pond would belong to Reece and that this property included a tall hemlock tree. The court entered a final order approving the settlement agreement, ordering the parties to comply with it “in every respect.”

Two years later, Smith asked the court to hold Reece in contempt of the agreement. Smith said Reece had trespassed on his property several times, had threatened and hit him, and had caused rainwater to flow onto his property. Reece denied it and asked the court to hold Smith in contempt, saying that Smith cut down the hemlock tree, destroyed a wrought iron gate Reece had erected across his driveway, interfered with the surveyors, removed pins marking the property lines, blocked the access roads to his property, and stalked and harassed him and his guests. Reece asked for damages for the destruction of the hemlock tree and the gate.

The trial court found that each of them had committed some of the acts alleged and ordered them to serve 20 days in jail and pay a fine. The court also ordered Smith to pay Reece $5,000 in damages for cutting the hemlock tree, but it denied Reece’s claim for damage to the gate, ruling that he hadn’t presented sufficient evidence on the value of the gate.

Both parties appealed.

Held:   The Court upheld the jail sentence against , but reversed Reece’s counterclaim. In order to find criminal contempt, there must be a showing of willful disregard or disobedience of the order or command of the court. The sentences and fines should be affirmed if there is sufficient evidence to find that a party committed at least one of the contumacious acts listed in the court’s order.

box150729Smith’s testimony that an adjoining owner had constructed his driveway in such a manner that it caused rainwater to dump onto Smith’s property, had trespassed and threatened him, and drove into a sand pile in Smith’s front yard was sufficient to support the court’s finding that Reece was in contempt of the court’s previous order relating to the settlement.

The contempt remedy is part of the judiciary’s inherent power to enforce its orders. As such, an action for contempt is ancillary to the primary action and is characterized as a motion and not a pleading. Because it is not a complaint, an application for contempt may not, standing alone, serve to commence a civil action for damages.

Therefore, Reece could not file a counterclaim for contempt or obtain an order requiring Smith to pay $5,000 in damages for cutting the hemlock tree. However, he could file a separate suit in superior court for damages resulting from destruction of the hemlock tree and wrought iron gate.

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Case of the Day – Tuesday, July 28, 2015

WHO ARE YOU GOING TO BELIEVE – ME OR YOUR OWN EYES?

combusted150728Judges actually go to judges school to learn cool, judge-related things. Not the law … they already know about the law, or they know how to look it up. Instead, judges learn really practical things — such as how to tell when a witness is lying.

And how can you tell when a witness is lying? No, not when his or her lips move. That’s too easy. But judges learn how to watch for signs — and they don’t tell us in the great unwashed what those signs are — that a witness may be dissembling. Dissembling: a great euphemism for lying.

In today’s case, two New York neighbors had a common fence. On the Zeltsers’ side of the fence was a one-foot wide strip of land between the fence and the driveway. It had been there for a long time. The Zeltsers took care of the strip, planted trees and shrubs, enclosed it from the street and even paved part of it. But in 2003, the Sacerdotes had a survey done and found, lo and behold, the strip belonged to them. They tore down the fence and cut down the trees. The Zeltsers sued.

The trial court found, on the crucial issue, that the Zeltsers had used the one-foot wide strip openly, continuously and exclusively from 1987 to 2003. The Sacerdotes argued that there had been evidence — testimony from the Sacerdotes — that showed otherwise. But the Court of Appeals noted that the trial court — which had been in “a unique position to assess the evidence and the credibility of the witnesses” — resolved that issue in favor of the Zeltsers.

Generally, appellate courts will not disturb credibility findings of a trial court. The trial judge, after all, with his keen eye for prevaricators (a euphemism for dissemblers, see above), can smell testimony that gives off the reek of tergiversation — and the appellate court wasn’t about to question what the trial court had decided.

There is undoubtedly a good backstory here, one we’ll never know. The Zeltsers were awarded the one-foot strip by adverse possession, so it’s a cinch the judge believed them.   In fact, all of the physical evidence – the old fence, the trees planted by the Seltzers, the asphalt and the edging – made this a pretty open and shut case.  

The only evidence to the contrary was the Sacerdotes’ testimony.  It was rather self-serving testimony at that.  The self-serving nature doesn’t make it wrong, but it sure makes it suspect.  

pic150728The Zeltsers won rights to the foot-wide strip.  In the process, they lost any chance that they’d be invited to a Sacerdote picnic any time soon.  

Zeltser v. Sacerdote, 860 N.Y.S.2d 624, 52 A.D.3d 824 (N.Y.A.D. 2 Dept., 2008).  The Zeltsers and the Sacerdotes owned adjoining residential properties. When the Sacerdotes purchased their property in 1987, an existing fence — covered in rose bushes and vines — ran parallel with their property line from the street to a garage in the rear for about 100 feet. A small strip of dirt, about a foot wide was sandwiched between the fence and the Zeltsers’ driveway. The Zeltsers believed that the strip — which was on their side of the fence — belonged to them. They planted trees on the strip, trimmed the bushes and vines on the fence, and installed a row of bricks as an edging. They installed a fence that enclosed the front portion of the strip, making it inaccessible from the street, and they laid asphalt on the strip between their garage and the Sacerdotes’ garage, both of which were on the back portion of the respective properties.

It turned out that title to the one-foot strip was held by the Sacerdotes.  They never mentioned that to the Zeltsers, and may have been uncertain about it themselves,  until they had a property survey done in 2003.  After the survey, the Sacerdotes removed the fence and the trees.  

The Zeltsers sued to quiet title to the disputed strip, based on their claim of adverse possession.

liarliar150728Held: The Zeltsers had become owners of the strip of land by adverse possession. The Court observed that a party claiming title by adverse possession – rather than a written instrument – must show that the parcel was either regularly cultivated, or improved or protected by a substantial enclosure.  Additionally, the party must satisfy the common-law requirements demonstrating by clear and convincing evidence that the possession of the parcel was hostile, under claim of right, open and notorious, exclusive, and continuous for the statutory period of 10 years.

The trial court properly found that the Zeltsers had established that they met both the statutory and common-law requirements of adverse possession. The trial court’s findings relied substantially on its perception of the credibility of the witnesses, and the appellate court was not willing to disturb those findings. The Court said that the evidence established that the Zeltsers openly used and maintained the disputed strip from 1987 until 2003.

The Sacerdotes argued that there was conflicting evidence as to whether the Zeltsers’ possession of the disputed property was exclusive. However, the trial court — which, the Court observed, “was in a unique position to assess the evidence and the credibility of the witnesses” — resolved that issue in favor of the Zeltsers, and the appellate court wasn’t about to disturb the finding.  

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Case of the Day – Monday, July 27, 2015

EASEMENT CREEP

A pipeline runs through it ... but how wide is the easement?

A pipeline runs through it … but how wide is the easement?

It’s a common enough problem when a deal gets cut by people who later leave the company, retire, pass on, whatever. Over the years newer, younger Turks come along, who redefine the deal to suit the newer aims and needs of the company.

So it was with some gas line easements in the Mohican forest area of eastern Ohio. We’ve discussed previously why a careful description of the bounds of an easement is such a good idea. Here’s another example. When the easements for these three gas pipelines were written, they didn’t contain any description of the width of the right-of-way being provided to the easement holder. Over the first 40 years or so, the gas company kept the right-of-way cleared to 10 or 15 feet. But in 2003, the company suddenly decided it required 20 to 25 feet, and it began cutting accordingly. Even that wasn’t enough, and so in 2006, the gas company sued a church camp and some other recreational landowners for a declaratory ruling that the easement was really 50 feet wide.

The Federal district court denied summary judgment to the gas company. The gas company’s argument, reduced to its essence, was that it must obey new, stiffer federal laws and regulations in the wake of 9/11, and those require a 50-foot wide easement. The court wasn’t buying it. Finding no language to help it in the easements themselves, the court looked at other factors. It seemed pretty clear that nothing in the way the gas company had operated for 40 years or so supported a finding that the parties understood all along that they were dealing with a 50-foot wide easement. The gas company’s arguments that its operations required 50 feet failed — the court said the best it could justify based on the evidence was 29 feet wide. And the court was troubled that the gas company had met with the church in 1965, when the church was buying the campground, and told church representatives that it was looking at a 10-15 foot right-of-way. Thirty-eight years later, it told the church it needed a 20-25 foot wide easement.  

Sometimes, you have to dance with the girl who brung ya … 

Sometimes the little guy really does win ...

Sometimes the little guy really does win …

None of this meant that after a full trial, the court might not feel differently. But for moment, it was David 1, Goliath 0. And – reading the handwriting on the wall – Columbia Gas Transmission Corp. ended the litigation several months later.

Columbia Gas Transmission Corp. v. First Congregational Church, Slip Copy, 2007 WL 4350769 (N.D. Ohio, Dec. 11, 2007). Columbia Gas owned three gas pipelines that traverse the Church’s camping retreat property. Two of the easements had been granted by the Muskingum Conservancy District, the Church’s predecessor-in-interest, providing the right to ingress and egress, the right to lay, maintain, operate, repair, replace and remove the pipe, provided the pipe would be buried so as not to interfere with the cultivation of the land. A second easement had been granted for the sole purpose of drilling for oil and gas and to use the premises for pipelines, water lines, pumps, tanks, structures and stations necessary or convenient in connection with drilling, provided that the pipelines be buried and the easement holder pay for all damages to growing crops and trees. When the Church bought the campground in 1965, gas company representatives showed the clergymen the clearings for the pipelines, which were between 10 and 15 feet wide. In 2003, the gas company expanded its cleared right-of-way to 20 to 25 feet. Three years later, the gas company told a church member it owned a 50-foot right of way, and asserted that the Department of Homeland Security required this for gas pipelines. The gas company cleared all the trees within 50 feet of one of the pipelines without informing the church of its intention. The gas company dumped brush piles in excess of 55 feet from the centerline of of the pipeline, needlessly changing the topography of the area. Shortly thereafter, the gas company sued the church for injunctive relief that its easement entitled it to clear a 50-foot right-of-way on a second pipeline. The church wasn’t alone: several other landowners were sued as well, and the court consolidated all of the cases. The Church filed a counterclaim seeking declaratory judgments and injunctive relief that Columbia Gas was not entitled to a 50-foot right-of-way in its easements for its pipelines, and sought damages from the previous tree clearing along the one pipeline. Columbia Gas moved for summary judgment.

Held: The gas company’s motion was denied. Under Ohio law, the granting of an easement includes a grant of all things necessary for the use and enjoyment of the easement. Where the complete terms of the easement are not expressed in the instrument granting it, the extent and limitation of the easement are ascertained from the language of the grant, from the circumstances surrounding the transaction, and by what is reasonably necessary and convenient to serve the purpose for which the easement was granted. The holder of an easement may not increase the burden upon the servient estate by engaging in a new or additional use of the easement. However, without specific language to the contrary, an easement holder is entitled to vary the mode of enjoyment and use of the easement by availing himself of modern inventions if by doing so he can more freely exercise the purpose for which the grant was made.

Easements should be very specific - because the people who wrote them won't always be around.

Easements should be very specific – because the people who wrote them won’t always be around.

Here, the easement agreements were ambiguous at best, and provided no basis for determining what the parties had intended. As to what is reasonable, it is true that the gas company has a duty to maintain its storage pipelines in accordance with federal law. It has a policy of not allowing any growth more than five feet tall within the right-of-way. However, its evidence of use of the easement and of hazard to pipelines from tree roots supports a clearing of only about 29 feet at most. Furthermore, Ohio courts have also looked to use and acquiescence and have refused to extend easements to fifty feet where the gas company has allowed mature trees growing within fifty feet of the pipeline. Here, even if the regulations suggested a fifty-foot wide clearing were necessary, the Court said, the parties never contemplated such a right-of-way at the time of the granting of the easement. The gas company argued that 50 feet is necessary for it to conduct aerial patrol. The Court said presumed that the parties contemplated normal developmental changes in the use of the easement, nothing in the evidence ever suggested that anyone contemplated a 50-foot right-of-way.

The parties’ experts’ discussions of the relevant safety issues is only one issue among many that the Court was willing to consider in determining the dimensions and scope of the easement. The Court also considered the language of the grants and the circumstances surrounding the transactions. Neither of those entitled the gas company to a judgment as a matter of law.

Finally, the Church argued that the Plaintiff should be estopped from arguing a larger easement than 25 feet is reasonably necessary and convenient, because it not only used a small right-of-way in the past, but its representative affirmatively showed the Church’s representative the clearings of the trees so that the Church would know what to expect — showing him clearings of 10 feet, occasionally increasing to 15 feet in width. Further, in 2003, the gas company told a member of the Church it needed 25 feet, not 50. The Court said these conversations and interactions, coupled with the gas company’s failure to remove mature trees until now, might demonstrate enough evidence of use and acquiescence to estop the gas company from arguing for 50 feet.

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Case of the Day – Friday, July 24, 2015

WE GOT YOU COVERED

Ich bin in Berliner?  The denizens of the western half of the city were irate over the Wall.  Just a bit.

Ich bin in Berliner? The denizens of the western half of the city were irate over the Wall. Just a bit.

California homeowner Shelly Albert lived next to grumpy Henri Baccouche. How do we know he was grumpy? You’d be grumpy, too, if your neighbor built a fence over the parties’ common driveway easement, enclosing a grove of nine mature olive trees that stood on your land. Imagine how the Berliners felt when they awakened on the morning of August 13, 1961 to find that their neighbors on the east side of town had built a fence enclosing the Brandenburg Gate, Karl Marx Strasse, and some of the nicer parts of town. That’s how Mr. Baccouche felt.

To make matters worse, Henri fumed, the nine olive trees had been badly damaged by Shelly’s contractors. The workers’ “actions in hacking, cutting and pruning the trees reduced them to a pitiable state.” The contractors had damaged other trees as well, thereby diminishing “the aesthetic and monetary value of those trees . . .” Henri demanded treble damages under Civil Code §§ 733 and 3346, but later expanded his claims to include the alternative claim that Shelly and her people were negligent.

Shelly didn’t bat an eye. She had an insurance policy from Mid-Century Insurance that covered negligence like this. When Henri served his civil action on Shelly, she forwarded a copy to the insurance company. She explained to her insurer that she didn’t believe that any of her fencing encompassed Mr. Baccouche’s property. Plus, she said, the trees that her workers trimmed were “boundary trees,” straddling the property line between the properties. Plus, she explained, she has been notified by the Los Angeles Fire Department to clear the area where the trees were located, as it was within 200 feet of her residence. She had trimmed these same trees year after year, and Mr. Baccouche never told her not to, or that the trees belonged to him. Shelly told her agent that she believed in good faith that the trees were hers, and that she was required to trim them.

If she didn't work for Disney (and if she weren't a cartoon character), Elsa could be a field rep for Mid-Century.

If she didn’t work for Disney (and if she weren’t a cartoon character), Elsa could be a field rep for Mid-Century.

Ah, Shelly … your Pollyannish optimism is amusing! But not to the cold-hearted field claims manager, who denied your claim. The insurance company concluded that the claim was barred by the exemption for intentional acts set out in the policy. Insurance policies typically cover losses from negligent acts (you accidentally run over the neighbor’s cat) but not intentional acts (you kick the neighbor’s cat into the next county).

cat150724However, maybe Henri left her an out.  In his amended complaint, he claimed that if Shelly didn’t trespass and hack up his trees on purpose, she did so negligently. Shelly reported the amended claims to her insurance carrier. She argued that because she believed that the trees were owned by both parties, they “constitute[] property covered under my policy. Accordingly, [defendant] has an obligation under my policy of insurance to tender a defense on my behalf.”

The insurer did not budge. The company contended that because Shelly admitted she purposefully erected the fence, and had intentionally cut Mr. Baccouche’s trees, the conduct giving rise to Henri’s claims was intentional, and thus not an accident or occurrence within the meaning of the insurance policy. The insurer said its coverage determination had considered the possibility that the trees were solely owned by Shelly, solely by Henri, or were jointly owned. The carrier determined that who owned the trees was irrelevant to the coverage determination because the damage occurred from nonaccidental conduct.

In a  response to the insurer’s July  letter, Shelly took issue with some minor factual assertions in the letter, but did not otherwise claim that the damage to the trees had arisen from any sort of accident within the meaning of the policy.

In a reply, the insurer pointed out that Shelly had not provided any facts addressing defendant’s position that the incident was not an “accident” or “occurrence” within the meaning of the policy.

unforeseen150724Shelly sued the insurance company. The trial court concluded that she failed to show “a potential for coverage,” which is what she had to prove in order to get Mid-Century to pay for her legal defense. The judge decided that the Shelly’s conduct alleged in Henri’s lawsuit was nonaccidental and intentional. To the extent the amended complaint alleged “negligent” conduct, Shelly had admitted to the carrier what she had done, and Shelly’s argument that she somehow “negligently supervised” the workers was not supported by Henri’s claims.

The Court of Appeals agreed with the trial court. An insurer owes its insured a broad duty to defend against claims creating a potential for indemnity. This duty to defend is broader than the duty to indemnify, and may exist even if there is doubt about coverage. However, the insurer has no duty to defend where the potential for liability is tenuous and farfetched. The ultimate question is whether the facts alleged in the lawsuit against the insured fairly apprise the insurer that the suit is upon a covered claim.

Shelly’s policy covered property damage resulting from an occurrence, and the policy defines an occurrence as an accident. An intentional act is not an ‘accident’ within the plain meaning of the word. The term “accident” refers to the nature of an insured’s conduct, and not to the unintended consequences of the conduct. An accident does not happen when a insured performs a deliberate act, unless some additional, unexpected, independent, and unforeseen happening occurs that produces the damage.

Shelly intended the acts resulting in the damage to Henri’s trees. Her conduct did not become an accident just because she didn’t know the trees belonged to Henri. Her intent was irrelevant; the act was not. Shelly told her workers to trim the trees that got trimmed. Her mistake was in thinking the trees were hers. Her insurance didn’t cover that.

There’s a lesson here for the Henris of the world, too. You lawyer can sometimes get the bit in his or her teeth, writing enraged and cutting complaints against defendants. In this case, it would have been a lot better for Henri’s lawyer to have accused Shelly of gross negligence, or even recklessness. That way, the insurer gets involved. Insurance companies tend to be economic, rational creatures, who are willing to settle when settlement is reasonable, and always have the ability to write a check that’s good.

Albert v. Mid-Century Ins. Co., 236 Cal.App.4th 1281, __ Cal.Rptr.3d __ (California Court of Appeals, Second District, Eighth Division, April 28, 2015).  Plaintiff Shelly Albert bought a homeowners insurance policy from Mid-Century in January 2008. The policy was in force in January 2011, when Albert was sued by her neighbor, Henri Baccouche, for damage she caused to his property when she erected an encroaching fence, and pruned nine of Mr. Baccouche’s mature olive trees. Albert asked Mid-Century to defend the suit, and when the insurance company refused, she sued it.

The insuring clause of plaintiff’s policy stated: “We will pay those damages which an insured becomes legally obligated to pay because of … property damage resulting from an occurrence. At our expense and with attorneys of our choice, we will defend an insured against any suit seeking damages covered under [this section] . . . We do not have any duty to defend or settle any suit involving actual, alleged, threatened or declared . . . property damage not covered under this liability insurance.” The policy defines an “occurrence” as “an accident, including exposure to conditions, which occurs during the policy period, and which results in . . . property damage . . . during the policy period. Repeated or continuous exposure to the same general conditions is considered to be one occurrence.” The policy also set forth a number of exclusions, including one for “intentional acts,” which the policy defined as “property damage . . . which is caused by, arises out of or is the result of an intentional act by or at the direction of the insured.” By way of example this includes but is not limited to any intentional act or intentional failure to act by an insured, whether a criminal act or otherwise, where resulting injury or damage would be objectively expected to a high degree of likelihood, even if not subjectively intended or expected.”

denied150724Mr. Baccouche’s complaint alleged that he and Albert, his neighbor, owned adjacent parcels of land which were subject to a reciprocal roadway easement providing both parcels access to the main public road. He said Albert erected a permanent fence over a portion of the roadway easement, which also intruded onto his parcel. The fence enclosed a 644 square foot portion of Mr. Baccouche’s land, which included a grove of nine mature olive trees. He claimed Albert and her contractors “willfully and maliciously damaged [the] nine mature olive trees . . . by severely hacking cutting and pruning those trees so as to greatly reduce their canopies, foliage, limbs, etc., without permission.” The complaint sought treble damages under Civil Code §§ 733 and 3346.

Mr. Baccouche later amended his complaint, alleging a cause of action for negligent damage to his trees.

The insurance company investigated the claims. Albert asserted that the fence she erected was within her property line, and said she not believe any of her fencing encompassed Baccouche’s property. As to the trees at issue in Mr. Baccouche’s complaint, Albert asserted that the trees were “boundary trees” and that the trunks of the trees essentially straddled the property line between Mr. Baccouche’s and her properties. She told the insurance company that since she purchased her lot, she has been notified by the Los Angeles Fire Department to clear the area where the trees were located, as it was within 200 feet of her residence. She trimmed these same trees year after year, without complaint from. Baccouche.

The  carrier denied coverage, concluding that the conduct complained of by Baccouche was intentional conduct by Albert. Albert argued that because she had the trees trimmed in the good faith belief she owned them, “ . . . no intentional tort will lie.” Albert then sent Mid-Century a “demand for tender of defense,” which the carrier denied.  Albert took issue with the insurer’s position, but did not otherwise claim that the damage to the trees had arisen from any sort of accident within the meaning of the policy.

Albert then sued Mid-Century. The trial court granted the carrier’s motion to deny coverage. The court ruled that Albert had failed to demonstrate a potential for coverage, as the conduct at issue in Baccouche’s lawsuit was nonaccidental, intentional conduct. The trial court also concluded that to the extent Mr. Baccouche’s complaint alleged “negligent” conduct by plaintiff, there was no evidence whatsoever that the trees were injured in some accident, “e.g. by inadvertently striking a tree with a motor vehicle.” The trial court also concluded that Mr. Baccouche’s pleadings did not support plaintiff’s “negligent supervision” theory.

Albert appealed.

If you intentionally cut down one of your own trees, but it unintentionally falls on the house, you're still covered.  We're pretty sure.  But read the fine print.

If you intentionally cut down one of your own trees, but it unintentionally falls on the house, you’re still covered. We’re pretty sure. But read the fine print.

Held: Mid-Century was not obligated to defend Albert. The Court observed that an insurer owes its insured a broad duty to defend against claims creating a potential for indemnity. While the duty to defend is broader than the duty to indemnify, and may exist even if there is doubt about coverage, the proper focus is on the facts alleged in the complaint, rather than the alleged theories for recovery. The ultimate question is whether the facts alleged ‘fairly apprise’ the insurer that the suit is upon a covered claim.”

Here, the policy covers property damage resulting from an occurrence, and the policy defines an occurrence as an accident. Under California law, the word ‘accident’ in the coverage clause of a liability policy refers to the conduct of the insured for which liability is sought to be imposed on the insured. The Ciourt held that an intentional act is not an ‘accident’ within the plain meaning of the word.” It said, rather that in the context of liability insurance, an accident is “an unexpected, unforeseen, or undesigned happening or consequence from either a known or an unknown cause.”

“Accident” refers to the nature of the insured’s conduct, and not to its unintended consequences. It is not an “accident” when the insured performs a deliberate act unless some additional, unexpected, independent, and unforeseen happening occurs that produces the damage. When an insured intends the acts resulting in the injury or damage, it is not an accident “merely because the insured did not intend to cause injury. The insured’s subjective intent is irrelevant.”

Nevertheless, the Court said, coverage is not always precluded when the insured’s intentional acts result in injury or damage. An accident may exist “when any aspect in the causal series of events leading to the injury or damage was unintended by the insured and a matter of fortuity.” When a driver intentionally speeds and, as a result, negligently hits another car, the speeding would be an intentional act. However, the act directly responsible for the injury – hitting the other car – was not intended by the driver and was fortuitous. In that case, the occurrence resulting in injury would be deemed an accident. On the other hand, where the driver was speeding and deliberately hit the other car, the act directly responsible for the injury – hitting the other car – would be intentional and any resulting injury would be directly caused by the driver’s intentional act.” 

Albert argued that although she deliberately hired a contractor to trim the trees, the excessive cutting was not an intended consequence, and should be deemed an accident. However, it is completely irrelevant that Albert did not intend to damage the trees, because she intended for them to be pruned. Moreover, it is undisputed that the contractor intended to cut the trees, and absolutely no facts exist – in the complaint or otherwise – indicating that some unforeseen accident (such as a slip of the chainsaw) caused the damage to the trees. In fact, it was always Albert’s position that the trees had not been damaged or pruned excessively (and therefore were not subject to an accident), and that they had been cut in accordance to the City’s brush clearance ordinance. An insured may not trigger the duty to defend by speculating about extraneous ‘facts’ regarding potential liability or ways in which the third party claimant might amend its complaint at some future date.”

Also, the Court said, no facts supported Albert’s theory that her negligent supervision of the contractors brings the complaint within the terms of the policy. Negligent supervision requires an employer supervising an employee; who is incompetent or unfit; the employer had reason to believe undue risk of harm would exist because of the employment; and the harm occurs. There are simply no facts, in the complaint or otherwise, supporting the elements of this claim.

Under any view of the facts, the Court ruled, the trimming of the trees was no accident. Albert failed to carry her burden to show any of Mr. Baccouche’s claims may fall within the scope of the policy.

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