Case of the Day – Thursday, October 17, 2019

CHOICE VERSUS DISCRETION

It is inevitable in the exciting world of statutory construction that defendants and plaintiffs alike will vigorously overreach in applying exceptions that are written into the law until, as judges are wont to say, “the exception swallows the rule.

I have written many times about sovereign immunity and the exceptions to it that must be written into the law in order for people to seek compensation for the negligent misadventures of government employees. The king of those statutes is the Federal Tort Claims Act.

The FTCA permits people to sue the government when its countless officers, agents, departments, bureaus, commissions and assorted employees commit acts of negligence. But there are exceptions, lots of exceptions. The one most often encountered is the discretionary function exception.

An example: If a government employee T-bones you in an intersection because she ignores a red light, obviously you (or your next of kin) want to sue not only her, but also Uncle Sam. You know, respondeat superior, and all of that. Plus, Uncle Sam’s pocket is as deep as pockets get, when it comes time to pay damages.

After all, there’s nothing discretionary about her conduct. Government employee or not, she does not have discretion to ignore a stop light. The FTCA applies. Pretty slam dunk.

But what if the government agency was in the process of deciding, for example, not to inspect trees because of the cost? A tree falls on your car as you pass through the intersection, a tree that was rotten to the core but which the agency had done nothing about, because its policy was not to inspect its trees? There, the decision not to inspect was a discretionary one, a matter of government policy. In that case, the FTCA would consider you to be out of luck.

But, going back to the first example, let’s say the government employee was on her way to a meeting to decide how to whether to adopt the no-inspection policy. You sue for damages due to the accident, but the government argues that the agency’s decision to not inspect its trees is a discretionary act, and thus, having a meeting to reach the decision on the tree inspection policy is likewise a discretionary act, as is the decision to include the government employee-lousy driver in the meeting. But for the meeting, she would not have been driving through that traffic light at that moment. Where and when to hold the meeting, who should be invited, and so on… All discretionary acts.

Voila! Like that, the blown traffic light becomes a discretionary act, and you recover nothing. The discretionary function encompasses absolutely everything the agency does, and exception has successfully swallowed the rule.

The government was well on its way to doing just that last week, denying the parents of a dead teenager any compensation for the collapse of a tree limb, by making a failed tree inspection into a discretionary function, when the U.S. Court of Appeals for the Ninth Circuit said, “Not so fast!”

Just because there may be a choice, the Court held in so many words, does not mean that there has been a discretionary function.

Kim v. United States, Case No. 17-17432 (9th Cir. Oct. 10, 2019), — F.3d —, 2019 U.S. App. LEXIS 30340; 2019 WL 5076943. One August night in 2015, Daniel and Grace Kim, their daughter Hannah, their teenaged son Dragon, and their son’s friend Justin Lee were camping in the Upper Pines Campground in Yosemite National Park. Before dawn, a limb from a large oak tree overhanging the campsite broke and fell on the tent where the two boys were sleeping, killing them.

The Kims and Justin Lee’s parents sued under the Federal Tort Claims Act, alleging that National Park Service officials were responsible for the accident. The families raised wrongful death and negligent infliction of emotional distress claims. The complaint also alleged that Park officials fraudulently concealed information about the danger posed by the tree so that campers would continue to patronize the campground.

The Park Service moved to dismiss the lawsuit, arguing that the FTCA did not apply because of the discretionary function exception, which bars tort claims against the United States based upon the exercise or failure to exercise a discretionary function or duty. After reviewing the Park Service’s local policies regarding tree maintenance, the district court found that decisions regarding “how to evaluate and respond to tree hazards” were subject to the discretion of Park officials. The court dismissed the complaint.

The families appealed to the U.S. Court of Appeals for the Ninth Circuit.

Held: The Court affirmed the district court’s dismissal of the plaintiffs’ claim for fraudulent concealment, but it reversed the dismissal of the negligence-based claims.

The FTCA is the only means of suing the United States, its agencies or employees for actions or omissions that constitute a tort. It is limited as to the kind of tort that he asserted, strict in the filing deadlines is imposes on plaintiffs, and fraught with pitfalls as to whether the tort – even if a permitted action and even if timely brought – can apply to the conduct in question.

Specifically, the FTCA’s discretionary function exception bars claims based upon the federal officials’ “exercise or performance or the failure to exercise or perform a discretionary function or duty.” The point of the exception is to prevent judicial second-guessing of legislative and administrative decisions grounded in social, economic, and political policy. The government bears the burden of proving the negligence related to discretionary functions, but plaintiffs usually bear the brunt of the broadly-applied exception.

Determining whether the complained-of negligence related to a mandatory or a discretionary duty is difficult. Courts evaluate the FTCA discretionary function exception in two steps. First, the court must determine whether the challenged actions involve an element of judgment or choice. Second, if the actions do involve an element of judgment, the court must determine whether that judgment is of the kind that the discretionary function exception was designed to shield, namely, only governmental actions and decisions based on considerations of public policy. The relevant choice must be susceptible to some consideration of social, economic, or political policy.

Generally, the design of a course of governmental action is shielded by the discretionary function exception, but the implementation of that course of action is not, unless the implementation itself implicates policy concerns.

Here, the government argued that whether the Park Service inspected the trees was a discretionary function, so the failure to identify the oak as a hazard did not subject the Park Service to liability. The evidence, however, showed that the Park Service did inspect the campsite trees every two years. The Court said that where the Park Service decided to inspect the trees, the argument that a decision whether to inspect was discretionary was irrelevant.

Once the Park Service actually inspected the trees in the campground, the Court said, Park officials were required to do so in accordance with their established policies. Yosemite Park Directive No. 25 set forth the Park’s “Hazard Tree Management” program and, among other things, it specifies how Park officials are to evaluate the risk posed by trees they inspect. Yosemite used the “‘Seven-Point’ (Mills and Russel 1980) system, a professionally recognized, documented and quantified hazard tree rating system.” The system includes a “Total Hazard Rating” (ranging from two to seven) that combines a “Defect Rating” based on the tree’s potential for physical failure and a “Target Rating” based on the potential impact in the event of a failure. The system provides specific criteria for how to rate each component based on the tree’s visible features and the nature of the surrounding area. Trees with a total rating of five or higher are considered “high” risks and, according to the Park Service plan, “will require some type of abatement/mitigation.”

Once the Park officials used their discretion to adopt the Seven-Point system instead of some other method for evaluating trees, there was no discretion whether the Seven-Point system had to be properly followed. But the Park Service had a final “Hail Mary” to throw. It claimed that its implementation of the rating system is shielded by the discretionary function exception because the system itself requires officials to consider questions of public policy.

The Court rejected this argument, too. “The government appears to conflate policy considerations with technical considerations,” the Court said. “Matters of scientific and professional judgment — particularly judgments concerning safety — are rarely considered to be susceptible to social, economic, or political policy.” And scientific and professional judgment, the Court ruled, “is all the Park’s rating-system requires. The system directs officials to assign certain hazard ratings based on a tree’s structural defects and its likelihood of damaging various Park features… Certainly, the system requires the careful — perhaps even difficult — application of specialized knowledge… The mere fact that experts might reach different conclusions when conducting a technical analysis does not mean that the analysis somehow turns on questions of public policy. Even if the Seven-Point system requires officials to make difficult choices, it still does not ask them to make policy choices and it does not afford them an opportunity to rate a tree based on their social, economic, or political views.”

However, the Court ruled, the fraudulent misrepresentation claim had to be rejected. Under the FTCA’s exception for claims arising out of misrepresentation or deceit, claims against the United States for fraud or misrepresentation by a federal officer are absolutely barred. “It goes without saying,” the Court found it necessary to say anyway, “that a fraudulent concealment claim sounds in fraud or misrepresentation.”

– Tom Root

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Case of the Day – Wednesday, October 16, 2019

THE RISK WAS OBVIOUS TO A CHILD

The McDonald's coffee lawsuit - easy to deride, but conventional wisdom is probably wrong.

     The McDonald’s coffee lawsuit – easy to deride, but conventional wisdom is probably wrong.

At least until Donald Trump started tweeting, tort law was cited as the best evidence for the demise of the Republic. You know the folklore about the McDonald’s coffee case (which in reality, wasn’t so outrageous after all) and the phony “view with alarm” e-mails that circulate about absolutely fictitious decisions.

But truth be told, most tort law decisions aren’t nearly as outrageous as its would-be reformers would have us believe. Take today’s case. Some boys were playing at a school playground, and decided to raid oranges from a neighbor’s tree. After they had gotten all the low-hanging fruit, one of them stuck his bicycle handlebars in the chain link fence, climbed up his makeshift ladder, and reached across the fence. Naturally, the bike came loose from the fence and he fell, cutting himself on the sharp tines on top of the fence.

The boy sued the school district for maintaining a dangerous fence. The only outrage was that his lawyer decided to sue at all. The fact that no one had ever been hurt on the fence in 16 years didn’t matter. The boy’s attorney argued that it was reasonably foreseeable that young boys would be attracted to oranges adjacent to the fence and would use the fence (whether by climbing or using a bicycle or other means to fashion a ladder) to enable them to reach the fruit. The Court said ‘nonsense’.

Kids really do some pretty foolhardy things.

Kids really do some pretty dumb things.

Chain link fences are ubiquitous, the Court said, but not even kids — who are held to lower standards than adults — would think that it was a reasonable use of the property to thread bicycle handlebars through the links to make an impromptu ladder. The dangerous condition of property should be defined in terms of the manner in which it is foreseeable that the property will be used by persons exercising due care. After all, the Court said, any property can be dangerous if used in a sufficiently abnormal manner.

This decision would be refreshing were it not so commonplace. Less than 5 percent of all civil cases are torts, and only about 4 percent of those go to trial. Recent statistics show that plaintiffs only win about half of the trials, and only half of those winners get more than $24,000 in damages. Most tort lawsuits are losers. Contrary to conventional wisdom, tort law does not always come with a leprechaun and a pot of gold.

A Justin Bieber tattoo at age 13 would qualify as one ...

             A Justin Bieber tattoo at age 13 would qualify as one …

Biscotti v. Yuba City Unified School Dist., 158 Cal.App.4th 554 ( 2007). Nine-year-old Christian Biscotti and his friends were riding bicycles on the grounds of a public school. The boys decided to pick oranges from a tree located in a neighbor’s yard, which was separated from the school’s grounds by a metal chain link fence. The fence, installed when the school was built in 1959, had metal prongs across its top edge. After the boys had picked all the oranges they could reach from the ground, Christian placed a bicycle next to the chain link fence, poking one handlebar through an opening in the fence to help stabilize the bicycle. He then climbed up and stood on the bicycle, balancing himself with one foot on its seat and his other foot on the bar. While Christian reached over the fence and yanked on an orange, the bicycle slipped and he fell onto the fence. His left arm struck the metal tines and was cut.

For at least 16 years prior to the accident, there had been no reported complaints about the safety of the fence and no reported accidents or injuries related to it. That didn’t keep Christian from suing Yuba City Unified School District, which promptly won on summary judgment. Christian appealed.

Standing on the seat and handlebars of a bike leaning against a chain-link fence ... who could imagine that could go so wrong?

Standing on the seat and handlebars of a bike leaning against a chain-link fence. in order to pick an orange … who could imagine that such a reasonable activity could go so wrong?

Held: The school district was not liable. In California, public entity liability for personal injury — governed by statute — is imposed for injuries caused by a dangerous condition of public property where a plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that the public entity had actual or constructive notice of the dangerous condition a sufficient time prior to the injury to have taken measures to protect against the dangerous condition. A “dangerous condition” of public property is a condition of property that creates a substantial risk of injury when the property is used with due care in a manner in which it is reasonably foreseeable that it will be used. The intent of these statutes, the Court said, is to impose liability only when there is a substantial danger which is not apparent to those using the property in a reasonably foreseeable manner with due care.

The Court held that Christian failed to raise an issue of material fact as to whether the school district maintained a dangerous condition on its property. The Court said that the risk of falling and being seriously injured would be obvious even to a nine-year-old boy at the time Christian poked the handlebar of his bicycle into an opening in the chain link fence, climbed onto the bicycle, balanced himself with one foot on the seat and his other foot on the bar, and reached over the fence to pick an orange from a tree on the adjacent property. While unfortunate, the injury that resulted when the readily apparent risk of falling became a reality is not compensable. The undisputed facts established that Christian was not using the fence with due care in a manner in which it is reasonably foreseeable that it will be used.

The lesson the boy learned, the Court observed, is that tort law did not protect him from the consequence of his careless decision.

– Tom Root

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And Now The News …

San Bernardino, California, Sun, October 15, 2019: Joshua trees should be protected by state endangered species act, group says

Environmentalists are calling on the state to protect Joshua trees, as climate change and habitat destruction threaten the iconic Mojave Desert plant. The Center for Biological Diversity on Tuesday, Oct. 15, petitioned the state Fish and Game Commission to list the Western Joshua tree as a threatened species under the California Endangered Species Act, which would go beyond existing laws aimed at protecting the plants on public and private lands, said Brian Cummings, the center’s conservation director and Joshua Tree resident. “The Joshua tree, particularly with the exponential growth of attendance at Joshua Tree National park, has become an international icon,” Cummings said. “It’s unfortunately becoming a symbol of our failure to address climate change…”

Washington, D.C. Times, October 15, 2019: Montana city pays $23K for tree damage caused by heavy snow

Heavy snow in Montana has cost a city tens of thousands of dollars in cleanup work after widespread tree damage. Great Falls Tribune reported Monday that a record-setting September snowstorm brought more than 19 inches of snow to Great Falls causing trees to bend and break. City officials say the 16-day cleanup effort cost more than $23,000 after eight forestry workers accumulated 130 hours in overtime on top of 557 regular hours. Foresters say that doesn’t include hours and costs of Park and Recreation Division workers who cleaned up trees in city parks and a city-hired contractor who worked 13.5 hours. Foresters say cleanup of downed branches and the trimming of damaged limbs are expected to wrap up Monday, the same day foresters are scheduled to begin leaf pickup…

Idaho Falls, Idaho, East Idaho News, October 15, 2019: Now is the time to prevent sunscald damage on trees

Sometimes known as “southwest injury”, sunscald on trees is damage to the bark on the side of the tree facing the sun, which in our area is the southwest. Sunscald can occur in both the summer and winter time and be caused by many environmental factors. Sunscald is identified by the bark on the trunk and lower limbs cracking and the bark dying, with dead brown wood being exposed after the damage occurs. This sunscald damage can be an opening into the tree for fungal diseases and insects to start to infest and hurt your tree. Sunscald damage happens in a few different ways. In our area, the damage is primarily done in late winter (February to March) when the south side of trees will warm up from the sun during the day, causing the fluid in the bark to start flowing, and then as evening arrives the temperatures drop dramatically and this fluid freezes and damages the bark. There may be several episodes of thawing and freezing within a winter that can create this damage, but ultimately the temperature fluctuations can have a negative impact on the tree. Most of the damage occurs on the trunk, while sometimes damage can occur on the lower branches as well. Sunscald can also occur during the summertime when trees are topped or heavily pruned exposing bark that had previously been shaded from direct intense sunlight. Planting trees that had been in a semi-shaded nursery into a full sun scenario can induce sunscald, as well as planting trees next to a light-colored pavement which reflects both heat and light onto their bark can cause this problem…

Knoxville, Tennessee, WBIR-TV, October 15, 2019: How to predict peak fall foliage in the Smokies

It definitely feels like fall and some of you may be ready to see some fall foliage. The prolonged heat and drought from August through early-October has things looking green and summer-like in much of East Tennessee but experts are not giving up on a shot at decent fall colors. The end of September is when East Tennessee historically starts enjoying its fall colors before they peak in mid-October. The vibrancy of the colors depends on how much sugar is in the leaves. Here’s how it works: During the spring and summer, leaves act as a factory making the food necessary for the growth and survival of the tree. Chlorophyll is the main player in that process, and chlorophyll makes the leaf look green. In fact, there is so much chlorophyll that it hides the other colors present. Inside of a leaf are other pigments that look yellow and orange but a couple of things need to happen for these colors to be revealed. The first is day length. In the fall, shorter days trigger the tree to stop making food. Leaves are sealed off from the branches, and any extra sugars are left behind…

Washington, D.C., Times, October 14, 2019: California’s environmentalism comes under fire after blackouts

California prides itself on being a global leader on climate change, but last week’s unprecedented power outages have raised questions about how progressive environmental practices contributed to putting two million residents in the dark. The lights were back on Monday in Northern California even as Pacific Gas & Electric acknowledged that more power outages are likely to avoid sparking the disastrous wildfires that torched the state in 2017 and 2018, a stunning turn of events in the world’s fifth-largest economy. “What’s the most important commodity in the world? It’s electricity,” said Max Fuentes, a utility consultant in Sacramento. “Without it, you’re a Third World country. Well, right now, California is starting to act like a Third World country.” Democratic Gov. Gavin Newsom heaped blame for the rolling blackouts on PG&E, the beleaguered electrical utility that filed for bankruptcy in January, citing its failure to maintain and improve transmission lines on its 70,000-mile service area. “This is not from my perspective a climate change story as much as it is a story about greed and mismanagement over the course of decades,” Mr. Newsom said at a Thursday press conference. “[It’s about] neglect, and a desire to protect not public safety but profits.” PG&E faces as much as $30 billion in legal claims after its lines were found to have ignited 2017 and 2018 wildfires, including the Camp Fire, the deadliest wildfire in state history, but critics like Rep. Tom McClintock, California Republican, said that focusing on the utility doesn’t tell the whole story. PG&E lines may have provided the spark, but decades of mismanagement on state and federal forests left millions of dead and dying trees ready to erupt, thanks in part to environmental policies and legal challenges aimed at curtailing tree-cutting…

Kansas City, Missouri, WDAF-TV, October 14, 2019: Companies help 83-year-old duped by local tree service, removing mess from her yard

When one local company failed to complete a job right for an elderly woman, several others stepped up to get it done. The roar of chainsaws and a wood chipper were about all you could hear Monday afternoon in 83-year-old Esther Buzard’s backyard. “I just seen an old woman in need, and we just figured we’d come out and take care of it for her,” said Bobby Wilson, the owner of National Tree Care LLC, based in Higginsville, Missouri. On Friday, FOX4 told viewers how Esther paid Lexington-based United General Contracting $1,150 to cut up a downed tree and haul it off. The company never finished the job. “It does make us all look bad and we’re seeing it more and more, and we’re kind of getting fed up with it,” Wilson said. Wilson saw the story and wanted to help Esther. He brought nine of his employees, equipped with the tools needed to the do the job right — and did just that. “We just wanted to come in here and take charge of this and get it done,” he said…

Dallas, Texas, Morning News, October 14, 2019: No, it is not time to thin out your trees and it never will be

Is it time to thin out my trees and cut off the lower limbs? No, and it never will be. It is a good time to prune, but pruning too much is the most common pruning mistake I see. Few landscape trees need major pruning or “thinning” every year. Trees can be severely damaged by over-pruning. Plus, it looks bad. Landscape trees can be pruned any time of the year, but the best time is from fall to late winter. Pruning is part science and part art. Don’t try to change the character of a tree and don’t remove lower limbs to raise the canopy for more light to turf. Low-growing limbs exist for a reason. It’s very unnatural to strip tree trunks bare. Remove dead, diseased or damaged limbs and the weakest of crossing limbs. Remove limbs growing toward the center of the tree and limbs that are dangerous or physically interfering with buildings or activities…

Salt Lake City, Utah, KSTU-TV, Ovtober 14, 2019: Dangerous, quick-spreading tree disease introduced to Utah

A fungal tree disease, which has destroyed millions of trees in the United States, has been detected in Utah for the first time. “We were sick to our stomachs thinking about what it might be,” arborist Jerry Auble said as he stood along the banks of the river in Ogden Canyon. It’s something he never thought he would see in Utah. “I wanted to cry,” Auble continued as he stared up into the trees. A few months ago, he was standing in this same spot, but he had a different view. “There’s a good 50 to 70 trees right there that have been… they’re done, they’re dead,” Auble said. “This is a slow-moving forest fire.” Auble is an International Society of Arboriculture-certified arborist who specializes in tree diseases and diagnosis. His day-to-day is spent handling landscaping related calls for a local lawn, tree and pest control company in Layton called Harmon and Sons. But his expertise was called into play in mid-July when he was called out to a home in Ogden Canyon to give a second opinion on a patch of dead and dying American Elm Trees along the riverbank. “There was kind of a concern that the vines were strangling the tree, but as we looked more and more, it was like… no, that’s an insect issue,” Auble said…

Columbus, Ohio, Dispatch, October 10, 2019: Two teen boys arrested in death of woman hit by tree branch at Hocking Hills State Park

Two teenage boys have been arrested and charged with causing the Sept. 2 death of Chillicothe woman by dislodging a tree branch that fell on top of her at Hocking Hills State Park, the Ohio Department of Natural Resources said. The boys, who are 16 and 17 and both from Logan in Hocking County, were taken into custody by the ODNR on Thursday. Both are charged with delinquency counts of reckless homicide and are being held in a juvenile detention facility in Lancaster. ODNR was not releasing the juveniles’ names. Victoria Schafer, 44, was on the stairs near Old Man’s Cave in Hocking Hills State Park around 5:30 p.m. on Sept. 2 when she was struck by a falling section of a tree branch that came from a cliff above. She was pronounced dead at the scene. Investigators soon found evidence indicating that the incident was not a natural occurrence. “I appreciate the public’s valuable contributions to this case and the perseverance and determination of the investigators,” said ODNR Director Mary Mertz…

Sacramento, California, Bee, October 10, 2019: How Sacramento’s urban forest divides the city — and some neighborhoods are left behind

The tree canopy of Land Park is a marvel by most measures. Like a crown, London plane trees and even occasional redwoods rise well above rooftops to shade the well-tended streets and houses during Sacramento’s scorching summers. More trees can be found in Land Park than in almost any other neighborhood. And it affords benefits both seen and unseen by the naked eye — better health, for one, and quality of life. But there aren’t many Land Parks in Sacramento. In fact, only about a dozen neighborhoods have tree canopies that come close to the neighborhood south of downtown, according to a city-wide assessment. Critics say the line that divides those places often comes down to wealth. Communities with a higher-than-average number of trees are places like Land Park, East Sacramento and the Pocket also have the largest concentrations of high-income households, data shows. Meanwhile, low- to moderate-income areas like Meadowview, Del Paso Heights, Parkway and Valley Hi have fewer trees and less shade…

Bonn, Germany, General Anzeiger, October 11, 2019: Damaged trees on the river shore in Mehlem will not survive

Nobody knows exactly when it happened – probably it was a nighttime operation in the cover of darkness. Culprits damaged two stately old trees on the riverbank in Mehlem. The damage is so severe that the trees cannot be rescued. As reader Peter Stünkel and another man reported separately to the GA, these are two large trees near the Senior Center Steinbach – at the end of Rüdigerstraße. Both had been cut into all the way around the circumference with chainsaws. “It is simply unbelievable that people do something like this,” said Stünkel. Dieter Fuchs, head of the Office for Urban Parks, is astonished because the loud chainsaw must have been clearly audible. Indeed, the city was informed of the incident. “We were made aware of it by a citizen who sent an e-mail on September 30,” said Kristina Buchmiller of the city press office in response to an inquiry. An American oak with a trunk circumference of 2.23 meters and a honey locust tree with a trunk circumference of 2.03 meters were affected. After a look at the tree register of the city, Fuchs found out that the oak is estimated to be 85 years old. The tree, also called red oak, is native to North America. When harvested, the hard wood is used in the furniture industry, in boat building and for ties in railway construction. The honey locust tree on the Rhine is around 60 years old. It originated in eastern North America and grows to a height of 20 meters. The bark was cut up to a width of about three centimeters, deep into the sapwood, with a chain saw. “Both trees were completely cut through. As a rule, (a tree) with such damage can no longer recover,” said Buchmiller

Tallahassee, Florida, Democrat, October 10, 2019: Dead trees part of healthy forests and backyard habitats

My earliest experience with a snag happened when I was a college student rambling through a longleaf pine-turkey oak sandhill forest. I discovered a Brown-headed Nuthatch coming and going from a small cavity in a dead turkey oak tree that stood no taller than me. It was easy to watch and photograph at that height. That experience sold me on the value of snags. Next week’s Apalachee Audubon Society program on Oct. 17 will feature storyteller extraordinaire Jim Stevenson on “Life in a Dead Tree.” Snags, either standing dead trees or partially dead trees, provide cavities for nesting birds such as woodpeckers, owls, chickadees, bluebirds, titmice, wrens, nuthatches, wood ducks and others. In addition, snags provide habitat and food for all sorts of other creatures from beetles to frogs to denning mammals like raccoons and opossums. They also serve as perching and roosting sites. When snags fall to the ground, they are called logs and further provide habitat for fungi, spiders, beetles, termites, ants, grubs, worms and snails, not to mention the reptiles and amphibians, birds, mice and other mammals that feed on them. Decaying logs are essential to the health of our forest and backyard soils and nutrient cycling…

Outside, October 9, 2019: Hikers: Beware of Falling Trees

It’s the kind of freak accident that nobody thinks could happen to them. In late August, the Skamania County Sheriff’s Office in Washington State received a broken cell-phone call. A tree had fallen and struck Finn Bastian, a 28-year-old from Germany, while he was hiking on the Pacific Crest Trail. As emergency responders rushed to the scene, Bastian’s condition deteriorated. Search and rescue managed to bring Bastian to the trailhead, but he died there after CPR failed to revive him. The tragedy happened two weeks after another tree stuck and killed Beth Skelley, 56, as she slept in her tent on the Colorado Trail. Falling timber killed a hiker on the Appalachian Trail in 2015 and again in 2018. And two kids died in Yosemite Valley, California, when a limb from an oak tree fell onto their tent, also in 2015. There are no exact statistics kept on the number of Americans killed by falling trees, so it’s difficult to know for sure if the problem has gotten worse, and if so, how much worse. You’re still far more likely to die driving to the trailhead than you are from a falling tree, says Wesley Trimble of the American Hiking Society. But it turns out, these tragedies may not be isolated incidents. “A lot of forests are suffering, whether it’s from pine beetles, other invasive species, or diseases that are causing trees to die off,” says Trimble. “The likelihood of trees falling down is a much lower possibility when there is a forest full of healthy trees, and there are a lot of unhealthy forests, especially along the Colorado Trail and Pacific Crest Trail…”

Oakland, California, KTVU-TV, October 9, 2019: Latest court documents show PG&E ineffective in completing tree trimming and vegetation management projects

The response to the PG&E public safety power shut off from customers and elected officials has been swift and full of frustration. “It’s not fair to make everyone else pay the price of PG&E’s long term and chronic negligence,” said Mark Toney, the executive director of The Utility Reform Network or TURN. Toney is echoing the frustrations of many PG&E customers who are finding themselves in the dark during the PSPS. “If PG&E had spent the money we gave them on trimming the trees and maintaining the power lines safely, we wouldn’t be in this position,” said Toney. Toney says the shut off should be a last resort according to the public utilities commission. PG&E continues to say they don’t take this decision lightly and community safety is the priority. A spokesperson also said the company’s been working on improvements. “Vegetation management, making sure our wires are clear of vegetation, also includes hardening our system for the future,” said Ari Venrenen, a spokesperson for the utility. But, in its latest filing to a federal judge, PG&E says it’s completed less than a third of its tree trimming work this season…”

Yellow Springs, Ohio, News, October 10, 2019: Invasive of the month— Tree-of-heaven’s devilish dispersal

Elegant. Graceful. Prized in traditional Chinese medicine. In its native China, home to a productive silk moth. Yet tree-of-heaven … isn’t. Brought to this country in the 1700s as a horticultural specimen and shade tree, tree-of-heaven (Ailanthus altissima) is one of North America’s most invasive tree species. It grows incredibly fast, seeds prolifically and even releases a toxin into the soil that inhibits the growth of other plants. Tree-of-heaven, also called ailanthus, is one of 38 species on Ohio’s invasive plant list. But while you won’t find it for sale at your local nursery, the tree is abundant in and around Yellow Springs. “There is a lot of tree-of-heaven around town, and it especially likes to grow beside buildings and in open areas,” according to Macy Reynolds, president of the YS Tree Committee. Often planted as an urban tree, ailanthus is famous, or infamous, for its ability to grow anywhere — up through the merest cement cracks. That hardiness is celebrated as a metaphor for human resilience in the 1943 novel, “A Tree Grows in Brooklyn.” The tree in question? Tree-of-heaven, pervasive across New York City. But ecologists aren’t quite so enamored of ailanthus’ toughness. Most common in urban areas, disturbed soils and forest edges, tree-of-heaven can also take advantage of gaps in mature forests, displacing native tree species. And because it’s a prolific seeder, the tree growing in your yard could end up, borne by wind and water, in one of our local woods…

Wilkes-Barre, Pennsylvania, Citizen Voice, October 9, 2019: Wilkes-Barre shade tree panel seeks statute

Members of a newly revamped shade tree commission have asked city council to pass a controversial ordinance that would require property owners to get commission approval before cutting down any tree on a tree lawn or along a roadway. Commission Chairman Sam Troy at council’s work session Tuesday began a presentation by expounding on the virtues of planting trees in a community, citing a litany of health, environmental and economic benefits. Troy said council can help by taking an inventory of trees on the streets in their districts and approving funding for the city to buy trees for planting. Just as important, Troy said, is passing a shade tree ordinance similar to those in Kingston and Forty Fort. Troy said a previous shade tree commission “did succeed in planting a lot of trees” but “foundered and failed because they got frustrated” when council members at the time refused to pass a shade tree ordinance proposed in 2005…

San Francisco, California, Chronicle, October 8, 2019: Shut-offs begin: PG&E imposes mass blackouts on California

Pacific Gas and Electric Co. began shutting off power to parts of California on Wednesday in its biggest preemptive action to avert another destructive wildfire like those which took dozens of lives and destroyed thousands of homes over the past two years. The utility said it would shut off power to 800,000 customers in Northern and Central California in waves, beginning with the northernmost areas and moving south. The blackout was not expected to strike the Bay Area until around noon but more than 5,000 customers in Solano County were shut down just after midnight, and nearly 600 customers in Marin County were shut down as well. Other areas where electricity was shut off included parts of Glen County, Tehama County, Yuba County and Nevada County. For PG&E, the shut-offs will mark a high-stakes test of a program the now-bankrupt company developed after being implicated in two years of catastrophic infernos. The crisis has raised fundamental questions about whether PG&E can deliver power safely to its customers amid a warming climate…

Denver, Colorado, KMGH-TV, October 8, 2019: Tree damage on property line causes concern for homeowner in Wash Park

For the past five years, Lauren Collins and her family have lived in the same house in South Wash Park. “We’ve put a lot into this house, it was a fixer upper,” she said. Last year, the lot next door was bought and new neighbors began to build. “They excavated right on the property line and these are 100 year old trees,” she added. Pictures show the construction was done by the builder, but Collins is worried about her trees. “Then in January is when they started showing this. The bark started coming off, the sap started dripping down from parts of the tree so we called an arborist,” she said. The arborist told them the tree is structurally damaged. “My family, we feel like we’re stuck,” Collins said. The law says any roots or branches that cross the property line are available to be trimmed. Collins is worried about liability from her tree if it dies and falls on her house or somewhere else. “We have lost a lot of sleep over this issue,” she added…

Washington, D.C., The Washingtonian, October 8, 2019: Inside Takoma Park’s Ongoing Tree War

A leafy DC suburb has recently found itself in a kerfuffle about its trees. At the root of the tension: Takoma Park’s strict foliage ordinance, which it enacted in 1983. According to the rules, residents must obtain a permit from the city’s urban forest manager (yes, that’s a real position) before cutting down any tree, even on private property. If a hard-to-win permit is granted, the homeowner must, in the case of a live tree, either replant it or pay a fee that’s used to plant replacement saplings elsewhere in Takoma Park. Such is life in this tree-hugging community, long a bastion of progressive values and general crunchiness. But lately, some residents have been chafing at the rules. Now the city council is in the process of revising the ordinance so that it will be “more user-friendly, less bureaucratic, and feel a little less punitive,” says council member Kacy Kostiuk. The man tasked with enforcing the city’s complex processes is urban forest manager Jan van Zutphen, who arrived in 2017. Something of a local Lorax, van Zutphen speaks for the trees—to a greater extent than previous holders of the position, some residents say. To others, however, he’s just doing his job. “People tend to be in favor of certain environmental regulations,” says van Zutphen, who thinks more education and outreach might help locals better understand what he does. “[But people find it] a little harder when it applies to themselves—myself included…”

Victoria, British Columbia, The Canadian Press, October 8, 2019: Outbreak of tree-killing, allergy-inducing moths prompts warnings from B.C. government

An infestation of insects that have the ability to quickly kill healthy Douglas fir trees is on the move in British Columbia and the Ministry of Forests says it has now been found further north than ever before. A statement from the ministry Tuesday said an infestation of tussock moth has been found in trees in the western Cariboo, just south of the community of Alkali Lake. The pest is usually found in more southern parts of the province, such as Kamloops and the Okanagan. They can kill a large Douglas fir in just one to two years during a severe infestation, according to the ministry. Tussock moth caterpillars feed on the needles of the Douglas fir, stripping limbs, which appear scorched as they die. Trees weakened by the moth are more susceptible to beetle attacks…

Los Angeles, California, KABC-TV, October 7, 2019: Thousands of Long Beach trees threatened by plague of beetles

Thousands of magnolia trees in Long Beach are in danger because of beetles that have invaded the area. Walking or driving down Magnolia Avenue in Long Beach, you’re sure to notice that something is a little off. “Sometimes when you’re just walking, it kind of sticks to your shoe, and it’s really like gooey,” said homeowner Melissa Roxas. The magnolia trees are dying. They’re drying up and turning black. More than 1,000 magnolias across the city of Long Beach are infested with a pest, known as the Tuliptree Scale. The pests suck up the trees sap, and in some cases, kill the trees. Long Beach City Council members are now working to find a fix. In a meeting Tuesday, they are expected to discuss the cost to remove and replant all infected trees, what further treatment options exist, and a cost estimate for water blasting all affected sidewalks. Neighbors say the problem has been going on for a few years. “My husband has looked into it. He’s called the city,” said Roxas…

Biloxi, Mississippi, Sun Herald, October 5, 2019: Ocean Springs woman arrested after objecting to oak tree trimming in city park

Diane Stevenson questioned why an Ocean Springs employee was cutting tree branches and it escalated to where she was arrested and handcuffed. Stevenson, 73, was arrested on a charge of disorderly conduct for allegedly harassing a public works employee for trimming the trees at Fort Maurepas Park. The arrest happened around 11:30 a.m. Thursday after the public works’ employee called his supervisor to tell him someone was upset and screaming about him trimming the trees at the park. The report the police filed and the version of what Stevenson said happened are decidedly different. According to the police report, a public works employee was in the middle of doing the job when Stevenson walked up and started “screaming and telling him he needs to stop cutting trees…”

Philadelphia, Pennsylvania, WPVI-TV, October 7, 2019: Building a more beautiful, green Philly one tree at a time

With just 20 percent of the city’s land covered by trees, Philadelphia has one of the smallest tree canopies of any of the major cities in the Northeast. This is troubling when you factor in the fact that, according to NASA GISS and the NOAA, the average global temperature has steadily risen since 1998 with the last five years being the hottest on record. One way to combat rising temperatures and environmental shifts is to plant more trees, a mission that the Pennsylvania Horticultural Society has undertaken with their Tree Tenders program. Additional trees and plant life not only have obvious aesthetic benefits but improve air quality, shelter wildlife, prevent stormwater runoff, and keep city streets cooler. Research also shows that trees have additional health benefits such as reducing mental fatigue, reducing anxiety, and combating obesity by promoting more outdoor play time for children. To help restore the region’s tree canopy, PHS’s Tree Tenders planted just over 1,600 trees in Philadelphia and Southeastern Pennsylvania in 2018. This year, the team has already planted 771 trees and will be adding another estimated 857 trees during their fall seasonal tree planting weekend on November 16th and November 17th…

Macon, Georgia, WMAZ-TV, October 7, 2019: Power company spraying chemicals near power lines concerns Jones County homeowners

Some folks in Jones County say they have concerns about a power company spraying chemicals on plants near power lines on their property. Tri-County EMC says they maintain a 30-foot-wide right of way by mowing, trimming, and spraying near the power lines to control vegetation that grows there. Jasen McCall has lived in his home in Gray for about six years. “I love the fact that my wife and I can take walks with our dog down our driveway and just be able to enjoy the nature that it is,” McCall said. In the last few months though, he says the nature he grew to love has died. “I noticed that there were several dead spots along our driveway here mainly underneath the power lines,” McCall said. Greg Mullis with Tri-County EMC says the company works with another company called NaturChem to spray the herbicides to keep trees, brush, and other growth from interfering with electric service in the county. “We encourage them to never plant or try to put landscaping under those power lines because of safety and reliability,” Mullis said…

Quatz, October 6, 2019: Tree thieves are the scourge of national forests

The name “Maple Fire” doesn’t quite do it justice. In August 2018, a wildfire razed 3,300 acres of ancient forest in Washington state—burying Seattle in smoke and costing taxpayers $4.5 million before firefighters were able to extinguish the flames. But the cause of this devastating blaze is even more bewildering: Two bungling criminals who were allegedly attempting to steal a big, beautiful old tree. According to a recent indictment by the US justice department, the duo had planned to illegally fell a bigleaf maple in Olympic National Forest, only to find themselves thwarted by a huge bee nest in its branches. After failing to wipe out the pesky bees with wasp killer, they doused the nest in gasoline and lit it on fire. Though they tried to extinguish them with water bottles, the flames quickly spread. The charges highlight the increasingly expensive problem for national forests posed by tree thieves. Wood from bigleaf maples fetches a handsome price. Thanks to the aesthetic appeal of its unusually wavy grain, this “figured wood” is coveted by mills that use it to make guitars. Though essential parts of local ecosystems, these high-value trees are thinly guarded by overstretched national forest law enforcement officials. That makes them easy prey for chainsaw-wielding poachers…

Dallas, Texas, WFAA-TV, October 4, 2019: orth Texas forester fears ‘big outbreak’ of invasive beetles that feed on and kill ash trees

They’re big. They’re beautiful. And they’re in danger. There is a mad dash right now to save our region’s ash trees, no thanks to a shiny, tiny bug. “People from the Midwest are certainly familiar with emerald ash borer,” said the city of Fort Worth’s forester Rustin Stephens. “It’s new to us.” The emerald ash borer, a beetle with a vibrant green shell, has killed millions of ash trees since 2002, when the bug was discovered in Michigan. In 2018, WFAA profiled an 11-year-old boy named Sam Hunt, a nature lover who found the green beetle in Fort Worth. “I just thought it was crazy,” he told us then. “I never thought I could find anything like that.” The state forest service confirmed it was the first proof of the borer in North Texas. Stephens said he and others are grateful the boy made the discovery; he assumes the bug had been here for years before. Stephens said since the discovery, Fort Worth has worked to proactively treat its ash trees, but because it can take years for the symptoms to show up, he fears the worst…

Bloomberg, October 6, 2019: Cutting 2,700 Trees for Mumbai Metro Project Ignites Protests

India’s Supreme Court ordered a halt to the felling of trees in an area frequented by leopards and vulnerable birds, after the plan to clear the area and build a depot for Mumbai Metro Rail Corp. ignited protests and triggered an outcry from the main ally of Prime Minister Narendra Modi’s party days before state elections. No more trees must be cut until a special bench hears the matter on Oct. 21, the Supreme Court said after an emergency hearing on Monday. Authorities began chopping down about 2,700 trees marked for clearance late on Friday, within a few hours of a Bombay High Court ruling that the area, known as Aarey in suburban Mumbai, wasn’t a forest. Activists alleged the action violated rules that stipulate a 15-day window — which MMRC denies — and rushed to the spot only to be evicted by police. “This is sheer arrogance. They think they can run the city the way they want,” said Zoru Bhathena, a petitioner in the case. The tussle underscores the difficulties Mumbai faces as one of the world’s most densely populated cities tries to upgrade critical infrastructure for citizens. Built mostly on land reclaimed from the sea, its colonial-era drainage system is increasingly insufficient to prevent flooding, eight people die on average each day on its overcrowded trains, and the few surviving patches of mangroves or forests like Aarey are losing out to shantytowns or developers…

Tampa, Florida, WFTS-TV, October 4, 2019: Fight over more than a dozen trees cut down on property along Bayshore Blvd.

Under a giant oak tree in front of her daughter’s Bayshore Boulevard home, Sandra Bates says more than a dozen trees were chopped down a week ago two lots over. “These trees are hundreds of years old,” said Bates, a volunteer for the Advocacy group Tree Something Say Something. “Once the trees are gone they’re gone. You can’t glue them back together,” said Chelsea Johnson, another volunteer for Tree Something Say Something. A new state law passed in July says a private property owner doesn’t need a permit if they have an arborist deem the trees “dangerous”. Johnson believes the law is being used by developers as a loophole to cut down whatever they want. She’s concerned about the environmental impact. “You can stop building projects that don’t have the proper permits but apparently you can’t stop trees from coming out that don’t have the proper permitting?” Johnson asked. “We’re seeing Tallahassee dictate what is precious to Tampa…”

London, UK, Daily Mail, October 3, 2019: Plant-destroying lanternflies native to China could spread across the UK, US and Europe and devour crops and trees, study warns

Plant-destroying spotted lanternflies are spreading around the globe, a study has warned. The insects, which are native to China, are a pest to dozens of plants and trees. They can trigger sap leakage, wilting, leaf curling and dieback and the US Government tells people to kill them on sight. And a map drawn up by the Department of Agriculture has revealed regions where the bugs are at risk of spreading to next. The UK has been designated a ‘medium risk’ area, along with much of Eastern Europe, while the eastern US and California are deemed to be high risk, along with parts of France, Portugal, Italy, Russia and Ukraine. As well as damaging garden plants the lanternflies can ruin farmers’ crops, too, such as almonds, apples, blueberries, cherries, peaches, grapes and hops. They also wreck hardwood trees including oaks, walnuts and poplars. And in addition to causing physical damage, they excrete a sugary substance called honeydew which encourages a mold which is harmful to plants.Lanternflies, which can lay 30 to 50 eggs each time they breed in the autumn, have already become a problem in some parts of the US. Pennsylvania, New Jersey, Virginia and Delaware have all reported growing numbers of the critters…

UPI, October 3, 2019: Tree, fruit growers beware: Spotted lanternfly has its pick of invadable territory

Tree and fruit growers won’t be happy to hear the findings of a new habitat-modeling study by scientists at the U.S. Department of Agriculture — the invasive spotted lanternfly still has plenty of suitable habitat, should it continue to spread. The spotted lanternfly, Lycorma delicatula, has been reported to attack grapes, apples, cherries, and several other fruit and timber tree species. In its native habitat, the species is kept in check by natural predators. But in places like New Jersey and Pennsylvania, the invasive species can severely damage trees. To figure out where the spotted lanternfly might show up next, scientists built a model to compare its native habitat in Asia with the habitats the insect has invaded in New Jersey and Pennsylvania. Scientists used the model to analyze the suitability of other habitats in the United States. According to the findings, published Thursday in the Journal of Economy Entomology, there are still plenty of places in North America for the invader to go. Simulations suggest the spotter lanternfly would find much to like about most of New England and the mid-Atlantic, as well as large swaths of the central U.S. and Pacific Northwest…

Harrisburg, Pennsylvania, Patriot News, October 3, 2019: Restaurant owner must replant sidewalk tree, even though he claims it’s bad for business: Pa. court

A central Pennsylvania restaurant owner must replant a sidewalk tree in front of his eatery even though he claims it would be bad for business, a Commonwealth Court panel has ruled. And, the judges decided, he must pay for the planting, too. That ruling, set in an opinion by Judge Patricia A. McCullough, marks Joseph Yannone’s third and perhaps final defeat in a legal battle with the Bloomsburg Shade Tree Commission. The fight began after the commission allowed Yannone to cut down a tree that was in front of his Tri Pi Pizzeria in the first block of East Main Street in April 2017. The deal called for Yannone to plant a new tree within six months. He didn’t. Yannone appealed to the state court after a Columbia County judge backed the shade tree commission’s order requiring him to replant. Yannone claimed a new tree would interfere with the outdoor dining facililties he installed after the old one was removed and would block the sign for his pizzeria. He argued that sidewalk trees are tripping hazards, damage the pavement and attract bugs. Also, he said, dog owners tend to let their pets relieve themselves on the trees…

Labiotech.eu, October 4, 2019: This Biotech Genetically Engineers Trees to Produce Biofuels

The looming threat of climate change is increasing the pressure to reduce our consumption of fossil fuels. New technologies to produce fuel from plants provide an alternative, but the shifting climate could also disrupt crop growth, compounding the problem. SweTree Technologies aims to tackle the issue by engineering trees to have higher yields of biomass and to resist temperature changes. “Genetic engineering is one powerful tool in solving the challenge to grow more biomass,” Christofer Rhén, SweTree’s CEO, told me. To find out which genes they want to target, SweTree first makes mutant strains of trees that lack a specific gene and observe the effect this has on traits such as wood formation and speed of growth. Since its founding in 1999, the company has studied over 1,500 genes. So far, Swetree has selected 25 candidate genes to modify in tree species such as spruce. To manufacture these modified trees, SweTree is now building a pilot facility aimed at producing 20 million plants annually by five years’ time. SweTree’s facility will be able to produce multiple types of trees, such as poplar and eucalyptus, depending on customers’ needs…

Greeley, Colorado, Tribune, October 2, 2019: Beetle that threatens to destroy 15,000 trees in Greeley detected in Larimer

A destructive beetle that is a threat to about 15% of Greeley’s trees has been confirmed in Larimer County, according to a news release from the Emerald Ash Borer Response Team. Officials found emerald ash borer near Berthoud in Larimer County, the first in the county and the third confirmation of the pest in Colorado outside a federal quarantine. The pest attacks ash trees, typically killing them within two to four years after infestation. There are about 15,000 ash trees in Greeley, and officials estimate ash trees make up about 15% of all urban and community trees in the state. The infested tree near Berthoud was located on private property, less than three miles southwest of the town, the release states. Foresters are inspecting nearby trees to determine the extent of the infestation…

Science Advances, October 2, 2019: Reduced tree growth in the semiarid United States due to asymmetric responses to intensifying precipitation extremes

Earth’s hydroclimatic variability is increasing, with changes in the frequency of extreme events that may negatively affect forest ecosystems. We examined possible consequences of changing precipitation variability using tree rings in the conterminous United States. While many growth records showed either little evidence of precipitation limitation or linear relationships to precipitation, growth of some species (particularly those in semiarid regions) responded asymmetrically to precipitation such that tree growth reductions during dry years were greater than, and not compensated by, increases during wet years. The U.S. Southwest, in particular, showed a large increase in precipitation variability, coupled with asymmetric responses of growth to precipitation. Simulations suggested roughly a twofold increase in the probability of large negative growth anomalies across the Southwest resulting solely from 20th century increases in variability of cool-season precipitation. Models project continued increases in precipitation variability, portending future growth reductions across semiarid forests of the western United States…

Urbana, Ohio, News-Gazette, October 2, 2019: Urbana seeking donations to replace trees lost in May tornado

The city of Urbana is looking to citizens to donate money to replace trees lost in a late spring tornado. A release Wednesday from the city said the F-1 tornado that hit southwest Urbana May 26 cost the city more than $131,000 to clean up. Another $22,000 will be needed to replace the 64 trees lost that Sunday morning. Vince Gustafson, a deputy director in public works, praised the efforts of city employees who quickly responded to the storm that severely impacted two residential areas. It’s estimated they put in about 1,543 hours on clean-up. “Now we are faced with replacing the damaged and destroyed trees in order to maintain our urban forest,” said Mayor Diane Marlin, whose own neighborhood was affected by downed trees, damaged fences and roofs. “We had made excellent progress addressing the tree-planting backlog following losses due to the emerald ash borer,” she said. “The tornado has set us back. Many community members benefitted from the city’s efforts to remove debris — even the substantial amount of debris that came from private property. Now we are asking the community to help…”

Anne Arundel County, Maryland, Southern Maryland Chronicle, Sept. 28, 2019: Maryland Forest Service Seeks Black Walnuts

Marylanders with black walnut trees on their property are asked to donate extra walnuts to the Maryland Department of Natural Resources. The Maryland Forest Service will use the walnuts to grow and plant trees along creeks, rivers, and streams as part of the state’s tree-planting program, aimed at enhancing habitat and water quality throughout the Chesapeake Bay Watershed.
Citizens can drop off walnuts – in bags, boxes, or containers – at either Gambrill State Park in Frederick County or the U.S. Department of Agriculture Natural Resource Conservation Service office in Washington County. Anyone with questions should contact those locations directly. Black walnut trees are easy to identify by the large round nuts that drop after the leaves fall in autumn. Black walnuts are fairly common in Maryland and may live for up to 250 years. They are the most commonly planted nut tree in North America, partly because most seedlings germinate from nuts buried by squirrels…

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Case of the Day – Tuesday, October 15, 2019

SELF-HELP CONDEMNATION

Condemnation is the process by which a public entity takes private property. The 5th Amendment requires that due process be followed, in that the taking not be arbitrary and be the result of necessity, that the owner is fairly compensated for the property that has been taken, and of course that the owner have a chance to challenge the taking in court.

Occasionally, the government will take a piece of property by conduct. A good example would be passage of a state law to preserve wilderness, the effect of which would be to close roads through state forests that cut off access to private property for lumbering. Then, the proceeding is called inverse or reverse condemnation, a suit against a government to recover the fair market value of property which has in effect been taken and appropriated by the activities of the government when no eminent domain proceedings are used.

None of this seems to have much to do with trees, especially your rights to compensation if state employees come onto your land and cut down a tree because they’re geographical klutzes. After all, the state has to intend to take your property (and take specific steps to do so) in a condemnation action. Even where the condemnation is a reverse one, the state has to deliberately do whatever it does to cause your property to lose value.

That’s why I was surprised and a little troubled by the Commonwealth of Kentucky’s response to its highway department employees’ goof in cutting down a boundary line tree without approval of the private landowner. If the trespassers had been Joe’s Tree Service, we know how it would have turned out: a trespass action, with damages for the trespass and the tree removal. But because the employees worked for the state, poor Gini Grace found out much after the fact that what had occurred was not a trespass, but a reverse condemnation.

To be fair, Gini’s lawyer might have saved the action as a negligence case and not a reverse condemnation had the complaint alleged negligence-type damages beyond the loss of the tree. But to me, that note in the opinion seemed to be a make-weight. Had her complaint alleged torn up lawn, driven-over shrubs, and Moon Pie wrappers littered about, I suspect the court would have just found a different way to get to its reverse-condemnation conclusion.

Not only did the rules get rewritten when the state trespassed on Gini’s place, but they were rewritten after the fact. Gini, don’t ever play poker with the Commonwealth of Kentucky, lest you learn too late that a pair of twos really does beat a royal flush.

Grace v. Commonwealth, Case No. 2018-CA-001488-MR (Ct.App Ky. Oct. 11, 2019) 2019 Ky. App. Unpub. LEXIS 727.

The Kentucky Department of Highways (“KYTC”) is responsible for maintaining state highways, including elimination of hazards. In March 2012, KYTC removed a tree which KYTC believed to be located, at least partly, on the right-of-way and encroaching the highway. Gini Grace filed a complaint with the Kentucky Claims Commission, alleging KYTC negligently trespassed and cut down her tree. KYTC moved to dismiss the claim.

The Commission found that two-thirds of the tree was on the state right-of-way and the remaining portion was on Gini’s land. It found KYTC negligent for failing “to conduct a reasonable inquiry and ascertain where the property lines were before they cut the tree,” and awarded Grace $11,666.66 plus the cost of removing the stump.

The McCracken Circuit Court reversed the order of the Commission and dismissed Gini’s claim, concluding it was a claim for reverse condemnation, rather than negligence. And, because the Commission only has jurisdiction over “negligence claims for the negligent performance of ministerial acts against the Commonwealth,” the Court ruled, it lacked subject matter jurisdiction over Gini’s claim. Gini appealed.

Held: The Commission lacked jurisdiction over Gini’s claim, and the claim thus had to be dismissed.

The Kentucky Claims Commission has “primary and exclusive jurisdiction over all negligence claims for the negligent performance of ministerial acts against the Commonwealth, any of its cabinets, departments, bureaus, or agencies, or any officers, agents, or employees thereof while acting within the scope of their employment.”

Reverse condemnation is a suit against a government to recover the fair market value of property which has in effect been taken and appropriated by the activities of the government when no eminent domain proceedings are used. Gini Grace’s claim form filed with the Commission, alleged that a “tree, 3ft in diameter was cut down by the Highway Dept. without my permission.” This was the only injury asserted. Gini did not allege any additional damage to her property arising from KYTC’s negligence. Therefore, the Court ruled, Gini’s claim to recover the value of the tree “is in the nature of a claim for reverse condemnation.”

Gini argued that she claimed negligence because her claim form indicated KYTC “negligently trespassed” onto her property to remove the tree. The Court admitted that a trespass was necessary to cut the tree, but ruled that the damages Gini claimed do not emanate from the trespass, but from the taking.

KYTC was negligent in failing to determine whether the tree was on the state right-of-way, but Kentucky law holds that where an entity possessing the power of eminent domain prematurely enters upon private premises, the exclusive remedy of the landowners is based on Kentucky Constitution, Section 242, which provides that ‘just compensation for property taken’ shall be made. This rule preempts claims asserting negligent trespass that result in a taking.

Because Grace’s injury arose due to KYTC prematurely entering her property and removing the tree, her sole remedy lies in an action for reverse condemnation. Therefore, the Commission lacked subject matter jurisdiction of her claim.

– Tom Root

Case of the Day – Friday, October 11, 2019

MULLIGAN SEASON


I may slip over the border on Monday (the border between the U.S.A. and our neighbor to the north) to enjoy turkey and all the fixings. My favorite holiday of the year is Thanksgiving, and thanks to a cultural quirk, our Canadian cousins celebrate it way before we do. Monday may be Indigenous Columbus Day in the United States, but its turkey day in the provinces. Well, turkey and Jiggs’ Dinner and butter tarts.

And then, we get a mulligan, a do-over, on Thanksgiving in 45 days. Life is good. And after that, we’ll get Thanksgiving Day over, and over and over until the leftovers are either eaten or spoil.  As Yogi Berra might have said, today’s case and Thanksgiving dinner will both be déjà vu all over again.

It seems there was trouble in Randolph County, Alabama, up near the Georgia line. The Ledfords had purchased a nice vacation home on a lake, next to a place owned by the Youngs. While the Youngs appreciated the natural setting, the Ledfords were more concerned that nature’s bounty – specifically one large pine tree on the boundary between the Ledford’s land and the Young property – was going to fall on their house. They wanted the tree cut down. The Youngs refused. The matter ended up in court.

Of course, regular treeandneighborlawblog readers know how that should have turned out: if the tree really sits on the boundary line, both landowners have to agree before it can be cut down. The trial court reasoned otherwise. Under the Massachusetts Rule, a landowner can trim parts of a tree that overhang or grow under his or her property, all the way from the center of the earth to the sky. So that meant the Ledfords could cut out half of the tree, the court mused. That would kill the tree, but the court interpreted the Massachusetts Rule to mean that since you’re allowed to hack at the roots and branches of a tree without regard to the damage you cause, then you can take down the whole boundary tree if you like. The trial court gave the Ledfords the go-ahead to take down the tree.

The Youngs appealed, and common sense prevailed. The Court of Appeals explained the proper boundary tree rule, and reversed the trial court’s errant ruling. But in so doing, a few judges on the appeal panel wondered aloud (or at least, in the written opinion) why the Ledfords hadn’t argued that they had the right to cut down the pine tree because it was a nuisance. Remember Fancher v. Fagella? One judge went so far as to say that if the record held evidence of nuisance, he would have upheld the trial court, wrong though its reasoning was.

Do we have to spell it out? The trial court was just plain wrong.

Do we have to spell it out? The trial court was plain wrong.

Well, the Ledfords could take a hint. When the case went back to the trial court “for proceedings consistent with this opinion,” as the court of appeals decisions like to say, they asked for a do-over, a second hearing, this one on nuisance. ‘Hold the phone!’ the Youngs cried. ‘The Court of Appeals said the Ledfords lost. The tree stays standing. Game over.’

The trial court gave the Ledfords their mulligan. It ordered a second hearing, and afterwards found the pine tree to be a nuisance. The Ledfords were told they could cut it down. Again.

The Youngs went back the court of appeals for a writ of mandamus, essentially a request that the court of appeals issue an order telling the trial court it couldn’t hold the second hearing. The court of appeals refused to do so. Applying an obscure rule called the “law of the case” doctrine, the appellate court held that while the trial court was required to apply the ruling the court of appeals had issued, that ruling was just that the Ledfords could not cut down a boundary tree without the agreement of their neighbors. The court of appeals did not say the tree had to remain – just that if it was to be cut down, it couldn’t be on the basis originally articulated by the trial court.

The lessons here? The Ledfords’ attorney should have argued nuisance to begin with. It should have been clear that arguing that his clients could cut down a boundary tree was a loser. Besides, in civil litigation, you argue as many alternative theories as possible to get your clients where they want to end up. Who knows which one will be a winner?

Of course, the Ledfords ended up winning, and the pine tree lost. But as an old judge once cautioned us, you should never dig up more snakes than you can kill. Why buy a second trip to the court of appeals by leaving out an argument, and asking for a mulligan later?

A few too many snakes? The Ledford's lawyer courted procedural trouble.

A few too many snakes dug up here? The Ledfords’ lawyer courted procedural trouble.

Ex parte Young, 79 So.3d 656 (Ala.Civ.App. 2011): The Ledfords owned a vacation house with a pine tree located slightly over 10 feet from Ledford’s house, on the boundary between their property and that of the Youngs. Fearing that [a] strong wind against the tree could cause it to fall on the home and could cause damage to the [house] as well as serious injury to any occupants,’ the Ledfords wanted a court order that they could cut it down.

The Youngs argued that the pine tree was ‘a true boundary line tree’ and contended that it could not cut down by either property owner without permission of the other. After a hearing in which the Ledfords, the Youngs, and a forester hired by the Youngs all gave testimony, the trial court held that Ledford and her husband could remove the tree at their convenience, taking steps to minimize damage to the Youngs’ lot. The trial court held that because Alabama law let a landowner remove any trees on his or her property up to the property line, and this right extended to the center of the earth and into the sky, the Ledfords were free to hack into the pine tree up to the property line and then cut from that point to the center of the earth and into the sky. The Court said that “[s]ince [the Ledfords] unquestionably has the right to remove any portion of the tree that is located on [their] side of the property line and since doing so would likely kill the tree, the Court is of the opinion that [they] should be allowed to completely remove the tree to ensure” that the property and the health of anyone there are protected.

When the case got to the Court of Appeals the first time, it was promptly reversed. Rejecting the trial court’s tortured “center of the earth to the sky” analysis, the appellate court ruled that “[i]n the special case of a boundary-line tree, … each adjacent landowner has ownership rights that cannot be trumped by the other’s desires in the manner suggested by the trial court’s judgment” and that the Ledfords – contrary to the trial court’s judgment – could not properly “‘cut into the tree to the property line and then cut from that point to the center of the earth and into the sky'” without incurring liability to the Youngs.

But the appellate court went a little further. In a concurring opinion, two of the judges on the appellate panel observed that the action had been argued on the basis of the Ledfords’ contention that they were entitled to remove the boundary-line tree at issue merely because its trunk was located in part on their property. The judges noted that whether the “boundary-line tree at issue in this case constituted a nuisance for which an exception to the general rule set forth in the main opinion might apply” had not been litigated. A third judge on the panel said that had the record contained evidence indicating that the tree at issue posed a danger to the Ledfords’ house,” he would have voted to affirm the judgment instead of reverse it.

After the appellate judgment issued, the Ledfords asked the trial court for another hearing to consider whether the pine tree was a nuisance. The Youngs argued that the appeals court had decided in their favor, and the case should be closed. But the trial court had another hearing, and afterwards decided that the tree was a nuisance, and that the Ledfords could remove it on that basis.

The Youngs filed a petition for a writ of mandamus, asking the appeals court to order the trial court to enter judgment for them, and end the hearing.

Held: The Ledfords could cut down the tree. A court will issue a writ of mandamus only when the petitioner has a clear legal right to the order sought; the respondent has an imperative duty to perform, accompanied by a refusal to do so; there is no other adequate remedy at law; and the court has jurisdiction of the court.

Mulligan140206Here, the Court of Appeals said, the only real question was whether the trial court had the right to hold a second trial in this matter. The Youngs contended that the prior appellate court’s decision was final as to all matters before it and that the trial court, after that initial appeal, was not allowed to hold another hearing and take additional testimony without permission of the appellate court to do so. The court of appeals agreed with that statement of the law, but said that only the particular issue that had formed the basis of the trial court’s judgment – whether Ledfords could unilaterally remove the boundary-line tree simply because the majority of it was located on their side of the common boundary – was addressed. Based upon that conclusion, the court of appeals had reversed the trial court’s judgment letting the Ledfords unilaterally remove the tree,” and remanded the cause “for further proceedings consistent with [that] opinion.”

Because of the limited scope of the trial court’s previous judgment, no one had ruled on whether the boundary-line tree posed a danger to Ledford’s home or amounted to a nuisance. While the prior decision was thelaw of the case,” nothing in the prior opinion limited the trial court from ruling on the nuisance question, which the court of appeals admitted remained open for decision. Deciding to examine the nuisance question did not put the trial court in the position of doing something contrary to what the court of appeals had ordered.

– Tom Root

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Case of the Day – Thursday, October 10, 2019

BEING THERE

The governmental immunity doctrine, which exempts governments and their employees from liability when negligent acts occur during the performance of a discretionary government act, is pernicious.

The strictures seem rather artificial. If a tree is rotten and the municipal employees ignore it, the municipality may be immune from liability when the tree falls on some poor lady’s car (see case below). But if the employees come out to cut it down, and aa branch falls on the same lady’s car, the municipality is liable. It would seem that the prudent municipal employee would wisely choose to do nothing except collect a paycheck.

What? You say that’s what most of them do anyway? Shame on you. Go to any DMV office, and you will see how mistaken you are.

Even the governmental immunity doctrine has its exceptions, fortunately enough. In Connecticut, if the employees can foresee that the victim is “an identifiable person” who would face “imminent harm” if they perform a discretionary act negligently, or negligently fail to perform a discretionary act, then the victim is able to defeat immunity and collect.

But what is an “identifiable person?” Ah, the devil’s in the details.

DeConti v. McGlone, 88 Conn. App. 270, 869 A.2d 271 (Ct.App. Conn. 2005). Maria DeConti was driving down Maple Street in New Britain, when a rotted tree fell on her car, crushing it. The tree was located in front of 281 Maple Street, about five houses from the Maria’s residence, on property controlled by the City of New Britain.

Maria sued Bob McGlone, the superintendent of parks for the city, and the Parks and Recreation Commission. The defendants filed a motion to strike on the ground that their actions were insulated by governmental immunity. The court granted their motion.

Maria appealed.

Held: Bob and the Commission enjoyed governmental immunity.

Generally, a municipal employee is liable for the negligent performance of ministerial acts but has a qualified immunity in the performance of governmental acts. Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature. In contrast, ministerial refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion.

A municipal employee’s immunity for the performance of discretionary governmental acts is, however, qualified by three recognized exceptions: (1) where the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm; (2) where a statute specifically provides for a cause of action against a municipality or municipal official for failure to enforce certain laws; or (3) where the alleged acts involve malice, wantonness or intent to injure, rather than negligence.

The first exception has been expanded to apply not only to identifiable individuals but also to narrowly defined identified classes of foreseeable victims. However, the Court ruled, a person driving a vehicle who is struck by a falling tree limb is not an identifiable victim for the purpose of governmental immunity. It would be different, the Court ruled, if the tree had fallen on Maria’s house rather than on her car. But Connecticut law is clear that “would not be [an] identifiable person[], or an identifiable class of foreseeable victim[], if [she] were either [an] unfortunate person driving in a vehicle or pedestrian walking along a sidewalk who happened to be struck by a falling tree limb.”

Maria argued her case was different, because she was required to drive on Maple Street as a result of the location of her house and, as such, she was an identifiable victim. But Connecticut courts have consistently denied relief absent a requirement that the plaintiff be present at the location where the injury occurred. Thus, a parent watching a son play at a high school football game was held not required to be at game, and a parent injured while visiting her child’s school voluntarily was not required to be there.

“Accepting as true all facts alleged in the amended complaint,” the Court said, “the plaintiff has failed to show that she is an identifiable victim or a member of a narrowly defined identified class of victims as required to fit within the first exception to the governmental immunity doctrine. Because that is the only applicable exception, the plaintiff’s amended complaint was legally insufficient, and the motion to strike properly was granted.”

– Tom Root

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