Case of the Day – Tuesday, August 9, 2022

I DON’T REALLY LIKE YOU

hate151228How many of us, while standing in line at the DMV or quaking with fear in front of an IRS auditor, worry about what might happen to us if we somehow offend one of these officious little paper-pushers?

Need a building permit? Kiss my ring, peasant! Don’t like your property valuation? Let’s see you do something about it! Want the city to do something about a dangerous tree overhanging the street? What’s it worth to you?

Is there anyone who hasn’t wanted to unload on some governmental employee whose only purpose in life seems to be stealing the oxygen needed by people who actually create value? We read about it all the time – IRS workers sitting on applications filed by people they don’t like. Building inspectors who demand some grease for their palms in order to get anything done. Small-town cops riding someone they don’t like. Presidents demanding vigorish for ordering the sale of a foreign-owned business to a U.S. company. But what can you do about it?

John Mangino thought he knew. He bought some rental units in Patchogue, New York, and rounded up tenants to live there. He bought his local permit to be a landlord, too. But when it was time to renew two years later, John decided he shouldn’t have to buy a piece of paper from the local government in order to manage his own property.

The City issued misdemeanor summonses to Mangino to force him to give them his money. He responded with a blunderbuss lawsuit challenging everything he could think of related to the rental permit program. The Village raised the stakes, telling him in so many words that it would make his life as a landlord a regulatory hell if he didn’t cave on the permit.

Need the assistance of a government functionary? Kiss the ring ...

Need the assistance of a government functionary? Kiss the ring …

Finally, the Village made good on the threat. When one of Mangino’s tenants complained to the Village that her electrical outlets were sparking, the inspectors headed to the apartment building to inspect (which is what inspectors do). Mangino wouldn’t let them in without a warrant. The inspectors called the fire department, which stormed the place – sirens blaring – to look for the electrical short. They didn’t find any sparks, but the smoke-eaters found a passel of housing violations that – along with a cascade of criminal charges for not buying the rental permit – landed on Mangino’s head.

Mangino sued the Village under a Federal law – 42 U.S.C. § 1983 – that lets a person sue state and local officials for violating one’s constitutional rights under color of state law (that is, when a local official misuses the law to give someone the shaft). Mangino claimed that Village inspectors tried to shut him up in violation of the First Amendment, and engaged in abuse of process, by misusing the housing code to retaliate against him because they just didn’t like him.

The District Court threw out the case, holding that because the summonses for not buying a rental permit were based on probable cause – that is, the charges were righteous because he really did break the law – the fact that they may have been intended to shut him up didn’t matter.

As far as the abuse of process claim, the law was not clear whether probable cause would likewise defeat such a claim. In other words, it could be that if there was reason to believe he had broken the law, there could not be an abuse of process. Or maybe there could be. But because the law was unsettled, the officials were entitled to immunity from prosecution. Only if the law is clearly established and an official breaks it anyway will the government employees be liable to us common folk. It’s called qualified immunity, and it has a pretty bad reputation these days… one that is richly deserved.

Sadly, the rule is to smile at all those miserable little twits, grit your teeth, and show fealty. The alternative is too expensive and uncertain to contemplate.

Mangino v. Village of Patchogue, 808 F.3d 951 (U.S. Court of Appeals for the 2nd Circuit, 2015). About 20 years ago, John Mangino and his wife bought an apartment building in Patchogue, New York. When they got the place, they applied for a two-year rental permit and began renting apartments to tenants. When his permit expired in, the Manginos did not bother to renew it.

There was some suggestion in the case that Mangino might have had some substandard rental property.

There was some suggestion in the case that Mangino might have had some substandard rental property.

In January 2005, James Nudo, the Patchogue Housing Inspector, issued criminal summonses to the Manginos for continuing to rent out apartments without a rental permit. Mangino challenged in court these summonses and their manner of service, as well as the validity of the Village’s rental-permit law.

Mangino said that, in response to his lawsuit, the Village prosecutor threatened him that if he did not settle his litigation against the Village or accept a plea bargain on the criminal charges, he would be “hit with a barrage of summonses.”

A few months later, one of Mangino’s tenants asked the Village Housing Department to check the power in her apartment. Nudo answered Gucciardo’s call, and later reported Gucciardo had told him she feared that the conditions in her apartment, which included electrical problems, would result in a fire. Gucciardo called again a few days later to complain that the outlets in her apartment were sparking. A Village inspector went over to the apartments immediately, but Mangino refused to let him in without a warrant. The inspector told Mangino that he’d call the fire department if he wasn’t allowed in. Mangino still refused, so the inspector called in an “all encompassing general alarm.”

When the Village firemen arrived, they inspected the building, including Gucciardo’s apartment and the basement. They did not find any sparking or arcing outlets in Gucciardo’s apartment, but they did notice two fire protection code violations. The firefighters called in the inspector, who was waiting outside. He cited Gucciardo for the conditions and required him to get them fixed within 90 days.

A few days later, inspectors returned to inspect Gucciardo’s apartment with her consent. On the same day, they issued 18 separate summonses to Mangino for a variety of alleged violations of the Village Code. A few weeks later, Mangino was served with additional summonses dated August 5, 8, 9, 11, 12, 13, 14, 15, and 16, for failure to renew his rental permit on those dates. Although Mangino admits that he did not have a rental permit in August 2005 and that he continued to rent apartments in his building during this time, all of the summonses issued to him for violation of the Village’s rental-permit law were ultimately dismissed.

Mangino sued Village officials under 42 U.S.C. § 1983 for violating his First and Fourth Amendment rights. Mangino’s sole First Amendment claim was for retaliation and his Fourth Amendment claims included abuse of process and warrantless entry. The District Court dismissed Mangino’s retaliation claim because he hadn’t shown that the Village’s allegedly retaliatory conduct chilled the exercise of his First Amendment rights. The District Court dismissed Mangino’s Fourth Amendment abuse-of-process claim on the ground that Village officials enjoyed qualified immunity against such claims. Mangino’s warrantless entry claim went to trial, where the jury found against him.

Mangino appealed.

Held: Mangino loses.

The Court of Appeals held that the District Court was wrong to dismiss the First Amendment retaliation claim because Mangino hadn’t proved that his speech was “chilled,” that is, that the retaliation caused him to curtail his speech. Rather, the Court of Appeals said Mangino had standing to sue if he could show either that his speech has been adversely affected by the government retaliation or that he has suffered some other concrete harm.

However, the Court said, “the existence of probable cause will defeat … a First Amendment claim that is premised on theviol151228 allegation that defendants prosecuted a plaintiff out of a retaliatory motive, in an attempt to silence him. Here, there was probable cause for each of the criminal summonses issued to Mangino, and Mangino admitted as much. Because there was probable cause, the District Court was right to dismiss Mangino’s First Amendment retaliation claim insofar as it is premised on the summonses.

But Mangino’s First Amendment retaliation claim was also premised on the investigator’s issuance of the non-criminal fire protection code violation tickets. Because those were civil matters, probable cause cannot defeat Mangino’s First Amendment claim. But the fact that the tickets were justified – and that the regulatory action, even if unjustified, was not significantly more serious than other actions the Village had the discretion to take.

The Court of Appeals held that Inspector Nudo was entitled to qualified immunity on the abuse of process claim. A governmental official is entitled to qualified immunity when there is no clearly established right that he or she violated by the conduct at issue. The Court of Appeals held that here, it was not clearly established that probable cause was not a complete defense to a claim of abuse of process. Since the Village’s citation of Mangino had occurred, case law had suggested that abuse of process is “misusing or misapplying process justified in itself for an end other than that which it was designed to accomplish.” In other words, an improper motive for doing something that is otherwise proper may be enough to establish abuse of process.

The Court of Appeals did not decide which standard was right. Instead, it held that the precise definition was not established at the time the Village cited Mangino, and where the state of the law is not clearly established, Mr. Nudo and the other Patchogue officials were entitled to immunity. The Court said, “If the district judges in the Southern District of New York, who are charged with ascertaining and applying the law, could not determine the state of the law with reasonable certainty, it seems unwarranted to hold … officials to a standard that was not even clear to the judges …”

– Tom Root

TNLBGray

Case of the Day – Monday, August 8, 2022

SO WHAT’S THE DAMN PROBLEM?

reptiles151223Poor Capital One. First, the bank wore us out with Alec Baldwin and his band of pillaging Vikings, all hawking Capital One credit cards with the annoying tagline, “What’s in your wallet?”

Then it was Samuel L. Jackson, who lectures us in a mildly imperious way about how he is not amused by some credit card offers, like we care whether he’s amused or not. Initially, he promised credit card rewards “every damn day,” and you’d think the republic was collapsing. Wasn’t this the guy who spoke so colorfully about snakes on a plane? No matter – angry customers threatened to close their accounts over his use of the word “damn.” Capital One promptly folded like a cheap suit and edited the offensive word out of the ad.

It sort of makes you long for the Viking horde. Or for Jennifer Garner. We definitely prefer perky Jennifer Garner, especially when she’s paired with her father. Certainly, we can play on the Capital One question and ask ‘what’s in your file cabinet?’ That may be a lot more important than whether you have an American Express Centurion card, a Capital One VISA, or even just a SNAP card in your wallet. There are probably people who have all three in their wallets, anyway.

All of that brings us to today’s case, where a conspiracy buff ran headlong into a City of Omaha tree-trimming crew. It seems that Ms. Richter didn’t think much of the City trimming her trees. She approached the crew to lodge her protest, only to find no love. In fact, one of the workers told her (in colorful language, perhaps) to step away from the truck. She did so, tripping on a hole in her tree lawn.

consp140523A “grassy knoll” fan, Ms. Richter claimed that the hole obviously had been created by the City’s removal of a street sign, which was mysteriously replaced sometime soon after the accident. It didn’t help the case that the City had a habit of destroying work orders on sign replacement several years after the work was done, and so couldn’t completely rebut her claims.

Lucky for Omaha (home to famous steaks and well known for its mention in quarterback cadences), the Nebraska Supreme Court was little impressed by Ms. Richter’s “I-believe-it-so-that-proves-it” approach to the case. It held that the City’s normal-course-of-business document destruction wasn’t the effort to hide the “truth” Ms. Richter so badly wanted to be. Omaha prevailed.

Still, there’s a lesson here for businesses — sometimes, when it comes to document preservation, what’s in your file cabinet had better be more rather than less.

And a note to Alec Baldwin – chill, man!

Richter v. City of Omaha, 729 N.W.2d 67, 273 Neb. 281 (Sup.Ct. Neb., 2007). A city work crew was trimming overhanging branches from a tree located in front of Ms. Richter’s home. Ms. Richter walked outside and asked the workers to stop trimming the trees. The workers refused and told her to back away from them and their truck. As Richter backed away, she stepped into a hole with her right foot and fell to the ground, injuring her ankle and twisting her knee.

The Nebraska Supreme Court did not tell Ms. Richter to "chive on."

The Nebraska Supreme Court did not tell Ms. Richter to “chive on.”

The hole in which Ms. Richter fell was located in a grassy area between the street and the sidewalk in front of her residence. Although this section of land is a public right-of-way, Richter was responsible for maintaining the area. She claimed the City had removed a sign sometime prior to the accident, thus creating the hole, but replaced it sometime thereafter. City records — while nonexistent for periods of time prior to the accident — showed no change in signage at the location during the relevant period.

Not to be detained by the facts, Ms. Richter sued under the Political Subdivisions Tort Claims Act. She alleged that the City was negligent in failing to warn the public of a dangerous condition, failing to provide safe passage of a right-of-way, and failing to exercise due care in the operation of its business. The trial court found in favor of the City, holding that the evidence was insufficient as to how the hole came to be, when it came to be a hole, and whether the City knew of this hole prior to Ms. Richter’s injury. There was insufficient evidence that the City caused the hole or that it knew it was there so it could be repaired in a timely manner.

Richter appealed.

Held: The City was not liable.

Ms. Richter said the evidence was "spoliated," not "spoiled." Either way, the Court said her argument stank.

Ms. Richter said the evidence was “spoliated,” not “spoiled.” Either way, the Court said her argument stank.

Ms. Richter argued that Omaha had destroyed old work orders from years prior to the accident, and this conduct indicated fraud and a desire to suppress the truth. The Court disagreed, holding that she was not entitled to the adverse inference allowed under the rule of spoliation because the record indicated that the work orders were destroyed in the ordinary course of the city’s business. The Court said that the intentional spoliation or destruction of evidence relevant to a case raises a presumption, or, more properly, an inference, that this evidence would have been unfavorable to the case of the spoliator; however, such a presumption or inference arises only where the spoliation or destruction was intentional and indicates fraud and a desire to suppress the truth, and it does not arise where the destruction was a matter of routine with no fraudulent intent.

In order to be successful on her negligence claim Ms. Richter had to establish, among other things, that the city created the condition, knew of the condition, or by the exercise of reasonable care should have discovered or known of the condition. Other than her belief that this was so, she had no evidence to support her contention.

Sorry, Ms. Richter … you’re entitled to your own opinion, but not your own facts.

– Tom Root

TNLBGray

Case of the Day – Friday, August 5, 2022

DANGER TREES

It sounds like some kind of leafy superhero – you know, “look, out in the woods, it’s a fern, it’s a shrub, no, it’s … Danger Tree!!!

Alder, Hemlock and Big Leaf Maple - the "bad boys" of danger trees.

Alder, Hemlock and Big Leaf Maple – the “bad boys” of danger trees.

To arborists, a danger tree is no superhero, but rather a menace. In the non-utility context, a danger tree generally has two attributes. First, there’s something wrong with the tree – old age and decay, disease, an injury … something that adversely affects the tree’s structural integrity.

Second, the tree has to be in such a location that its falling or shedding branches is a hazard to people or property. A weakened and decayed tree in the middle of the forest might concern the fauna, but it’s like a shark in the middle of the Pacific – no cause to empty the beaches a thousand miles away.

Today’s case illustrates again – as did yesterday’s tree falling on a car – that good trial preparation trumps purity of purpose. Perhaps proving in the starkest of terms that no good deed goes unpunished, young and sharp-eyed Patrick Connelly spotted a brush fire burning next to the road. Unaware that the fire had been started after a power line was knocked downed by a poplar tree that had fallen in the wind, our hero jumped from his car to stamp out the flames. But sadly (and terminally), what he stomped on was the live power line tangled in the flaming grass.

Death lasts an eternity; litigation only seems to. Mr. Connelly’s estate sued after the 2003 accident. Nearly ten years later, the case was finally over.

Besides the pathos, our interest is in the power utility’s own Transmission & Distribution Guidelines, which defined a “danger tree” from the electric company’s perspective. For a utility, a ‘danger tree’ might be structurally unsound, but it doesn’t have to be. Sometimes, just being too close to the wires will be enough. In fact, three trees – the hemlock, the alder and the big leaf maple – pose an existential threat, according to the T&D Guidelines.

But here, the tree in question was not even within the clearance zone under the lines, and by all reports was strong and healthy. Connelly’s executor was unable to convince the court that the utility should be held responsible for what happened beyond its 12’ clearance zone. The power company’s adherence to its own standards, as well as to national guidelines, was its salvation.

That’s the takeaway in most of these cases. Adherence to an accepted standard is enough to show that you’ve met the applicable standard of care.

Estate of Connelly v. Snohomish County Public Utility District #1, Case No. 66714-9-I, 2012 Wash. App. LEXIS 2818 (Ct.App. Wash. 2012). During a high windstorm, one of the Lombardy poplar trees located on the property owned by a local school district fell approximately 40 feet across a road onto three high-voltage electrical distribution power lines. Two of the power lines shut off, but the third broke off and landed in a ditch on the north side of the road. The energized power line started a small brush fire.

cartoon140521Michael Varnell and Patrick Connelly were driving westbound on the street when they saw the brushfire. Connelly suggested they stop and stomp out the flames. He was electrocuted when he came into contact with the downed power line.

The Connelly Estate filed a wrongful death action against the Public Utility District No. 1, charging that it negligently performed vegetation management and designed and operated the electrical distribution system. But after a trial, the court ruled that the PUD did not have a duty to inspect trees that did not obviously pose a danger, and did not breach its duty of utmost care in the design, operation, or maintenance of the distribution power line system.

The Estate appealed.

Held: The PUD was not liable.

The parties agreed the PUD owed Connelly a duty of the “utmost care.” However, they disputed whether this meant that the PUD had a duty to inspect every tree outside of the 10- to 12-foot power line “clearance zone,” and whether the protection devices the PUD used were sufficient to meet the duty to protect the public and prevent exposure from high-voltage power lines.

Connelly’s expert testified that the standard of care required the PUD to inspect every tree outside the 10- to 12-foot power line clearance zone that was tall enough to fall on a power line. Relying on prior testimony regarding the condition of the poplar tree, the expert also testified that the PUD had a duty to remove the poplar tree located on the School District property. However, on cross-examination, he admitted that he did not know when the tree would have been an imminent danger and that “I, of course, didn’t see the tree and don’t know anything — don’t know much about the trees.” Bollen also admitted the last time he oversaw a vegetation management program was from 1951-56.

dangertree151222

Now THIS is a Danger Tree.

A PUD expert examined the tree in 2007 and 2009, and reviewed photos of the fallen tree. He testified the poplar tree that fell showed signs of preexisting rot, decay, and disease. Furthermore, a PUD arborist had inspected the tree within a week of the accident, and found were no external indicators of rot or decay. He said that he would not have identified the tree as a hazard for removal or trimming.

Another PUD expert, Stephen Cieslewicz ­– a certified arborist and a national consultant on vegetation management practices for utility companies –testified that PUD’s vegetation management practices were consistent with industry standards during the period in question. Mr. Cieslewicz testified that the objective of “line clearance inspections is to review the air space between the lines and along the lines for trees or limbs.” PUD periodically inspected the trees within the 10- to 12-foot clearance zone of the power lines, and removed trees or tree limbs that posed a threat to the power lines. As well, PUD also identified “danger trees” outside the clearance zone that pose a threat to the electrical lines. Mr. Cieslewicz said that the vast majority of electrical utility companies do not routinely inspect trees outside the clearance zone simply because the trees are tall enough to fall on the line.

Powerlinetotreeclearance140521Mr. Cieslewicz also said that absent an obvious danger or notification from a property owner, the PUD had no duty to inspect every tree outside the clearance zone. In fact, such inspection would border on being impossible. He also testified that inspecting every tree outside the clearance zone in Snohomish County was impossible. Cieslewicz also testified that “[t]here likely would not be records” of the inspection of East Sunnyside School Road “if there was no work required.”

A PUD line clearance coordinator testified that he inspected the area several years before the accident. He said that he had looked down the line segment “and saw that the line was clear; that no tree was in the line.” At no time did the School District notify the PUD that any of the poplar trees located in the area posed a hazard. The evidence showed that during the five years before the accident, the poplar trees were healthy.

The trial court found the testimony of the PUD witnesses more credible than the Estate’s experts, neither of whom had inspected the trees. It held that absent obvious signs or notice that a tree posed a danger, the standard of care did not require the PUD to investigate every tree outside the 10- to 12-foot power line clearance zone. The court also concluded the PUD did not breach its duty of utmost care in the design of the electrical power distribution system.

The Court of Appeals held that in order to prevail on a negligence claim, the Estate had to establish duty, breach, causation, and damages. The standard of care for a utility in Washington is daunting: a power company must exercise “the utmost care and prudence consistent with the practical operation of its plant” to prevent injury.

Although the Estate disputed it, the Court of Appeals found that the trial court had correctly applied this “utmost care” standard. In so doing, the trial court did not improperly emphasize the practical operation of the utility; rather, such practical operation is a relevant factor in determining “whether the utility has conducted its operations under the known safety methods and the present state of the art.” The trial court was within its discretion to let PUD present testimony about whether it was practical to inspect trees outside the clearance zone that did not obviously pose a danger.

The Estate challenged a number of the trial court’s factual findings as well, but the Court of Appeals held that there was substantial evidence to support the determinations. That was all the law required. In particular, the appellate court held that “the evidence established the PUD vegetation management met the standard of care, and the PUD was only required to inspect trees outside the clearance zone if there is ‘obvious evidence of decay or rotting or threat to the power line’.”

The Estate also claimed the trial court’s findings were inconsistent with the utility’s own Transmission and Distribution Guidelines. The T&D Guidelines are evidence of the standard of care, but the state statute relied on by Connelly – RCW 64.12.035 – did not require PUD to comply with the T&D Guidelines. Instead, it only provided electric utilities with immunity for cutting or removing vegetation. The statute does not set a standard of care for the utility, and as the PUD points out, no cases have interpreted the statute as creating a duty or setting a standard of care.

PUD’s T&D Guidelines stated that a “danger tree” was

  • forked trees;
  • dead or rotten trees;
  • trees weakened by decay, disease or erosion;
  • trees visibly leaning toward the power line;
  • trees or parts of trees which may contact the line under snow, ice or wind loads;
  • trees originating from fallen decaying logs, old growth stumps or other unstable rooting positions; or
  • troublesome trees such as alder, big leaf maple and hemlock.

The T&D Guidelines did not impose a duty to inspect every tree that may come in contact with the power lines, but rather just trees within the clearance zone and obvious “danger trees.”

The power company prevailed.

– Tom Root

TNLBGray140407

Case of the Day – Thursday, August 4, 2022

THE ONLY THING THAT STINKS IS THE PLAINTIFF’S CASE

P.J. had a live-in girlfriend named Callie. As near as anyone could tell, she did not pay to live there, at least not with remuneration to P.J. that would be reportable to the IRS. But when P.J.’s condo suffered damage from intruding tree roots, Callie recognized an opportunity.

P.J. first convinced the condo association, which owned the offending tree, to cut it down. After that, he sued for the damages the roots had caused to his sewer system and basement. But right in the middle of his lawsuit, girlfriend Callie figured that she was really sort of P.J.’s tenant, and her careful legal research – probably Renting Out Your Property For Dummies – she decided that she has been grievously injured by the obnoxious smell in the guest bathroom, which she was certain was from the offending tree roots.

And, this being America, what do we do when we think we have been grievously injured? We sue.

We’ve smelled some pretty malodorous bathrooms before, but tree roots never appeared to be the cause. Still, Callie jumped headlong into her own lawsuit against the condo association and its management company, because – after all – she complained, she had been embarrassed when guests used her bathroom.

The trial and appellate courts made short work of Callie’s complaint. A tenant, they said, cannot sue because of damage to the property being rented. Instead, a tenant has to allege some injury to the tenancy, that is, the tenant’s right to use the property.

Callie’s lawyer (we assume she had one, although not much of one) failed to allege that Callie had suffered any concrete injury because of the smell. What’s worse, the lawyer forgot to produce any evidence that the tree roots had anything to do with the smell at all (if there was a smell).

P.J., the property owner, competently handled his lawsuit and won some damages from the condo association. His putative tenant and honeybunny did not.

Larsen v. Snow Property Services, 2017 Ariz. App. Unpub. LEXIS 241, 2017 WL 899881 (Ct.App. Arizona, Mar. 7, 2017): Callie Larsen and a guy named P.J. are a couple. (The opinion never mentions P.J.’s surname, but we imagine that it was not “Funnybunny“). P.J. owned a condo in a development controlled by Wind Drift Master Community Association and managed by Snow Property Services. Although she is P.J.’s squeeze, Callie decided she was really his tenant. This epiphany occurred about the time she figured out she could score some money damages from a couple of deep-pocketed defendants.

In 2012, P.J. complained to Snow about damage to the basement walls of his condo caused by the roots of a tree located on Wind Drift’s adjoining property. Snow removed the tree within about two months.

Callie was not satisfied. She claimed the removal of the tree did not resolve the damage, and an unpleasant smell remained in the guest bathroom. In March 2013, P.J. sued Wind Drift, and after a jury trial in 2016, he got a judgment for the damage the tree roots caused his condo.

Meanwhile, Callie was a busy little tenant (if a tenant she was). She sued Snow and Wind Drift herself in late 2014, alleging negligence, breach of contract, and trespass to her interests as a tenant. The defendants moved for summary judgment, arguing Callie had no proof her tenancy interest (assuming there was one) had been injured or damaged. The superior court agreed and threw Callie’s case out.

Callie appealed.

Held: Callie had shown no damages that would let her recover.

Callie complained that the trial court incorrectly determined that, as a tenant, she was not entitled to recover damages for physical damage done to the property that constituted her “tenancy.”

But that was not quite the case. Her trial court held that claims for property damage caused by tree roots are not hers to bring. The court held that these claims (if they exist) belong to the property owner, not the tenant. If the tenant has suffered damage to her tenancy, the trial court said, (that is, her right to possess and enjoy the property), then her remedy is against her landlord under the terms of her rental agreement (which, conveniently, was not in writing). The trial court did not find any admissible evidence of damages to Callie’s tenancy caused by the now-removed toxic tree. Thus, the trial court’s ruling was not based on Callie’s lacking standing, but rather on a lack of admissible that her tenancy was injured by recoverable damages.

Callie contended there is a “universal rule that tenants may recover for damage to rental property.” Even if that is so, the Court of Appeals said, the tenant still must produce some evidence from which a reasonable jury could find in favor of the plaintiff. Callie claimed negligence, breach of contract, and trespass against Snow and Wind. But each of those, the Court said, requires proof of damages.

Such is always true for negligence or breach of contract. But at common law, trespass required no showing of damage. Callie’s trespass claim, however, was special: she did not claim that Snow or Wind had trespassed, but rather the roots of a tree Wind owned and Snow managed had trespassed. Most states do not recognize the theory that a tree can trespass on behalf of its owner. Not so in Arizona. Even so, Arizona law holds that a “landowner upon whom a sensible injury has been inflicted by the protrusion of the roots of a noxious tree or plant has the right to an action at law in trespass,” but “where there is no injury or damages “no action may be had.”

Contrary to Callie’s claim, the Court of Appeals said, the trial court did not base its ruling on Callie lacking standing to sue, but rather on Callie’s utter lack of admissible proof of recoverable damages as a tenant. Callie’s “tenancy” consisted of the “use and occupancy” of P.J.’s property pursuant to whatever terms their purported oral rental agreement may have contained (or as long as he wanted her, whichever came first). Arizona law defines a tenant as “a person entitled under a rental agreement to occupy a dwelling unit to the exclusion of others.” A.R.S. § 33-1310(16). Thus, the Court said, in order to support her claims against Snow and Wind, Callie had to present admissible evidence supporting her claim of injury to herself or her tenancy, not damage to property she did not own.

Callie asserted a “loss of quiet enjoyment of property she rented.” The record showed, however, that at all times she was able to occupy, use, and exclude others from the property in a manner consistent with the terms of her purported oral rental agreement. During her deposition, Callie complained about an embarrassing smell in her guest bathroom, but she admitted she continued to use it. She speculated that the odor resulted from one or more pipes cracked by the tree roots, but she did not submit any admissible evidence linking the tree roots to the smell. She claimed there were times she could not park in the driveway due to the root protrusion, but she did not establish any exclusion from use, damage to her vehicle, or costs incurred for alternate parking.

In a last-minute Hail Mary, Callie submitted a report from a real estate broker saying the rental value of the property was diminished by about $800.00 a month as a result of the damage attributed to the intruding tree roots. The Court observed that even if the report were competent evidence of damage, its defects were legion: (1) the real estate associate broker was not shown to be an expert, (2) the report contained the disclaimer that it was “not an appraisal,” (3) the report assumed the smells in the condo were caused by the tree roots without any evidence that was so, and (4) the report was not supported by an affidavit.

The Court said that as for harm to Callie herself, while she asserted she had been harmed by the smelly bathroom, she could not identify any injury other than embarrassment about the smell when guests used the bathroom. She never claimed specifically that the reek harmed her physically or emotionally. More significantly, the Court said, “she has not presented admissible evidence establishing the source of the odor or that the cause of that source of odor is attributable to Defendants. Stated simply, the evidence offered by [Callie] does not rise above allegation and speculation.”

– Tom Root

TNLBGray140407

And Now The News …

Oakland, California, East Bay Times, August 3, 2022: Yosemite’s Mariposa Grove reopens as Washburn Fire winds down

The Mariposa Grove of giant sequoia trees, one of the most popular and breathtaking landmarks in Yosemite National Park, reopened to the public Wednesday morning, nearly four weeks after a major wildfire broke out nearby. The Washburn Fire was 97% contained, fire officials reported Wednesday, having burned 4,886 acres. The blaze, which began July 7, had more than 1,600 firefighters at its peak. But Wednesday, only 65 remained to mop up. “It looks great. We are super-excited. At the shuttle bus stop there were probably 200 people waiting to get in this morning,” said Yosemite spokesman Scott Gediman. “The fire came very close, but the sequoias look great. We’re so thankful.” When the Washburn Fire was first discovered, it sparked fears of an environmental catastrophe. Massive lightning-sparked fires over the past two years farther south in Sequoia National Park and Sequoia National Forest killed between 10,000 and 14,000 giant sequoias — nearly 20% of all that remain on Earth. But the news from the Washburn Fire has been nearly all good: After a major attack from firefighters early in the blaze, not one of the roughly 500 giant sequoias at the Mariposa Grove, some of which tower more than 200 feet tall and are more than 2,000 years old, died in the fire. No homes in the nearby Wawona community burned. There were no injuries or deaths…

Charleston, South Carolina, WCSC-TV, August 3, 2022: Dominion Energy set to cut state tree identified as hazardous

One Hanahan resident is doing all he can to save his Palmetto tree after receiving a notice from Dominion Energy that it’s been scheduled to be cut down. Jay Mullis says after returning home recently he found his tree marked with an “X” and a note in his driveway from Dominion stating the condition of his tree warrants action by the company. The Mullis family has lived in this home since December of 2019, and they say the palmetto is the most important piece of their front lawn. Mullis contacted a Dominion representative and shared his concern about the sudden notice that the tree was a threat and was looking to find a mutually beneficial compromise. According to Dominion, the tree has made contact with their energized distribution conductors and has been identified as hazardous. After being told there wasn’t anything the company could do to save the tree, Mullis took it into his own hands. He has since trimmed it in hopes that it will no longer pose a threat momentarily and can give him time to move the tree on his own dime. “I think it’s important that we start working together on these issues, it’s a piece of me that we cut and the tree I think will be fine and hope that they just let me move it back 10 feet,” Mullis says…

Popular Science, August 3, 2022: The curious case of an endangered wildcat and a disappearing fruit tree

To anyone with an interest in the fate of the world’s wildlife, it’s a familiar story: Bringing back predators like wolves and wildcats is crucial to re-wilding ecosystems. The most famous example might be the return of gray wolves to Yellowstone National Park in 1995, and its ripple effect on other species, including plants. The wolves’ presence after 70 years forced elk herds in certain areas to start moving again, which then gave the willow and aspen they had over-browsed a chance to regrow. That, in turn, provided beavers with enough sticks and logs to make a comeback of their own—from eight colonies in 1953 to 100 colonies today. It’s a tidy story of nature’s resilience. But as biologists are now learning, reintroducing top predators to ecosystems where they’ve been absent for generations can affect other species in unexpected, and perhaps unwelcome ways. Take the Iberian pear, a small, heat- and cold-resistant tree found only in Spain, Portugal, and Morocco—a hotspot of plant biodiversity. The species grows up to 32 feet high and sports round, marble-sized fruit that are so hard when unripe, shepherds used them as slingshot projectiles. The tree is considered stable but in decline with a “severely fragmented” population due to agricultural development, according to the IUCN’s Red List of Threatened and Endangered Species…

Bergen, New Jersey, Record, August 4, 2022: Summer of the spotted lanternfly in NJ: How much damage has been done?

On the beaches of Mantoloking, they’ve been found scurrying in clumps of 50 near the surf. Seventy miles north in suburban Clifton, they’ve inundated a few blocks that have plants they love to feast upon. And in densely packed towns along the Hudson River, they’ve spawned on trees nestled on the Palisades cliffs and are now climbing to the very top of high-rises perched over the waterway. If it seems that the spotted lanternfly is everywhere in New Jersey this summer, that’s because it is. What started with residents reporting sightings here and there in early June has turned into weeks upon weeks of infestation. The bug, an invasive species from China, has so far been more of a nuisance than a menace in New Jersey. The state Department of Agriculture has not received any reports of significant damage to New Jersey’s $1 billion agriculture industry, Jeff Wolfe, an agency spokesman, said Wednesday…

York, Pennsylvania, WGAL-TV, August 1, 2022: Removal of huge tree begins in Harrisburg

The removal of an 80-year-old elm tree in Harrisburg got underway Monday. City leaders said the tree is dangerous. The roots and branches are covering multiple buildings around Clinton, Green, Penn and Harris streets. Some branches fell during a storm about a month ago. The tree has also started to impact power lines, and officials are concerned that it could lead to an electrical fire. A tree removal truck is in place along Green Street between Harris and Clinton streets. The block will be closed to all parking and through traffic until the close of business on Friday, Aug. 5…

Washington, DC, Post, August 2, 2022: 5 ways to spot sick and dangerous trees before they damage your home

Trees give much-needed shade during the summer, which is particularly welcome in times of record-high heat. But mature trees also can harbor dead branches, faulty roots and rotting bark, creating a perfect recipe for dangerous and costly property damage, especially during stormy weather. Trees that have been upended, whether because of severe weather or disease, have crushed homes and caused injuries or even death. But living trees are an important part of the communities that surround them. Researchers have found that trees bring various benefits: In addition to providing shade, they also shelter wildlife and help combat climate change by expelling oxygen and taking in carbon dioxide. “The best time to plant a tree is 50 years ago, and the next best time is last week,” said Cindy Musick, a certified arborist in Northern Virginia who owns the arboriculture and forestry consulting business EcoAcumen…

Australian Broadcasting Corporation, August 3, 2022: Trees and fungi are the ultimate friends with benefits

Take a walk in the bush, and you’ll find yourself immersed in a soundscape of chatter. You might hear birds bantering to one another as they forage for food, or swarms of insects serenading potential partners. But the quietest life forms are having some of the liveliest conversations. Trees might seem like the type who prefer to keep to themselves, but beneath your feet they are busy forming secret relationships with vast networks of underground fungi. Big, old trees rely on this “wood-wide web” to shuttle nutrients to their younger neighbours, while others use it to send chemical signals that warn nearby trees of looming threats, such as diseases and pests. “The symbiosis is important for all aspects of plant growth, but also the diversity we see in our landscape,” says Ian Anderson, a fungal ecologist at Western Sydney University. It’s a friends-with-benefits arrangement that’s been around for millions of years, but researchers are only just beginning to unravel the secrets of how trees and fungi interact, particularly in Australian ecosystems, says Tom May, a mycologist at the Royal Botanic Gardens Victoria…

Boston, Massachusetts, Globe, August 2, 2022: Cambridge asks residents to help water city’s trees during drought

Every part of Massachusetts is experiencing a drought, and the bone-dry conditions in Cambridge have officials asking residents to pitch-in to help maintain the city’s urban forest. The city said the recent July heat wave and ongoing drought conditions have “significantly stressed” both new and older trees there. Andrew Putnam, Cambridge’s public works superintendent of urban forestry, said in a statement that the most important thing people can do is help water the trees near their home. “This is the most sustainable way to water, and we’re asking any residents and businesses who are able to please do their part by filling a Gator Bag on a tree or drenching the soil in a nearby tree well,” Putnam said. The month of July was one of the Boston area’s hottest and driest ever. According to the National Weather Service, only .62 inches of rain were recorded in the area in July 2022. Staff from Cambridge’s urban forestry department are operating three water trucks to water street trees across the city throughout the day. The city’s water department and “water-by-bike” staff are also assisting with watering trees each day. Street trees generally need about 20 gallons of water each week from May to October, but during heat and drought conditions, the trees should be watered at least two or three times a week, according to the city. If there is compacted soil around the tree, city officials recommend residents loosen the dirt with a trowel to allow the water to penetrate and prevent runoff…

International Business Times, August 1, 2022: ‘One In A Million’: Researchers Rediscover Tree Lost For 97 Years

Researchers have rediscovered a lovely magnolia tree that has been lost to science for 97 long years. The chances of finding it were said to be “one in a million.” The northern Haiti magnolia (Magnolia emarginata) was discovered in 1925 but has been lost to science since, Re:wild noted in a news release. Morne Colombo, the forest where it was originally discovered, has been destroyed. Under the International Union for Conservation of Nature (IUCN) Red List of Threatened Species, northern Haiti Magnolia is considered to be “critically endangered.” In fact, the IUCN wrote in the listing that it is “possibly extinct.” The five-person team searched for the tree in mid-June so that the flowers would be in bloom and it would be easier to identify, Re:wild said. Despite postponements due to travel restrictions and social unrest, as well as a downpour that disrupted their trek, the team eventually spotted the tree’s distinct flowers and leaves. They found the tree in different stages of life, from juvenile to adult, and were able to take the “first-ever” photos of it. Some of the pictures, including those of the trees’ beautiful flowers, can be seen here. The researchers were also able to collect DNA samples for analysis…

Rochester, New York, Democrat & Chronicle, August 1, 2022: Read about Rochester’s most beloved trees and share your own story

When people talk about their favorite trees, they’re usually talking about rootedness. That is, belonging somewhere. Being home in the place where you and your people feel at best. Having a way marker or a commemoration. For one woman, those cherished roots belong to a fir tree on Mount Vernon Street, on the northern boundary of Highland Park. Her three boys knew it as “the climbing tree” when they were young, then as a popular stop on family Christmas-time scavenger hunts when they got a little older. “When my mother died, friends gathered a donation for Highland Conservatory to dedicate (it in) her name,” the woman wrote to me. “The plaque has long since disappeared but the tree remains.” More than 100 people responded to my call a few months ago for their favorite tree in Rochester, a project I’m calling Tree Stories. Those responses are presented below, organized by city quadrant with Highland Park in its own category. It’s not too late to add your favorite tree, by the way. Fill out the form here…

Terre Haute, Indiana, Tribune-Star, August 1, 2022: Suspicious fire damages Greencastle Road tree

The resilience of a century-plus-old oak tree has been severely tested this summer. The historic tree in the middle of Greencastle Road in northeastern Vigo County caught fire Saturday night. County officials also suspect the fire was purposely set. Nonetheless, the bur oak may survive the damage. Vigo County Commissioner Brendan Kearns said county highway superintendent Bob James inspected the tree Monday. “In his opinion, we’re looking pretty good,” Kearns said of the tree’s potential to survive the fire. Two units from the Nevins Township Volunteer Fire Department responded to a 6:17 p.m. call Saturday and found the tree ablaze. “It was on fire. There were flames going up that whole side,” Nevins VFD Chief Cory Roberts said Monday morning. The crews also saw dark, scorched areas on the tree…

Interesting Engineering, August 1, 2022: A breakthrough technology shoots laser beams at trees from ISS

The Food and Agricultural Organization (FAO) of the United Nations is building new digital tools to help fight deforestation and climate change. One of these is the FAO’s Framework for Ecosystem Monitoring (FERM) website, which uses satellite images to highlight the negative impact on forests worldwide. Launched last year, the website’s maps and data are accessible to the public. One of the primary sources for the Ferm website is NASA’s Global Ecosystem Dynamics Investigation (GEDI) system. NASA’s GEDI is pronounced like the word Jedi from Star Wars, and its tagline is “may the forest be with you”. The technology certainly lives up to its sci-fi namesake. The GEDI system is perched aboard the International Space Station (ISS), and it shoots laser beams at trees from the orbital laboratory. In an interview with the BBC, Laura Duncanson, one of the leaders of the Gedi project from the University of Maryland’s Department of Geographical Sciences, said, “we use the reflected energy to map forests in 3D, including their height, canopy density, and carbon content. This is an exciting new technology because for decades we have been able to observe deforestation from space, but now with GEDI, we can assign the carbon emissions associated with forest loss [for greater accuracy]…”

San Francisco, California, SFGate.com, July 30, 2022: Redwood National and State Parks will no longer let you hike to Hyperion, the world’s tallest tree

The area around Hyperion, a massive coast redwood known for being the tallest tree in the world, has been closed indefinitely due to damage to the forest caused by trampling visitors. The 380-foot tree is located deep within Redwood National Park and, despite not being accessible by any trail, has attracted scores of visitors since its height was “discovered” in 2006. According to the National Park Service, tree enthusiasts who have bushwhacked off-trail into dense vegetation to reach Hyperion’s base have caused enough habitat destruction to warrant the closure of the entire area, plus a $5,000 fine and potential jail time for those who decide to make the trip anyway. “The usage was having an impact on the vegetation and potentially the root system of the very tree that people are going there to visit,” said Leonel Arguello, the park’s Chief of Natural Resources. “There was trash, and people were creating even more side trails to use the bathroom. They leave used toilet paper and human waste – it’s not a good thing, not a good scene.” According to the park service’s website, visitors have caused some degradation to Hyperion’s base, and ferns no longer grow around the tree due to stepping and trampling. The hike to the tree is also particularly hazardous, since it is completely off-trail and located in an area without any cell phone reception and barely any GPS coverage…

Baton Rouge, Louisiana, Advocate, August 1, 2022: The most common tree in East Baton Rouge? One type stands out among 63,000 counted so far

For most of the past decade, crews from Baton Rouge Green have canvassed city streets and parish roads and, one-by-one, counted trees. It turns out the common crape myrtle is pretty common after all. While the nonprofit group was formed 35 years ago to be a steward of the city-parish’s trees, it was just eight years ago that it started an inventory program to simply count and identify trees in public spaces. As of last week, they had counted 63,000, and fully a third of them are listed in an online database as “common crapemyrtle” — 2,543 large, 2,873 small and 17,028 medium. “By the end of the year, over 70,000 trees will have been inventoried a single time,” said Christopher Cooper, program manager with Baton Rouge Green. “We inventory 10,000 additional trees every year…”

CBS News, July 27, 2022: Man tied to tree by locals to hold for police after allegedly setting brushfires

A man who reportedly ignited wildfires in a remote, forested corner of Oregon was apprehended by three local residents and tied to a tree until police arrived, a sheriff said Tuesday. Federal, state and county authorities responded to a radio call Monday from a U.S. Bureau of Land Management employee who reported a man was walking along a gravel road and setting fires, in the forest some 25 miles northwest of Grants Pass. Ground crews, assisted by local residents, and three helicopters quickly got the two fires under control, Curry County Sheriff John Ward said. Meanwhile, three local residents located the suspect walking on the road near the fires and detained him. “It was reported that the suspect became very combative with the three residents and had to be tied to a tree to subdue him.,” Ward said in a statement. “An ambulance crew was asked to respond due to some injuries that the suspect apparently received from falling down. After being treated at a hospital for his injuries, Trennon Smith, 30, of Veneta, Oregon, was being held on Tuesday in the Curry County jail on charges of arson and reckless burning, Ward said. Court documents did not say if he has an attorney. Bond was set at $100,000…

Little Rock, Arkansas, Democrat Gazette, August 1, 2022: Trees in midst of drought need aid

With Arkansas’ prolonged drought taking a toll on trees across the state, now is the time for homeowners to lend some extra attention to their trees that may be in distress. “People have been calling about their trees losing leaves or starting to get their fall colors way too early, or the bark cracking,” said Krista Quinn, a certified arborist and an agricultural agent with the Cooperative Extension Service’s Faulkner County office, part of the University of Arkansas System Division of Agriculture. “These are all signs of drought distress,” Quinn said. The prolonged lack of rain and high temperatures across Arkansas has depleted moisture from the soil in many areas. “The two best things we can do to minimize drought damage to trees is to water them and lightly mulch them,” Quinn said. “Watering and mulching trees now may not be enough to get them to produce new leaves or start growing again this season, but it can minimize damage and make them better able to withstand other environmental and pest pressures during the coming year.” Older trees require hundreds of gallons of water over a week, but their root systems can tap into deeper water sources that younger trees cannot access. Younger trees, especially those in harsh urban conditions, need extra care…

New York City, WNBC-TV, July 25, 2022: Biden Admin to Plant More Trees as Climate Change Kills Off Forests

The Biden administration on Monday announced plans to replant trees on millions of acres of burned and dead woodlands as officials struggle to counter the increasing toll on the nation’s forests from wildfires, insects and other manifestations of climate change. Destructive fires in recent years that burned too hot for forests to quickly regrow have far outpaced the government’s capacity to replant trees. That’s created a backlog of 4.1 million acres (1.7 million hectares) in need of replanting, officials said. The U.S. Agriculture Department said it will have to quadruple the number of tree seedlings produced by nurseries to get through the backlog and meet future needs. That comes after Congress last year passed bipartisan legislation directing the Forest Service to plant 1.2 billion trees over the next decade and after President Joe Biden in April ordered the agency to make the nation’s forests more resilient as the globe gets hotter. Much of the administration’s broader agenda to tackle climate change remains stalled amid disagreement in Congress, where Democrats hold a razor-thin majority. That’s left officials to pursue a more piecemeal approach with incremental measures such as Monday’s announcement, while the administration considers whether to declare a climate emergency that could open the door to more aggressive executive branch actions…

Newsweek, July 28, 2022: Young Girl Crushed After Tree Collapses on Tent During Camping Trip

A 7-year-old girl was killed after a tree fell on her family’s tent on Wednesday in Tennessee, according to park officials. The girl was camping with her family at Great Smoky Mountains National Park at the Elkmont Campground when she was crushed by a large red maple tree that was around 2 feet in diameter, the park said in a news release. Park rangers responded to a call about the incident at 12:03 a.m. Wednesday. The Gatlinburg Fire Department and Gatlinburg Police Department were also sent to the scene at Elkmont Campground. The father and two siblings were unharmed, per officials. No details were revealed about what caused the tree to fall…

The Atlantic, July 25, 2022: Trees are Overrated

Once upon a time, not a blade of grass could be found on this planet we call home. There were no verdant meadows, no golden prairies, no sunbaked savannas, and certainly no lawns. Only in the past 80 million years—long after the appearance of mosses, trees, and flowers—did the first shoots of grass emerge. We know this in part because a dinosaur ate some, and its fossilized poop forever memorialized the plant’s arrival. Grass then was still an odd little weed, vying for a spot on the forest floor. It took ages for grasses to grow in numbers that might constitute a grassland. And grasslands only started to occupy serious real estate in the past 10 million years—basically yesterday. They now cover roughly one-third of Earth’s land area. We humans arrived in the midst of grass’s heyday, and it is doubtful we would exist otherwise. Homo sapiens evolved in and around the savannas of Africa, then spread around the world, often following grassy corridors. With the invention of agriculture, many societies fed themselves on domesticated grasses like wheat and corn, and on livestock that turned wild grasses into edible protein. We are, many of us, grass people…

Newport, Rhode Island, Daily News, July 26, 2022: A new disease in Newport is killing beech trees. Here’s what’s being done to combat it.

A new pathogen, discovered in Ohio 10 years ago, has made its arrival in Newport and poses a serious threat to the city’s finest collection of trees, its beloved beeches. According to a press release from the Newport Tree Conservancy, the disease, a microscopic foliar nematode called litylenchus crenatae ssp. mccannii has quickly established itself and is associated with beech leaf disease. BLD was discovered in western Rhode Island in 2020, where it has wreaked havoc on wild American beech trees. From there, it has spread throughout the state, including Newport, where trees in the city’s public parks and private properties are showing infection. The disease can be identified as prominent banding in between the leaf veins. Advanced symptoms show foliage taking on a crinkled leathery texture, shriveling up and appearing deformed. Along with American beech, all European beech varieties are susceptible, with certain cultivars possibly more susceptible, according to the press release…

Salem, Oregon, Statesman Journal, July 19, 2022: Extinction-level threat: Invasive beetle expected to decimate Oregon ash trees

Dominic Maze, a City of Portland biologist, discovered on June 30 that Oregon is facing an impending ecological disaster. Sitting on his truck tailgate and waiting for his kids to finish a day of summer camp at a Forest Grove school, he saw a row of ash trees that all looked to be dying. It was enough to give him a sinking feeling, which a closer look confirmed. “I immediately saw the classic D-shaped exit hole. Then I knew it. I knew it’s got to be emerald ash borer,” Maze said. Emerald ash borer, often abbreviated as EAB, is an invasive beetle that has decimated North American populations of ash trees over the last 20 years. Previously undiscovered in Oregon, Maze’s son that day found the first living specimen. “I said, ‘Can you guys keep an eye out for a shiny, pretty green beetle?’ And right after I said that, my son said, ‘There’s one on my hand,’ which there was and it flew off,” Maze said. “I then could see adult beetle flying around the crowns of these trees and taking off. They’d emerged and they were shooting off into the distance to start looking for new ash.” The doomsday clock is ticking for Oregon’s ash trees. “I truly felt nauseated,” Maze said. “We’re looking at, basically, a functional extinction of Oregon ash on the landscape…”

San Francisco, California, Chronicle, July 16, 2022: California is desperate to stop mega-fires. But controversy rages over tree thinning

Firefighters in Yosemite National Park have been celebrated for preventing this month’s Washburn Fire from destroying the nearly 3,000-year-old giant sequoias at Mariposa Grove. But it wasn’t just hand tools and hose lines that kept the fire at bay. Past forestry projects, which slashed the amount of brush and trees fueling the flames, made the job much easier, park officials say. And yet, the topic of forest management remains a fraught one in California, especially in Yosemite. While practices such as tree thinning and prescribed burning have proved effective at reducing the risk of a catastrophic fire, disagreement remains about when and where the work should be done. Some people even say the effort is often not worthwhile and at times counterproductive. A recent lawsuit from an environmental group in Berkeley shut down fire prevention projects in Yosemite Valley and other parts of the park this summer; the group says forests are being destroyed with little or no safety benefit. “Like wildfires themselves, the debate about treatments is perennial,” said Char Miller, a professor of environmental analysis and history at Pomona College in Southern California who studies fire. “There are all sorts of arguments and concerns, some of which have nothing to do with fire and everything to do with whacking (forest managers) from the right or the left. And this isn’t getting us closer to resolving in specific ways the threats on the ground…”

London, UK, The Sun, July 19, 2022: My neighbour has cut down LOADS of my tree… they might be allowed to trim it but they’ve taken it too far – I’m fuming

IT’S arguably one of the biggest things that neighbours row about. But one woman has been left fuming after her next door neighbour went a bit too far while trimming the overhanging branches on her tree. A woman has taken to Mumsnet to complain after her neighbour cut down tonnes of her trees.
While she acknowledged that her neighbour has a right to trim the tree, she thinks they took it too far. In a post on Mumsnet, the woman wrote: “Neighbour has cut my tree… a lot!” She added: “How much is usual? I know they can trim overhanging branches, (but) they’ve gone right to the top of the tree.” However, while the woman – who also added a picture of the newly-trimmed tree – was incensed about the situation, others insisted it was the neighbour’s right to cut back anything overhanging. “Looks like they’ve just done the bits that overhang. They can cut it,” one wrote. Another added: “The trouble is, assuming all of the cut part overhung their garden, that the tree is too close to the boundary.” “Looks reasonable to me, they’ve taken off what they didn’t want on their side,” a third wrote. While someone else weighed in: “They can cut back anything that is over-hanging their boundary…

Chicago, Illinois, Tribune, July 17, 2022: Why grass struggles under trees, and what to plant there instead

A tree surrounded by green lawn is a pretty picture for many people, but it’s hard to achieve — and tough on the tree. “Turf grass and trees don’t go together well,” said Stephanie Adams, a plant pathologist at The Morton Arboretum in Lisle. “It’s not a good situation for either of them.” In the shade of a tree, where it doesn’t get enough sunlight, grass will usually struggle, becoming patchy and bare. “Grasses are full-sun plants,” Adams said. They are native to open grasslands, such as the steppes of Central Asia, where they evolved to grow in full sunlight with no shade. Most lawn grass needs six to eight hours of sunlight every day. Although some fescue grass species included in seed mixtures labeled for deep shade can get along on as little as two hours, the grasses typically used in American lawns will not thrive in the shade of a mature tree. Where grass is planted under trees, it can also cause problems for the tree. “Turf grass has a mat of shallow, dense roots that intercepts water, nutrients and air,” Adams said…

Case of the Day – Wednesday, August 3, 2022

NINE-TENTHS OF THE LAW

The old (and not necessarily flawed) legal aphorism goes something like “possession is nine-tenths of the law.” In the world of Federal Tort Claims Act litigation, the expressions would just as accurately read “discretion is nine-tenths of the law.”

Yesterday, we discussed the Federal Tort Claims Act, and its function as a waiver of sovereign immunity to permit suit against the United States for some kinds of claims.

What we did not tell you yesterday is that there are some exceptions you should know about. If a federal law enforcement agent seizes all of your stuff and then destroys it? Tough luck, fella. If the Postal Service loses your mail? You can guess. A surly Social Security Administration clerk punches you when you complain that you got shorted on your check? Pound sand. Don’t believe it? Read Title 28, U.S. Code, Section 2680(a).

Of all the exceptions, the one hardest to fathom (and easiest for the government to game us with) is the first exception. A district court has no jurisdiction (which means it cannot hear your lawsuit) over claims “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government.” 28 U.S.C. § 2680(a).

Some of this makes sense. The government decided not to build a dam on a river above your town. That does not mean the government is liable for the next flood. The government-run control tower at an airport closes at 10 p.m. The government is not liable for a collision on the runway at midnight.

But some of it may not. In today’s case, the U.S. Geological Survey constructed a “cableway” – a cable strung over a wild and scenic river in Arizona for the purpose of accessing a “streamgage” station, a series of devices used to measure river flow, temperature, turbidity and water level. When a helicopter struck the naked and unmarked cable, killing everyone on board, the survivors sued the USGS under the FTCA for negligence in failing to mark an obvious danger. After all, the USGS had had aircraft strike its cableways before. You’d think the agency would know better.

The Court of Appeals, however, affirmed that the USGS’s failure to mark the cable fell “squarely in this discretionary function exception.” With no evident sense of irony, the Court warned that the “invocation of the discretionary function doctrine in cases involving public safety should not be read as giving the government a pass every time it raises the exception.” Judging from this case, it is difficult to accept the Court’s admonition at face value.

Perry v. United States (In re Morales), 895 F.3d 708, 710 (9th Cir. 2018). The U.S. Geological Survey is a federal agency responsible for collecting scientific information about the “geological structure, mineral resources, and products of the national domain.” As part of its duties, USGS collects streamflow data and water quality samples to predict floods, manage drinking water, evaluate water quality standards, aid in the preservation of aquatic habitats, and investigate streamflow history and climate change. This information is collected through “streamgage” sites that include a continuously functioning measuring device that collects the mean daily streamflow in a particular watercourse. When a streamgage site is installed in a location without a bridge, USGS generally builds a cableway — a cable car suspended from a wire rope—to provide USGS personnel with safe access to the site.

In 1934, USGS installed a streamgage site and cableway over the Verde River Canyon in Prescott National Forest, Arizona. USGS has operated the streamgage site since 1932. The cable stretched 286 feet across the canyon at a height of 40 feet above the river. Despite the cable being virtually invisible from 100 feet or more away, or to aircraft flying at the same height, USGS did not mark the cableway or add warning signs because the cable did not meet the criteria for marking under USGS policy.

Since 1980, USGS has modified its policy on marking several times, often in response to accidents involving cableways. In each case, however, it adopted Federal Aviation Administration standards for marking obstructions to airspace. The FAA regs required marking of objects more than 200 feet above the ground (“AGL”), and suggested that marking of cableways should be considered if they are hazardous to low-flying aircraft. USGS District offices were directed “to review all… cableway installations and decide which may be hazardous to low-flying aircraft,” and to develop “[a] plan… to install markers on those cableways designated as potentially hazardous.”

After an aircraft struck an unmarked cableway in 1995, USGS considered “a broad policy to require the marking of all cableways,” but ultimately decided against it after consulting with an FAA Air Specialist, who reviewed photographs and aeronautical charts for a subset of cableways and recommended against marking them because none met the FAA criteria for marking obstructions. The expert recommended against marking any USGS cableways that did not meet the FAA criteria.

USGS later issued Memorandum No. 2000.13, which recognized that “Congress has charged the FAA with the responsibility to promote the safety of aircraft and the efficient use of navigable airspace,” and repeated USGS’s policy that structures over 200 feet AGL “should normally be marked,” but specified nothing for cableways under 200 feet AGL. In 2008, USGS issued a policy manual — Survey Manual, No. SM 445-2-H (the “2008 Survey Manual’’) — that was functionally the same as the 2000 Memorandum. The 2008 Survey Manual repeated that it was USGS policy to comply with the FAA’s obstruction marking regulations.

Even though the default policy was not to mark cableways under 200 feet, USGS also considered site-specific and other factors to determine whether to mark cableways that did not meet FAA criteria. The specific considerations relevant to the Verde River cableway included the absence of any prior accidents; the cost of installation; the physical risk to employees installing markers; the risk of confusion to pilots who expect to see markings at higher heights; the likelihood of vandalism by marksmen and accompanying economic and safety concerns; and the United States Forest Service’s scenic integrity objectives to “minimize or eliminate visual distractions” in the area given the Verde River’s designation as a “Wild and Scenic River.”

In June 2012, a helicopter flown by Raymond Perry crashed in the Prescott National Forest, killing Perry and his three passengers. The chopper struck the unmarked cableway suspended forty feet above the Verde River by USGS as part of its cableway. Although the cable was virtually invisible to aircraft pilots, USGS placed no markers or warning signs out because the unmarked cableway complied with the FAA obstruction regulations.

Following the accident, Perry’s estate sued, claiming that USGS was negligent for failing to mark the cable. The district court held that the decision not to mark the cable was a discretionary function of USGS, and thus exempt from the Federal tort Claim Act. It thus held it lacked subject matter jurisdiction and dismissed the lawsuit.

Perry’s estate appealed.

Held: USGS was exempt from liability because its decision not to mark the cableway was a discretionary function of the agency.

The FTCA waives the government’s sovereign immunity for tort claims arising out of negligent conduct of government employees and agencies acting within the scope of their duties, allowing a plaintiff to sue the government “under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” If there is no waiver of sovereign immunity through the FTCA, the district court lacks subject matter jurisdiction and the case must be dismissed.

One exception to the broad waiver of sovereign immunity under the FTCA is called the discretionary function exception. That exception provides immunity from suit for any claim “…based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” The purpose of the exception is to prevent “judicial ‘second guessing’ of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.”

There is a two-step process to determine applicability of the exception. First, a court must decide whether the act is “discretionary in nature,” which necessarily involves an element of judgment or choice. The “judgment or choice” requirement is not met where a “federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow.” If a statute or policy directs mandatory and specific action, the inquiry comes to an end: there can be no element of discretion when an employee has no rightful option but to adhere to the directive.

If discretion is involved, then a court must consider whether the discretion “is of the kind that the discretionary function exception was designed to shield” — that is, governmental actions and decisions grounded in social, economic, and political policy. The focus is on whether the actions are “susceptible to a policy analysis,” not whether the government actually took such public policy judgments into consideration when making the decision.

No federal statute, regulation, or policy specifically prescribed the marking of the Verde River cableway. Instead, the decision whether to mark the cableway was a result of considered judgment and choice. The Verde River cableway fell within USGS’s default policy not to mark cableways that did not meet the FAA’s 200-feet AGL criteria. Nor did the cableway trigger any of the verification requirements set forth in the 2008 Survey Manual and 2000 Memorandum, which only applied to cableways exceeding 200 feet AGL that were not marked.

Thus, there was no mandatory directive within USGS’s policies to mark the cable. That USGS policy let its personnel consider s specific factors which necessarily varied by site “highlights that judgment was involved in the decision.” This is not an instance, the Court said, “in which USGS’s policy identified site-specific considerations that mandated marking. No such guidance was provided in any USGS policy, so USGS employees were left to exercise their judgment when deciding whether to mark a particular site.”

Although its policy directed personnel “to review” all cableways, “decide which may be hazardous,” and develop a plan to install markers at those sites, USGS’s language cannot be construed as a “mandatory and specific” directive to mark the Verde River cableway. Rather, the policy left employees with a discretionary choice about which cableways were hazardous and which should be marked.

What’s more, the Court held, USGS’s decision is susceptible to policy analysis grounded in social, economic, and political concerns. USGS’s decision to defer to the FAA as the agency charged with “the responsibility to promote the safety of aircraft and the efficient use of navigable airspace”’ is grounded in social, economic, and political policy. USGS recognized the FAA’s role and expertise in regulating navigable airspace and affirmatively decided to defer to the agency’s standards with respect to marking.

Verde River

As well, USGS’s decision was susceptible to a number of additional social, economic, and political considerations. There were competing safety concerns, such as the risk of confusing pilots “who expect to see obstruction markers only at higher levels,” and the risk to USGS personnel tasked with installation or maintenance of the markers. Economic factors were also considered, such as the cost of installation and maintenance of the markers, particularly given the likelihood of vandalism. USGS also knew of USFS’s objective to minimize visual distractions to meet “scenic integrity objectives” given the Verde River’s designation as a “Wild and Scenic River’ and bald eagle nesting area.

“All of these considerations,” the Court ruled, “embody the type of policy concerns that the discretionary function exception is designed to protect, reflecting that USGS’s decision was based on competing policy considerations related to safety to aircraft, safety to USGS personnel, financial burden, protection of scenic integrity, and respect to the objectives of land-management agencies.”

The Court refused Perry’s argument that the government ought not to be allowed to invoke the discretionary function exception whenever a decision involves considerations of public safety. Such a “sweeping exemption would severely undermine the discretionary function exception and is unsupported by our precedent,” the Court held. “In case after case, we have considered the government’s balancing of public safety with a multitude of other factors.” Here, USGS’s decision not to mark the cableway was “actually susceptible to policy analysis, including deference to another agency’s expertise, competing safety interests, financial burden, and the effect on scenic integrity.”

The Court warned that its “invocation of the discretionary function doctrine in cases involving public safety should not be read as giving the government a pass every time it raises the exception. We emphasize that the government bears the burden of sustaining the discretionary function exception and that the record must bear the weight of that burden.”

– Tom Root

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Case of the Day – Tuesday, August 2, 2022

UNCOMMONLY COMMON

It’s good to be the king

Suing the government is a daunting task. Besides the fact that the government has more lawyers than you do (about 32,000, plus or minus), the government makes the rules about when you can sue and when you’re out of luck. Never bet against the house.

The doctrine that lets Uncle Sugar rig the game is called “sovereign immunity,” and holds, simply enough, that you can’t sue the king. Dating from medieval times, when there actually was a king not to sue, that particular kind of immunity has spilled over to present-day America. You cannot sue the government – federal, state or local – without the government’s permission to do so.

Who’s crazy enough to give you permission to sue them? The government, of course. In federal law, permission to sue for a tort (such as negligence) is enshrined in the Federal Tort Claims Act. The FTCA grants the district courts jurisdiction to hear negligence and some other tort cases against government agencies and officials.

Some but not all. What we are particularly interested in today is the intersection between the FTCA and state recreational use statutes. Recreational use statutes, of course, are laws passed in virtually every state that afford landowners protection from liability when they make their property available without charge to the general public for recreational activity.

Even if you successfully bring an FTCA action, you still have to hold the government to the negligence law of the state in which the act occurred. Today’s case, just handed down by the U.S. Court of Appeals for the 8th Circuit, is in all likelihood the final act of a tragedy that began with a slow-moving summer storm in 2010 that cause unprecedented flooding at a U.S. Forest Service campground in the Ouachita National Forest of Arkansas. Twenty campers were killed, and in subsequent litigation, it developed that the forest ranger in charge had exerted his influence to ram through construction of an improved campground in a floodplain, contrary to the advice of one expert.

Even that was not enough to hold the government liable, because the Arkansas Recreational Use Statute contained enough of a loophole to get Uncle Sam off the hook. The question was whether the activity – which initially seems like simple camping – was common or uncommon. The Court narrowed the definition of the activity, but still found that it was common enough that the Forest Service’s failings were merely negligent (against which it was immune) rather than ultra-hazardous.

That did not save the campgrounds, however. The aftermath of the tragedy (and the lawsuits it spawned) left the campground closed and in ruins. While the Albert Pike Recreation Area itself remains open, the campgrounds are still abandoned. Ironically, flood warnings – which the experts had recommended but the Forest Service failed to post before the flood – are prominent now.

Moss v. United States, 895 F.3d 1091 (8th Circuit U.S. Ct.App., July 20, 2018): Albert Pike Recreation Area is a large outdoor camping and recreation site. Winding through the site is the Little Missouri River, which gives visitors the opportunity to engage in popular recreational activities including fishing, canoeing, and swimming. The site also contains 54 campsites placed over four loops, Loops A, B, C, and D. In 2010, campers paid $10.00 for an overnight campsite in Loops A, B, or C, and $16.00 for a site in Loop D. Loop D’s higher cost was due to its campsites including electrical and water hookups for RVs.

The Loop D campsites were constructed as part of a renovation and expansion project for Albert Pike launched in 2001, which spent over $600,000 to renovate sites in Loop C and to build Loop D campsites. The redevelopment project was headed by District Ranger James Watson.

As part of the environmental assessment, Ranger Watson hired two “watershed specialists,” soil scientist Ken Luckow and hydrologist Alan Clingenpeel.

Luckow prepared an initial report that concluded that “most of the area where the new campsites are proposed… should be considered as being within the 100-year floodplain.” He recommended that any campsite in Loop D should not include electrical or water hookups and that signs warning of a flooding hazard be posted.

But Ranger Watson wanted to build developed campsites within Loop D, because that was what had been promised to get the funding, and thus was expected by the public due to the marketing campaign that had gone on. The Ranger, therefore, took hydrologist Clingenpeel to the planned site for Loop D and asked him whether he believed the proposed campsite would fall within the 100-year floodplain. Clingenpeel visually estimated the floodplain using the “double bankfull” method (which he himself described as only a “quick estimate” of the floodplain), and told Ranger Watson it was unlikely there would be flooding issues if all renovations took place above the sighted floodplain.

The environmental assessment partially included Luckow’s floodplain analysis, but ultimately contradicted Luckow with Clingenpeel’s conclusion that the proposed Loop D campsites would not fall within the 100-year floodplain. Despite the conclusion, the environmental assessment still recommended posting signs to warn of flash floods. The Forest Service approved the project, including building developed campsites within Loop D. The decision notice made no reference to the floodplain or the need to place signs.

Loop D opened for campers in 2004, experiencing occasional minor flooding concerns for different campsites. Of ten flooding events in Albert Pike between 1940 and 2010, none inflicted any reported injuries and only one occurred near Loop D.

That changed on June 11, 2010. A strong storm system moved slowly toward Albert Pike Recreation Area, resulting in flash flood conditions on the Little Missouri River. By the time flooding was apparent, many campers were asleep at their campsites. Many of those who were awake decided to wait out the storm out in their vehicles. As the water continued to rise, some campers realized that their vehicles might be at risk from the flood and attempted to move to higher ground. Several families sought refuge in nearby trees.

Over the course of the next several hours, catastrophic flooding claimed the lives of 20 campers. Seventeen of the campers who died were camping in Loop D, with the other three just upstream. A U.S. Geological Survey expert described the flood’s intensity as exceeding a “500-year flood event.”

The plaintiffs in this case filed claims under the Federal Tort Claims Act, claiming negligence in the development and maintenance of the Loop D campsites. The government moved to dismiss, claiming the Forest Service was entitled to immunity under the Arkansas Recreational Use Statute, thus depriving the district court of jurisdiction under the terms of the FTCA.

The plaintiffs appealed.

Held: Because the Forest Service was not liable under ARUS, the district court had no jurisdiction to hear the case.

The FTCA prohibits suing the government except in limited circumstances. Unless the suit falls within one of the exceptions, the Federal district court lacks the jurisdiction to even hear the case. Among other provisions, the FTCA provides that the government is entitled to the benefit of the state recreational use statute in the state where the lawsuit arose, if there is such a statute on the books.

The FTCA confers subject matter jurisdiction on federal courts for suits against the government in “circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” Because the FTCA removes immunity from the United States only in such circumstances, the Court said, the issue became whether a private landowner who had designed and built Loop D would be immune from suit under the ARUS.

The purpose of the ARUS is “to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting their liability toward persons entering thereon for such purposes.” Ark. Code. Ann. § 18-11-301 (2016). Generally, the ARUS provides immunity from liability to landowners who make their property available for the recreational use of others, with two exceptions: (1) when the landowner charges the person entering the land for recreational use; and (2) “when the landowner maliciously fails to guard or warn against an ultra-hazardous condition, structure, use, or activity actually known to the landowner to be dangerous.”

The ARUS generally does not provide immunity for injury suffered in any case in which the landowner charges admission to people who go on the land for recreational use. The statute defines a “charge” as an “admission fee for permission to go upon or use the land.” Ark. Code Ann. § 18-11-302(2) (2016). The parties disputed whether the $16.00 fee to secure a campsite in Loop D is an “admission fee” that “charged” the plaintiffs for their recreational use of Loop D, with the government arguing that other states usually interpreted their recreational use statutes to exclude campsite rental fees from qualifying as “admission” fees.

The Court cautioned that “the interpretation of the various recreational use statutes is controlled by the precise language of each statute,” and observed that the Arkansas Supreme Court has suggested that the ARUS should be construed strictly to avoid an overbroad grant of immunity. Nevertheless, the Court of Appeals said, “even construing the ARUS strictly, however, the Loop D campsite fee does not qualify as an ‘admission fee’ under the statute. The plaintiffs argued they were injured while camping — the exact activity for which they paid the use fee. But the ARUS, by its plain terms, removes immunity only when a fee 1s charged to enter a particular area.” The $16.00 overnight campsite fee was charged solely for access to particular campsite services. Campers who didn’t pay the fee could still access Loop D. Thus, the Court held, “under the plain language of the statute, the charge exception does not apply to the Loop D fees.”

The ARUS’s other exception denies immunity “for malicious, but not mere negligent, failure to guard or warn against an ultra-hazardous condition, structure, personal property, use, or activity actually known to the owner to be dangerous.” Ark. Code Ann. § 18-11-307(1). An activity is ultra-hazardous if it “necessarily involves a risk of serious harm to the person or [property] of others that cannot be eliminated by the exercise of the utmost care” and “is not a matter of common usage.”

The trick, the Court said, was to properly define the activity. On the one hand, describing the activity as merely “camping” would make it a “matter of common usage” but would not take into account relevant distinguishing characteristics. On the other hand, describing an activity as “camping on June 11, 2010, at a particular time and location in Ouachita National Forest,” would make the activity “uncommon” simply because it “is not precisely the same as its close relatives.” The Court observed that Arkansas law indicated the appropriate level of generality should take into account “some particularizing factors, such as distinct and appreciable risks that might arise from engaging in an activity in a specific area.” Thus, the Court concluded the activity at issue here was “camping in a 100-year floodplain.” This description appropriately pegs the definition to the knowledge that plaintiffs suggest the government should have had regarding “the danger posed by a 100-year floodplain without including non-salient attributes of the tragedy.”

Camping within a 100-year floodplain is not an uncommon recreational activity in Arkansas. Camping near water poses some risks, but campers, fishermen, and other outdoorsmen frequently do so, even when it places them within 100-year floodplains. Because the activity is a “matter of common usage,” the Court said, “ARUS’s immunity would extend to a private landowner facing this claim.” And because a private landowner would be immune under the ARUS, there is no jurisdiction under the FTCA for plaintiffs’ claims against the United States.”

– Tom Root

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