Case of the Day – Monday, September 16, 2019

WHO YOU GONNA CALL?

So who you gonna call?

    So who you gonna call?

It’s not easy to defeat a utility company holding an easement for transmission lines, despite the facts that the power outage that spawned the Energy Policy Act of 2005 and turbocharged the North American Electric Reliability Corporation happened 16 years ago. The great Blackout of August 2003, after all, started primarily when power lines sagged into trees in the Cleveland, Ohio, area.

Yeah, it’s tough to beat the power company and its chainsaw-wielding minions … but the Corrigans did it for awhile. They had granted an easement to a Cleveland electric utility for a transmission line. In the wake of the blackout, the utility told the Corrigans (and thousands of others) that it would vigorously pursue cleaning up vegetation in the easements. This mean, among other things, no trees within 25 feet of the lines.

The Corrigans had a big silver maple that was about 22.5 feet from the lines. They loved that tree, so they hired an arborist at considerable expense to trim it away from the lines and to inject the tree with a hormone to slow growth. Tough luck, the utility said, it’s coming down anyway.

So who do you call when the power company shows up with chainsaws and a gleam in its institutional eye? The Corrigans raced to the local common pleas court, and asked for an injunction. The trial judge agreed, and the Court of Appeals concurred. Both of those courts sided with the Corrigans that the utility could only cut trees that were “a possible threat to the transmission lines.”

It seemed important to the Court of Appeals that the community had not experienced any service interruptions since the Corrigans had pruned the tree, although that reasoning’s pretty thin. The tree has to only fall once, cascading one failed transmission lines into a continental disaster. But the Court seems to have been favorably impressed by the amount of money the Corrigans had spent getting the tree professionally trimmed.

utilitytrim140515The utility saw an issue here that was bigger than just the Corrigans and their lone silver maple tree. It framed the question as being just who was in charge here, the 88-odd common pleas courts spread throughout Ohio or the public utilities commission. The Ohio Supreme Court agreed that this was indeed the issue, and ruled that the inclusiveness of the state statute and regulations delegating power to the Public Utilities Commission of Ohio gave PUCO the sole authority to decide questions of vegetation management. (Ohioans spell out the acronym “P-U-C-O”: please don’t try to pronounce it as a though it were a word).

We have to admit that the appellate decision had left us with the uneasy feeling that the Court of Appeals’ attempt to do some rump justice here may have made it much more difficult for a utility to exercise its easement rights. To be sure, a utility being sued in a case like this would have to be prepared with an expensive and eye-popping case that graphically depicts the dangers that a tree in the transmission path — even a well cared-for tree — can pose.

The Ohio Supreme Court’s holding provides electric utilities a much friendlier forum in which they must litigate issues of vegetation management, although that may not be a bad thing. Utilities have to walk a fine line, incurring ire if property owners think trees were pruned too aggressively, and facing universal fury (not to mention catastrophe) when service is interrupted by vegetation coming into contact with transmission and distribution lines.

Corrigan v. Illuminating Co., 122 Ohio St.3d 265 (Sup.Ct. Ohio 2009). The Corrigans granted a quitclaim deed to The Illuminating Company, the local electric utility, for a transmission line to run through their yard. The easement gave the Illuminating Company the right to “enter upon the right-of-way occupied by said transmission lines … with full authority to cut and remove any trees, shrubs, or other obstructions upon the above described property which may interfere or threaten to interfere with the construction, operation and maintenance of said transmission lines.” The Corrigans had a large silver maple tree located about 22.5 feet from the centerline of the transmission lines. At considerable expense, they had their own arborist trim the tree and inject slow-growth hormone to keep the tree from posing a risk to the transmission line. Nevertheless, the Illuminating Company decided to remove the tree, and the Corrigans sued for an injunction.

The trial court granted an injunction barring the Illuminating Company from removing the tree, and the Court of Appeals agreed. The electric utility, seeing the issue as one that transcended the issue of one tree, but rather affected the company’s ability to manage vegetation in its rights-of-way throughout the state.

Held: The Corrigans argued that the issue was purely a contract matter, but the Supreme Court disagreed. Noting that “[t]here is no question that the company has a valid easement and that the tree is within the easement” and the easement’s language was unambiguous that the utility had the right to remove trees that might interfere with its transmission lines, the Court said the issue was the correctness of “the company’s decision to remove the tree instead of pruning it.” That was “really an attack on the company’s vegetation-management plan [and] that type of complaint is a service-related issue[] which is within PUCO’s exclusive jurisdiction.”

The statute creating PUCO to administer and enforce these provisions provides that the commission hears complaints filed against public utilities alleging that “any regulation, measurement, or practice affecting or relating to any service furnished by the public utility, or in connection with such service, is, or will be, in any respect unreasonable, unjust, insufficient, unjustly discriminatory, or unjustly preferential.” This jurisdiction is “so complete, comprehensive and adequate as to warrant the conclusion that it is likewise exclusive.”

The Court used a two-part test to reach its determination. First, it asked whether the commission’s administrative expertise was required to resolve the issue in dispute, and, second, whether the act complained of constituted a practice normally authorized by the utility.

rules140515The Ohio Administrative Code chapter on electric service and safety standards requires that utility companies establish a right-of-way vegetation-control program to maintain safe and reliable service. The Code requires that each electric utility inspect its electric-transmission facilities (circuits and equipment) at least once every year, in accordance with written programs, and takes a number of factors into consideration such as arcing, sagging, and line voltage as well as regulatory requirements from OSHA, FAA, and the Army Corps of Engineers. In addition, electric utilities are required to comply with the American National Standard Institute’s National Electrical Safety Code. The utilities are required to submit their programs to the Commission, which will resolve any disputes as to the efficacy of the plan.

The Court concluded that the Ohio Administrative made it clear that PUCO’s administrative expertise is required to resolve the issue of whether removal of a tree is reasonable.

The second part of the test determined whether the act complained of constitutes a practice normally authorized by the utility. Again, the Court said, the Administrative Code made it clear that vegetation management is necessary to maintain safe and reliable electrical service. Thus, the Supreme Court ruled, the second part of the test was satisfied, and the Corrigan’s complaint fell within the exclusive jurisdiction of PUCO.

That meant that the Illuminating Company’s decision that the silver maple interfered or threatened to interfere with its transmission line was a service-related question, and one that the Corrigans could only dispute in front of PUCO. The Court of Appeals judgment was thrown out.

– Tom Root

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Case of the Day – Friday, September 13, 2019

YOU HAD ONE JOB

The municipal position of tree warden in this country is unique to a few New England states. In Massachusetts and Connecticut, for example, state law requires that each town appoint one. A tree warden is a person in charge of shade trees on public town lands. The word “warden” was a common title for natural resource officials in the late 1800s. Being a warden signified a unique legal responsibility: to guard public resources against destructive forces that might include persons, insects, or diseases.

A tree warden may be either or appointed. In either case, the responsibility is the same – to oversee the care, maintenance, or removal of all public shade trees. As both manager and advocate, the tree warden must protect the trees and, where necessary, protect the public from the trees.

Massachusetts describes the tree warden’s functions as being “broad and includ[ing] responsibility for all community trees – on streets and town commons as well as in parks, schoolyards, and town forests. The position of tree warden requires qualified training in arboriculture, the science of tree care. A tree warden should also have good communication skills for dealing with the public, municipal department heads, and local politicians.”

Connecticut says that “Tree wardens are appointed public officials responsible for trees alongside public roads and in public spaces, other than those on state property or under the jurisdiction of a park commission. Each municipality is required to have a tree warden. The tree warden’s responsibilities include approving the planting, pruning or removal of trees under his or her authority. Public safety is among the chief concerns of the tree warden.”

Fans of the many “you had one job” posts online (and even on ESPN, sports-themed, of course) can appreciate the “fail” in today’s case. A Connecticut town tree warden ignores his duty to check on a tree that a concerned resident reports on several occasions as dangerous and decayed. The woman even had her own arborist look at it, but the tree was on town property, so it was up to the town to care for it. And that meant it was up to the tree warden.

He ignored it for nearly a year. Sure enough, it fell… right across the road and onto a passing car. When the motorist and his wife sued the town and the tree warden, the defendants claimed immunity. It turns out there is plenty of immunity for a government official acting according to his or her discretion. But immunity for failing to drive out to check on a reported danger tree?

C’mon, man. You had one job…

Wisniewski v. Town of Darien, 135 Conn. App. 364, 42 A.3d 436 (Ct.App. Conn. 2012). Mieczyslaw (let’s call him “Bud”) and Jolanta Wisniewski were injured when a tree within the street right-of-way toppled onto his car in front of 35 Rings End Road, inside the Darien, Connecticut city limits. This should not have surprised the Town, which had been notified several times by property owner Kristen Doble that her arborist had determined that five trees located near the roadway “need attention.”

On one occasion, Kris told the Town that limbs had fallen from trees near the roadway. On another occasion, she asked that the Town send someone to examine a “hollow” tree located near her front gate, next to the roadway, that had lost a leader (which is “a primary or terminal shoot of a plant (as a main branch of an apple tree or the terminal shoot of a spruce tree… the upper portion of the primary axis of a tree especially when extending beyond the rest of the head and forming the apex…” leader.

At the time Kristen complained and later, when the tree fell on Bud and Jolanta’s car, Mike Cotta was the Town’s tree warden. Pursuant to General Statutes § 23-59, he was responsible for the care and maintenance of trees located along certain rights-of-way within Darian’s geographic limits. There were no other express town charter provisions, rules or ordinances directing Mike’s duties as tree warden.

Bud and Jolanta sued the Town and Mike Cotta, claiming negligence against Mike and seeking indemnification against the Town pursuant to General Statutes §§ 7-465 and 7-101a. In addition, the complaint contained claims for liability pursuant to General Statutes §§ 52-557n and 13a-149 against the town.

The Town and Mike argued that Bud and Jolanta’s lawsuit barred by the doctrine of governmental immunity. That motion failed. The Town and Mike moved for summary judgment, arguing, in part, that governmental immunity barred the Wisniewski’s claims. The court denied the motion for summary judgment, and the case proceeded to a jury trial.

The jury found for Bud and Jolanta, holding that he had established Mike’s and the Town’s negligence under § 52-557n. Although the defendants established that their duty to maintain the subject tree was public in nature, they failed to establish that their duty to inspect, maintain and remove the tree was discretionary. Jolanta Wisniewski got $200,000, and Bud Wisniewski was awarded $1.5 million.

Mike and the Town appealed.

Held: Mike and the Town of Darian were liable for negligence.

As a general rule, a municipality is immune from liability for negligence unless the legislature has enacted a statute abrogating that immunity. In this case, Gen. Stat. § 52-557n abandons the common-law principle of municipal sovereign immunity and lists circumstances in which a municipality may be liable for damages. One is a negligent act or omission of a municipal officer acting within the scope of official duties. Section § 52-557n(a)(2)(B) explicitly shields a municipality from liability for damages to person or property caused by the negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law. Municipal officers are not immune from liability, however, for negligence arising out of ministerial acts. Ministerial acts are defined as acts to be performed in a prescribed manner without the exercise of judgment or discretion.

The language of Conn. Gen. Stat. § 23-59 provides that many, but not all, of the duties of a tree warden involve the exercise of discretion, and thus are immune.

The determination of whether official acts or omissions are ministerial or discretionary for liability purposes is normally a question of fact for the fact finder. Generally, evidence of a ministerial duty is provided by an explicit statutory provision, town charter, rule, ordinance or some other written directive. Testimony of a municipal official, however, may provide an evidentiary basis from which a jury could find the existence of a specific duty or administrative directive.

A municipal employee, and, by extension, the municipality, may be liable for the misperformance of ministerial acts, but are entitled to immunity in the performance of governmental acts, including acts that are discretionary in nature.

Although Darian maintains no written policies directing the conduct of its tree warden, the town’s assistant director of public works, Darren Oustafine, testified at trial that the general direction provided to Mike Cotta upon receipt of a complaint “is always the same, look at the tree, make a determination. Is it a safety concern? Is it a priority?” Moreover, Cotta himself testified that upon receipt of a complaint regarding a potentially hazardous tree, he has a nondiscretionary duty perform an inspection. “In light of the evidence adduced,” the Court said, “including Cotta’s own statements, which were couched in mandatory language, it was appropriate for the court to decline to direct or to set aside the verdicts on the basis that the defendants’ actions as a whole were discretionary as a matter of law.”

The evidence in the record was enough to let the jury reasonably find that some of Mike’s duties, including the duty to inspect upon receipt of a complaint concerning a potentially hazardous tree, were ministerial. This was especially so given that Mike testified that upon receipt of a complaint regarding a potentially hazardous tree, he had a nondiscretionary duty to perform an inspection. The evidence showed a total absence of any documentation in the town’s work order records concerning Mike having inspected the trees. Although Mike testified at trial that he had performed a quick visual inspection, he admitted that performing a quick visual inspection is “not the same thing as saying you inspected it at all…” In addition, in a pretrial deposition, Mike admitted that he had not inspected the trees for decay or, for that matter, “for any reason.”

Furthermore, although Mike testified at trial that he had gone to the property and pruned the hazard tree in 2004, Bud and Jolanta introduced a deposition transcript in which Mike testified that he had not returned to the property between March 14, 2003, and July 11, 2006. Thus, the Court said, “numerous issues were raised concerning Cotta’s credibility, and the jury was free to decide that Cotta was not credible and to resolve the claim in favor of the plaintiffs that he failed to respond to any of the complaints by going to the property to inspect the trees.” Bud and Jolanta’s expert “opined that the subject tree would have exhibited signs of decay in 2002 and 2003, when Doble lodged her with the town. Accordingly, the jury could infer that a reasonable tree warden, had he performed an inspection, would have determined that the subject tree was a hazard.”

– Tom Root

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And Now The News …

Washington, D.C., WUSA-TV, September 12, 2019: Leafy neighborhoods being rocked by ‘unprecedented’ wave of sudden tree deaths

Howard Sumka is stunned at how fast a mature hickory on his property line with Sligo Creek Park went from leafy green to completely dead in a few short weeks. “It’s heartbreaking,” Sumka said, as he showed WUSA9 the telltale powdery sawdust residue piled at the base of the stricken tree. The sawdust was produced by a common tree-boring insect called the Ambrosia beetle. The tree, like many others in Silver Spring, Takoma Park and similar neighborhoods, was attacked as it struggled to recover from two seasons of extreme weather according to University of Maryland Entomologist Dr. Michael J. Raupp. Such trees are now dying in large numbers more quickly than ever, Raupp said. “We’re in an extraordinary situation, with record rainfall back in 2018, the wettest year on history here in Maryland,” Raupp said. “You pile on top of that now, the hottest July since records have been kept. You’ve had two major stressors. You’ve got trees that are balanced on a knife’s edge and it’s simply not going to take a lot to push them over the edge. And what’s putting them over the edge is these Ambrosia beetles.” Raupp said mature “veteran” trees are most at risk, particularly oaks…

Chico, California, Enterprise-Review, September 12, 2019: Local and federal officials negotiating unprecedented tree removal deal

Local and state officials are scrambling for funding to help remove hazardous burned trees from the areas where people are starting to rebuild. The challenge is not new to California’s fire-prone communities. But the scale here is so large that it is butting up against the limits of what federal authorities are allowed to do after a disaster. Local and state officials are currently negotiating with the Federal Emergency Management Agency to reimburse the removal of at least some of the trees. If they get the millions of dollars they hope will help, it would set a precedent for recovery from catastrophic wildfires in residential areas. Meanwhile, residents are looking up and getting scared. Foresters estimate that the Camp Fire burned half a million to a million trees, turning many into public hazards. The rate of tree mortality could be at least 80 percent. “I want to rebuild, but I don’t feel that I can really start because I don’t want to put myself or workers in danger,” said Pete Samuel, a longtime Paradise resident. “I’ve seen enough trees fall down in this town that I know what can happen. I’ve seen people get killed. Is that what it’s going to take?” A burnt oak recently fell on his neighbor’s vacant lot, just on the other side of his fence. Another one across the road is leaning dangerously to one side. Its leaves, once green, have started to die off…

Sioux Falls, South Dakota, Argus-Leader, September 12, 2019: Have tree branches in your yard? Here’s what the city will take care of.

With Tuesday’s storms resulting in damage to trees all around the city, it’s important to know what you’re responsible for cleaning up and what the city will take care of. According to a release from the city, tree debris that have fallen into the public right-of-way — on a sidewalk, boulevard or street — will be cleared by the city. Any tree debris on private property is the responsibility of the homeowner. In the event that a tree has fallen on private property that reaches across into the public right-of-way, city crews will cut the tree at the sidewalk and clean up the debris in the public space. The homeowner is responsible for the remaining tree debris.The city emphasized that debris gathered and placed on the curb will not be removed by the city, and should be disposed of by the homeowner…

Ft. Lauderdale, Florida, Sun-Sentinel, September 12, 2019: Tree-cutting companies volunteer time to care for veterans’ cemetery

Professionals from local tree service companies will unite at the South Florida National Cemetery west of Lantana for a volunteer day of service dedicated to U.S. military veterans. Saluting Branches, Arborists United for Veteran Remembrance is a nonprofit organization that donates tree care at veteran properties. Celebrating the fifth annual day of service on Wednesday, Sept. 18, more than 3,000 tree industry professionals and other volunteers across the nation will donate a full day by doing what they do best — caring for trees. “We join with tree care companies around the country to honor our nation’s veteran’s by providing free tree care services,” said Sonny R. Peppers, director of South Florida National Cemetery. “Together we make these cemeteries safer, more beautiful resting places for those veterans who gave the ultimate sacrifice for our country.” Participating local companies are yet to be announced, said event organizer Michael Zimmerman of Zimmerman Tree Service in Lake Worth Beach. “I look forward to giving back and taking care of the place where those that gave their life have their final resting place,” one previous volunteer said…

Newsweek, September 11, 2019: Amazon’s Tallest Tree Has Been Discovered and It’s Far Bigger Than It Should Be, Baffling Scientists

Sometimes even the largest natural wonders can remain hidden from human view for centuries. The Amazon is a dense place, full of life with new species of flora and fauna being discovered every other day. Now, using the same technology that takes driverless cars from A to B, we—led by Eric Gorgens and Diego Armando da Silva, and along with colleagues from Brazil, Swansea, Oxford and Cambridge—have discovered the tallest tree in the rainforest. At 88 meters tall (288 feet), it dwarfs the previous record holders by almost 30 meters (98 feet). And it’s not alone either. The Guiana Shield of north-eastern Amazonia, which accounts for nearly nine percent of the world’s remaining tropical forests, may contain lots of these gigantic trees. With each one able to hold as much carbon as an average hectare of rainforest, our discovery means that the vast jungle may be a greater carbon sink than previously thought. We didn’t just stumble upon these trees while strolling in the forest. Between 2016 and 2018, Brazil’s National Institute for Space Research coordinated a project to laser scan large swaths of the Amazon. This project scanned 850 randomly distributed patches of forest, each 12km (7.4 miles) long and 300 meters (984 feet) wide. Seven of these patches contained evidence of trees taller than 80 meters (262 feet)…

Cleveland, Ohio, Plain Dealer, September 11, 2019: Cuyahoga County awards nearly $1 million to cities, civic groups in County Executive Budish’s tree canopy restoration plan

Cuyahoga County on Wednesday announced $950,000 in awards to cities and other organizations as part of County Executive Armond Budish’s five-year plan to help restore the county’s tree canopy. The awards range from $11,000 to $50,000 and are being provided to 26 cities, community development corporations and other civic groups to help them lay groundwork for future tree planting. Budish rolled out the plan during his 2019 State of the County speech as part of his Climate Change Action Plan. He cited a 2013 county assessment that found the tree canopy covers 110,000 acres — about 38 percent of county land. But 371,000 more acres are available for potential tree cover…

Dallas, Texas, Morning News, September 11, 2019: When squirrels attack: How to prevent the little beasts from gnawing on your trees

The person who figures out how to eliminate squirrel damage deserves a fortune. There are no foolproof solutions, but there are some relatively effective solutions to some of the damaging habits of these pretty little beasts. Squirrels like to eat maturing fruits and nuts. Me too. Repellents don’t do well, so for some damage control, put netting over the plants. It’s often too much trouble and sometimes ineffective, but it’s about all we have. The squirrel’s precision gnawing to get the tasty black walnut meat is fascinating. The symmetry of the work is impressive. Bark eaten from trunks and limbs of Japanese maples, redbuds, fruit trees and other thin-barked trees is easier to control. It’s reported that squirrels chew on tree branches to sharpen and clean their teeth. That’s probably not true. They can sharpen their teeth by rubbing them together. The real reason for this damage is the attractiveness of the sugar accumulations in the tree. The solution is to uncover the root flares of the trees and apply the rest of the Sick Tree Treatment. Once healthy again, the trees won’t be so attractive to munch on…

Denver, Colorado, Post, September 11, 2019: A beetle that burrows into spruce trees has infected Denver city parks

Beetles that feast on spruce trees have invaded Denver’s parks and now crews are cutting down infected trees, starting Wednesday in Cheesman Park. On Wednesday morning, two crews cut down three trees, and they have plans to remove nine more by the end of the week, Cynthia Karvaski, a Denver Parks and Recreation Department spokeswoman, said. In all, parks officials have found 74 infected trees in city parks. The trees have been invaded by the Ips engraver beetle, a species that burrows beneath bark to feed on a tree’s nutrients and lay eggs. The beetle infestations occur in nine-or ten-year cycles and cause trees to die, creating the risk of branches falling and putting people and property in danger. The beetles are drawn to trees that are newly planted, sick or simply weak. “The trees have been stressed from drought,” Karvaski said. “Once they’re infested, there’s no treatment. And it spreads…”

Cedar Rapids, Iowa, The Gazette, September 10, 2019: Iowa’s beloved ‘Hula-Hoop Tree’ could be cut down

Fans of one of Eastern Iowa’s most whimsical tourist attractions are hoping against hoop it will be saved. The Hula-Hoop Tree, a scraggly, leafless tree decorated with hundreds of the plastic hoops, for years has brought onlookers to the small community of Amber, home to about 35 houses. People have memorialized birthdays and wedding anniversaries at the tree. A Facebook page with over 3,200 followers is devoted to it. But now there are concerns about dangers the Hula-Hoop Tree poses. Jones County supervisors are scheduled Tuesday morning to hear a report from their attorney about liability questions. It was about 2015 when the first hoops appeared in the tree. Now there are hundreds of them. There are a lot of stories about how hoops came to be in the tree, said Bobby Krum, president of the Amber Community Club. But he is partial to the story about a group of employees from Monticello that started throwing hoops in the tree on payday. “It’s helped put Amber back on the map,” Krum said. “It’s whimsical. A nice, feel-good family event. People can throw hoops, make a wish.” While Krum fully supports the tree and what it brings to the community, it was the Amber Community Club that brought its concerns over safety to the supervisors, he said…

Newport News, Virginia, Daily Press, September 10, 2019: Whatever happened to local elm trees after deadly fungal disease struck Virginia?

Elm-lined streets were once ubiquitous in America. The trees’ success throwing beautiful, shady canopies over urban environments made them one of the most popular to plant in the country. Then a nightmare hit the elm streets. Dutch elm disease, caused by a fungal pathogen spread through bark beetles, took the U.S. by storm starting in the 1930s. Millions of trees were taken out, and no effective cure has been found. But did elms survive in Hampton Roads? Local reader Merrily Dethier-Best wondered recently and submitted the question to The Virginian-Pilot’s Glad You Asked initiative. “Once they were so prominent and then they were gone,” she wrote in an email to The Pilot. “I know I am looking back a very long time ago, but they were a lovely shade tree.” American elms are still present in the landscape, said Katlin Mooneyham, forest health specialist with the Virginia Department of Forestry. But they’re always at risk. There are three native elm species in Virginia: American, winged and slippery. They’re all highly susceptible to Dutch elm disease, which is still present throughout the Eastern Seaboard…

Canadian Broadcasting Corporation, September 10, 2019: Dorian takes out 80% of trees in Cavendish area of P.E.I. National Park, Parks Canada says

About 80 per cent of the trees in the Cavendish area of P.E.I. National Park were lost after suffering damage from post-tropical storm Dorian, Parks Canada says. It also estimates about two metres of coastal erosion in the park after the storm. Parks Canada has yet to fully assess the damage caused by the storm, said spokesperson Annette Campbell. “Upon first assessment, it was determined that there is extensive damage to the coastal forest in the Cavendish part of the park, with approximately an 80 per cent loss of trees,” she said in a statement. The area most affected is the west side of the park in Cavendish. Damage to infrastructure is also being evaluated at this time…

Cedar Rapids, Iowa, Gazette, September 10, 2019: New trees and teen jobs combine in deal approved in Cedar Rapids

Under a new initiative, Cedar Rapids will forgo competitive bidding for annual tree planting in favor of forming a partnership with a Marion nonprofit — Trees Forever — to handle most plantings in public rights of way and foster a youth employment program. Initially, about 10 local teenagers ages 14 to 18 are expected to earn $10 an hour planting, caring for and watering trees through the program called Growing Futures. Similar programs operate in Des Moines, Indianapolis and Atlanta. “More trees will survive and I love the training program to this and everything about it,” Cedar Rapids Mayor Brad Hart said Tuesday before voting for it. The City Council, at its regular meeting Tuesday, approved the plan unanimously. The agreement pays Trees Forever $125,000 a year for five years, or $625,000 total, and calls for the planting of at least 2,150 trees in that time. Some additional tree plantings outside the scope of the contact — such as those tied to major road repairs — is also expected…

Phys.org, September 10, 2019: Ash tree species likely will survive emerald ash borer beetles, but just barely

“Lingering ash.” That’s what the U.S. Forest Service calls the relatively few green and white ash trees that survive the emerald ash borer onslaught. Those trees do not survive by accident, and that may save the species, according to Penn State researchers, who conducted a six-year study of ash decline and mortality. The research shows some ash trees have varying degrees of resistance to the strangely beautiful, invasive beetle from Asia. The study is unique because it took place at a plantation of ash trees planted on Penn State’s University Park campus in the mid-1970s. “We found that genetic variation exists in trees from around the country, and through time—especially as the emerald ash borer population collapses because host trees are rapidly disappearing—the resistance that we observed will likely ensure the survival of the species,” said Kim Steiner, professor of forest biology, College of Agricultural Sciences…

New York City, Daily News, September 9, 2019: Exclusive: City agrees to take responsibility for sidewalks damaged by tree roots

Big Apple officials are offering homeowners some re-leaf. The city will announce Tuesday that it will no longer issue violations for sidewalk damage caused by city-owned trees, the Daily News has learned. Assembly Speaker Carl Heastie and Mayor de Blasio reached a deal to address the growing backlog of sidewalks damaged by street tree roots and agreed that going forward, the city, not homeowners, will be responsible for fixing them. Heastie said residents of his Bronx district have been up in arms over liens and violations issued for cracked and uneven walkways in front of their homes. “This has been a huge quality of life concern for my constituents who have invested their savings in purchasing a home, only to be hit with this liability through no fault of their own,” Heastie told The News. Going forward, liens will no longer be imposed on one, two or three family properties where sidewalk damage is caused solely by city trees. The city is also ramping up its efforts to take care of problematic pavement across the five boroughs…

Daily Signal, September 9, 2019: Michigan Brothers Push Back Against Town’s Retaliation in Christmas Tree Farm Fight

When your favorite tool is a hammer, every project looks like a nail, and apparently, a similar rule holds true for local government. When said government’s favorite tool to get its way is threatening residents with ruinous, unconstitutional fines, its response to every problem is to threaten them with even larger, more ruinous—and more unconstitutional—fines. It’s time that the court puts a stop to it. Two years ago, brothers Gary and Matt Percy removed scrub brush from their property in order to plant Christmas trees for a Christmas tree farm. The township of Canton, Michigan, decided to fine the brothers almost $500,000—more than the property is worth—for removing “trees” (defined as anything with a 2-inch wooded stem) without a permit. The brothers fought back by going to the local news media, and eventually, filing a civil rights lawsuit arguing that Canton’s tree ordinance is unconstitutional. Canton responded with increasingly aggressive acts of harassment against the Percy brothers. Shortly after the Percys went to the media, Canton began sending threatening emails chastising them for talking to reporters. Canton also called in several frivolous complaints against the Percys’ business, A.D. Transport Express, with state and county agencies—all of which were dismissed. When that failed, Canton began sending local code-enforcement officers to A.D. Transport (which had operated safely there for 25 years) to search for potential code violations. Such blatant retaliation for the exercise of civil rights violates the First Amendment, so the Percy brothers filed a separate federal civil rights lawsuit to stop the ongoing harassment in hopes that they could operate their business in peace while they litigate the tree-ordinance claims…

Nassau, Long Island, New York, News 12, September 9, 2019: Hearing held over cutting down historic trees in Amagansett

A hearing was held Monday discussing whether old, historic trees can be cut down on a piece of land where development is not allowed. The hearing involves the Peconic Land Trust, a well-known and well-respected land preservation organization, and an Amagansett man named Randy Lerner. Lerner bought a 6-acre parcel of undeveloped land. Two days later, he started clearing the property of trees. The Land Trust got a court order stopping the cutting of the trees, arguing that it violates terms of the sale. But the property owner argues that the land is what’s called an “agriculture preserve,” and that he’s got the right to clear trees to farm the property. Attorney Anthony Pasca says Lerner farms other properties in Amagansett and cleared the trees so he could farm this land. “If you are a farmer and you have an agricultural reserve, you don’t have to notify anybody,” said Pasca. “So there’s no permission required to go ahead and farm the land, there’s no permission needed from the town. They want you to farm the land…”

Tampa, Florida, Tampa Bay Times, September 8, 2019: Clearwater announced it would cut down 155 trees. Most were sick, officials said. Residents are upset.

About an hour into the neighborhood gathering, Mayor George Cretekos had had enough. Cretekos strode to the front of the meeting area at St. Paul’s Lutheran Church while residents bickered loudly, and called for calm. The issue that had the crowd so riled up? Trees. More specifically, the city’s plans to remove about 155 trees from Crest Lake Park as part of a $6.4 million park redesign. The park is at its 60 percent plan stage; final design plans could be put before the city council as soon as this fall. Located at Gulf to Bay Boulevard and Lake Drive, untold numbers of vacationers headed to Clearwater Beach pass Crest Lake Park on their way. It’s near the gateway to downtown. But just a few years ago, citizens complained that the 38.5-acre park, which should be a display of the city’s natural beauty, had fallen into disrepair. In 2013, a few days after a 22-year-old man was stabbed to death near the park, one resident wrote a letter to the Tampa Bay Times calling Crest Lake a “refuge for the homeless and a hunting ground for the violent.” The park’s revitalization has become one of Cretekos’ signature initiatives. That was the context for the Aug. 28 Skycrest Neighborhood Association meeting, where residents asked officials a variety of pointed questions about the plans for the park: about its new bathroom, whether to add more benches and about the new sand volleyball court. Dozens attended the gathering, including the mayor, City Manager Bill Horne and at least three 2020 city council candidates. But in an era of rainforest infernos and bleak climate change assessments, the tree removals loomed largest at the meeting…

Denver, Colorado, Post, September 8, 2019: Boulder’s battle against emerald ash borer tree loss fueling local woodworking economy

Even as Boulder County foresters press on in their fight against the invasive emerald ash borer harming the local tree population, officials acknowledge it is a losing battle. But it is one lovers of ash trees don’t have to walk away from empty-handed, even as sickened trees are in line for removal or have already been sawed to stave off the infestation. Woodworkers like Evan Kinsley, who several years ago started the Boulder-based business Sustainable Arbor Works, have turned to ash trees to supply their furniture and art crafting practices as a way to maintain the local benefit provided by the species slated for a countywide death at the hands of the insect. Emerald ash borer has already dramatically altered the composition of forests across the middle and eastern regions of the country. “It’s a privilege to be able to work with a local hardwood like ash,” Kinsely said…

Washington, D.C., Post, September 8, 2019: This tool will show you exactly when fall foliage will peak across the country

The heat may still feel relentless in your town, but rest assured, fall is coming. Sweltering temperatures won’t stop you from dreaming in flannel. People posting “hot girl summer” photos can’t prevent the onslaught of pumpkin-spice-everything. Whether you’re ready for summer to be over or not, you must accept the passage of time, so might as well take a trip to see one of the planet’s most beautiful natural phenomena: the breakdown of chlorophyll. What’s essentially leaves starving has made way for the spinoff phenomenon known as leaf-peeping — a breed of tourism exclusively about finding fall foliage, admiring it and photographing it. Cue the 2019 Fall Foliage Prediction Map on SmokyMountains.com, a site promoting tourism in that region. The interactive tool is one of the most helpful resources to reference as you plan your autumnal adventures. “We believe this interactive tool will enable travelers to take more meaningful fall vacations, capture beautiful fall photos and enjoy the natural beauty of autumn,” data scientist and SmokyMountains.com chief technology officer Wes Melton said in a statement…

Wellington, New Zealand, Newsroom, September 9, 2019: The unpopular tree sucking carbon from our air

To measure how much carbon is in a tree, you first have to kill it. You slice up the trunk, branches, twigs, leaves and roots and dry the dismembered tree parts in an oven. Then you weigh them. “It takes a long time,” says Euan Mason, a professor at the University of Canterbury’s School of Forestry. “I did some in 2012 with two students, and in six weeks I think we did 25 trees.” Sacrificing trees like this is expensive, but researchers need these measurements. Typically, about half a tree’s dry weight is carbon, which you can multiply by roughly 3.7 to work out how much carbon dioxide the tree has sucked from the atmosphere. Once enough trees of different ages and species have been dissected, the results are used to help build computer models estimating how much carbon is in a hectare of living forest, or an entire country’s worth of trees. Forest owners can use models like this to see how much money they can claim for carbon credits under the Emissions Trading Scheme. Similar estimates tell the Ministry for the Environment that New Zealand’s forests removed 24 million tons of carbon dioxide equivalent from the atmosphere in 2017, enough to offset 29 percent of the country’s greenhouse gas emissions. Most of this CO2 was absorbed by Pinus Radiata, a species much-loved by commercial foresters for its astonishing rate of growth, but seemingly little-loved by anyone in the general population…

Ft. Bragg, California, Advocate-News, September 5, 2019: The Camp Fire left a million trees dead. Can Butte County remove them all?

The Camp Fire left a staggering million trees dead or dying — at least — and the logs have almost nowhere to go. Because Butte County has a dearth of local sawmills and biomass power plants, the high costs of transporting logs hours away is hampering the removal of burned trees. That raises the hazard for those returning to the burn scar: there are at least 400,000 trees at a high risk of falling in Paradise and Magalia, according to a survey by Sierra Timber Services. So local officials are now considering a slate of options to process the trees locally, from restarting a biomass power plant in Oroville to building a wood-powered heating and cooling system in Paradise. “As a Fire Safe Council, we know that there has always been a hindrance in that you have to take the product somewhere,” said Jim Broshears, the Butte County Fire Safe Council’s treasurer. “And not only will this mass from the Camp Fire have to be dealt with, urgently, but so will the ongoing mass we need to get out to get the forest in a healthy condition.” The shortage of local tree processing sites is part of a statewide trend. The number of sawmills in California has gone down from around 100 a couple decades ago to 25, said Rich Gordon, the president and CEO of the California Forestry Association. That’s because there are fewer timber sales…

Bloomberg News, September 5, 2019: Cocoa Trees Are Being Ravaged By a Disease With No Known Cure

It’s a nightmare scenario for a cocoa farmer: walking through your plantation you spot some red-veined leaves. Maybe it’s a big lump on one of the branches. You know immediately the tree is doomed, infected by the deadly swollen-shoot disease. Even worse, the plants around it are probably contaminated too, but you can’t be sure because the symptoms can take years to appear. Swollen shoot is unique to West Africa, where about three-quarters of the world’s cocoa is grown. The disease was identified nearly a century ago, yet scientists say a cure is years away and early detection methods are only just being introduced. This year, a devastating outbreak in the world’s No. 2 cocoa grower is renewing urgency to find a solution. Ghana has cut its crop forecast by 11% this season because of the disease, people familiar with the matter said previously. About 16% of the country’s cocoa crops are infected, according to George Ameyaw, a senior scientist at the Cocoa Research Institute of Ghana…

Dover, New Hampshire, Foster’s Daily Democrat, September 5, 2019: ‘It’s gigantic’: Tree clearing angers Dover neighbor

Local residents were upset about the clearing of trees and other greenery near the intersection of Fisher and Elm streets Thursday, but city officials say there’s nothing unlawful about the activity and the private property owner and contractor involved have all the necessary permissions. Sandra Cohen, who lives at 34 Fisher St., close to the site cleared, said she thought the work was “disgusting” and “ridiculous.” She and other residents of the neighborhood also expressed concern for wildlife that called the land home. “It’s gigantic, and those trees are never coming back,” Cohen said, describing the clearing. According to Assistant City Manager Chris Parker, less than an acre of land is being cleared in conjunction with an ongoing city project to reconstruct roads and sidewalks in the area of Belknap, Fisher, Elm, Summer and Hamilton streets. The project, tentatively slated for completion some time in 2020, is similar in scope and design to the 2015 reconstruction of Silver Street. However, Parker said, the city isn’t responsible for clearing the land off Fisher and Elm streets, nor did the city order it. Rather, Parker said, it’s the result of a private agreement between the land’s owner and the company performing the city’s project, Severino Trucking Co…

Montreal, Quebec, Canadian Broadcasting Corporation, September 5, 2019: Quebec City to cut down 1,000 trees following surge of invasive beetle

Quebec City workers will be cutting down at least 1,000 trees in parks and along city streets because of an “unexpected” surge in the emerald ash borer population. Despite its efforts to control the spread of the green beetle, city officials said the insect has now been found in 32 of its 35 neighborhoods. Of those, around a dozen are now considered at an “epidemic” level, including Cap-Rouge, Montcalm, Saint-Jean-Baptiste and Vieux-Québec. Suzanne Verrault, the city’s executive committee member responsible for the environment, said the surge is pushing the city to “intensify its efforts” to not “lose control.” The ash borer, which has few natural predators in North America, lays its eggs under tree bark. The larvae then restrict sap circulation, killing mature trees. The city first discovered the presence of the Asian insect in 2017 and put in place an action plan for 2018-19 to limit its transmission, at a cost of about $1.5 million per year. But despite those efforts, the growing number of beetles in the area is forcing the city to cut down 1,000 trees by the end of 2019. Another 1,000 could be cut down in wooded areas by 2020…

Nassau, Long Island, New York, Newsday, September 4, 2019: Peconic Land Trust sues Amagansett property owner for $100M for cutting down dozens of trees

An Amagansett property owner caused at least $100 million in damages when he cut down about 100 trees last month on land that is protected for conservation, according to the Peconic Land Trust, which is suing him over the matter. The land trust holds an agricultural easement on the property and is asking the court for $1 million per tree felled. 341 Town Lane LLC, whose principal is Randy Lerner, an investor and a former owner of the Cleveland Browns, purchased the property on July 31, according to court filings. Days later Lerner hired a landscaping company to remove 75 to 125 mature white oak, American beech, holly and sassafras trees, some of which were 100 feet tall, the land trust claims. Peconic Land Trust said the clearing, reported by several residents including Alec Baldwin, violates the conservation easement placed on the property in 1995. The agreement prohibits the removal of trees, shrubs and vegetation, although there are exceptions, such as the removal of dead trees. “Defendant’s conduct was undertaken with such wanton recklessness and dishonesty as to imply a criminal indifference” to the obligations of the easement, reads an amended complaint electronically filed Aug. 28 in state Supreme Court. Lerner, who according to Forbes has a net worth of $1.1 billion, does not dispute that he had the trees cut down. But his interpretation of the easement states that he was within his rights to do so because he was clearing the land for farming. He said in court filings he was preparing the land to potentially farm fruit trees, crops like corn and potatoes, cover crops and “horticultural specialties…”

Baton Rouge, Louisiana, WBRZ-TV, September 4, 2019: Dead tree debate taking too long, could have saved homeowner money

A dead tree is a topic of debate between the city-parish and a property owner for more than two months. Kim Scarton’s records show that she called the city-parish’s 311 call center about a dead tree behind her fence line on June 26, 2019, and took down a work order. But it wasn’t until 2 On Your Side got involved did she receive an answer from the city-parish about who it thinks should take responsibility. “We requested removal, we got a work order number and they said they’d be in touch,” said Scarton. A couple of weeks went by. Scarton says her neighbor called the city-parish after a tree behind her house was damaged during Tropical Storm Barry. On July 15, 2019, she says a representative from the South Drainage Department came out to investigate and told her the trees were not on their properties, but in the city-parish servitude. On July 23, 2019, two city-parish arborists visited Scarton’s home. “We were told they’re on city property and they’ll be recommended for removal,” Scarton said. After following up a few times, Scarton said she didn’t hear anything. Then on August 24, 2019, a branch fell from the tree onto Scarton’s roof. Estimates to repair the damage exceed $3,500. “So we contacted the city the following Monday to let them know this is an urgent matter, we’ve been telling them the tree is a safety risk,” she said. “It’s damaging our home, it’s damaging our fence, no response…”

Science, September 4, 2019: Sturdy as they are, giant trees are particularly susceptible to these three killers

The biggest trees, standing tall through storms and harsh winters, may look invincible. But a series of recent studies analyzing the effects of lightning, drought, and invasive pests on forests indicates that for trees, size is not strength, and forest giants are disproportionately vulnerable. “There’s always been an underlying assumption that large trees are somewhat buffered from environmental stress,” says Andrew Barton, a forest ecologist at the University of Maine in Farmington. This new work “suggests that this might not be true.” And with all three stresses likely to grow, big trees could become a particularly weak point in beleaguered forests, says forest ecologist David Lindenmayer of Australian National University in Canberra, whose work has shown that the loss of large trees puts entire ecosystems at risk of collapsing. Large trees are also major storehouses of carbon—one estimate suggests they hold 50% of a forest’s carbon—and their deaths release it into the atmosphere, which could exacerbate climate change. It makes sense that lightning targets the biggest trees, but the extent of the toll has emerged only now, from a project on Barro Colorado Island, in the middle of the Panama Canal. In temperate regions, lightning blackens tree trunks or burns a tree down when it strikes, so it’s easy to see its effects. But in tropical forests like the Panama one, which has been studied for decades, lightning leaves no obvious marks, possibly because the trees carry more water, although a struck tree may still die weeks or months later. But Steve Yanoviak, an ecologist from the University of Louisville here, and colleagues recently outfitted the science station on the island with cameras and sensors, so they can triangulate lightning strikes and look for downed vegetation and other subtle signs a tree was struck. Yanoviak’s postdoc Evan Gora then keeps tabs on the struck tree and its neighbors to document any declines. To date, the project has pinpointed 70 lightning strikes, Gora reported last month at the annual meeting of the Ecological Society of America here. Each strike kills an average of five trees and damages 16 more as the bolt’s electricity hops from one tree to another…

Undark.org, September 4, 2019: Are We Overestimating How Much Trees Will Help Fight Climate Change?

Bob Marra navigated his way to the back of a dusty barn in Hamden, Connecticut, belonging to the state’s Agricultural Experiment Station. There, past piles of empty beehives, on a wall of metal shelves, were stacks of wooden disks — all that remains of 39 trees taken down in 2014 from Great Mountain Forest in the northwest corner of the state. accounted for.” These cross-sections of tree trunks, known as stem disks — or more informally as cookies — are telling a potentially worrisome tale about the ability of forests to be critical hedges against accelerating climate change. As anyone following the fires burning in the Amazon rainforest knows by now, trees play an important role in helping to offset global warming by storing carbon from atmospheric carbon dioxide — a major contributor to rising temperatures — in their wood, leaves, and roots. The worldwide level of CO2 is currently averaging more than 400 parts per million — the highest amount by far in the last 800,000 years. But Marra, a forest pathologist at the Experiment Station with a Ph.D. in plant pathology from Cornell University, has documented from studying his fallen trees that internal decay has the capacity to significantly reduce the amount of carbon stored within. His research, published in Environmental Research Letters late last year and funded by the National Science Foundation, focused on a technique to see inside trees — a kind of scan known as tomography (the “T” in CAT scan.) This particular tomography was developed for use by arborists to detect decay in urban and suburban trees, mainly for safety purposes. Marra, however, may be the first to deploy it for measuring carbon content and loss associated with internal decay. Where there is decay there is less carbon, he explains, and where there is a cavity, there is no carbon at all…

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Case of the Day – Thursday, September 12, 2019

FOLLOWING DIOGENES (AND OTHER ANCIENT LIGHTS)

I found myself reading a revealing scientific (well, social scientific) paper yesterday, with the improbable title, On the reception and detection of pseudo-profound bullshit. No, I am not making this up. The study asked people to rate the profundity of randomly-generated sentences of touchy-feely crap (such as “wholeness quiets infinite phenomena”). The authors concluded, among other things, that “a bias toward accepting statements as true may be an important component of pseudo-profound bullshit receptivity.”

I was impressed, because up to the time I read the study, I firmly believed that wholeness really does quiet infinite phenomena. Guess not, huh?

Unsurprisingly, when I considered today’s case – which illuminates the old doctrine of “ancient lights” – I looked for the type of bogus profundity that Professor Pennycook and his colleagues were writing about. As you can see to the left, finding something that was suitably bullshit was not hard.

“Ancient lights” was decidedly not bullshit. The name refers to, of all things, windows that have been around for awhile, but eventually the name was loaned to an English doctrine of “presumptive title to light and air, received over land of another person, arising from the uninterrupted enjoyment of it for twenty years and upward, through the window of a dwelling house” (as described in Clawson v. Primrose). But America, being a land of opportunity and progress, was unwilling to tie the hands of property owners by implying easements of light and air in favor of countless neighbors.

Still, some found need of “ancient lights,” and – because the doctrine was unavailable to them – tried the “side door.” The “side door” did not work for Rick Singer and the parents who bribed their kids’ way into college. And it didn’t work too well for the plaintiffs in today’s case.

Mohr v. Midas Realty Corporation, 431 N.W.2d 380 (Supreme Court, Iowa, 1988). Erick Mohr owned an office building situated on a commercial “strip” along Highway 20 in Fort Dodge, Iowa, with parking in front for tenants and customers. In 1983, Mohr’s neighbors to the west, Midas Realty Corporation and the Stan and Lynn Building Partnership, built a muffler shop on the front of their property with parking in the rear.

The muffler shop complied with zoning restrictions and setback lines, but it blocked view of the Mohrs’ building to traffic approaching from the west.

Erick sued Midas for “unreasonable interference with Plaintiff’s lawful use and enjoyment of his private property.” He claimed damages and sought abatement of the alleged nuisance, that is, removal of the muffler shop.

Midas moved for summary judgment, arguing that Erick could not win under existing law. The trial court agreed, holding that Iowa nuisance law did not allow a suit for interference with view.

Erick appealed.

Held: Iowa law does not recognize a right to a view, and therefore, interference with a neighbor’s view does not a private nuisance make.

A private nuisance is generally defined at common law as “a substantial and unreasonable interference with the interest of a private person in the use and enjoyment of his land,” Not every interference with a person’s use and enjoyment of land is actionable, however. Here the trial court focused on a preliminary determination whether Midas’ construction of the building, whether reasonable or unreasonable, interfered with a legally protected interest belonging to Erick Mohr.

Although the petition alleges interference with light, air, and view, Erick admitted at oral argument that the heart of his claim was that the Midas Muffler shop blocked the motoring public’s view of Erick’s building, thereby diminishing its value as a commercial property. Thus, he argued, Midas had enhanced its property at Erick’s expense, giving rise to a private nuisance action, where the parties’ competing interests in the use and enjoyment of land are weighed according to a reasonableness standard.

Midas argued that while Erick tried to pigeonhole his claim into a nuisance action, it was really a claim under the old English common law doctrine of “ancient lights.” Under that doctrine, a landowner acquired a negative prescriptive easement for sunlight across an adjoining landowner’s property and could prevent the adjoining landowner from obstructing the light once the easement was established by the passage of time.

The only problem with the “ancient lights” doctrine, Midas argued, was that every state considering the doctrine, including Iowa, repudiated its premise as inconsistent with the needs of a developing country. In fact, Iowa’s legislature passed a law in 1873 prohibiting the implied acquisition by adjoining landowners of “any easement of light or air, so as to prevent the erection of any building on such land.” Iowa Code § 564.2.

Mohr vigorously argued that his claim of nuisance had nothing to do with any claim of prescriptive easement for light and air, but the Court was unpersuaded: “We recognize,” the Court ruled, “that while disavowing any cause of action for interference with light, air, and view unless granted by express contract, our prior cases have left unanswered the question whether such claim might be sustained under the doctrine of nuisance. Squarely confronted with the question, however, we are convinced that giving vitality to such a cause of action in nuisance would be the same thing as granting a prescriptive easement.”

In other words, recognizing Erick’s right to enforce a nuisance claim for intentional interference with light, air, or view as something other than enforcement of the doctrine of “ancient lights” would be a distinction without a difference. “For a variety of reasons,” the Court said, “we think such an expansion of the law of nuisance would be unwise, at least in regard to the interference with view claimed here.”

Extending the law of nuisance to encompass obstruction of view due to lawful construction of a neighboring building would unduly restrict a property owner’s right to the free use of his or her property, interfere with established zoning ordinances, and result in an endless flood of litigation. Every new construction project is bound to block someone’s view of something, opening every landowner up to a claim of nuisance. The practical implication of such a right would be the need of every servient owner to obtain a waiver of the view easement from the “dominant” landowner. This would reduce to development decisions being made by a committee of all owners with sightlines to the project.

The Court found “no compelling reason to recognize an enforceable right of view over private property. Accordingly, we hold there can be no cause of action grounded in nuisance for blocking that view.”

– Tom Root

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Case of the Day – Wednesday, September 11, 2019

SPITE FENCE TAFFY PULL

Trust an angry plaintiff and a clever lawyer to stretch a useful concept like “spite fence” – which we have been talking about the last few days – like a salt water taffy pull.

We have established that a spite fence requires unreasonable height and a malicious motive. We have also figured out that a spite fence can be something other than a fence, such as the Maine widow woman’s “spite trees.”

It was probably inevitable that someone would go after a neighbor for planting plants that may someday be too tall. Add a complaint that the neighbor refused to knuckle under when the plaintiff tried to boss him and her around regarding their landscaping, and, voilà, you have malice.

Just as the cops in Minority Report arrested people who would someday commit a crime, this theory holds people liable because their plantings might someday be a natural spite fence.

Fortunately, the Mississippi courts that heard this one made short work of it.

Blackwell v. Lucas, 271 So. 3d 638 (Ct. App. Mississippi, Nov. 20, 2018): The Lucases planted some plants and shrubs in the front yard of their Ocean Springs, Mississippi, home. The Blackwells believed that if allowed to grow, the plants and shrubs would at some indeterminate time in the future block their view of the ocean, the sunsets and the beautiful areas normally and typically available to property owners in the Oak Bluff Subdivision.

Thus, the Blackwells asked the Lucases to remove the plants and shrubs or to retard their growth so that their view of the ocean and surrounding area would not be impaired. The Lucases, being your average reasonable American homeowners, declined courteously.

Actually, it may not have been “courteously.” The Blackwells argued that the Lucases were being mean: “The shrubs and plants installed by Mr. & Mrs. Lucas have no beneficial use and were installed and maintained by them for the purpose of annoying the Blackwells and preventing them from enjoying their property.”

The Blackwells, also being your all-too-common American homeowners, sued the Lucases for planting shrubs that “will unreasonably block the view of the Blackwells.” The term “unreasonably,” in this case, apparently meant anything that might alter the status quo in any manner the Blackwells found objectionable: “The actions of Mr. & Mrs. Lucas,” the Blackwell’s complaint alleged, “amounts [sic] to and/or equates [sic] to an invasion of the Blackwells’ interest in the use and enjoyment of their land and the invasion is intentional and unreasonable or negligent.”

Strong words, indeed! But the trial court was unimpressed, and tossed the suit out on its ear. Not taking the hint, the Blackwells appealed.

Held: The trial court’s dismissal was upheld.

The Blackwells had no common law or statutory right to an unobstructed view across the Lucases’ property, nor did they have a right to dictate the type or placement of the Lucases’ plants and shrubs. The Blackwell complaint failed to state a cause of action for a nuisance, or allege any present injury or an imminent threat of irreparable harm for which there was no adequate remedy at law.

The Court of Appeals observed that a cause of action arises out of a pre-existing primary legal right with which the law invests a person The right to maintain an action depends upon the existence of a cause of action which involves a combination of a right on the part of the plaintiff and the violation of such right by the defendant. Thus, the existence of a legal right is an essential element of a cause of action, inasmuch as a plaintiff must recover on the strength of his own case instead of on the weakness of the defendant’s case. It is the plaintiff’s right, not the the defendant’s wrongdoing, that is the basis of recovery.

That right or duty must be a legal right or duty, and not a mere moral obligation which is enforceable neither in law or in equity.
Applying the general notion to this case, the Court of Appeals observed that property owners have a legal right to cut and remove any part of a plant or shrub that grows on or overhangs their property. They have a legal right to sue to abate a nuisance. But that’s Property owners have no legally cognizable right to a view across their neighbors’ property. Nor do they have a right to dictate the type or placement of the neighbors’ shrubs.

The shrubs were not a nuisance. The Lucases would be subject to liability for a private nuisance only if their conduct is a legal cause of an invasion of the Blackwells’ interest in the private use and enjoyment of land. Again, without a legal right to a view across the property, there simply is no such interest to be invaded.

But the Blackwells tried to bootstrap their claim into a “spite fence” argument. They argued that the plants and shrubs would someday obstruct their view, and this fact gave them a viable cause of action for a “spite fence” nuisance.

The Court of Appeals held that the Blackwells’ “spite fence” claim had no basis in Mississippi law. Because the one Mississippi case on “spite febces” was decided by an evenly divided Court, “there is still no precedent for such a claim under Mississippi law. Moreover, we decline to recognize a new cause of action for a “spite fence” in a case that does not even involve a fence,” but instead only “some unspecified ‘plants and shrubs’ that, “[i]f allowed to grow,” allegedly may obstruct the Blackwells’ view.

– Tom Root

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Case of the Day – Tuesday, September 10, 2019

A TALE OF TWO TALES

It is often tempting to consider only one side of a story. It makes for humor, it fuels rage, often it titillates.

I remember the story about Dan Quayle lamenting that “I regret I didn’t study Latin harder in school so I could converse with people in Latin America.” Great yarn, illustrating just how vapid and shallow the Vice President really was. The story became much less interesting when you heard the other side.

There was another side? Well, yes. During a speech in April 1989, Representative Claudine Schneider of Rhode Island told a gathering of Republicans that she had recently attended an event at the Belgian embassy, also attended by Vice-President Quayle. They spoke to each other, and the Veep complimented the Congresswoman on her command of French.

Then, Schneider told the group, the Vice-President said, “I was recently on a tour of Latin America, and the only regret I have was that I didn’t study Latin harder in school so I could converse with those people.” Ms. Schneider intended to make a joke, something she explained at the conclusion of her speech. Somehow, the media missed the disclaimer, and presented her joke as fact.

Reading today’s case reminded me of the dangers of uncritical acceptance of one version of reality. The majority describes a mean old woman who was willing to go to great lengths to mete out woe to her nice neighbors. The dissent, on the other hand, tells about a nice widow woman who had lived in harmony with her neighbors for 40 years, until a pair of boorish neighbors upset the neighborhood, stole her property, denuded the landscape and let their dogs take dumps all over Patty’s yard. To protect herself, the widow tries to restore nature, only to be sued by the Philistines next door.

What is at once puzzling and disheartening is that the judges are reaching their conclusions from the same pool of evidence.

Tranfield v. Arcuni-English, 2019 ME 135 (Supreme Ct. of Maine, Aug. 15, 2019): A nasty neighbor, an old battleaxe octogenarian named Patricia Arcuni-English, took an immediate disliking to her new neighbors, the Tranfields. The day the Tranfields move in, Richard knocked on Patty’s door, seeking to borrow a bit of firewood. She refused to open it. Richard took a few logs, intending to replace them later. Patty, watching from behind curtains, saw him take the wood.

[We can stop the recitation of facts right there, as far as I’m concerned. We have a term for people who take the property of others without permission, even when they later claim they intended to replace it later. We call them “thieves.” Apparently, things are different in Maine. At any rate, imagine the gall of that old woman, disliking her new neighbors because she saw them stealing her wood!]

Of course, the real factual recitation does not end there. Instead, it continues…

Later, Richard was removing a tree near a shed on his property and limbing dead branches on his property along the property boundary line. Patty approached him, furious that he would dare to cut his trees without discussing it with his neighbors first. She threatened to install a 10-foot fence to block the Tranfields’ view of the ocean. At the same time, she chewed Richard out for the Tranfields having removed a koi pond on their property and for letting their dogs do their business in her yard.

Later, while Patty was traveling, a local landscaper who works for both parties sent Patty a photo of the parties’ boundary line. The Tranfields had cleared much of the deadwood and debris on their property, opening up a view of their house to Patty. She was devastated by the Tranfields’ having cleaned up their property, and called the landscaper. She told him she needed trees and privacy, and they discussed how to do it.

A few months later, the landscaper planted 24 arborvitaes along the boundary line. The trees were 10-12 feet tall, with some shorter trees installed to create an additional row to fill in any gaps. The landscaper also installed seven 4-6’ tall pine trees near a structure on Patty’s property.

The Tranfields sued Patty, alleging that the plantings were nothing but a spite fence. They asked for damages and injunctive relief. The trial court found that Patty’s “dominant motive was to install a continuous green barrier between the two properties along the boundary line. The trees were installed without any advance notice to the Tranfields, along the portion of the boundary that would block their view and without considering other types of vegetation that could provide her privacy without blocking entirely the slot view that the Tranfields had or without totally closing in their back yard.”

The trial court thus concluded that the mean old lady had constructed a spite fence, albeit one made of trees. It ordered Patty to remove every other pine tree along the boundary line, remove the trees that were planted as an additional row to fill in gaps, and trim all of the arborvitae to a height no greater than 10 feet. Additionally, the court prohibited her from replacing any arborvitae that die off.

Patty appealed, and the case ended up before eight judges of the Maine Supreme Court.

Held: A seven-judge majority of the Court said Patty’s arborvitae had to go.

The Court cited 17 M.R.S. § 2801, which stated, “Any fence or other structure in the nature of a fence, unnecessarily exceeding 6 feet in height, maliciously kept and maintained for the purpose of annoying the owners or occupants of adjoining property, shall be deemed a private nuisance.” The Tranfields, as the plaintiffs, bore the burden of demonstrating each of these elements by a preponderance of the evidence. However, they did not have to prove that “malice, the purpose to annoy, was the sole motive for building the fence. The plaintiff need only prove that such was the dominant motive, meaning that without that malicious motive, the fence would not have been erected or maintained.”

The Maine Supreme Court held that the Tranfields met their burden. The finding of malice, the Court said, “is supported by the history of animosity between the parties,” the fact that Patty’s “claimed reason for building a fence was not credible,” the fact that Patty installed the fence without advance notice to the Tranfields, and “the size, extent, and anticipated growth of the trees.”

The Maine Supreme Court conceded that it did “not doubt that her privacy was part of her concern,” it determined that Arcuni-English’s motive was malicious and without that motive, she would not have installed the trees as she did, even to vindicate her privacy interest.”

Patty argued the court should not have assigned a malicious motive to her because she deferred to the landscaper on decisions about what to plant and where. The trial court disagreed, noting that its analysis of whether this was a spite fence was informed by the acrimonious encounters between the parties that had occurred before any decisions concerning what to plant were made. Finally, she argued that the court erred by finding that the height of the trees unnecessarily exceeded six feet because she presented the landscaper’s uncontradicted testimony that trees of this height were necessary to protect her privacy. Simply enough, the court refused to believe the landscaper, as it had the right to do.

At the start of the trial, the court had gone to the property to see the arborvitae in question. Thus, as the Maine Supreme Court put it, the trial court “was able to weigh the testimony it heard during the trial in light of the information it acquired during that view. As its judgment indicates, the court specifically considered the number and size of the plantings, as well as Patty’s malicious motive, in finding that the trees were “unnecessarily” taller than six feet.

Thus, the Supremes held, the trial court “did not err by determining that Patty’s installation of trees on the parties’ boundary line constituted a spite fence pursuant to § 2801 because her installation of more than thirty trees, which created a dense and continuous wall, was done with malice.”

But what if Patty wasn’t a nasty old woman? A dissenting judge took a decidedly different view of the evidence, finding that “from the time they moved onto their property, Richard Tranfield and Karla Doremus-Tranfield provoked, promoted, and continued an adverse relationship with their elderly neighbor, Patricia Arcuni-English… The trial court failed to sufficiently consider the role the Tranfields’ provocations played in Ms. Arcuni-English’s efforts to restore her privacy after the Tranfields had eliminated the privacy barrier between the two properties.” Further, “the trial court’s finding that Ms. Arcuni-English requested her landscaper to plant trees “to ensure her privacy” and did not tell him “to block their view,” is inconsistent with its finding that malice – a purpose to annoy-was the dominant motive in planting the trees at issue.”

The dissenting judge seemed to me to be right on point when he said Patty, “a woman in her eighties, lives alone in the Camden residence she has occupied for more than forty years.” The very day in January 2016 the Tranfields moved in, Patty returned home to find “Mr. Tranfield apparently stealing firewood from her home. The trial court found that the Tranfields “left a note on her door” indicating that they had taken the firewood. That finding has no support in the record evidence. In any event, a note, if there ever was one, would have done little to ameliorate the bad first impression already created. The Tranfields followed up the negative start to the neighborly relationship by releasing their dogs to urinate and defecate on Ms. Arcuni-English’s property. Then, without notifying Ms. Arcuni-English, they cut a couple of trees near her property.”

After Patty threatened to build a fence to block the Tranfields’ view of the ocean, while she was away from her residence, the Tranfields chopped down the barrier of greenery on their property that had provided privacy to Patty’s home for several decades. When Patty found out, she was “devastated.” So, as the dissent put it, “she called the landscaper and said, ‘I need trees’.”

The dissent complained that the trial court specifically found that Patty “never told [the landscaper] to block their view…” The landscaper “was her agent when he sent the photo to her of the trees cut down. She only said she needed trees and privacy and directed [the landscaper] to install trees but left to him decisions concerning what trees and where to place them to ensure her privacy.” Even the trial court found that it “does not doubt that her privacy was part of her concern.”

The dissent complained that the spite fence statute “does not appear to contemplate the situation, as occurred in this case, where the adversity in the relationship that the court found led to the planting of the trees was provoked, at least in part, by the hostile actions of the plaintiffs, and where the ‘fence or other structure’ only replaced a barrier that previously existed.

Additionally, the dissent wondered how the majority “could find malice the ‘dominant motive’ in planting the trees when it also found that ‘she never told [the landscaper] to block their view’ and ‘left to him decisions concerning what trees and where to plant them to ensure her privacy’.”

The question will remain rhetorical, because the wood-taking Tranfields convinced a majority of the judges that Patty was a mean old woman and they were well-meaning, innocent neighbors.

– Tom Root

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Case of the Day – Monday, September 9, 2019

HAWAII SINGS HAWAII

Regular readers know that I write often about the Hawaii Rule, easily the second most cited rule in arborculture law. But for all of that, the great State of Hawaii has not expounded on the seminal holding in Whitesell v. Houlton, the decision that most famously rejected the second prong of the Massachusetts Rule by holding that when a landowner’s tree became a nuisance to his or her neighbor, the neighbor could compel the landowner to abate the nuisance – that’s legalese for remove the tree or at least the part of the tree that was bedeviling the adjoining property owner – at the landowner’s expense.

Whitesell, which adopted a rule from an old Virginia case, Smith v. Holt, held that a tree was a nuisance if it was “noxious” or if there was an imminent danger of it causing, “sensible harm” to property other than plant life other than by “casting shade or dropping leaves, flowers, or fruit.” “Sensible harm” is a standard not causing much confusion: tree roots heaving basement walls, danger trees about to fall on nearby cars and structures – it has always been reasonably obvious what “sensible harm” might be. But what might Whitesell’s reference to “noxious” trees be all about?

About 35 years after Whitesell, a Hawaii court has finally tackled the question, interpreting Whitesell and providing a rare glimpse at a court admitting that its own precedent – if not wrong – at least was a bit too frisky. Not that I am surprised, it turns out that Whitesell’s reference to noxious trees” was meaningless surplusage, language borrowed without much consideration from a since-discredited Virginia decision.

No one ever expected a litigant to latch on to the “noxious” half of Whitesell’s disjunctive definition in order to make his case. When the plaintiff in today’s case did just that, the appellate court was compelled to admit that Whitesell’s inclusion of ‘noxious’ was “superfluous.” Translation: Whitesell said ‘noxious’, but it did not mean it.

The appellate court in today’s case did the only thing it could: it decided to “modify [the] holding in Whitesell for when a plant can be considered a nuisance. Plants whose overhanging branches cast shade or drop leaves, flowers, or fruit, or whose roots interfere only with other plant life, are not nuisances. Overhanging branches or protruding roots constitute a nuisance when they actually cause, or there is imminent danger of them causing, material harm to a person or to property other than plant life.”

Good idea, even if it’s 35 years late. Get rid of the ‘noxious’ language. If the tree is noxious, it probably already poses an imminent to people or property. And that is exactly what a non-noxious tree does when it has become a nuisance.

For heaven’s sake, simply define the tree by the imminent threat it represents, not with some squishy term like ‘noxious’.

Spittler v. Charbonneau, Case No. CAAP-16-0000069 (Ct. App. Hawaii, Sept. 4, 2019) 2019 Haw. App. LEXIS 434. Scott Spittler sued his neighbor Paul and Janice Charbonneau, raising all sorts of trespass, nuisance and related claims. The claims relevant here is his claim that the Charbonneaus’ ironwood trees, planted in 1983 as windbreaks under a U.S. Dept. of Agriculture program, were dropping leaves and branches on his property, and had “an extensive root system, have created a poor growing environment, and continue to present danger to person, real property, and agricultural products of [Spittler].” For good measure, he also claimed that the trees were ‘noxious,’ based upon a “high risk” rating of “12” contained in the Hawaii Pacific Weed Risk Assessment website. He demanded that the Charbonneaus remove the trees at their expense.

The trial court held for the Charbonneaus, finding that “the intrusion by way of overhanging branches, leaves and roots into Scott’s property that results in damage to plant life is not a nuisance and not compensable..”

Scott appealed.

Held: The trees were neither noxious nor nuisances. What’s more, Whitesell’s reference to noxious trees being nuisances is surplusage that should be stricken from the decision.

The Court observed with some surprised that “in a state known for its lush foliage, there appears to be only one reported appellate decision, Whitesell v. Houlton, addressing when a plant that naturally encroaches upon a neighboring property can constitute a nuisance. Whitesell adopted a modified version of the Virginia rule set forth in Smith v. Holt, which was later overruled in part by Fancher v. Fagella. Borrowing from Smith v. Holt, Whitesell held that “non-noxious plants ordinarily are not nuisances… Overhanging branches or protruding roots constitute a nuisance only when they actually cause, or there is imminent danger of them causing, sensible harm to property other than plant life, in ways other than by casting shade or dropping leaves, flowers, or fruit. When overhanging branches or protruding roots actually cause, or there is imminent danger of them causing, sensible harm to property other than plant life, in ways other than by casting shade or dropping leaves, flowers, or fruit, the damaged or imminently endangered neighbor may require the owner of the tree to pay for the damages and to cut back the endangering branches or roots and, if such is not done within a reasonable time, the damaged or imminently endangered neighbor may cause the cutback to be done at the tree owner’s expense.”

Thus, according to Whitesell, the Charbonneaus’ trees could be considered a nuisance if: (1) they were “noxious”; or (2) they caused, or there was an imminent danger of them causing, “sensible harm” to property other than plant life other than by “casting shade or dropping leaves, flowers, or fruit.”

“In Whitesell,” the Court said, “we did not define the word ‘noxious’ or formulate a test to determine when a plant could be considered ‘noxious.’ The difficulty inherent with characterizing a plant as ‘noxious’ is illustrated by this case. Scott argues that ironwood trees are “noxious” based upon a “high risk” rating of “12” contained in the Hawaii Pacific Weed Risk Assessment website. That website does not use the word “noxious” and states only that the “small-cone ironwood” is “[u]sed in [Hawai’i] for windbreaks at higher elevations. Wood used for fuel.” It does not indicate that the ironwood is “physically harmful or destructive to living beings,” which is the definition of “noxious” contained in the Merriam-Webster dictionary.” The Court noted that some Hawaii cases had characterized some other flora as being noxious, but ironwood trees weren’t on anyone’s list except for Scott’s.

The Court sheepishly admitted that “[o]ur use of the word “non-noxious” in Whitesell was superfluous. A noxious plant — i.e., one that is “physically harmful or destructive to living beings” — is one that actually causes, or that could pose an imminent danger of causing, material harm to persons or to property other than plant life; conversely, a plant that actually causes, or that poses an imminent danger of causing, material harm to persons or property other than plant life may be considered noxious. We note that certain plants, such as coconut palms, are capable of causing material injury to persons or to property other than plant life just by dropping fronds or nuts. We also note that tree roots can, under some circumstances, pose imminent trip hazards without damaging property other than plant life. We therefore modify our holding in Whitesell for when a plant can be considered a nuisance. Plants whose overhanging branches cast shade or drop leaves, flowers, or fruit, or whose roots interfere only with other plant life, are not nuisances. Overhanging branches or protruding roots constitute a nuisance when they actually cause, or there is imminent danger of them causing, material harm to a person or to property other than plant life. When overhanging branches or protruding roots actually cause, or there is imminent danger of them causing, harm to a person or to property other than plant life, the damaged or imminently endangered neighbor may require the tree’s owner to pay for the damage and to cut back the endangering branches or roots and, if that is not done within a reasonable time, the damaged or imminently endangered neighbor may cause the cutback to be done at the tree owner’s expense.”

The only dispute before the court alleged the ironwoods dropped “overhanging branches which merely cast shade or drop leaves, flowers, or fruit,” and “roots which interfere only with other plant life.” Under those facts, the Charbonneaus’ trees were not a nuisance…

– Tom Root

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