Case of the Day – Friday, August 7, 2020


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 palm 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 by abuse of process. Or maybe not. 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 commonfolk. It’s called qualified immunity, and it has a pretty bad reputation these days… one that is richly deserved.

Sadly, the rule is 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 14 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 more 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 action the Village had 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


And Now The News …

Stamford, Connecticut, Advocate, August 6, 2020: Isaias knocked down a tree in your yard. What do you do now?

With high winds and lashing rain, Tropical Storm Isaias pummeled Connecticut Tuesday afternoon, leaving more than 800,000 without power. Like Irene and Sandy in previous years, much of the damage came from trees and limbs uprooted or broken off by powerful winds that dropped power lines, smashed into homes and crushed cars or left driveways and roads impassable. With the winds abated and Connecticut residents left surveying the damage, police and fire departments are still urging caution. “Trees and wires are continuing to come down well after (Tuesday’s) storm. Some wires are not live, but others are, and there is no way to tell the difference between the two visually,” Bethel Police said in a Facebook post. If a tree falls on a house, immediately call 911, said Andrew Ellis, fire chief for Brookfield. Firefighters will check the damage, often with a municipal building inspector, to make sure it’s safe, he explained. If power and phone service are knocked out as well, he said residents should find a neighbor or someone else who can reach first responders. If a tree has come down on a homeowner’s property without taking any wires with it, whose responsibility is it? The answer is complicated…

Nassau, Long Island, New York, Newsday, August 6, 2020: What homeowners should know if a neighbor’s tree falls on their property

If a neighbor’s tree falls on your house, what do you do? That’s the question many Long Island homeowners are facing in the aftermath of Tropical Storm Isaias, which brought trees and branches crashing down onto homes and power lines when it swept across the region Tuesday. Local insurance experts — including a broker, adjuster and attorney — said the first step is to make sure the property is safe. Then photograph the damage, keep records of expenses and report the damage to your insurance company as soon as you can — since your insurer, not your neighbor’s, will handle the claim, the experts said. Insurance will typically cover tree removal if it causes structural damage or a safety problem such as a blocked driveway. But if the tree fell without causing damage, insurance typically will pay $500 to $1,000 for debris removal depending on the policy, and if there are additional costs it’s up to the neighbors to work out a deal to pay for them, said Loretta Worters, a spokeswoman for the Insurance Information Institute, a trade group. She said a homeowner’s insurance rates typically would not rise as a result of one claim, but multiple claims could affect rates…

Chicago, Illinois, Tribune, August 6, 2020: Beloved ‘Keebler’ tree to come down in Western Springs

Western Springs officials know a new tree cannot replace residents’ beloved “Keebler” tree that will be removed as part of the reconstruction of Prospect Avenue, but they plan to help preserve their memories of the tree. Village officials became aware of the tree’s poor condition in May after they had a firm do a tree inventory. The firm rated the catalpa tree, estimated to be between 80 and 100 years old, on the corner of Prospect and Reid Street as a 5 on a scale of 1 to 6, where 6 is a dead tree. The low rating was based on the findings that 50 percent or more of the tree was dead wood and the tree trunk was basically hollow to the ground due to decay, said Casey Biernacki, Western Springs’ assistant director of municipal services.The tree has grown so that ComEd’s power lines run through the canopy. “The tree has undergone a lot of aggressive trimming from ComEd,” which the utility has the right to do, Biernacki said. “Over the last 50 to 70 years, it really has taken a beating from ComEd,” he said…

Syracuse, New York, Post-Standard, August 6, 2020: Destructive ash tree pest found for first time in Adirondacks

The destructive emerald ash borer continues its march across Upstate New York, appearing for the first time in the Adirondacks. The state Department of Environmental Conservation announced that the beetle that kills ash trees was found recently at the Warren County Canoe Launch, on the Schroon River in the town of Chester. “It’s very sad to hear that the emerald ash borer has reached Warren County,” Frank Thomas, chairman of the county Board of Supervisors, said in a news release. “The spread of this invasive will be absolutely devastating to our ash trees and substantially degrade our beautiful forests.” New York has about 900 million ash trees, about 7% of all trees in the state. Ash comprise a smaller percentage of trees in the Adirondacks, DEC said. The borer has now been found in all but nine of Upstate New York counties. The emerald ash borer adult eats the leaves of the ash tree, then lays eggs just beneath the bark, starting at the top of the tree and working its way down. The tiny larvae eat their way around the tree just beneath the bark, killing the tree by cutting off the nutrients that are pulled from the roots into the canopy…

New York City, Staten Island Advance, August 5, 2020: All hands on deck as residents, agencies, responders help navigate Isaias’ tree chaos

A roadblock near a local hospital prompting residents to take action; a Jeep crushed under an uprooted tree in Annadale, and thousands who remain without power Wednesday across Staten Island. Felled trees on property, streets and power lines continue to cause chaos after Isaias, and it’s so far been a joint effort including Con Edison, Emergency Management, the FDNY, Metropolitan Transportation Authority, the city’s Parks Department — and even residents — to navigate the situation. Said Council Minority Leader Steven Matteo (R-Mid Island): “We need as much help as we can,” he said. “We’ve got to get these trees out of the streets, out of wires that are dangerous.” More than 1,000 downed trees have been reported to 311 on Staten Island alone after Isaias swept through the borough, up from a total hovering around 900 as of 7 p.m. Tuesday. Many of them uprooted by what’s been described as the strongest wind gusts since Hurricane Sandy…

Philadelphia, Pennsylvania, KYW-TV, August 5, 2020: What You Need To Know About Filing Insurance Claims For Tree-Related Damage

Across the region, cleanup is underway following Tropical Storm Isaias, and many home and car owners are dealing with the aftermath of downed trees. If you’ve experienced tree-related damage, Eyewitness News has information on filing an insurance claim for repairs. There’s always a lot of confusion when it comes to these types of claims so here’s what you need to know. Trees down in yards, on houses and on top of cars — it’s inevitable after a powerful storm. But what’s covered by your insurance and what’s not depends on a number of factors. If your tree falls on your house, your insurance company will pay for the removal of the tree from your home and repairs to your home. If your tree falls on your neighbor’s house, your neighbor’s homeowner policy is going to be responsible. It’s considered an act of God and your neighbors should file a claim with their insurance company and vice versa…

The National Interest, August 5, 2020: Can Infested Trees Be Repurposed as a Building Material?

A large portion of North America’s 8.7 billion ash trees are now infested by a beetle called the emerald ash borer. Since its discovery in the U.S. in 2002, the emerald ash borer has killed hundreds of millions of ash trees, drastically transforming entire forest ecosystems in the process. As of October 2018, infestations have been found in 35 U.S. states and several Canadian provinces. Ash wood is used as a material for furniture, flooring and baseball bats, and in the past, was used in heavy timber construction. The larvae of the emerald ash borer hatch underneath the tree’s bark, which hinders the plant’s ability to transport nutrients throughout its trunk, causing it to decay. The infestation has left arborists, researchers and scientists scrambling to find a way to slow the spread or repurpose the infested trees. With emerald ash borers creeping into Cornell University’s Arnot Research Forest in upstate New York, we wanted to see if we could figure out a method to make use of dying ash trees as building material…

North Platte, Nebraska, Telegraph, August 5, 2020: How to help lonely trees in modern landscapes

In our modern landscapes, trees often get planted as lone individuals surrounded by a sea of lawn. This is less than ideal for trees — and vice-versa. Trees typically grow in forests where little grass is present. When trees are placed in lawns and those lawns are excessively fussed over (and we Americans love to fuss over our lawns) trees can be sitting ducks for such things as mower and trimmer damage as well as herbicide injury. Another issue is underground as tree roots and lawn roots don’t always mix well. Lawn soils are often wet and compacted which favors grasses while tree roots prefer loose soils rich in microbial and fungal life. This is too bad, because we can have both a nice, highly-functional lawn and healthy trees if we do it right. One place to start is by surrounding trees with companion plantings that create an island of landscape. Trees in landscape beds will suffer fewer conflicts with lawn care and the soils typically become more bioactive and sustaining for the trees and the other companion plants that share the rooting zone. Tree islands can be small — such as a few perennials or groundcovers in the mulch ring around the tree. But generally speaking, the larger they are the more benefits they provide. Good companion plants include shrubs of all kinds, as well as many perennials, ornamental grasses and various groundcovers. When the trees are young, the companion plants should be sun-loving. But as the trees grow, the companion plantings can transition to more shade-tolerant types…

Manchester, New Hampshire, Union Leader, August 4, 2020: Clear-cutting of trees leads to cease and desist order at Bedford apartment site

After numerous trees were cut prematurely, a cease and desist order was recently issued to the developers of the future Bow Lane apartment complex behind Bedford High School. In addition to clearing trees on the site prior to final planning board approval, the limits of the clearing exceeded what was conditionally granted by town planners. “A letter of violation and a cease and desist order was issued to the property owners and all construction activity at this time has stopped at the site,” said Planning Director Becky Hebert. “ … At this point, construction can’t begin again until we have an amended site plan that proposes some restoration and revegetation of the areas that have been cleared.” One year ago, despite a petition with more than 1,100 opponents, developers Dick Anagnost and Bill Greiner received conditional approval to construct three, three-story apartment buildings behind the high school — a controversial project that was debated for more than a year and will result in 93 workforce housing apartment units…, August 4, 2020: Making the most of a tree epidemic

A large portion of North America’s 8.7 billion ash trees are now infested by a beetle called the emerald ash borer. Since its discovery in the U.S. in 2002, the emerald ash borer has killed hundreds of millions of ash trees, drastically transforming entire forest ecosystems in the process. As of October 2018, infestations have been found in 35 U.S. states and several Canadian provinces. Ash wood is used as a material for furniture, flooring and baseball bats, and in the past, was used in heavy timber construction. The larvae of the emerald ash borer hatch underneath the tree’s bark, which hinders the plant’s ability to transport nutrients throughout its trunk, causing it to decay. The infestation has left arborists, researchers and scientists scrambling to find a way to slow the spread or repurpose the infested trees. With emerald ash borers creeping into Cornell University’s Arnot Research Forest in upstate New York, we wanted to see if we could figure out a method to make use of dying ash trees as building material…, August 4, 2020: In a warming world, New England’s trees are storing more carbon

Climate change has increased the productivity of forests, according to a new study that synthesizes hundreds of thousands of carbon observations collected over the last quarter century at the Harvard Forest Long-Term Ecological Research site, one of the most intensively studied forests in the world. The study, published today in Ecological Monographs, reveals that the rate at which carbon is captured from the atmosphere at Harvard Forest nearly doubled between 1992 and 2015. The scientists attribute much of the increase in storage capacity to the growth of 100-year-old oak trees, still vigorously rebounding from colonial-era land clearing, intensive timber harvest, and the 1938 Hurricane—and bolstered more recently by increasing temperatures and a longer growing season due to climate change. Trees have also been growing faster due to regional increases in precipitation and atmospheric carbon dioxide, while decreases in atmospheric pollutants such as ozone, sulfur, and nitrogen have reduced forest stress. “It is remarkable that changes in climate and atmospheric chemistry within our own lifetimes have accelerated the rate at which forest are capturing carbon dioxide from the atmosphere,” says Adrien Finzi, Professor of Biology at Boston University and a co-lead author of the study…

Butte, Montana, Standard, August 4, 2020: Trees: Live or let die?

What the right hand giveth, The left hand taketh away. Martin Luther’s Commentary on the Sermon on the Mount (translation). If there is a photo in the newspaper, any newspaper, to trivialize Earth Day, it is one of tree planting, preferably with children involved. The Montana Standard recently had an article “Protect a Tree.” The Natural Resource Damage Program (NRDP) has spent a small fortune planting trees locally along with their smaller cousins, shrubs. Then on the Duhame property near Miles Crossing purchased by NRDP and bestowed upon FWP, what do my wondering eyes behold but a bunch of felled Douglas firs? I immediately scent the pejorative “conifer encroachment,” a favorite FWP term used to blame, among other things, the sage-hen decline. It’s an all-purpose villain! What they are encroaching upon I’m not entirely sure. But a few years ago, I read in the Standard that NRDP was funding the destruction of other trees in the name of Conifer Encroachment into riparian areas up Little Basin Creek. As a restoration professional for 45+ years, I thought the replacement of plants needing an enhanced soil-moisture regime with those suited to drier sites resulted from a combination of stream downcutting and the floodplain aggrading. This effectively dries previously wet sites. I must have played hooky the day the UM Forestry School taught “conifer encroachment…”

San Francisco, California, Courthouse News, August 3, 2020: Ninth Circuit Blocks Logging Project in Burned-Out Part of California Forest

Eight months after a federal judge green-lighted a roadside logging project to remove fire-damaged trees on 7,000 acres in Mendocino National Forest, the Ninth Circuit on Monday reversed that decision and issued a preliminary injunction to stop it. The majority of a three-judge Ninth Circuit panel found the U.S. Forest Service should have studied the potential impact of logging on the environment first, rejecting arguments that the project fell within an exemption under the National Environmental Policy Act for roadside repair and maintenance. “We’re very glad that the court saw that the Forest Service has been abusing this categorical exclusion and has just gone too far with that,” said attorney Matt Kenna, of Public Interest Environmental Law in Durango, Colorado, who represents a conservation group fighting against the project…”

Philadelphia, Pennsylvania, WHYY-TV, August 3, 2020: ‘Buffer Your Stream’ program asks Pa. landowners to plant trees, boost water quality

Worried about water quality in your stream? Plant a tree next to it, says the Pennsylvania Department of Conservation and Natural Resources, or DNCR. The DCNR recently announced a new stream buffer program, urging 10,000 Pennsylvania landowners who live along the state’s streams, creeks, and rivers to plant native trees near the water’s edge. The term “stream buffers” may sound new, but the concept isn’t — it applies to any trees and shrubs that are deliberately planted along a waterway. They provide nutrients for native insects and fish to flourish and slow the spread of other invasive plant species. Their roots also stabilize the bank, reduce soil erosion, and help to filter chemical fertilizers and other pollutants that would otherwise go directly into the water. Why is the state encouraging landowners to plant them now? “The DCNR has made a more concerted effort recently because of the efforts to clean up the Chesapeake Bay, as well as all of the surrounding watershed,” said Teddi Stark, who manages both the riparian buffer and watershed forestry program for the department. “It’s not necessarily super common knowledge that trees are really good for streams,” she added, “but they’re what form the basis of the food chain for stream ecosystems. They intercept pollution, they prevent erosion… [trees are] very multifaceted, and very essential to stream health…”

Omaha, Nebraska, WOWT-TV, August 3, 2020: West Omaha property owner upset after contractors cut down his trees

A west Omaha homeowner near 144th and Shirley Streets claims a new neighbor has gone too far. But it’s not your typical property line dispute. The neighborhood called Harvey Oaks has one less tree and property owner Jason Harre says it shouldn’t have been cut down. “It’s well within the property line on my parcel,” Harre said. Harre got photos of tree cutters who work for a subcontractor of Applied Underwriters, which is developing the land north of the neighborhood. “I understand they have to clean up their land of entry but this our property line and it’s ridiculous. They can come onto my property and cut down so many trees that have been here for so long,” he said. Former city forester now consulting arborist Phil Pierce counted two dozen trees removed on Harre’s property. Pierce tells 6 News several were not cut properly and he saw limbs trimmed too far from the trunk. Harre says the contractor marked the property and an oak tree is clearly his. And it shouldn’t have been confused with a nuisance volunteer tree…

Lansing, Michigan, State of Michigan, August 3, 2020: Check trees in August for signs of the Asian longhorned beetle

This year, many Michiganders have found time to reacquaint themselves with the outdoors. Whether you spend time walking, hiking or exploring neighborhood parks, you can help protect Michigan’s trees by spending a little of your outdoors time checking for signs of the Asian longhorned beetle. August is Tree Check Month, and the U.S. Department of Agriculture is asking the public to look for and report any signs of this invasive pest that’s not native to Michigan and could cause harm to our environment and economy. In late summer and early fall, adult Asian longhorned beetles drill perfectly round, 3/8-inch holes to emerge from within tree trunks and limbs, where they spend their larval stage chewing through the heartwood. After a brief mating period, female beetles chew oval depressions in trunks or branches to deposit eggs. Sometimes a material resembling wood shavings can be seen at or below exit holes or coming from cracks in an infested tree’s bark…

Woodland, California, Daily Democrat, August 2, 2020: Woodland foundation maps city’s largest valley oak trees

Due to the ravages of time, development pressures, over-watering, agriculture and smaller planting spaces in new neighborhoods, the prevalence and visibility of Woodland’s namesake tree, the valley oak, has diminished over the arc of history. In 2018 the Woodland Tree Foundation counted 880 valley oaks over 12 inches in diameter throughout the city’s 15 square miles. However, Foundation members seeking more definitive data, recently used GIS mapping software, to learn the precise locations and attributes of Woodland’s largest valley oaks with a diameter of at least 40 inches. As a result, the Foundation has learned there are 200 trees of this size in the city. All can now be identified and located on the Foundation’s website: These are Woodland’s true heritage trees, many of which are as old as the town’s American settlement in the 1850s, according to members of the Foundation…

Norwalk, Connecticut, News12, August 2, 2020: Tree services see increase in business ahead of Isaias

Tree services in Connecticut say that with Isaias taking aim at the Northeast, they’re preparing to handle its potential aftermath. Experts recommend being proactive in the days leading up to a big storm to minimize the chances of major damage. K & J Tree Service says it has seen an increase in business and is performing extra safety inspections. The service says it’s looking for cracked limbs, dead liters and anything that could be a hazard during the upcoming storm. Ed Grant, the chief operations manager, says the biggest thing is to be aware of potential dangers in your yard. K & J Tree Service says it has 24-hour emergency service, which people will more than likely need in the next few days. The company says just because a tree is full and looks healthy doesn’t mean it’s not hollow and decaying…

Stockton, California, KCRA-TV, August 1, 2020: Tree worker dies after truck tips over, Stockton police say

A man was killed while tree trimming in Stockton on Saturday when the truck he was working in tipped over, police said. The incident happened in the 9700 block of Hickock Drive around 8:14 a.m., the Stockton Police Department said. The 52-year-old man was inside the boom lift cutting a tree. As the lift was lowering, the truck tipped over and the man fell out, police said. Medics arrived shortly after and the man was pronounced dead at the scene, police said…

Tulsa, Oklahoma, World, August 1, 2020: Catch Dutch elm disease early to save your tree

Q: I have an American Elm that started looking like it had a problem and then died a few weeks later. What in the world happened?
A: The culprit was likely Dutch elm disease. I was speaking with Jen Olson of the OSU Plant Disease & Insect Diagnostic Lab recently and she said she was seeing more Dutch elm disease this year than in recent years, which is too bad because it’s one of the most destructive tree diseases in North America. Dutch elm disease was first discovered in the Netherlands in the early 1900s, but it didn’t take long for it to make its way to the U.S. It arrived around 1930 on beetles who were hitching a ride on some logs headed our way to make furniture. Quarantine helped control the disease until 1941, but the nation then became more focused on fighting a war. Some estimates suggest there were approximately 77 million elms in North America in the early ’30s. By 1989, more than 75% of those trees were lost. Dutch elm disease grows in the xylem of the tree. The xylem is the tissue that helps bring water up from the roots throughout the entire tree. You typically start to see evidence of Dutch elm disease in the upper branches with leaves gradually browning, then yellowing and eventually getting dry and brittle…

Worcester, Massachusetts, Patch, July 30, 2020: New Beech Tree Leaf Disease Found In Worcester

Beech leaf disease was first found in Plymouth in June. State forestry officials later found the disease in Worcester and Blandford. The disease first emerged in the U.S. in 2012 in Ohio. The disease is associated with a parasite called Litylenchus crenatae, which causes leaves to become weak, sometimes leading to tree death, according to the state Department of Conservation and Recreation. The state will survey Beech trees across the commonwealth for signs of the disease. Beech trees are found widely across New England. The three main species, American beech, European beech, and Oriental beech, can all be impacted by the leaf disease. It’s unclear how the disease spreads, and how long it takes for a tree to show symptoms…

Battle Ground, Washington, Reflector, July 30, 2020: Public asked to check trees for invasive species in August

Throughout the month of August, the Washington Invasive Species Council and the Washington Department of Natural Resources (DNR) are asking the public to take a couple of minutes to check trees in their communities for invasive insects. August is the peak time of year that wood-boring insects are most often spotted outside of trees. “State and federal agencies do a fantastic job at preventing the introduction of invasive species to the United States, but occasionally some slip through,” Executive Coordinator of the Washington Invasive Species Council Justin Bush said in a news release. “When a new invasive species is introduced, we need to know as quickly as possible so we can stop its spread.” Invasive species are non-native organisms that include plants, animals and diseases. When introduced to a new environment, they do not have natural predators or diseases to keep their growth in check. Once established, they may damage the economy, environment, recreation and sometimes human health…

Phoenix, Arizona, The Cronkite News, July 30, 2020: Proposal to protect Joshua trees from climate change proves divisive

Named for the biblical figure Joshua by Mormon pioneers who saw its outstretched limbs as a guide to their westward travels, the Joshua tree is an enduring icon of the Southwest. In tiny Yucca Valley, California, the spiny succulents that once guided pioneers through the Mojave Desert still adorn the landscape, but as climate change threatens their future, residents are increasingly at odds over their preservation. Some in the town of roughly 20,000 say that by listing the Joshua tree – which actually is a yucca – as threatened, new restrictions will negatively affect the town’s economy, while others view the protections as necessary to ensure the survival of Yucca brevifolia, which is native to the Mojave Desert. In October, Brendan Cummings, the conservation director of the Center for Biological Diversity, filed a petition to have the western Joshua tree listed as threatened under the California Endangered Species Act…

The Conversation, July 30, 2020: Are young trees or old forests more important for slowing climate change?

Forests are thought to be crucial in the fight against climate change – and with good reason. We’ve known for a long time that the extra CO₂ humans are putting in the atmosphere makes trees grow faster, taking a large portion of that CO₂ back out of the atmosphere and storing it in wood and soils. But a recent finding that the world’s forests are on average getting “shorter and younger” could imply that the opposite is happening. Adding further confusion, another study recently found that young forests take up more CO₂ globally than older forests, perhaps suggesting that new trees planted today could offset our carbon sins more effectively than ancient woodland. How does a world in which forests are getting younger and shorter fit with one where they are also growing faster and taking up more CO₂? Are old or young forests more important for slowing climate change? We can answer these questions by thinking about the lifecycle of forest patches, the proportion of them of different ages and how they all respond to a changing environment…

Johnson City, New York, WBNG-TV, July 29, 2020: ‘Tis the season for Christmas tree farmers

It’s beginning to look a lot like Christmas…well for tree farmers it is. They’re putting in work almost year-round to get your Christmas tree ready for December. After Christmas, farmers get a few months off. Then come March, things start to pick back up. At Morgan Hillside Tree Farm in Windsor, that’s when planting begins. “We plant every place that we’ve lost a tree to harvest. Even if we’re going to have a tree where we think we’re going to harvest in the next year or two, we’ll start a seedling in between the two of them. That way, we can get a little bit of a jump on things,” said owner Mark Morgan. Summer is the real marathon for tree farmers. “It’s all hot and sticky, there’s bugs and bees and all sorts of stuff you have to deal with this time of year, but it’s part of farming,” said Morgan. June is when mowing starts at the farm. “We let all of the animals get their babies in so to speak, and then we start mowing and then we’re getting ready for shearing which starts very late June, early July and goes for about three weeks,” said Morgan. Shearing may be the most important part — it’s what gives the tree the perfect shape. “The trees when they grow, they’ll kind of get out of the traditional shape of a Christmas tree, which is kind of a cone shape. So what we do is keep them within those small parameters and make them look as good as they possibly can for Christmas,” said Morgan…

American Association for the Advancement of Science, EurekAlert, July 29, 2020: Hot urban temperatures and tree transpiration

Shade from urban trees has long been understood to offer respite from the urban heat island effect, a phenomenon that can result in city centers that are 1-3 degrees Centigrade warmer than surrounding areas. Less frequently discussed, however, are the effects of tree transpiration in combination with the heterogeneous landscapes that constitute the built environment. Writing in BioScience, Joy Winbourne and her colleagues present an overview of the current understanding of tree transpiration and its implications, as well as areas for future research. Their work, derived from tree sap flow data, reveals the complexity and feedbacks inherent in trees’ and urban zones’ responses to extreme heating events. Dr. Winbourne joins us on this episode of BioScience Talks to discuss the newly published article, as well as directions for future research and the prospects for using trees to better mitigate urban heat in the face of a changing climate…

Tampa, Florida, Tampa Bay Times, July 29, 2020: St. Petersburg Banyan tree removal draws protest

When the crew showed up Wednesday to remove a Banyan tree on Granville Court N, they weren’t the only ones there. More than a dozen neighbors and members of the Florida Indigenous Rights and Environmental Equality group gathered to demonstrate against the removal of a Banyan tree between two homes near the intersection of Ninth Avenue N. Protesters bore signs that said “Save the Trees” and “Protect the Earth” as the tree removal company, El-Cheapo, began cutting off the branches of the estimated 57-foot tree. The Banyan tree has a sacred meaning to the group, said Alyssa Gallegos, 29, who has a tattoo of a Banyan on her back. “They were here long before us,” she said. “These trees are no one’s property.” The indigenous rights group also burned sage and prayed after the El-Cheapo crew members left for the day. But the crew was set to return. The job will take a couple more days. “To us, this is like killing our grandfather,” said member Alicia Norris, 50…

Fort Worth, Texas, Star-Telegram, July 29, 2020: Facing rapid development, Arlington plans measures to preserve trees ‘unique’ to city

More than 25 years after Arlington adopted its first ordinance to preserve trees, City Council members and environmental advocates are leading an effort to update the ordinance in the face of rapid residential and commercial development. Spearheaded by Arlington Council Member Sheri Capehart and the council’s Environmental Task Force, the movement to amend the city’s tree policies has spanned more than six months of presentations and debate. The central goal? To encourage real estate developers to preserve trees, particularly those native to Arlington, rather than cut them down and plant replacements elsewhere. “With every development, there are trees that are removed and that is an irreplaceable loss,” Richard Gertson, Arlington’s assistant director of planning and development services, said. “There’s no time like the present to recognize that fact and say: Let’s make the effort now, going forward, to try and encourage preservation and encourage education of the public on the importance of preservation.” Council members and environmentalists hope that amending tree policies will allow Arlington to preserve more of the Cross Timbers ecoregion, which spans from southeastern Kansas into central Oklahoma and central Texas. The city is in the eastern Cross Timbers, a hardwood upland forest that is home to trees like the post oak, a slow-growing species that has adapted to extreme droughts and often lives for hundreds of years…


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Case of the Day – Thursday, August 6, 2020


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), 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 on 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 some time prior to the accident, thus creating the hole, but replaced it some time 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


Case of the Day – Wednesday, August 5, 2020


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 adler 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’re meet 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.


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


Case of the Day – Tuesday, August 4, 2020


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 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, Case No. 1 CA-CV 16-0205 (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 in within about two months.

Callie was not satisfied. She claimed 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 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


Case of the Day – Monday, August 3, 2020


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.”

Last Friday, 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.

Morales v. United States, Case No. 17-15215 (U.S. Court of Appeals 9th Cir., July 13, 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 on 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 judgements 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 government ought not 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


Case of the Day – Friday, July 31, 2020


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, Case No. 17-1928 (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 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 in this case 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