Case of the Day – Friday, July 30, 2021

WHEN GOOD TREES GO BAD

The tree was just doing what trees do.

The tree was just doing what trees do.

Your tree is growing, man. Do something!

That was Ed Chandler’s lament to his neighbors, the Larsons. The nerve of those Larson people, owning a tree growing near the boundary with Ed’s place. What’s worse, they had the unmitigated gall to permit the tree to drop its leaves on Ed’s property, and to let the tree’s roots to grow up to his garage foundation. Ed complained mightily, but to no avail.

Ed could have stood for merely mitigated gall, but not this unmitigated kind. Oh, the humanity! So, this being America in general and Illinois in particular, Ed sued. He claimed that “as a consequence of the growth of that tree plaintiff’s garage had been severely and greatly damaged from the roots of the tree so that ‘the foundation has been broken, walls damaged and the roof coming apart’.”

The trial judge, being a flinty, self-reliant sort, threw out the suit, holding that the tree was doing what trees do – growing – and the Larsons weren’t responsible for that. The Court of Appeals disagreed, citing Professor William L. Prosser’s gold-standard treatise on tort law:

“[I]t is scarcely suited to cities, to say that a landowner may escape all liability for serious damage to his neighbors, merely by allowing nature to take its course. A different rule accordingly has been developing as to urban centers. * * * [W]hen the tree is in an urban area, * * * the landowner now has a duty of reasonable care, including inspection to make sure that the tree is safe. Recent decisions have extended the right to reasonable protection from travelers on the street to adjoining landowners as well.”

Like it or not, the Massachusetts Rule increasingly seems to be a relic of a bygone era. The Illinois courts still seem to discount normal tree problems – falling leaves, sap and the like – but when genuine harm (we call it “sensible harm”) results to an adjoining landowner from a tree’s natural development, the tree’s owner may be liable for repairs and removal of the tree.

eviltree160815Chandler v. Larson, 148 Ill.App.3d 1032, 500 N.E.2d 584 (Ct.App. Ill. 1986). Chandler complained that his next-door neighbor, Larson, had a tree that for some time had been growing over and onto Chandler’s property, with the roots growing under his garage and the leaves growing above his property. As a result of the tree’s growth, Chandler’s garage foundation has been broken, with the walls damaged and the roof coming apart. Chandler asked the Larsons to cut down their tree, but they refused. Chandler asked for an injunction ordering that the tree be destroyed. The trial court refused.

Held: The appeals court ruled that an urban property owner owed his adjoining landowner the duty of reasonable care, which necessarily would include taking reasonable steps to prevent damage to the adjoining landowner’s garage caused by roots of the urban property owner’s trees. A complaint which alleged that the adjoining landowner had placed the urban property owner on notice that the roots from his trees were causing considerable damage to adjoining landowner’s garage and which alleged that although urban property owner had received the notice, he refused to uproot the tree or to use other methods which would prevent further harm, stated a good cause of action for negligence.

The ruling is substantially at odds with the traditional Massachusetts Rule that an owner of land is entitled to grow trees on any or all of his land and that their natural growth reasonably will result in the extension of roots and branches onto adjoining property, and the adjoining landowner’s only remedy is to trim back the roots and branches. The appeals court in this case held urban landowner Larson to a higher “city dweller” standard. This standard is generally known as the Hawaii Rule, which imposes liability upon the adjoining landowner if the trees, plants, roots, or vines cause harm in ways other than by casting shade or dropping leaves, flowers, or fruit.

– Tom Root

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And Now The News …

Muskegon, Michigan, MLive, July 30, 2021: Trees saved, pause button hit on changes at Pere Marquette beach in Muskegon

Muskegon’s Pere Marquette beach won’t be getting new trees after all – but it won’t be losing any either.Following months of back-and-forth on what to do about trees lining a main sidewalk at the Lake Michigan beach, city commissioners have hit the pause button. The issue was first raised last November as part of a plan to add parking along Beach Street and an adjacent southbound drive, and replace the 5-foot-wide sidewalk with a 20-foot-wide concrete path. To accommodate those plans, 11 mature – and, staff said, aging – trees needed to be removed. The tree removal prompted protests from citizens, and commissioners asked that a plan be prepared for preserving at least some of the trees. In March, the number of new parking spots was reduced from 200 to 88, and a proposal to add 39 trees to replace the 11 garnered city commissioners’ support. By then, it was too late to piggyback the concrete path and new parking onto an existing contract Muskegon County had with a contractor working to install a water main in that area…

Tacoma, Washington, News Tribune, July 30, 2021: Can you cut down a tree blocking the view from your home? Here are the laws in Tacoma

Tacoma residents: Before you cut the tree that’s blocking your views of the Sound, take note. The City of Tacoma has rules around what trees or shrubs can be cut and pruned and has worked in the past to educate residents about illegal tree cutting. First, it depends on if the tree or shrub is on public or private property. The city’s Title 9 code speaks to tree cutting on public rights of way. The code states that it is unlawful for anyone to remove or cut any tree or shrub on city-owned public property for the purpose of view preservation without having first obtained a permit from the city. Cutting trees without a permit from the city could result in a fine not exceeding the value of the vegetation pruned or removed plus $1,000. Title 9 also states property owners are responsible for the removal of trees, plants or shrubs that overhang a sidewalk or street if it “obstructs or impairs” the free and full use of the sidewalk or street by pedestrians or drivers. Cutting trees on private property is another story. According to the city’s Title 13 code on land use, there are not any fines for illegal removal of trees on private property…

Tallahassee, Florida, Democrat, July 29, 2021: When you see slime, it’s not a good time for your tree

Summer is a time of year that brings stress to those of us that spend time in the outdoors. The heat and humidity can be kind of rough and you need to make sure that you pay attention to your body so as not to get too hot and dehydrated. Summer is also a time of stress for trees, and it is when I see the most insect and disease activity in trees. One of these diseases has the unusual name of slime flux. Sometimes this disease is also referred to as wetwood. The name slime flux refers to a dark liquid oozing down bark from wounds on the tree. These wounds usually originate from branch stubs from poor pruning cuts or from poor tree structure that creates “V” shaped joints. These injuries are then invaded by bacteria and a bacterial infection occurs. Sometimes this liquid, which is actually fermented tree sap, is very abundant and foul smelling. The bacteria use the sap as a nutrient source…

Tulsa, Oklahoma, World, July 29, 2021: Galls abnormal growths on trees

Galls are abnormal growths on the leaves and twigs of many plants. The oak trees in the Skiatook area have two kinds of galls, a leaf gall and a twig gall. Both are caused by tiny wasps. Galls provide food and shelter for developing larvae. The oak leaf gall, also called an oak apple, is spherical, 1-2 inches in diameter. A female wasp will lay an egg on a leaf bud. Chemicals produced by the larva cause a gall to form. Larvae feed on gall tissue, undergo development, transform into adults and exit the gall through a tiny hole in the gall. Initially, the gall is hard and mottled but as larvae feed on the tissue it becomes filled with a spongy mass and dries to a brown paper-thin wall. The oak twig gall, also called horned oak gall, is an irregular-shaped, golf ball-size woody growth on a twig. Spikes or horns protrude from the surface of mature galls. A female wasp lays eggs under the surface of a young twig. Chemicals released by the larvae cause the gall to form. It will take nearly 3 years for development from egg through larva to adult wasp. Larvae feed on gall tissue and adult wasps will escape the gall through the horns, chewing an exit hole at the tip…

New Orleans, Louisiana, Times Picayune, July 28, 2021: Cargo ship infested with tree-killing beetles ordered to leave New Orleans

Federal agents inspecting a cargo ship near New Orleans ordered it out of the country after finding it infested with a type of Asian beetle that has been destroying trees in the U.S. for about 25 years. They discovered the invasive beetle in wood onboard the Pan Jasmine on July 17, just after the 590-foot-long vessel anchored in the Mississippi River about a mile downriver from New Orleans, according U.S. Customs and Border Protection officials. Flagged under Panama, the ship had previously offloaded a shipment of aluminum in Veracruz, Mexico, after departing a port in India. Wood used to pack the aluminum had not been offloaded in Mexico and was left scattered on the deck of the Pan Jasmine. That appeared unusual to customs agents. “No reason was provided as to why the [wood] was refused discharge in Mexico, and this raised a red flag,” the agency said Wednesday. The wood was found to have burrowing holes and fresh sawdust. U.S. Department of Agriculture insect specialists identified five pests in the wood, two of them – the beetle and a type of ant – considered serious risks to U.S. crops…

Somerville, Massachusetts, Patch, July 28, 2021: Complaint Pins Loss Of Somerville Trees On Utility Company

Nearly 250 residents, officials and community groups have filed a complaint with Attorney General Maura Healey’s office and the Department of Public Utilities regarding gas leaks on Somerville Avenue. The complaint claims Eversource’s inaction to curb the leaks resulted in the deaths of city-planted trees between Porter Square and Wilson Square. “The lack of tree canopy cover along Somerville Ave is an environmental justice and public health risk,” said Cate Mingoya, who submitted the complaint. “Somerville just hit its 15th day above 90 degrees, and it’s not even the end of July – if we’re going to weather the climate crisis, we need to support the City of Somerville in reaching its shade-equity goals. I’m a resident, a mom, I walk my kid to daycare along that stretch, and it’s just miserable.” The complaint asks the agencies to require Eversource to fix the leaks and reimburse the city for the lost trees… Complainants said readings taken June 4 showed methane levels at 15-90 percent across 10 discrete leaks under the sidewalk on Somerville Avenue. All trees along that half-mile stretch are “dead or showing signs of extreme distress,” due to the methane asphyxiating their roots, the complaint alleges…

Lihue, Hawaii, The Garden Island, July 28, 2021: Farmers tackle new threat to island coffee trees

The most-destructive disease known to the coffee plant has arrived on Kaua‘i, putting local growers on high alert. Less than one year after the state’s first reported case of coffee leaf rust occurred in Maui, the blight’s presence has now been established on all major Hawaiian islands. Coffee leaf rust, which is caused by the fungus Hemileia vastatrix, can lead to defoliation, reduced fruit size and plant death. Local grower Ben Fitt of Outpost Coffee was the first to report the disease on Kaua‘i while tending to his one-acre orchard on the North Shore in late June. “I came across some interesting markings on some of the leaves and had a look, and I was pretty certain it was coffee leaf rust,” Fitt said. Fitt immediately contacted the state Department of Agriculture, which sent a field agent to collect laboratory samples. The results came back as CLR on July 9. However, the fungus had been on Kaua‘i for at least six months prior to Fitt’s discovery, according to a department announcement released last week. No one will ever know how the rust took hold in Fitt’s orchard, which follows stringent protocols intended to mitigate the risk of infection. In addition, the state has restricted the movement of affected islands’ coffee plants and other potential hosts since CLR’s first appearance in Hawai‘i last October. Coffee leaf rust was first documented in Africa in 1861, according to the U.S. Department of Agriculture, which claims it was next spotted in Sri Lanka six years later, where it ruined that country’s coffee production within a decade. The disease has since been found in all major coffee-producing countries. “I can only speculate as to how it got over. We took every step we can to prevent it. It’s just so contagious,” said Fitt, who hopes to destigmatize growers dealing with rust and other agricultural ills…

Charleston, South Carolina, WCSC-TV, July 28, 2021: City of Charleston and county to review applications to cut down more than 70 grand trees

People across the Lowcountry are concerned about more than 70 grand trees that could be cut down if the City of Charleston and County of Charleston’s Boards of Zoning Appeals approve the applications. According to the agenda for the city’s Board of Zoning Appeals meeting Aug. 4, there are applications submitted to remove about 75 grand trees all across the area, including Johns Island, James Island, West Ashley and Cainhoy. The agenda for the county’s Board of Zoning Appeals shows they are considering applications for the removal of eight grand trees: two on Wigeon Lane and six on Stoney Road. According to city and county codes, grand trees are protected, so in many circumstances, a developer or property owner has to get special approval to cut them down. Franny Henty, who lives on James Island, said she is actively fighting this and wants the community to help. “Get involved and let your voice be heard,” she said. “Trees are a part of the infrastructure. They need to keep in mind they’re not just taking down a tree, they’re taking down something that holds water and is beautiful and provides shade. It also has an element there that it helps with pollution and the air…”

Canadian Broadcasting Corporation, July 27, 2021: Toronto agreed to buy a home to save a 250-year-old tree. Now, the seller wants a higher price

A legal battle is brewing between the City of Toronto and the property owner of a 250-year-old heritage tree refusing to sell — the latest snag in a years-long community push to protect the famous red oak. The city entered an agreement with the home’s owner, Ali Simaga, in December 2019 to purchase the North York house for $780,000 with certain conditions, including that the community raise $400,000 within a year to go toward the purchase and maintenance of the tree, according to the city’s court application filed this May. The plan was to demolish the house and transform the property into a parkette to showcase the gigantic tree, the last remnant of the ancient oak forest that once spanned the area. But that plan may now be in jeopardy, with Simaga changing his mind about the agreement after watching house prices soar throughout the pandemic. He’s now looking for the city to match the current market value of other homes in the area. “I’m afraid I’m going to be homeless with my family with this price,” Simaga told CBC News. He acknowledged they currently don’t live in the house, but rent it out, and own another house elsewhere in the city. This spring, the city requested the Superior Court of Justice to order the purchase complete and put the property title in its name. The case will be heard in October…

Philadelphia, Pennsylvania, KYW-TV, July 27, 2021: ‘Everyone Keeps Passing The Buck’: Tree Threatens Philadelphia Family’s Home With No Help In Sight

A tree, which looks like it could fall on a house at any moment, is causing one South Philadelphia family many sleepless nights. They say their calls for help are falling on deaf ears. Every night this family goes to bed they pray that their home is not destroyed by a tree in their backyard that’s just barely hanging on. This mother-daughter duo reached out to CBS3 in hopes that someone will see their story and help. Right now, they say they are running out of options. Due to physical limitations, Ginny Bowen is restricted to the first floor of her home, a place she’s lived in for more than 20 years. “As long as I can take care of myself, I will. I want to stay,” she said. But is it safe? Bowen’s daughter, Cindy Candelore, shows us what they use to call their backyard. “There’s actually wires hanging in between those branches as well,” she said…

Chicago, Illinois, WBEZ Radio, July 27, 2021: A New City Agency May Try To Save Chicago’s 4 Million Trees — And Plant More

Everybody has a tree story. That’s the mantra of Michael Dugan, the Director of Forestry at Openlands, one of the main organizations that helps the city of Chicago plant hundreds of trees a year. As he walked through Douglass Park, an expansive city park on the Southwest Side of Chicago, Dugan rejoiced about the benefits of green space, and the attachments to which Chicagoans place the trees within them. “Everybody talks about a tree as they’re growing up,” he said through a smile. “… Interacting with a tree, climbing a tree, having a picnic under a tree, planting a tree with family members.” But Dugan and other environmental advocates in Chicago want residents — and the aldermen who represent them — to think more consciously about the trees they walk past in their everyday adult lives. They say that if so-called “tree inequity” — how some neighborhoods that lack resources also are lacking in tree canopies — is fixed, that could lead to better health and community outcomes. In Chicago, there are nearly 4 million trees to consider. But, until now, there hasn’t been a single city agency to oversee them in a unified way. Instead, the departments of Streets and Sanitation, Transportation, the Park District, aldermen typically field individual requests for tree trimming or tree planting by residents who need it. That’s opposed to an overall plan that looks at the environmental impacts of the trees the city plants…

New York City, The New York Times, July 26, 2021: A gnarly brown Christmas? Tree farms dry out in the Pacific Northwest.

When Jacob Hemphill pulled into the driveway at his 200-acre Christmas tree farm in Oregon City, Ore., on the second night of a record-breaking heat wave late last month, his stomach dropped. That morning, a vast field of about 250,000 green trees had adorned his property. But now, it was patched over with large swaths of singed brown. All of his seedlings were gone, and some of his mature trees, too — a tremendous loss that he estimates could cost him about $100,000. The deadly heat wave that scorched the Pacific Northwest in late June also upended Oregon’s typically prosperous Christmas tree market. More Christmas trees are grown there than anywhere else in the country, followed by North Carolina and Michigan. Farms like Mr. Hemphill’s dot the country roads southwest of Portland. But now, he said, “There’s nothing left.” Climate change was already having an impact, even before the most recent heat wave. A recent U.S. Agriculture Department report found that from 2015 to 2020, the amount of acreage in the state growing Christmas trees dropped by 24 percent as wildfires and drought reduced the harvest. Over the same time period, the average cost of Oregon trees — which are primarily sold on the West Coast — nearly doubled, the report said, from about $18 to $31 each…

Phys.org, July 27, 2021: Lack of species depth threatens mangroves

Marine ecologists have revealed mangroves might be threatened by a limited number of crustaceans, mollusks and other invertebrates for each ecological role. The international study found that low functional redundancy, or number of species performing similar roles in mangrove forests, suggests even a modest loss of invertebrates could have significant consequences. “Mangrove forests have been disappearing at alarming rates worldwide,” said Professor Shing Yip Lee from the Chinese University of Hong Kong and Adjunct at Australian Rivers Institute, Griffith University. “The ecological functions and services they provide depend upon the relationships between their individual plant and animal components. “There is no viable mangrove forest without a healthy community of invertebrates sustaining it.” Although mangrove ecosystems support a broad range of specialised invertebrates, little is known about the effect of deforestation and human impact on the functional diversity and resilience of these resident fauna…

Stamford, Connecticut, Advocate, July 27, 2021: Mecosta County residents should plan now for next year’s gypsy moths

Mecosta County residents saw significant tree damage from an infestation of gypsy moth this summer, leaving many asking why county and city officials were not taking action to prevent or manage the infestation.
DNR forester Cheryl Nelson recently told Big Rapids city commissioners that large-scale spraying was not necessarily the best option when dealing with gypsy moths. “The gypsy moth became naturalized in the 1990s — it became part of our ecosystem,” Nelson said. “We deal with two- to four-year outbreaks every seven to 10 years. These populations are kept in check by natural predators — the NPV (Nucleoplyhedrosis) virus and the Entomophaga maimaiga fungal pathogen.” Spraying will not eliminate the gypsy moth from an area, and large-scale spraying can have a negative impact on the gypsy moth of denaturalizing them from an area, Nelson said. “Spraying is about 80% effective and can disrupt the naturally occurring predators that control the virus on their own,” she said. “With that cycle disruption, the outbreaks may not naturally correct.” Nelson said that without the caterpillars, the viruses and the fungus that control the populations cannot be maintained, and without those, there are no natural predators there when the new caterpillars hatch out…

Fort Wayne, Indiana, WANE-TV, July 26, 2021: Invasive insect known for damaging trees found for first time in Indiana

The Indiana Department of Natural Resources is reporting that the Spotted lanternfly (Lycorma delicatula) has been found in Indiana. The insect turned up recently in Switzerland County in extreme southern Indiana which is the farthest west the insect has been found. This federally regulated invasive species negatively impacts plant growth and fruit production, especially in vineyards and orchards. A homeowner in Vevay contacted DNR’s Division of Entomology & Plant Pathology (DEPP) with a picture that was taken outside his home of a fourth instar, or developmental stage, larvae. DEPP staff surveyed the site and discovered an infestation in the woodlot adjacent to a few homes in the area. The site is within 2 miles of the Ohio River and the Markland Dam. DEPP and USDA are conducting an investigation to determine exactly how large the infestation is and where it could have come from, as well as how to limit the spread and eradicate the population. Spotted lanternfly is a planthopper that originated in Asia. It was first discovered in the United States in Pennsylvania in 2014. The Pennsylvania Department of Agriculture tried to limit the spread of this pest, but it excels at being a hitchhiker and is often spread unknowingly by humans…

Toronto, Ontario, Star, July 27, 2021: Fairy Creek protesters defend felling small trees in order to impede police

A protest group is defending the actions of its members who cut down some small trees to impede police enforcing a court injunction against blockades that have been set up to prevent old-growth logging on southern Vancouver Island. The RCMP said in a news release Saturday that protesters had cut 18 trees with chainsaws and laid the trunks across a road in the Fairy Creek watershed area. The group, dubbed the Rainforest Flying Squad, responded in a statement on Monday, saying its members cut the small, second-growth trees in order to slow police progress in reaching other protesters who were chained to structures. They say Pacheedaht First Nation elder Bill Jones, who supports the protest group, does not disapprove of their felling of small trees to protect old growth. A statement from Jones released by the group says it’s common practice in logging to cut down young trees growing at the side of roadways and that’s not a threat to ecology. The Rainforest Flying Squad says very little of the best old-growth forest remains in B.C., and the province’s temporary deferral of old-growth logging across 2,000 hectares in the Fairy Creek and central Walbran areas falls short of what’s needed. The RCMP have made 494 arrests since they began enforcing the injunction in May…

drought210726Phys.org, July 26, 2021: Extreme heat, dry summers main cause of tree death in Colorado’s subalpine forests

Even in the absence of bark beetle outbreaks and wildfire, trees in Colorado subalpine forests are dying at increasing rates from warmer and drier summer conditions, found recent University of Colorado Boulder research. The study, published in the May print issue of the Journal of Ecology, also found that this trend is increasing. In fact, tree mortality in subalpine Colorado forests not affected by fire or bark beetle outbreaks in the last decade has more than tripled since the 1980s. “We have bark beetle outbreaks and wildfires that cause very obvious mortality of trees in Colorado. But we’re showing that even in the areas that people go hiking in and where the forest looks healthy, mortality is increasing due to heat and dry conditions alone,” said Robert Andrus, lead author of the study and postdoctoral researcher at Washington State University. “It’s an early warning sign of climate change…”

Asheville, North Carolina, Citizen Times, July 26, 2021: Answer Man: Downtown bathrooms MIA? Tree of Heaven downright evil?

Update on the ‘tree-of-heaven’: Last week I fielded a question about the nefarious and invasive “tree-of-heaven,” which apparently is even more evil than I suggested. Cooperative Extension Service Agent Alison Arnold gave a good rundown on the tree, encouraging homeowners and others not to plant them and to eliminate them where possible. Andy Tait, co-director for forestry at EcoForesters, an Asheville forestry nonprofit, reached out with some “even more alarming facts about tree-of-heaven (Ailanthus altissima),” as well as a good tip. “1. It is allelopathic, which means it exudes a chemical which inhibits other plants from growing, giving it a competitive advantage,” Tait said via email. “2. If you just cut it down, it aggressively re-sprouts from all of it’s underground roots — so literally 100s of baby trees will spring up to take over if you just cut it down and don’t use herbicide on the freshly cut stump. I’ve seen pure monoculture stands of totally worthless (both to wildlife and as timber) tree-of-heaven after disturbances without trying to control the invasive tree-of-heaven first…”

moredrought210726Vancouver, Washington, The Columbian, July 25, 2021: Proper care can help stressed trees in Clark County weather dry times

As wildfires burn across the West, many are casting a wary eye toward sun-scorched trees right here. Vancouver’s urban forester, Charles Ray, said he has been answering worried calls from homeowners ever since last month’s record heat. “The heat dome in June was unprecedented, on the heels of the driest spring on record,” Ray said. “I don’t think we know all the impacts on trees because we really haven’t experienced it before.” Michael Laster is among those who have noticed trees that look distressed and dead, with desiccated needles cascading down every time the wind gusts. “It is especially noticeable on the western sides of evergreen trees, where the needles have turned brown. Many deciduous trees also show wilted, dried and falling leaves,” said Laster, a Felida resident and Vancouver’s fire code officer. Although his expertise is in fire-suppressing sprinkler systems, Laster said he’s getting terribly worried about heat waves, wildfires and the future of local trees. “I think the concept that climate change is not happening is foolish. It’s obvious that it is. Our temperatures hit an all-time high, three days in a row. After three days, we see damage to the trees — not just a few of them but all of them,” Laster said. “And dead trees tend to burn more than live trees do…”

Plattsburgh, New York, Press Republican, July 26, 2021: Emerald ash borer and ash trees – a new approach is being taken to protect and preserve the species

The emerald ash borer (EAB) is a half-inch long, green buprestid or jewel beetle. It’s an invasive insect native to Asia, believed to have made its way to the United States on solid wood packing material carried in cargo ships or on airplanes. EAB was first discovered in the United States in 2002, near Detroit, Michigan. Around that time, it was also found across the Detroit River in Windsor, Ontario, Canada. In 2003, the United States Department of Agriculture (USDA) Animal and Plant Health Inspection Service (APHIS) initiated a domestic quarantine program for areas infested with the extremely destructive wood-boring pest of ash trees, but the insect still managed to progressively advance and expand its range. EAB is now present in 35 states, the District of Columbia, and 5 Canadian provinces and is responsible for the destruction of hundreds of millions of ash trees in forests, rural areas, and urban and suburban landscapes. It has become the most destructive and costly invasive forest insect in North America. States in the eastern U.S. produce nearly 114 million board feet of ash saw-timber annually, with a value of more than $25 billion. The compensatory value of the 8 billion ash trees on U.S. federal, state, and private forest land potentially infested with EAB is estimated to be $282 billion. EAB was first discovered in New York State in the spring of 2009, after two USDA Agricultural Research Service employees recognized damage to ash trees in the Town of Randolph, in Cattaraugus County…

drought210723North Bend, Oregon, KEZI-TV, July 22, 2021: Scientists Still Surveying Scope Of Tree Damage Following Heat Wave

Scientists are still trying to figure out the extent of the damage to western Oregon trees after a historic heat wave scorched leaves and needles across the state. Oregon State University and the Oregon Department of Forestry are trying to map the damage, which they believe happened mostly in the Willamette Valley and coastal range west of the Cascades. Lauren Grand, OSU Forestry and Natural Resources Extension agent for Lane County, said the sun scorched some trees and damaged tissue during the heatwave, causing them to die. Other effects are less visible and happening inside the trees which are struggling to get water, Grand said. “You’re probably going to see this if you’re going hiking in the coast range or in the Cascade Mountains on the western side. If you notice something and you want to help report the damage that’s going on, reach out to your local extension office and let us know,” Grand said. There’s also the ongoing heat and drought across the state making matters worse. “Trees can also die just outright from drought and high-heat weather. We’re just going to see a lot more… tree mortality on the landscape,” Grand said. Even trees that are typically more tolerant of droughts, like Douglas Fir, Western Red Cedar and Hemlock trees are starting to see issues from the conditions. Trees that manage to survive the heat and drought can in turn become more vulnerable to other ailments…

Ft. Lauderdale, Florida, Sun Sentinel, July 22, 2021: Real estate Q&A: Can my HOA charge me $1,000 to have a tree removed?

Q: I would like to remove a tree on our homeowner association’s property in front of my house. My association wants to charge me around $1,000 for removing the tree, stump grinding and replacing the sod. My question is, can I be charged for this procedure?
A: Landscaping on your community’s common property belongs to the community as a whole, not just the member whose home it is in front of. Your association must maintain the common areas for the entire community’s benefit, not just one member. Each homeowner pays regular maintenance dues to their association to cover the costs of running the community. In your case, you are asking to have a change made to the landscaping that only benefits your property. Your board has determined this change is acceptable for the neighborhood’s look and feel. Even so, the board does not want the cost of making your requested change shared among the entire community. When I received your email, I was a bit surprised that the board approved this, even with you paying for it. Most calls I get on similar issues involve the board flat out refusing this type of request. Removing a tree is an expensive proposition that often involves getting a permit from your city’s building department. The removal, stump grinding, and sodding are necessary to keep your community looking nice and may even be required by your local building code. Fortunately, it seems that you are living in a community with a reasonable board willing to work with individual member’s requests. Now you need to decide if it is worth spending the money to have the tree removed…

treevandal210723Little Rock, Arkansas, Democrat-Gazette, July 23, 2021: Author charged over felled trees set to surrender

A man accused of causing over $100,000 worth of damage to forestry on Central Arkansas Water land will surrender today on a warrant of arrest issued by the Pulaski County District Court. The warrant issued on Wednesday for Dennis Rainey, a Christian author, podcast host and co-founder of FamilyLife, charges him with felony first-degree criminal mischief regarding an tree-cutting incident. On May 12, Roland resident Rhonda Patton discovered the tops of some trees cut and others completely chopped down while walking along the Ouachita trail running alongside Lake Maumelle. When she asked those cutting down the trees, they told her they were working for Rainey, 73. “I was mad. My husband was shocked,” Patton told the Democrat-Gazette in May. After surveying the area, Central Arkansas Water initially determined between 75 and 100 trees were cut without knowing how many were completely chopped down. The warrant states Central Arkansas Water contact Raven Lawson, who also spoke to the Arkansas Democrat-Gazette, told investigators 111 trees were cut, with an approximate value of $109,899 and $12,000 being the cost for cleanup. Lawson said in an interview after the incident that many of the trees, which have taken years to grow to 20 foot heights, could die…

Louisville, Kentucky, Courier-Journal, July 23, 2021: Why do trees grow so much better in the wild than in your yard?

Many years ago when I was a University of Illinois grad student, a local resident wrote to the department’s Cooperative Extension office with a question. After a bit of a preamble, the question emerged … “How long do I need to compost fresh cricket manure before using it to fertilize my plants?” Well, those of us self-appointed to the horticultural glitterati had a good laugh. I mean I had completed a four-year college curriculum in horticulture and a whole year of grad school. These silly people and their silly questions. … Obviously, the letter writer had spent too much time in the sun. Of course what she meant to ask about was chicken manure (not an uncommon organic fertilizer), not cricket manure. Who on earth would ever amass enough cricket manure to have to worry about composting it before using it as fertilizer? Turns out, the letter writer’s son was at the time owner of the largest live fishing bait company in the eastern USA. They grew and sold about a hundred zillion live crickets a year and, well, you can imagine how much cricket manure that number of Jimminys can produce … Our dear letter writer wanted to share her botanical booty with her fellow garden club members but wanted to make sure she properly processed it before sharing it with her friends. Laugh’s on us! Some questions just need to be asked, no matter how silly they might seem on the surface…

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Case of the Day – Thursday, July 29, 2021

A SLOPPY AND LAZY TRIAL JUDGE

You have to appreciate the careful prose of an appellate court. Today’s case was brought in 1999, but was still sputtering along eight years later. The Rhode Island Supreme Court thought it knew why.

Never-ending litigation ... Rhode Island style

Never-ending litigation … Rhode Island style …

After a few pointed comparisons of the case to Jarndyce v. Jarndyce, the Rhode Island Supreme Court asked the trial court what the Dickens was going on. The trial judge took his dear sweet time writing a decision — about five years — leading the Supreme Court to mention in a note, “We are mindful of the inordinate delay of the decision of the trial justice, which this Court does not favor.”

Beautiful understatement! The Supremes were saying to the trial judge, “Hey, dude, you’re lazy!” Of course, in the decision, the high court also implicitly said, “Hey, dude, you’re incompetent, too.” The reason for that was the trial judge’s failure to make the findings the Supreme Court needed to adequately review the decision.

A court speaks through its opinions, and when the trial court doesn’t make findings of fact, no one wins. The winner doesn’t know why he won, the loser doesn’t know why he lost, and the rest of us can’t derive any useful guidance from the case. In this case, an unusual argument arose in the battle over the location of an easement. The easement holder claimed the prior owner had obstructed the easement — a driveway — and demanded that the easement and everything on it be shifted a few feet to the south. This is called an easement by substitution. Some testimony suggested that an easement by substitution had been created. But the trial court couldn’t be bothered to make any findings on the issue, leaving everyone to puzzle whether something hadn’t been proven, some witness hadn’t been believed, or just what?

Perhaps a little burninating in the Ocean State?

Perhaps a little burninating of indolent trial judges was called for in the Ocean State?

So after eight years, the case landed back in the trial court’s lap. Maybe the judge was waiting for the owners to tire of it all and settle, or to die or move to Florida… or for Rhode Island to be swallowed by the rising seas, or be consumed by an angry dragon… anything that would spare this poor trial judge from having to do his duty.

Nardone v. Ritacco, 936 A.2d 200 (Sup.Ct. R.I., Dec. 3, 2007). Nardone’s property bordered Lawton Foster Road. Ritacco owned an adjacent parcel of land behind Nardone’s property, with no frontage on Lawton Foster Road. In 1965, Nardone’s predecessor-in-interest, Ralph C. James, Sr., granted Ritacco a 50-foot right-of-way along the northern boundary line of what is now Nardone’s property. The right-of-way for ingress from and egress to Lawton Foster Road, has been the subject of many years of litigation.

On Memorial Day 1999, Ritacco cut trees and vegetation within the right-of-way. Nardone sued for a temporary and permanent injunctive relief to prohibit Ritacco from cutting the trees and from trespassing on Nardone’s land. The trial court entered a preliminary injunction and later found Ritacco in contempt of the order by cutting trees and vegetation outside the right-of-way. A key issue was the location of the right-of-way. In addition to arguing that the right-of-way was not originally located along the northern boundary of Nardone’s property but rather inside the boundaries of the land, Ritacco also asserted two alternative claims for relief: the existence of an easement by prescription as well as an easement by substitution over plaintiffs’ driveway. The trial court decided for Nardone, clarifying that the right-of-way was located along the northern boundary of Nardone’s property. Nardone appealed.

Held: A remand was necessary to determine whether Rotacco had acquired an easement by prescription or by substitution over Nardone’s driveway. The Supreme Court held that the trial court had properly found that the right-of-way over Nardone’s land was located on northern boundary of the land. The deed itself placed right-of-way “along the northerly boundary line” of the premises, and Nardone’s expert witness testified that, upon examining property, the boundaries were clear and right-of-way was located along the northern boundary of property. Ritacco’s expert had said that the deeds were not clear, but he hadn’t inspected the property itself, and the trial court’s discounting of his testimony was therefore reasonable.

Does this pass for judicial garb in Rhode Island?

Does this pass for judicial garb in Rhode Island?

However, Ritacco had also claimed that he had acquired an easement on land inside the Nardone boundaries by prescriptive easement. The trial court had ruled against him without a trial, but the Supreme Court ordered a remand for trial on the issues. The Supreme Court held that the trial court hadn’t addressed the issue of Ritacco’s permissive use of driveway, let alone determine whether sufficient factual support existed to conclude that permission to use driveway was given by Nardone or his predecessors-in-interest. A party who claims an easement by prescription bears the burden of establishing by clear and convincing evidence actual, open, notorious, hostile, and continuous use under a claim of right for at least ten years. In this case, the Court ruled, the trial judge had failed to make the specific findings of fact upon which he based his decision. When that happens, the trial court risks reversal or remand unless the record yields a full understanding and resolution of the controlling and essential factual and legal issues.

Here, there were unaddressed issues that were raised in pleadings and testified to at trial, including Ritacco’s testimony that perhaps Nardone’s predecessor-in-interest had granted him an easement by substitution. When the owner of a servient estate closes with a wall or other structure the original easement and points out another way which is accepted by the owner of the dominant estate, the new way may become the easement by substitution. The Supreme Court said that testimony indicated that James may have granted Ritacco an easement by substitution. However, the trial court failed to determine whether sufficient factual support existed to conclude that an easement by substitution was granted.

– Tom Root
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Case of the Day – Wednesday, July 28, 2021

MEANWHILE, BACK AT THE RANCH …

ranch

… that confounded sodbuster neighbor just done cut our power line with his plow. In the ensuing fire that swept across the plain, the trees planted in our windbreak went up like Roman candles, and the ranch hands couldn’t stop the conflagration. Sure, the farmer was negligent, but to what extent?

One of the first things new law students learn is the lesson of Hawkins v. McGee, the “case of the hairy hand,” in which we find that the measure of damages is the difference between the value before the breach or the negligence, and the difference after the breach. Nebraska law in this case held that if the trees were used for residential or recreational purposes, the damages are the replacement cost of the trees up to the value of the real estate. But if they were just used for agricultural purposes, the Hawkins v. McGee formulation is fine.

hairyhandHere, replacement of the trees would cost over $270,000, but the reduction in value of the farmland was only $30,000. David Spicer, owner of the ranch, tried to bootstrap himself into qualifying for the “recreational” formulation by arguing that not only did he use the windbreak for the usual agricultural purposes, but he relied on it for recreational purposes as well, including for his kids’ 4-H projects. The 4-H projects argument was especially touching, except that David Spicer’s youngest kid was 25 years old. And we thought the President and the “fake news” media twisted the facts occasionally

The trial court granted summary judgment on the damages question, holding that the replacement cost exceeded the value of the land, and that $30,000 was adequate to compensate for the loss of the trees. The Court of Appeals ruled, however, that whether the trees were recreational in nature or agricultural in nature was a question of fact, and the trial court was wrong to resolve that question without a trial.

The issue of how to value the loss of trees – especially where the value of the tree to the homeowner is due to noneconomic reasons such as beauty, sentimentality or recreational value, arises often, and for good reason. The aphorism in real estate is that value of a home depends on location, location, location. Much could be said of trees as well. The mighty oak that shades the plantation house is worth far more than its identical twin standing a quarter mile into the woods behind the fields. Determining exactly how much more may require juries to consider not so much stumpage prices as the quality of 4-H projects.

Spicer Ranch v. Schilke, 734 N.W.2d 314 (Neb.App., 2007). Schilke farmed leased land next to the Spicer Ranch. While he was plowing one day, he cut a power line leading to some irrigation pumps. A fire resulted, which — before it burned out – destroyed a windbreak on Spicer Ranch consisting of red cedar and juniper trees, and located about five hundred yards from the ranch house. Spicers used the windbreak, which was on a 110-acre tract of land, in the normal fashion of slowing the wind, providing shelter for cattle, for calving, for horses and for general farm use. David Spicer – mindful of how damages were figured in cases such as these – also maintained that he used the trees for recreational purposes including his kids’ cataloging the trees for 4-H projects (except it turned out that his youngest child was 25 years old). Spicer sued for negligence, which was pretty much conceded.

Claiming the windbreak was worth $270,000 was just so much puffery ...

The Court found that Spicer’s claim that the windbreak was worth $270,000 was just puffery …

In an affidavit to the trial court, Spicers’ expert valued the windbreak at $270,000 for replacement of the trees. But the trial court granted summary judgment to Schilke, finding that to value the trees on the 110-acre tract at $270,000 far exceeded the value of the real estate involved. The trees included only made up a small percentage of the tract, the Court found, and that small percentage of land likewise would not be permanently damaged because of the loss of the trees. The trial court awarded Spicer Ranch $30,000 as the highest amount of damages suffered by Spicer Ranch.

The sodbuster was relieved. The rancher was not, and appealed.

Held: Summary judgment was reversed on the damages issue. Spicer Ranch argued the district court erred in using a “before and after” measurement of damages. Instead, it said, to determine compensatory damages for destroying trees and for related damage to the land – where the owner of land intends to use the property for residential or recreational purposes – the owner is not limited to the difference in value of the property before and after the damage or to the stumpage or other commercial value of the timber, but instead may recover the cost of reasonable restoration of the property to its preexisting condition or to a condition as close as reasonably feasible.

The Court of Appeals noted that the trial court’s implicit rationale for its calculation of damages is that the land was used for the farming business, not for any recreational purposes, apparently because of the age of the youngest child was then 25 years old. The trial court’s finding failed to account for the material question of fact as to whether the windbreak was used for residential and recreational purposes, as stated in David’s affidavit, or whether the windbreak was simply a “normal and average farm windbreak,” as could be implied from David’s deposition testimony and as stated in the affidavit of a real estate appraiser. The Court of Appeals noted that measure of a plaintiff’s damages would depend upon the evidence presented at trial and might require alternative instructions, depending upon the jury’s determination of contested factual issues. Because a material issue of fact existed, the Court of Appeals held, summary judgment with respect to damages was improper.

Even under the “before and after” theory of damages used by the trial court, the evidence revealed a range of damages — not just a fixed, undisputed figure of $30,000. The trial judge made a factual finding when he awarded Spicer Ranch $30,000, which he said “is the highest amount of damages suffered by the Ranch according to the before and after damage appraisal.” He should have simply determined whether a material issue of fact existed with respect to damages, and – if one did – set the case for trial. The matter had to be returned to the trial court.

– Tom Root
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And Now The News …


Canadian Broadcasting Corporation, July 27, 2021: Toronto agreed to buy a home to save a 250-year-old tree. Now, the seller wants a higher price

A legal battle is brewing between the City of Toronto and the property owner of a 250-year-old heritage tree refusing to sell — the latest snag in a years-long community push to protect the famous red oak. The city entered an agreement with the home’s owner, Ali Simaga, in December 2019 to purchase the North York house for $780,000 with certain conditions, including that the community raise $400,000 within a year to go toward the purchase and maintenance of the tree, according to the city’s court application filed this May. The plan was to demolish the house and transform the property into a parkette to showcase the gigantic tree, the last remnant of the ancient oak forest that once spanned the area. But that plan may now be in jeopardy, with Simaga changing his mind about the agreement after watching house prices soar throughout the pandemic. He’s now looking for the city to match the current market value of other homes in the area. “I’m afraid I’m going to be homeless with my family with this price,” Simaga told CBC News. He acknowledged they currently don’t live in the house, but rent it out, and own another house elsewhere in the city. This spring, the city requested the Superior Court of Justice to order the purchase complete and put the property title in its name. The case will be heard in October…

Philadelphia, Pennsylvania, KYW-TV, July 27, 2021: ‘Everyone Keeps Passing The Buck’: Tree Threatens Philadelphia Family’s Home With No Help In Sight

A tree, which looks like it could fall on a house at any moment, is causing one South Philadelphia family many sleepless nights. They say their calls for help are falling on deaf ears. Every night this family goes to bed they pray that their home is not destroyed by a tree in their backyard that’s just barely hanging on. This mother-daughter duo reached out to CBS3 in hopes that someone will see their story and help. Right now, they say they are running out of options. Due to physical limitations, Ginny Bowen is restricted to the first floor of her home, a place she’s lived in for more than 20 years. “As long as I can take care of myself, I will. I want to stay,” she said. But is it safe? Bowen’s daughter, Cindy Candelore, shows us what they use to call their backyard. “There’s actually wires hanging in between those branches as well,” she said…

Chicago, Illinois, WBEZ Radio, July 27, 2021: A New City Agency May Try To Save Chicago’s 4 Million Trees — And Plant More

Everybody has a tree story. That’s the mantra of Michael Dugan, the Director of Forestry at Openlands, one of the main organizations that helps the city of Chicago plant hundreds of trees a year. As he walked through Douglass Park, an expansive city park on the Southwest Side of Chicago, Dugan rejoiced about the benefits of green space, and the attachments to which Chicagoans place the trees within them. “Everybody talks about a tree as they’re growing up,” he said through a smile. “… Interacting with a tree, climbing a tree, having a picnic under a tree, planting a tree with family members.” But Dugan and other environmental advocates in Chicago want residents — and the aldermen who represent them — to think more consciously about the trees they walk past in their everyday adult lives. They say that if so-called “tree inequity” — how some neighborhoods that lack resources also are lacking in tree canopies — is fixed, that could lead to better health and community outcomes. In Chicago, there are nearly 4 million trees to consider. But, until now, there hasn’t been a single city agency to oversee them in a unified way. Instead, the departments of Streets and Sanitation, Transportation, the Park District, aldermen typically field individual requests for tree trimming or tree planting by residents who need it. That’s opposed to an overall plan that looks at the environmental impacts of the trees the city plants…

New York City, The New York Times, July 26, 2021: A gnarly brown Christmas? Tree farms dry out in the Pacific Northwest.

When Jacob Hemphill pulled into the driveway at his 200-acre Christmas tree farm in Oregon City, Ore., on the second night of a record-breaking heat wave late last month, his stomach dropped. That morning, a vast field of about 250,000 green trees had adorned his property. But now, it was patched over with large swaths of singed brown. All of his seedlings were gone, and some of his mature trees, too — a tremendous loss that he estimates could cost him about $100,000. The deadly heat wave that scorched the Pacific Northwest in late June also upended Oregon’s typically prosperous Christmas tree market. More Christmas trees are grown there than anywhere else in the country, followed by North Carolina and Michigan. Farms like Mr. Hemphill’s dot the country roads southwest of Portland. But now, he said, “There’s nothing left.” Climate change was already having an impact, even before the most recent heat wave. A recent U.S. Agriculture Department report found that from 2015 to 2020, the amount of acreage in the state growing Christmas trees dropped by 24 percent as wildfires and drought reduced the harvest. Over the same time period, the average cost of Oregon trees — which are primarily sold on the West Coast — nearly doubled, the report said, from about $18 to $31 each…

Phys.org, July 27, 2021: Lack of species depth threatens mangroves

Marine ecologists have revealed mangroves might be threatened by a limited number of crustaceans, mollusks and other invertebrates for each ecological role. The international study found that low functional redundancy, or number of species performing similar roles in mangrove forests, suggests even a modest loss of invertebrates could have significant consequences. “Mangrove forests have been disappearing at alarming rates worldwide,” said Professor Shing Yip Lee from the Chinese University of Hong Kong and Adjunct at Australian Rivers Institute, Griffith University. “The ecological functions and services they provide depend upon the relationships between their individual plant and animal components. “There is no viable mangrove forest without a healthy community of invertebrates sustaining it.” Although mangrove ecosystems support a broad range of specialised invertebrates, little is known about the effect of deforestation and human impact on the functional diversity and resilience of these resident fauna…

Stamford, Connecticut, Advocate, July 27, 2021: Mecosta County residents should plan now for next year’s gypsy moths

Mecosta County residents saw significant tree damage from an infestation of gypsy moth this summer, leaving many asking why county and city officials were not taking action to prevent or manage the infestation.
DNR forester Cheryl Nelson recently told Big Rapids city commissioners that large-scale spraying was not necessarily the best option when dealing with gypsy moths. “The gypsy moth became naturalized in the 1990s — it became part of our ecosystem,” Nelson said. “We deal with two- to four-year outbreaks every seven to 10 years. These populations are kept in check by natural predators — the NPV (Nucleoplyhedrosis) virus and the Entomophaga maimaiga fungal pathogen.” Spraying will not eliminate the gypsy moth from an area, and large-scale spraying can have a negative impact on the gypsy moth of denaturalizing them from an area, Nelson said. “Spraying is about 80% effective and can disrupt the naturally occurring predators that control the virus on their own,” she said. “With that cycle disruption, the outbreaks may not naturally correct.” Nelson said that without the caterpillars, the viruses and the fungus that control the populations cannot be maintained, and without those, there are no natural predators there when the new caterpillars hatch out…

Fort Wayne, Indiana, WANE-TV, July 26, 2021: Invasive insect known for damaging trees found for first time in Indiana

The Indiana Department of Natural Resources is reporting that the Spotted lanternfly (Lycorma delicatula) has been found in Indiana. The insect turned up recently in Switzerland County in extreme southern Indiana which is the farthest west the insect has been found. This federally regulated invasive species negatively impacts plant growth and fruit production, especially in vineyards and orchards. A homeowner in Vevay contacted DNR’s Division of Entomology & Plant Pathology (DEPP) with a picture that was taken outside his home of a fourth instar, or developmental stage, larvae. DEPP staff surveyed the site and discovered an infestation in the woodlot adjacent to a few homes in the area. The site is within 2 miles of the Ohio River and the Markland Dam. DEPP and USDA are conducting an investigation to determine exactly how large the infestation is and where it could have come from, as well as how to limit the spread and eradicate the population. Spotted lanternfly is a planthopper that originated in Asia. It was first discovered in the United States in Pennsylvania in 2014. The Pennsylvania Department of Agriculture tried to limit the spread of this pest, but it excels at being a hitchhiker and is often spread unknowingly by humans…

Toronto, Ontario, Star, July 27, 2021: Fairy Creek protesters defend felling small trees in order to impede police

A protest group is defending the actions of its members who cut down some small trees to impede police enforcing a court injunction against blockades that have been set up to prevent old-growth logging on southern Vancouver Island. The RCMP said in a news release Saturday that protesters had cut 18 trees with chainsaws and laid the trunks across a road in the Fairy Creek watershed area. The group, dubbed the Rainforest Flying Squad, responded in a statement on Monday, saying its members cut the small, second-growth trees in order to slow police progress in reaching other protesters who were chained to structures. They say Pacheedaht First Nation elder Bill Jones, who supports the protest group, does not disapprove of their felling of small trees to protect old growth. A statement from Jones released by the group says it’s common practice in logging to cut down young trees growing at the side of roadways and that’s not a threat to ecology. The Rainforest Flying Squad says very little of the best old-growth forest remains in B.C., and the province’s temporary deferral of old-growth logging across 2,000 hectares in the Fairy Creek and central Walbran areas falls short of what’s needed. The RCMP have made 494 arrests since they began enforcing the injunction in May…

drought210726Phys.org, July 26, 2021: Extreme heat, dry summers main cause of tree death in Colorado’s subalpine forests

Even in the absence of bark beetle outbreaks and wildfire, trees in Colorado subalpine forests are dying at increasing rates from warmer and drier summer conditions, found recent University of Colorado Boulder research. The study, published in the May print issue of the Journal of Ecology, also found that this trend is increasing. In fact, tree mortality in subalpine Colorado forests not affected by fire or bark beetle outbreaks in the last decade has more than tripled since the 1980s. “We have bark beetle outbreaks and wildfires that cause very obvious mortality of trees in Colorado. But we’re showing that even in the areas that people go hiking in and where the forest looks healthy, mortality is increasing due to heat and dry conditions alone,” said Robert Andrus, lead author of the study and postdoctoral researcher at Washington State University. “It’s an early warning sign of climate change…”

Asheville, North Carolina, Citizen Times, July 26, 2021: Answer Man: Downtown bathrooms MIA? Tree of Heaven downright evil?

Update on the ‘tree-of-heaven’: Last week I fielded a question about the nefarious and invasive “tree-of-heaven,” which apparently is even more evil than I suggested. Cooperative Extension Service Agent Alison Arnold gave a good rundown on the tree, encouraging homeowners and others not to plant them and to eliminate them where possible. Andy Tait, co-director for forestry at EcoForesters, an Asheville forestry nonprofit, reached out with some “even more alarming facts about tree-of-heaven (Ailanthus altissima),” as well as a good tip. “1. It is allelopathic, which means it exudes a chemical which inhibits other plants from growing, giving it a competitive advantage,” Tait said via email. “2. If you just cut it down, it aggressively re-sprouts from all of it’s underground roots — so literally 100s of baby trees will spring up to take over if you just cut it down and don’t use herbicide on the freshly cut stump. I’ve seen pure monoculture stands of totally worthless (both to wildlife and as timber) tree-of-heaven after disturbances without trying to control the invasive tree-of-heaven first…”

moredrought210726Vancouver, Washington, The Columbian, July 25, 2021: Proper care can help stressed trees in Clark County weather dry times

As wildfires burn across the West, many are casting a wary eye toward sun-scorched trees right here. Vancouver’s urban forester, Charles Ray, said he has been answering worried calls from homeowners ever since last month’s record heat. “The heat dome in June was unprecedented, on the heels of the driest spring on record,” Ray said. “I don’t think we know all the impacts on trees because we really haven’t experienced it before.” Michael Laster is among those who have noticed trees that look distressed and dead, with desiccated needles cascading down every time the wind gusts. “It is especially noticeable on the western sides of evergreen trees, where the needles have turned brown. Many deciduous trees also show wilted, dried and falling leaves,” said Laster, a Felida resident and Vancouver’s fire code officer. Although his expertise is in fire-suppressing sprinkler systems, Laster said he’s getting terribly worried about heat waves, wildfires and the future of local trees. “I think the concept that climate change is not happening is foolish. It’s obvious that it is. Our temperatures hit an all-time high, three days in a row. After three days, we see damage to the trees — not just a few of them but all of them,” Laster said. “And dead trees tend to burn more than live trees do…”

Plattsburgh, New York, Press Republican, July 26, 2021: Emerald ash borer and ash trees – a new approach is being taken to protect and preserve the species

The emerald ash borer (EAB) is a half-inch long, green buprestid or jewel beetle. It’s an invasive insect native to Asia, believed to have made its way to the United States on solid wood packing material carried in cargo ships or on airplanes. EAB was first discovered in the United States in 2002, near Detroit, Michigan. Around that time, it was also found across the Detroit River in Windsor, Ontario, Canada. In 2003, the United States Department of Agriculture (USDA) Animal and Plant Health Inspection Service (APHIS) initiated a domestic quarantine program for areas infested with the extremely destructive wood-boring pest of ash trees, but the insect still managed to progressively advance and expand its range. EAB is now present in 35 states, the District of Columbia, and 5 Canadian provinces and is responsible for the destruction of hundreds of millions of ash trees in forests, rural areas, and urban and suburban landscapes. It has become the most destructive and costly invasive forest insect in North America. States in the eastern U.S. produce nearly 114 million board feet of ash saw-timber annually, with a value of more than $25 billion. The compensatory value of the 8 billion ash trees on U.S. federal, state, and private forest land potentially infested with EAB is estimated to be $282 billion. EAB was first discovered in New York State in the spring of 2009, after two USDA Agricultural Research Service employees recognized damage to ash trees in the Town of Randolph, in Cattaraugus County…

drought210723North Bend, Oregon, KEZI-TV, July 22, 2021: Scientists Still Surveying Scope Of Tree Damage Following Heat Wave

Scientists are still trying to figure out the extent of the damage to western Oregon trees after a historic heat wave scorched leaves and needles across the state. Oregon State University and the Oregon Department of Forestry are trying to map the damage, which they believe happened mostly in the Willamette Valley and coastal range west of the Cascades. Lauren Grand, OSU Forestry and Natural Resources Extension agent for Lane County, said the sun scorched some trees and damaged tissue during the heatwave, causing them to die. Other effects are less visible and happening inside the trees which are struggling to get water, Grand said. “You’re probably going to see this if you’re going hiking in the coast range or in the Cascade Mountains on the western side. If you notice something and you want to help report the damage that’s going on, reach out to your local extension office and let us know,” Grand said. There’s also the ongoing heat and drought across the state making matters worse. “Trees can also die just outright from drought and high-heat weather. We’re just going to see a lot more… tree mortality on the landscape,” Grand said. Even trees that are typically more tolerant of droughts, like Douglas Fir, Western Red Cedar and Hemlock trees are starting to see issues from the conditions. Trees that manage to survive the heat and drought can in turn become more vulnerable to other ailments…

Ft. Lauderdale, Florida, Sun Sentinel, July 22, 2021: Real estate Q&A: Can my HOA charge me $1,000 to have a tree removed?

Q: I would like to remove a tree on our homeowner association’s property in front of my house. My association wants to charge me around $1,000 for removing the tree, stump grinding and replacing the sod. My question is, can I be charged for this procedure?
A: Landscaping on your community’s common property belongs to the community as a whole, not just the member whose home it is in front of. Your association must maintain the common areas for the entire community’s benefit, not just one member. Each homeowner pays regular maintenance dues to their association to cover the costs of running the community. In your case, you are asking to have a change made to the landscaping that only benefits your property. Your board has determined this change is acceptable for the neighborhood’s look and feel. Even so, the board does not want the cost of making your requested change shared among the entire community. When I received your email, I was a bit surprised that the board approved this, even with you paying for it. Most calls I get on similar issues involve the board flat out refusing this type of request. Removing a tree is an expensive proposition that often involves getting a permit from your city’s building department. The removal, stump grinding, and sodding are necessary to keep your community looking nice and may even be required by your local building code. Fortunately, it seems that you are living in a community with a reasonable board willing to work with individual member’s requests. Now you need to decide if it is worth spending the money to have the tree removed…

treevandal210723Little Rock, Arkansas, Democrat-Gazette, July 23, 2021: Author charged over felled trees set to surrender

A man accused of causing over $100,000 worth of damage to forestry on Central Arkansas Water land will surrender today on a warrant of arrest issued by the Pulaski County District Court. The warrant issued on Wednesday for Dennis Rainey, a Christian author, podcast host and co-founder of FamilyLife, charges him with felony first-degree criminal mischief regarding an tree-cutting incident. On May 12, Roland resident Rhonda Patton discovered the tops of some trees cut and others completely chopped down while walking along the Ouachita trail running alongside Lake Maumelle. When she asked those cutting down the trees, they told her they were working for Rainey, 73. “I was mad. My husband was shocked,” Patton told the Democrat-Gazette in May. After surveying the area, Central Arkansas Water initially determined between 75 and 100 trees were cut without knowing how many were completely chopped down. The warrant states Central Arkansas Water contact Raven Lawson, who also spoke to the Arkansas Democrat-Gazette, told investigators 111 trees were cut, with an approximate value of $109,899 and $12,000 being the cost for cleanup. Lawson said in an interview after the incident that many of the trees, which have taken years to grow to 20 foot heights, could die…

Louisville, Kentucky, Courier-Journal, July 23, 2021: Why do trees grow so much better in the wild than in your yard?

Many years ago when I was a University of Illinois grad student, a local resident wrote to the department’s Cooperative Extension office with a question. After a bit of a preamble, the question emerged … “How long do I need to compost fresh cricket manure before using it to fertilize my plants?” Well, those of us self-appointed to the horticultural glitterati had a good laugh. I mean I had completed a four-year college curriculum in horticulture and a whole year of grad school. These silly people and their silly questions. … Obviously, the letter writer had spent too much time in the sun. Of course what she meant to ask about was chicken manure (not an uncommon organic fertilizer), not cricket manure. Who on earth would ever amass enough cricket manure to have to worry about composting it before using it as fertilizer? Turns out, the letter writer’s son was at the time owner of the largest live fishing bait company in the eastern USA. They grew and sold about a hundred zillion live crickets a year and, well, you can imagine how much cricket manure that number of Jimminys can produce … Our dear letter writer wanted to share her botanical booty with her fellow garden club members but wanted to make sure she properly processed it before sharing it with her friends. Laugh’s on us! Some questions just need to be asked, no matter how silly they might seem on the surface…

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Case of the Day -Tuesday, July 27, 2021

WE ONLY GET WHAT WE GIVE

It seems like only last week, but it was almost 20 years ago that my daughter, then an Ivy League freshman but now a mom and Ph.D., introduced me to the very short-lived, corporation-hating New Radicals. I guess I was supposed to be scandalized by the band’s criticism of society and the frequent references to drugs and sex that permeate the band’s one and only album. Sorry, Sweetie, I told her, but I came of age in the 60s (I dimly recall). Nothing scandalizes me.

I think she was disappointed that I added the New Radicals’ only hit to my snazzy white iPod (remember those?). I liked the rather anti-Marxist sentiment of “you only get what you give.”

The defendants in today’s case found out a bit late that a corollary to that aphorism is “you only get what we give.”

McCammon's excuse - the dog chewed off the boughs - didn't cut it with the jury.

McCammon’s excuse – an arboriculture version of “the dog ate my homework” – didn’t really resonate with the jury.

In many ways, a civil action is little more than a gladiatorial contest, with the court sitting to referee according to procedural rules, to apply the law when needed, and to correct inequities only in egregious circumstances. That’s sort of what happened when the McCammons – garden center owners who were buying tree boughs wholesale from “Trees 4U” – cut the boughs they needed not only from the trees Reicosky had designated but also from some landscape trees they had been told not to damage (sounds kind of like Adam and Eve and the tree of knowledge, doesn’t it?).

The owners of “Trees 4U” — the Reicoskys — told McCammon that those trees were definitely not for him, and sued. They claimed McCammon had destroyed $35,000 in trees, and they wanted treble damages under Ohio law. McCammon claimed that Mr. Reicosky had given him permission to cut boughs from the landscape trees. Mr. Reicosky denied it. It was up to the jury to decide whose story to believe, and it believed Mr. Reicosky.

There may not have been any compelling basis for believing the one story over the other, but when the jury makes its decision, it has pretty much settled things. It’s sort of how pro football was before instant replay: what the official said happened was what had happened. (Cursed instant replay … but that’s a rant for another day, )

The other problem the McCammons faced came with jury instructions. A trial court gives a jury detailed instructions on what the law is, so that jurors can decide how the facts they find (such as determining that McCammon cut boughs from Reicosky’s landscape trees after Reicosky said not to) leads to the legal outcome (McCammon thereby committed a trespass and was reckless). Both sides may suggest jury instructions to the Court. Here, McCammon didn’t think things through, and agreed with an instruction that the jury figure up damages by adding the market value of the tree times the number of trees. Later on, McCammon realized that the real measure of damages should be lost profits, that is, the market value of the trees minus the cost of producing and selling them. After all, even kids running a lemonade stand know that you only get to keep the money you’re paid minus what it cost you to buy the lemonade and handmade sign. McCammon complained that he should get a new trial, because the jury hadn’t considered the costs of production when it calculated damages.

The Court of Appeals said McCammon was out of luck. The jury had made its decision on his liability, and whether it’s what the Court agreed with or not, there was evidence enough for a rational jury to reach its finding. And as for the damages, well, Mr. McCammon, “we get what we give.” The instruction might have been flawed, even unfair to the McCammons, but the McCammons were happy enough with it when it was given. A party can’t make a mistake, and then cry foul that the mistake happened.

Bough? Wow.

Bough? Wow.

Reicosky v. McCammon, Case No. 2006 CA 00342, 2008-Ohio-2775, (Ct.App. Ohio, Feb. 19, 2008), 2008 WL 442567, 2008 Ohio App. LEXIS 2344 . The McCammons ran a garden center, from which they sold, among other things, tree boughs to cover gravesites. They had trouble getting enough boughs, and began buying them from the Reicoskys, who operated “Trees 4U.” The Reicoskys delivered them one year, but in subsequent years, let the McCammons come to the “Trees 4U” tree farm and cut the boughs they needed. The first year the McCammons did so, the Reicoskys instructed them not to take any boughs from trees east of a particular drainage ditch, because those were landscape trees to be resold.

The McCammons limited their cutting to the west side of the ditch one year, but the next year came back, and this time cut boughs from the landscape trees on the east side of the ditch as well. The McCammons said Mr. Reicosky had given them permission to do so on trees taller than 16 feet east of the ditch. Mr. Reicosky denied doing so, and claimed he lost 211 trees, worth over $35,000. The Reicoskys sued.

There's an old legal aphorism - never trust the judgment of twelve people who aren't smart enough to know how to get out of jury duty.

There’s an old legal aphorism – never trust the judgment of twelve people who aren’t smart enough to know how to get out of jury duty.

At trial, the jury heard both sides, and then found for Reicosky, holding that he had suffered $35,000 in damage. The trial court trebled this under Ohio’s treble damages statute. The McCammons’ motion for a directed verdict – in which they argued that no evidence supported the finding of recklessness was needed for treble damages – was denied by the trial court. Likewise, the McCammons’ motion for a new trial – based on the fact that the jury considered the market value of the destroyed trees without deducting any of the costs associated with selling the trees — was turned down. The McCammons appealed.

Held: The treble damages were upheld. The Court of Appeals observed that it was limited to determining whether there was any evidence that could have convinced a rational juror the McCammons had been reckless. The evidence, because the Reicoskys were the winner, had to be construed in favor of the Reicoskys.

The Court concluded that the jury simply chose to believe Mr. Reicosky’s version of what happened — that he had never given permission to cut east of the ditch and had previously made clear that the trees there were off limits — and to reject Mr. McCammon’s version. The jury is the fact finder, and its determinations as to who to believe are entitled to great deference by reviewing courts. The jury having accepted that the McCammons trespassed on the east side of the ditch without permission, the Court of Appeals was not entitled to decide that it may like Mr. McCammon’s recitation of events better.

As for the faulty calculation of damages, the Court said McCammons’ complaint was too little, too late. The McCammons had an opportunity to make sure the jury instructions accurately described how to deduct costs from the market price to determine lost profits. Instead, they submitted a jury instruction that was the same as the one the Court used, which omitted any direction as to how to calculate damages by deducting costs from market price. The Court found that “any error in the jury’s determining of damages was invited by [the McCammons]. Under the invited error doctrine, ‘a party will not be permitted to take advantage of an error which he himself invited or induced’.”

– Tom Root

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Case of the Day – Monday, July 26, 2021

SMOKEY’S REVENGE

The news out of California has not been good. Paradise was anything but, as wildfires consuming homes and thousands of acres of forest and wilderness. A billion-dollar corporation, PG&E, is in bankruptcy over it. It’s the kind of thing Smokey Bear always warned us about (and no, his name is not “Smokey the Bear.” I thought it might interesting to revisit the tale of another large corporation involved in a wildfire, the Great Storrie Fire of 17 years ago.

One hot August day in northern California, a Union Pacific track repair crew let some grass next to the tracks catch fire. They tried to put the blaze out … rather ineffectively, it turns out.

The Bear was not amused.

The Bear was not amused.

By the time it was all over, 81 square miles of national forest burned in the Storrie Fire of August 2000. The Forest Service, which has compiled a poor record of reforestation – chiefly because of lack of money – sued Union Pacific for the cost to rehabilitate the burned-out area. Smokey Bear would have his day in court.

Before the case was to go on trial, the lawyers tussled over the proper measure of damages. The railroad argued that the correct measure was the diminution of property value caused by the fire. What’s more, the losses had to be mitigated by the value of the timber that could be salvaged from the burned land. The catch was that most of the land was restricted by law, and could not be harvested until the law expired several years after the fire. Union Pacific argued that if it could have been sold, it would have fetched so much that the damages only reached about $5.7 million.

The Government cried foul, contending that the traditional measure of damages wasn’t appropriate for natural resources. Instead, it claimed damages to the timber, damages to the soil, reforestation costs and loss of environmental habitat to birds and mammals on the order of $167 million.

Over 71,000 acres were burned by a railroad crew's careless fire.

Over 71,000 acres were burned by a railroad crew’s careless fire.

Big difference! So the crucial battle was joined, well before the trial commenced, when the court was asked to rule on what damages would be allowed. When the decision was handed down, it turned out to be a bad day for the railroad. The trial court showed little sympathy for Union Pacific, holding that California law let the Government pile on the damages – timber, soil, reforestation, and loss of habitat. What’s more, in a double whammy if ever there was one, the District Court ruled that, even though the timber on the restricted land couldn’t be sold in 2000 (and couldn’t be for many years thereafter, because the law was extended), the value of the timber was appropriately considered in setting damages. OK, Union Pacific conceded, but then the salvage value of the timber left on the restricted land should be considered in mitigation. No, the Court disagreed, it couldn’t be considered … because it couldn’t be sold. The law, you know.

Having been thoroughly sandbagged by the Court, the railroad knew better than to go to trial. It settled the case for $102 million. And that was real money back then.

For all of the Court’s feel-good rhetoric about the sacred trust of the national forest, the Forest Service hadn’t done very much to remedy the mess the fire left behind in the eight years after the fire. Private landowners who suffered loss have done much more, but then they’re not hamstrung by regulation and interest groups. Once the Union Pacific millions started pouring in, the Forest Service didn’t have any excuse for further sloth.

How about Union Pacific? A settlement of over $100 million has to hurt, right? Take heart — the venerable old railroad had insurance.

As for the national forest, it’s slowly returning to green. But even an untrained eye looking at August 2013 satellite pictures can tell that the timber is gone. To the north and west of Storrie, rising from the Feather River, the unforested land stands in obvious contrast to the rest of the area.

The interesting tree law lesson drawn from today’s case is the Federal District Court’s free-wheeling approach to damages. With a creative lawyer, a political hot potato and a sympathetic court, the sky can be the limit.

United States v. Union Pacific Railway Co., 565 F.Supp.2d 1136 (E.D.Cal., 2008). A Union Pacific (“UP”) track repair crew negligently ignited the fire while repairing a rail, and — not recalling their Boy Scout days — didn’t put it out properly. The resulting conflagration, known as the “Storrie Fire,” destroyed 52,000 acres of National Forest in August 2000. The Government sued UP.

Union Pacific on span northeast of Storrie.

Union Pacific on span northeast of Storrie.

The issue raised before the Federal district court concerned the proper measures of natural resource damages, whether diminution of the market value of the forest land was the overarching measure of the Government’s damage in the case, and if not, whether the Government may recover as separate injuries timber damages of over $121 million, reforestation costs of $33 million, and loss of habitat and environment during the period of regrowth of $13 million.

Also, some of the National Forest had been specified by Congress as being temporarily exempt from timber harvest. Had the trees on these lands not been wholly destroyed by the fire, the Government could have harvested the trees over time, after the expiration of the law. Similarly, no logging or reforestation was allowed in the Bucks Lake Wilderness at the time of the fire, and the general forest areas were lands where commercial logging may occur subject to other legal restrictions, such as environmental assessment requirements.

The Government conducted salvage sales of the charred timber that was not located on restricted lands, recovering $335,616. UP contended a post-fire salvage sale of the burned timber on the restricted lands — had federal law permitted it — would have generated over $73.6 million. UP claimed that at most, the Government incurred only $5.7 in net lost timber value ($79.3 million minus $73.6 million).

Held: The U.S. District Court found that the loss in market value of the land was not the proper measure of damages. Instead, the Government could argue to the jury that it was entitled to recover damages for damages to the trees, to the soil and pre-merchantable timber, and its loss of use of habitat and environmental services during the period of forest regrowth. UP would not be allowed to argue at trial that it was entitled to an offset based on the theoretical salvage value of the timber. Finally, the Government’s habitat equivalency damages were legally permissible.

California law applied to the Government’s damage claims. Although UP argued that under California law, the measure of damage for negligent injury was the difference between the value of the property before and after the injury. The Court agreed this was generally correct, but California law also held that [t]here is no fixed rule for the measure of tort damages under Civil Code §3333 … [and t]he measure that most appropriately compensates the injured party for the loss sustained should be adopted.” The general measure of tort damages under California law is broadly defined as “… the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not.”

Don't kid yourself - the case was a political hot potato, and politics undoubtedly influenced the District Court decision.

Don’t kid yourself – the case was a political hot potato, and politics undoubtedly influenced the District Court decision.

Thus, the Court held, the Government – as the injured party here – was entitled to full compensation for all of its damages, considering the unique character of the land at issue and that natural resources have values not fully captured by the market system. Resource damages, including timber damages, rehabilitation, and restoration costs, and environmental and habitat damages all were recoverable as separate injuries, the Court ruled. In this case, the fire damaged the Government’s property and reduced its value, not only through the destruction of trees used for timber but through damage to the soil. In addition, the USFS was required by law to replant to a certain minimum density, and they incurred expenses in their salvage operation. These, the Court said, were separate injuries.

UP also argued that the Government couldn’t recover damages for the value of the trees located on the restricted lands because commercial logging of those lands was not permitted by law. But, the Court held, when the Storrie Fire occurred in August 2000, the restriction was set to expire in 2004. Had the fire not destroyed the trees within the restricted areas, the trees would have been commercially available for harvesting within a few years, and the Government could have recovered their timber market value. Instead, as a result of the damage caused by the fire and the subsequent decay of the burned trees, the trees were dead or dying and no longer had any viable timber value. That the law had subsequently, post-fire, been extended, the Court ruled, was of no consequence because at the relevant time in 2000, the law had a definite expiration date.

UP argued that in areas where commercial logging is not allowed the reasonable cost of reforestation is the proper measure of damages, but the Court rejected the argument. It said that the Government’s timber damages of $121.9 million were supported by detailed expert analysis of actual timber values. The Court waxed eloquent that UP had wholly ignored the wilderness areas in question “[w]ere national treasures created by Congress ‘to secure for the American people of present and future generations the benefits of an enduring resource of wilderness’ … ” In such circumstances, the Court held, the Government could recover damages for the timber burned in the wilderness areas. Destroyed timber values were a relevant means to capture at least part of the lost value of the burned lands because there is no available real property market value by which to determine the pre- and post-fire value of thousands of acres of national forest lands that can’t be sold.

UP asserted that if such damages were permitted by the court, it should be allowed to argue to the jury that the damages calculation did not account for the full administrative costs that the Government would have incurred in marketing unburned timber at the prices it claims, including environmental assessment costs and road-building costs. The Court disagreed, holding that the harm in this case was caused by UP’s admitted negligence which essentially created a “forced sale” of the trees. Thus, the Court said, deduction for administrative costs was not appropriate.

The area of the fire - 13 years later, growth is still sparse.

The area of the fire – 13 years later, growth was still sparse.

Finally, UP argued it was entitled to an offset of the timber damages based upon the amount UP contended the Government could have obtained in a theoretical post-fire salvage sale of the timber on the restricted lands, $73.6 million. The Government argued against this, noting that the law prohibited the post-fire salvage sale. UP agreed but pointed out that the law also prohibited a pre-fire sale, and thus, if the Government were permitted damages based in part on the theoretical pre-fire, sale value of the timber on these lands, UP should also receive a corresponding offset to those damages based on a theoretical post-fire salvage sale.

The Court disagreed, holding that salvage value is a question of mitigation after actual damages have been ascertained and then only for amounts that were realized or could have been realized. Thus, assessment of the Government’s actual damages are a separate inquiry from the assessment of the Government’s duty to mitigate its damages after the commission of the tort. Under the doctrine of avoidable consequences (or mitigation of damages), the person injured by another’s wrongful conduct may not recover continuing damages “that the injured person could have avoided by reasonable effort or expenditure.” Thus, the Court said, UP was entitled to an offset of damages only for the salvage value realized by the Government for its salvage sale with respect to timber not located on the restricted lands.

– Tom Root

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