Case of the Day – Tuesday, March 2, 2021

TEACH YOUR CHILDREN WELL

Evil-Spawn-1Mrs. Dahlquist and her evil spawn, Jeff Zube, lived in pretty close proximity to several neighbors, including the Careys. The constant obscenities, threats, spitting from balconies onto the neighbors, rotten eggs and lit cigarette butts got a little wearing on the Careys. They finally sought an anti-harrassment order under a California statute — Section 527.6 of the Code of Civil Procedure — to get Ma Dahlquist’s gang of two to stop.

Common law provides no remedy to restrain a neighbor who unfortunately has a sewer for a mouth and a tar pit for a soul, sad to say. Statutes like the California’s CCP § 527.6 are not all that common, but they are becoming more and more so, because – and here we can all bemoan the erosion of the Republic – neighbors like Joe and Dorothy (who’ll mow your lawn for you and deliver warm brownies from time to time – are getting to be scarcer, and next-door harridans like Ms. D and her whelp are becoming more common.

The lesson in today’s case is that if you’re going to be nasty to one neighbor, be sweet to the others. If you’re a jerk to everyone, expect some piling on. Not surprisingly, that happened here: complainants against Ms. Dahlquist and fil came out of the woodwork, with everyone on the block more than happy to cite the constant bird-flipping, the obscene insults and the general squalor that surrounded the harpie and her mordent boy.

CarrieDahlquist and Zube of course denied everything. Movie fans will remember the memorable Blues Brothers scene with Jake Blue (John Belishi) telling a gun-totin’ Mystery Woman (Carrie Fisher) that “it wasn’t my fault!” In the face of rather detailed, graphic even, descriptions of the Dahlquist/Zube misconduct by the neighborhood, the trial court didn’t believe a word of it.

BelushiThe Dahlquist/Zube gang appealed. Appellate courts expect that, winner or loser, a party will give the court a reasonably complete and balanced assessment of the record below. Not Dahlquist and Zube. If the fact didn’t fit with their world-view, they just left it out. That didn’t leave much in their recitation of the “facts.” The Court of Appeals wasn’t detained long by this creative pleading: it held that the record below amply made out a pattern of harassment that was such that would cause a reasonable person to suffer substantial emotional distress. It certainly did for the Careys, and the Court found that under the circumstances, a three-year order was fully justified.

Carey v. Dahlquist, 2007 Cal. App. Unpub. LEXIS 10631, 2007 WL 4555793 (Cal.App. 1 Dist.)  Dahlquist and Carey live next door to each other in Sausalito, California. Dahlquisht’s 19 year old son, Zube, lives with her. Carey filed a § 527.6 petition alleging that, among other things, her neighbor Dahlquist screamed obscenities at her and used “constant foul language, verbal comments (‘this is war’) and written threats.” Dahlquist had also “ordered tree people onto my property and cut down (removed two 30 ft high trees).” Carey requested an order that Dahlquist stay away from her, and that “she not be able to come out on her deck and scream obsenities [sic] at me or my husband as I go up and down my stairs.” In addition, Carey asked the court to order that Dahlquist “not hire workmen to come onto my property and destroy my property” and that she “pay for the survey and replace the trees she removed.”

The same day, Carey filed an application for a temporary restraining order against young Zube, alleging that in a two-page list of “confrontations” with Zube, that he had thrown eggs from his balcony, shouted obscenities at her husband as he came up the stairs, threw poppers onto the stairs while Carey and her husband were walking up the stairs, made “exceptional noise” from Zube’s stereo, and that on multiple occasions when lighted cigarette butts were found on the wooden stairs at Carey’s house. Neighbors provided affidavits complaining of similar acts.

The record also contained a declaration from Jeff Zube’s father claiming that Carey was a chronic complainer, and anyway, young Zube would be leaving soon for Santa Barbara to attend college. Nevertheless, the trial court granted the petition as to both Zube and Dahlquist, holding Zube had “an out-of-control and extremely disrespectful side of you and I’ve seen it in court, and I’ve heard it from the testimony.” The court found that Carey and her witnesses were credible and that the testimony of Dahlquist and Zube was not. It issued a 3-year restraining order, and Dahlquist and Zube appealed.

restraining-order1Held: The order was upheld. Section 527.6 provides that a person who has suffered harassment as defined in the statute may seek an injunction prohibiting harassment as provided in this section. “Harassment” is unlawful violence, a credible threat of violence, or a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose. The course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the plaintiff. A “course of conduct’ is a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose, including following or stalking an individual, making harassing telephone calls to an individual, or sending harassing correspondence to an individual by any means, including, but not limited to, the use of public or private mails, interoffice mail, fax, or computer e-mail.

The Court decided that Carey had provided clear and convincing evidence of a knowing and willful course of conduct by Dahlquist. She described confrontations with Dahlquist in which Dahlquist threatened legal action against her and shouted obscenities at her husband as he came up the stairs. Carey found Dahlquist’s behavior threatening. Carey’s neighbor testified that he, too, had been on the receiving end of threatening and harassing behavior from Dahlquist, including her falsely accusing his wife of leaving an obscene message on her voice mail. The Court held that the trial judge had found substantial evidence on which the base the issuance of a permanent injunction.

badpennyAs for Zube, the evidence established that he had thrown lighted cigarettes on the wooden stairs leading to Carey’s home, that he had spit on the deck, and had thrown poppers on the stairs while Carey was walking up them and also shouted obscenities at Carey. Neighbors confirmed that this sort of behavior had been directed at them as well. Substantial evidence, therefore, supports the trial court’s issuance of the permanent injunction. The continuing course of harassing conduct by Zube and Dahlquist left both Carey and her husband fearful and distressed. This showing was sufficient to indicate a reasonable probability that the course of conduct would continue into the future. It didn’t matter that Zube was leaving for college. The trial court found his other testimony lacked credibility, and the Court of Appeals said it was entitled to disregard his representation that he was leaving.

Even if he did, like bad penny, he’d probably return.

– Tom Root
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And Now The News …

The Nature Conservancy, March 12, 2021: New Study: U.S. Needs to Double Nursery Production

In order to realize the potential of reforestation in the United States, the nation’s tree nurseries need to increase seedling production by an additional 1.7 billion each year, a 2.3-fold increase over current nursery production. Currently the nation produces 1.3 billion seedlings per year. These numbers, taken from a new study, show the promise of increased nursery output as a way to fight climate change, create jobs, and recover from uncharacteristically severe wildfires. With more than 200,000 square miles in the United States suitable for reforestation, ramping up nursery production could offer big benefits for the climate. Restoring forests is an important nature-based solution to climate change and a complement to the critical work of reducing fossil fuel emissions. “To meet the need for reforestation, we’ll need to invest in more trees, more nurseries, more seed collection, and a bigger workforce,” said the study’s lead author, Joe Fargione of The Nature Conservancy. “In return we’ll get carbon storage, clean water, clean air, and habitat for wildlife.” The new study, published in the science journal Frontiers in Forests and Global Change, was co-authored by 18 scientists from universities, nonprofits, businesses, and state and federal agencies…

Atlanta, Georgia, WSB-TV, March 1, 2021: Forest fires out West cause lumber prices to skyrocket here in Georgia

The cost of building a new home has spiked and it’s all because of forest fires. Last year’s wildfires out West destroyed millions of acres of trees that were supposed to become 2-by-4s. Now, there has been a huge increase in the price of lumber. Gwinnett County lumber yard owner Michael Johnsa told Channel 2′s Berndt Petersen when he saw what was happening, he knew it would turn the lumber industry upside down. “Most of the people who sell that building supply material have had a hard time getting it because of that. When you see something like that, it does strike you as a problem,” Johnsa said. Last year’s wildfires out West burned through millions of acres of trees that were supposed to end up in the form of lumber for new homes. Prices have skyrocketed. Even a do-it-yourselfer like Ray Phillips told Petersen that wood costs more everywhere. “Most of the retail stores like Home Depot and Lowes,” Phillips said. The pandemic also had a hand in this by forcing the sawmills to shut down. While many are back in business, socially distanced operations can’t cut nearly as much lumber…

Santa Rosa, California, Press Democrat, March 1, 2021: 224-acre logging plan above Russian River near Guerneville awaiting approval

A plan to log 224 acres of steep land above the Russian River, on the outskirts of Guerneville and Monte Rio, is expected to win approval in the coming days despite heavy opposition from residents and activists alarmed by the project’s proximity to rural communities and the natural landscape that draws tourists there. Representatives for the Roger Burch family, which owns the property and the Redwood Empire Sawmill in Cloverdale — where logs from the Silver Estates timber harvest would be milled — said the forest is overstocked and badly in need of thinning to promote the growth of larger trees and reduce excess fuels. But opponents say they remain unsatisfied by the planning process and have myriad outstanding concerns — everything from effects on wildlife habitat to soil stability, wildfire risks and visual impacts. They say the plan is governed by “outdated” forest practice rules that fail to account for climate change and heightened wildfire risks where wildland abuts or mixes with settled areas. “I still feel like we’re living with the legacy of Stumptown, and we still have to make amends,” said John Dunlap, a leader of the local Guerneville Forest Coalition. Stumptown was the nickname acquired by the community during the logging boom at the turn of the 20th century, when timber from the area helped rebuild San Francisco after the 1906 earthquake and fires. “It’s sort of like we’re not really listening to what the environment is telling us…”

Better Homes and Gardens, March 1, 2021: Money Almost Grows on Trees—When You Plant Them in Your Yard

Money may not actually grow on trees. But every leaf on every branch not only boosts curb appeal; it increases the value of your home in plenty of ways, including those you might not expect. Healthy, mature trees add an average of 10 percent to a property’s value, according to the USDA Forest Service. They reduce heating and cooling costs, increase privacy, soften noise, attract birds and pollinators, and create priceless memories. Like money, though, trees perform best when viewed as a long-term investment. To ensure your tree thrives, consider these tips based on a tried-and-true arborist rule: Plant the right tree in the right place at the right time. One tree can serve a variety of purposes. It can screen out a neighbor’s yard, add spring or fall color, create wildlife habitat, cut strong winds, and even cool a house with its shade. According to the Arbor Day Foundation, the net cooling effect of a young, healthy tree is equivalent to ten room-size air conditioners operating 20 hours a day. Aside from aesthetics and practicality, consider the easy outdoor recreation possibilities, from bird-watching to picnicking beneath the boughs. Fifteen years ago, I planted two river birches. In addition to shading the sunny front lawn in summer, softening the wind that whips down the street from the north, and hosting a variety of birds, they sport a much-used hammock tied between them…

San Francisco, California, KPIX-TV, February 28, 2021: Young Graduate Beginning His Career Killed by Falling Tree in Burlingame

The family of a young physics researcher at a Bay Area COVID-19 testing lab was in mourning Sunday after he was killed by a falling tree near the facility in Burlingame. Kahlil Gay had just graduated from Cal State East Bay in December and started working at the company. “At a very early age, he knew that he wanted to be in the physics or engineering field. He knew actually where he was going in life,” said the victim’s aunt, who declined to provide her first name. Family members said Gay was excited about his new job — working for Color, a health tech company that provides COVID-19 testing for several San Francisco city-run sites. “Kahlil had just called his parents to check in (before the tragedy,)” said the victim’s aunt. But that excitement quickly turned into a tragedy on his third day at the Color campus located on Mitten Road. “He was walking with a co-worker of his,” said Kahlil’s older brother, Darryl Gay, when the accident happened. Authorities told the family that around 4 p.m. Friday afternoon, Kahlil was walking with a co-worker on campus when he was struck by the tree. His injuries proved to be fatal. There’s no word on whether or not the co-worker was injured…

Davenport, Iowa, Quad City Times, February 28, 2021: It’s time to stop pruning oaks

The recent warm weather has given Midwesterners a taste of spring, which means it’s time to finish pruning oak trees for the year to prevent the spread of oak wilt. “The best way to prevent the spread of oak wilt is to not prune any oak tree between the end of March and the start of October,” said Tivon Feeley, forest health program leader with the Iowa Department of Natural Resources. “However, the warm weather conditions indicate that spring might be a bit early this year and for that reason, we recommend finishing your oak pruning by the end of the second week in March.” Oak wilt is caused by a fungus and has been present in the Midwest for many years. It most commonly impacts red, black and pin oaks, but can also infect white and bur oaks. If black, pin, or red oak are infected by the fungus they usually die within the same summer they are infected. White oak and bur oak can often take a number of years before they succumb. “A healthy tree can be infected by this fungus two different ways. The first is through open wounds during the growing season where the fungus is carried from a diseased tree to a healthy tree by a small beetle,” Feeley said. “The second is through root grafts between oak trees of the same species. For example, if a red oak is infected and there is another red oak within 50 to 100 feet there is a good chance that the roots of these trees are grafted and the fungus can move from the diseased tree to the healthy tree…”

Cleveland, Ohio, Plain Dealer, February 25, 2021: Holden Arboretum launches People for Trees campaign to green up balding patches of Cleveland, Northeast Ohio

Government can only do so much to solve the tree-cover crisis that’s spreading bald patches across Northeast Ohio, making communities uglier, less livable, more polluted, and more vulnerable to flooding, erosion and heat waves. That’s why the nonprofit Holden Forests & Gardens is launching a “People for Trees,’’ a campaign to enlist volunteers to plant 15,000 trees across the region by 2025. Holden, which operates a 3,500-acre arboretum in Kirtland and the 11-acre Cleveland Botanical Garden in University Circle, hopes to enlist some of its 17,000 members, 1,500 volunteers and 380,000 annual visitors to buy, plant, and care for the trees on private property, in yards or businesses. logic behind the campaign is that private property accounts for 85 percent of land within the region. If the public sector is responsible for only 15 percent, the private sector needs to step up, said Jill Koski, the president and CEO of Holden Forests and Gardens.That’s why the organization, which operates America’s 14th largest public garden, is reaching out to members and visitors two months ahead of Arbor Day, April 30. “We know who these people are,’’ Koski said. “We want to do more than a campaign. We want to start a movement. Long term, it’s not about a single organization. We need to bring more people into the fold…”

Anaheim, California, Orange County Register, February 26, 2021: Tustin homeowners association: ‘Repaint that $23K garage door!’

The fate of garage doors – any garage doors – does not exactly rate high on the list of world problems. But for Julie Good, her new garage doors are a triumph, a piece de resistance, a tour de force. Less hyperbolic, they improve her house’s curb appeal. “I’m very sad at the prospect of having to remove them,” Good, 62, said. When she bought the North Tustin house a decade ago, it featured a long garage with three narrow egresses. Good kept banging up her car getting in and out. “I lost two mirrors and scraped a side panel,” Good said. Last year, after one repair bill too many, she decided a garage remodel was well past due. Completed in mid-January, the face lift merged two of the garage doors into one larger entrance for easier maneuvering. Aside from the pragmatics, Good is thrilled with the aesthetics – Southwestern-style metal doors bearing a weathered, patina look. “They’re even more gorgeous than I had imagined.” But that feeling isn’t universal. Soon after the grand unveiling, Good learned that her homeowners association is not so impressed. Retroactively, the board denied approval…

New York City, Wall Street Journal, February 24, 2021: Lumber Prices Are Soaring. Why Are Tree Growers Miserable?

The pandemic delivered an unexpected boon to the lumber industry. Hunkered-down homeowners remodeled en masse and low mortgage rates drove demand for suburban housing. Lumber supplies tightened up and prices smashed records.
“You must be making a lot of money,” an Ace Hardware store manager told timber grower Joe Hopkins, whose family business has about 70,000 acres of slash pine near the Okefenokee Swamp. “I’m not making anything,” Mr. Hopkins replied. Timber growers across the U.S. South, where much of the nation’s logs are harvested, have gained nothing from the run-up in prices for finished lumber. It is the region’s sawmills, including many that have been bought up by Canadian firms, that are harvesting the profits. Sawmills are running as close to capacity as pandemic precautions will allow and are unable to keep up with lumber demand. The problem for timber growers is that so many trees have been planted between the Carolinas and Texas that mills are paying the lowest prices in decades for logs. The log-lumber divergence has been painful for thousands of Southerners who are counting on pine trees for income and as a way to hold on to family land. And it has been incredibly profitable for forest-products companies that have been buying mills in the South. Three Canadian firms— Canfor Corp, Interfor Corp. and West Fraser Timber Co. —control about one-third of the South’s lumber-making capacity. Since bottoming out last March, shares of the Canadian sawyers have risen more than 300%, compared with a 75% climb of the S&P 500 index….

Anaheim, California, Orange County Register, February 25, 2021: Edison’s aggressive tree trimming rankles Mission Viejo neighbors

Neighbors in Mission Viejo’s Aegean Heights weren’t too concerned when Southern California Edison went door-to-door at the beginning of the month, letting them know that they’d be trimming trees along nearby power lines — “light trimming,” as one resident recalled. But after hearing the chainsaws, several went out and were stunned to see more than two dozen trees stripped of all branches and leaves, some cut well below the power lines and others 30 feet or more away from those lines. ”Trees that were 100 feet tall are being reduced to five-foot stumps,” said resident Beth Berman said Feb. 17, the week the work was performed. Her husband, Dan Berman, said the trees — mostly eucalyptus — provided welcome shade to their condos, a noise buffer for the railroad in the ravine below, and visual beauty for the neighborhood. “They’re absolutely gorgeous,” he said. In addition to the complaints from neighbors, the contractor — Utility Tree Service — heard from the city Maintenance Operations Manager Jerry Hill. “He encouraged them to work more with the residents and not leave it all hacked up,” said Mark Chagnon, Mission Viejo’s director of public works. “We just want them to leave it decent for the residents. Nobody wants to look at a hack job.” Edison didn’t acknowledge wrongdoing…

Miami, Florida, Herald, February 25, 2021: Due to climate change, Miami Beach moving away from palm trees to create more shade

Whether swaying in the background of a Super Bowl glamour shot or printed on Art Deco-themed postcards, palm trees are synonymous with the sun-and-fun allure of Miami Beach. In a city with nearly 50,000 trees, more than half have fronds. But due to rising temperatures, that’s about to change. Guided by an urban forestry master plan, which the Miami Beach City Commission unanimously approved in October, city officials are working to reduce the concentration of palms to 25% of the total canopy by 2050. The city says the cutback— intended to help reduce urban warming, improve air quality and absorb more carbon and rainwater — will be accomplished during upcoming construction projects that already require the removal of trees, partly by removing some palms but mostly by adding new shade trees. “Palms, while an iconic part of Miami Beach’s landscape, have moved from being an accent plant to a major component of the city’s urban forest,” the urban forestry master plan reads. To help address the consequences of climate change, city leaders will cut back on the number of new palms in the city and add more eco-friendly shade trees to the Beach’s canopy…

Charlotte, North Carolina, Observer, February 25, 2021: One of nation’s most iconic trees was destroyed by ice storm, Tennessee park says

A twisted cliff-top pine that ranked among the South’s most iconic trees met its demise during an ice storm last week, according to Tennessee State Parks officials. “The lone pine at Buzzard’s Roost,” as it was known, was believed to be nearly 150 years old, predating the popular state park that has surrounded it since 1937. It eventually became a landmark in its own right, sought out not just by tourists, but by photographers and artists. “This tree had a very distinct shape, almost like a bonsai tree, and the view behind it is breathtaking,” Fall Creek Falls State Park Manager Jacob Young told McClatchy News. “Fall Creek Falls is getting anywhere from 1.5 to 2 million visitors a year, and many have taken photos at this location. There have been countless weddings, proposals, dedications, spiritual events, anniversaries and celebrations for those who have passed, etc., there…

Mongabay, February 24, 2021: We’re killing those tropical trees we’re counting on to absorb carbon dioxide

“If a tree lives 500 years, it carries the carbon assimilated and stocked for the last 500 years,” says Giuliano Locosselli, a researcher at the University of São Paulo (USP) in Brazil. “If instead, the tree lives 300 years, it means the carbon will be stocked by 200 years less. So we are accelerating the carbon cycle, and the result is that we have more carbon in the atmosphere.” Trees have always been our main allies in the fight against global warming, thanks to their capacity to take the carbon dioxide out of the air and store it for dozens or even hundreds of years in their trunks, branches, leaves and roots. Our recklessness, however, has sabotaged this capacity. That’s the conclusion of two studies published at the end of last year, which show that rising temperatures, resulting from our runaway greenhouse gas emissions, are reducing the longevity of the trees in many forests worldwide, including in the Amazon, the largest tropical forest on the planet. The studies — one led by Locosselli and published in the , and the other by Roel Brienen of the University of Leeds in the U.K., published in Proceedings of the National Academy of Sciences (PNAS) — look at the links between rising temperatures and tree growth and mortality rates. Locosselli and Brienen have worked together for many years and are co-authors on both studies, alongside 20 other researchers from Brazil, Chile, Argentina, Canada, the U.S., the U.K., Germany, France, Italy and Finland. Both studies use data from the International Tree-Ring Data Bank, the world’s largest public archive of this type, maintained by the U.S. National Oceanic and Atmospheric Administration (NOAA). The rings that appear in cross-sections of tree trunks provide crucial information about the individual tree’s age, growth rate, and the prevailing environmental conditions…

Sacramento, California, KOVR-TV, February 24, 2021: Cause For Concern: Arborist Says Davis Tree That Killed Woman Looked To Have Multiple Failing Limbs

Many questions still surround what led to a tree limb in Davis breaking off and crushing a woman in a park Tuesday.CBS13 walked the area with an arborist Wednesday who said most of the trees in Slide Hill Park are in good condition, except for a couple of them. Among the two trees of concern is the one that lost a limb and killed a woman when it crushed her. “It breaks my heart knowing what happened here,” said Daniel Hovarter, an arborist with Tree Services Sacramento. “These two trees are gigantic red flags.” Neighbors are heartbroken, too. “Horrible – just horrible. We’re devastated,” said Mary Draffan, who lives around the corner. “The messages started flying – are you okay? Is everything okay? We still don’t know the name.” Davis’ Urban Forest Manager, Rob Cain, told CBS13 on Tuesday it was the first time something of this nature had ever happened. But others in the neighborhood say it may have only been the first time it turned deadly. “It’s been happening all over town,” said Sophia Gonzalez…

Better Homes & Gardens, February 24, 2021: Yes, Johnny Appleseed Trees Exist, and Now You Can Grow One of Your Own

Through children’s books, films, and television specials, the story of Johnny Appleseed has touched American hearts ever since the real hero, John Chapman, first planted apple seeds across the country in the 1800s. Now, you can literally bring the legend to life by growing a clone of a Johnny Appleseed tree in your own backyard. Jeff Meyer, the founder of Johnny Appleseed Organic, first found out about one of the last known Appleseed trees in the 1990s when the Harvey-Algeo family in Ohio sent him a letter revealing that they had been taking care of the tree on their farm for generations. After verifying the historic tree’s authenticity through independent entities, Meyer acquired exclusive genetic rights to it and started propagating identical copies of it. He planted the grafted saplings in his nursery and discovered that they have several desirable characteristics. “They’re very vigorous, healthy trees with very few problems at all in terms of diseases,” Meyer says. He notes that, compared to all the different varieties such as Delicious and Fuji in the nursery, the cloned Johnny Appleseed trees “will grow more than any of the other trees do in a 12-month time.” They also produce large crops of tasty green fruit, which ripen in late September. Meyer describes the flavor as “a little bit tart and a little bit sweet, but not overly either one…”

Sioux Falls, South Dakota, Argus Leader, February 24, 2021: Tree farmers aren’t happy South Dakota lawmakers want to reclassify their land as non-agricultural

After more than two hours of debate, heavily amended legislation that would change the tax definition of agricultural land will head to the Senate floor. However, some in the agricultural industry still aren’t happy with the bill as it stands, particularly those in the foresting industry west of the Missouri River. House Bill 1085 would change the tax code so that land could be classified as agricultural — and receive any ensuing tax breaks — if its “principal use” is agricultural and, in three of the past five years, the landowner had received an annual gross income of at least $2,500 from the “pursuit of agriculture.” Under current statute, land is agricultural if the gross income derived from agriculture is “at least 10% of the taxable valuation of the bare land assessed as agricultural property.” Introduced by Rep. Kirk Chaffee, R-Whitewood, the bill is meant to simplify the tax code and “make sure that agriculture land is really classified as agricultural land for purposes of taxation,” as Sen. Mary Duvall, R-Pierre, said during proponent testimony…

Bradford, Pennsylvania, Era, February 24, 2021: National Invasive Species Awareness Week

Our forests and fields are full of many kinds of plants. Are plants just plants? In northcentral Pennsylvania, there are a number of plants invading natural areas. These plants not only affect the native food web for wildlife, but also impact the health of the forests today and many years into the future. Most of these plants have spread from gardens or other unintentional sources. Invasive plants in local forests suppress regeneration of the future forest. Young tree seedlings need sun and resources. Invasive plants monopolize these resources and prevent the survival of new trees. While a thick stand of Japanese stiltgrass beneath mature trees may look charming, the health of the forest far in the future will suffer. If healthy young trees do not have the potential to replace the mature forest, old trees eventually die and all that is left is a sea of invasive plants and shrubs, and a few unhealthy remaining trees. It is easy to overlook the effects invasive plants can have since tomorrow’s forest is often beyond our lifetimes…

Truckee, California, Sierra Sun Times, February 23, 2021: Center for Biological Diversity Reports Court Upholds Protection for California’s Western Joshua Trees

A Fresno County Superior Court judge has rejected an effort by construction and real estate interests, along with the city of Hesperia, to strip away legal protections that currently apply to the imperiled western Joshua tree. “This is a critical victory for these beautiful trees and their fragile desert ecosystem,” said Brendan Cummings, the Center for Biological Diversity’s conservation director and a Joshua Tree resident. “If Joshua trees are to survive the inhospitable climate we’re giving them, the most important thing we must do is protect their habitat, and this decision ensures recent protections will remain in place.” On September 22, 2020, the California Fish and Game Commission unanimously voted to grant western Joshua trees candidate status under the California Endangered Species Act, giving them legal protection during a yearlong review to determine whether the species should be formally protected. The commission’s protection decision came in response to a petition from the Center. On October 21, 2020, a coalition of interests opposed to protection of the Joshua tree filed a lawsuit in Fresno County Superior Court seeking to overturn the commission’s decision and moved to set aside the tree’s candidate status. In her ruling last week rejecting the stay request, Judge Kristi Culver Kapetan found that “it is clear to the court that a stay would be against the public interest…”

Sacramento, California, Bee, February 23, 2021: Woman killed by falling tree branch at Slide Hill Park in Davis, city officials say

A woman was killed by a falling tree branch at Slide Hill Park in Davis on Tuesday morning, city officials said. Police and fire authorities responded around 10:30 a.m. to the park to reports of a woman “critically injured by a falling tree limb,” the city said in a news release. “The woman was provided immediate medical attention and was transported to UC Davis Medical Center in Sacramento where she succumbed to injuries and passed away,” the news release continued. The victim’s identity has not been released. “The City of Davis extends its deepest sympathies to the surviving family and will work diligently to investigate this tragic accident,” Mayor Gloria Partida said in a prepared statement…

Huntington, West Virginia, WSAZ-TV, February 23, 2021: WVDOH makes progress removing frozen trees

West Virginia Division of Highways crews from all across the state are making progress in reopening hundreds of roads closed because of last week’s ice storms. A series of winter storms from Feb. 10 through Feb. 15 left ice-coated trees and power lines across roadways. The worst of the damage was in Cabell, Jackson, Lincoln, Mason, Putnam, and Wayne counties, where Gov. Jim Justice declared a State of Emergency on Feb. 16. In the six counties within the disaster area, more than 280 roads were left impassable in the aftermath of the ice storms. Many were blocked in dozens of places, with trees both falling across roads and getting tangled in power lines. Both WVDOH District 1 Engineer Travis Knighton and District 2 Manager Scott Eplin said the damage was “as bad or worse than the 2012 Derecho…”

Nature, February 23, 2021: Continent-wide tree fecundity driven by indirect climate effects

Indirect climate effects on tree fecundity that come through variation in size and growth (climate-condition interactions) are not currently part of models used to predict future forests. Trends in species abundances predicted from meta-analyses and species distribution models will be misleading if they depend on the conditions of individuals. Here we find from a synthesis of tree species in North America that climate-condition interactions dominate responses through two pathways, i) effects of growth that depend on climate, and ii) effects of climate that depend on tree size. Because tree fecundity first increases and then declines with size, climate change that stimulates growth promotes a shift of small trees to more fecund sizes, but the opposite can be true for large sizes. Change the depresses growth also affects fecundity. We find a biogeographic divide, with these interactions reducing fecundity in the West and increasing it in the East. Continental-scale responses of these forests are thus driven largely by indirect effects, recommending management for climate change that considers multiple demographic rates…

The Conversation, February 22, 2021: Keeping trees in the ground where they are already growing is an effective low-tech way to slow climate change

Protecting forests is an essential strategy in the fight against climate change that has not received the attention it deserves. Trees capture and store massive amounts of carbon. And unlike some strategies for cooling the climate, they don’t require costly and complicated technology. Yet although tree-planting initiatives are popular, protecting and restoring existing forests rarely attracts the same level of support. As an example, forest protection was notably missing from the US$447 million Energy Act of 2020, which the U.S. Congress passed in December 2020 to jump-start technological carbon capture and storage. In our work as forest carbon cycle and climate change scientists, we track carbon emissions from forests to wood products and all the way to landfills – and from forest fires. Our research shows that protecting carbon in forests is essential for meeting global climate goals. Ironically, we see the U.S. Strategic Petroleum Reserve as a model. This program, which was created after the 1973 oil crisis to guard against future supply disruptions, stores nearly 800 million gallons of oil in huge underground salt caverns along the coast of the Gulf of Mexico. We propose creating strategic forest carbon reserves to store carbon as a way of stabilizing the climate, much as the Strategic Petroleum Reserve helps to stabilize oil markets…

Fort Collins, Colorado, Coloradoan, February 20, 2021: Prime time to prune trees in Colorado is now, not in spring

Pruning your trees might be one of the last things on your mind after we just experienced our coldest weather in several years. But the temperature is climbing back to around 40 degrees by the weekend and the 50s by early next week, and now through early March is prime time to prune most trees in Colorado. Many people wait until spring to prune, but for most trees pruning when trees are still dormant ensures the wound will close more rapidly, which greatly reduces the chance for disease. That’s why you see city of Fort Collins Forestry Department staff pruning city trees this time of year. Pruning now also can alleviate some of the problems seen in the spring when we have heavy, wet snow that breaks branches. But before you get out the pruners, here are tips on what and how to prune, choosing the right tool for the job and what plants prefer to wait until later in the season…

Grist, February 22, 2021: Tackling tree equity

A new partnership between Tazo Tea and the nonprofit American Forests is tackling the lack of tree cover in low-income neighborhoods and neighborhoods of color, which is linked to decades of racist housing policy. “If you look at a map of most American cities, you’ll find that tree canopy cover tracks along income lines,” Sarah Anderson of American Forests told Fast Company. “This is the result of decades of discriminatory housing and planning purposes.” The lack of tree cover has an impact: Neighborhoods formerly subject to the government policy of redlining can be 5 to 20 degrees F hotter than non-redlined neighborhoods in the same city. More trees can help keep neighborhoods cool, decrease air conditioning costs, and prevent flooding. The new partnership will work to build tree cover by selecting 25 full-time fellows in Detroit, Minneapolis, New York City, the San Francisco Bay Area, and Richmond, Virginia, to plant and care for trees in their communities. The fellows will earn a “family-sustaining wage” along with childcare, transportation, health, and retirement benefits…

Associated Press, February 23, 2021: Gardening: How to protect or heal trees damaged by snow

The deadly winter storms that have wreaked havoc in large swaths of the country recently can also damage trees and shrubs. Snow can of course enhance the look of yards and gardens, visually knitting together the plants, fences, even lawn furniture in a sea of white. But it also can bring down branches. Or worse, snap a major limb on a tree or split a bush wide open. Most trees and shrubs will recover from such trauma, sending up new sprouts in the spring to replace missing limbs. But there are steps you can take to mitigate the damage and help the plant heal. There also are ways to help protect trees from the weather. The ragged edge from a broken branch exposes a lot of surface area, which slows healing, so cut back any break cleanly to leave a surface that heals better. Many gardeners’ first inclination, however, before doing any pruning, would be to save what is broken, merely putting the broken limb back in place and holding it there the way a doctor sets a broken bone. It can be done, just as if it were a large graft…

Traverse City, Michigan, Record-Eagle, February 22, 2021: Tree-killing invasive species found in Benzie County at Sleeping Bear Dunes

A tiny, invasive insect recently detected in a national park campground set off a flurry of activity among environmental experts determined to fend off the threat as long as possible. Evidence of hemlock woolly adelgid was found Feb. 4 on a tree in Platte River Campground within Sleeping Bear Dunes National Lakeshore. A sample taken was the following day confirmed as the invasive pest insect by the U.S. Department of Agriculture. Now local and state invasive species experts want area residents to help them stay vigilant against HWA, which can kill hemlock trees within 10 years, weakening them by sucking the trees’ sap out. “This is our first infestation in our service area,” said Audrey Menninga, invasive species specialist with Northwest Michigan Invasive Species Network. “We are pretty optimistic about it.” National lakeshore employees began surveying high-use areas within the park for HWA in January through Great Lakes Restoration Initiative funding. They found round, white ovisacs characteristic of the HWA on a single tree within the campground in Benzie County…

Portland, Oregon, Oregon Public Broadcasting, February 21, 2021: Tips for ice-damaged trees from a neighborhood tree specialist

This month’s snow and ice storms in western Oregon knocked out power for more than half a million utility customers and littered streets and sidewalks with branches. Now a lot of trees are needing some TLC to help them recover. Ian Bonham is a neighborhood trees senior specialist with Friends of Trees in Portland, a nonprofit dedicated to planting and maintaining trees and native plants throughout the region. He says in most cities it’s the homeowner’s responsibility to take care of trees on their property and adjacent to their homes. Still, you’ll want to check in with your city’s urban forestry department before making any changes. “Mostly that’s just to make sure I’m taking care of the tree in the right way and make sure I’m not doing any further damage to the tree,” Bonham said…

Bangor, Maine, Daily News, February 20, 2021: What you need to know about tapping birch trees for sap and syrup

Birch trees are more than just a lovely, ghostly flora growing throughout Maine’s forests. They also produce a scrumptious sap that can be sipped or simmered into syrup. Michael Romanyshyn, owner of Temple Tappers in Temple, is the largest — and, currently, only — commercial birch syrup producer in Maine. He started tapping birch trees and producing syrup about nine years ago, after he learned about it while traveling as a puppeteer through eastern Europe where birch sap and syrup is already popular. “Our farm has a really nice grove of birch trees,” Romanyshyn said. “I was thinking about that as a possibility for us to help support being [in Maine]. We got interested not because we were maple producers. We just have a lot of birch trees.” Max Couture, owner of Road’s End Farm in Canton, started experimenting with birch tree tapping and making birch syrup last year. “I’ve been doing maple my whole life,” Couture said. “It’s actually pretty straightforward to transition to birch from maple as long as you have access to trees. It’s not a new thing, but it’s a new thing for Maine…”

Washington, D.C., Post, February 18, 2021: Neighbors mount effort to defend Arlington’s trees from development

Whenever Frederick T. Craddock steps out of his Arlington townhouse, 39 Leyland cypress trees are there to greet him. The trees aren’t ancient — they were planted around the time Craddock bought his new home in 1996. But at 40 feet tall, the cypresses provide aesthetic relief from dense development in the Shirlington area and Interstate 395’s tarmac river. The trees might not be there much longer. After construction on a new community next door began last year, the cypresses have turned brown, and ¬arborists said they will not survive. Now, Craddock is among a group of Northern Virginia residents asking whether greenery can be saved as development encroaches. “The trees are in danger,” he said. “When I press the people at Arlington County, they say, ‘Well, we do protect trees on public land, but homeowners are left to their own devices…’ ”

Portland, Oregon, KATU-TV, February 18, 2021: ‘Please refrain from burning’ downed trees, debris from storm, Oregon DEQ says

Recent winter storms have brought down a lot of trees in the Pacific Northwest. While starting a bonfire might seem like an easy way to dispose of the material, the Oregon Department of Environmental Quality is asking for people to refrain from burning piles of debris. According to the DEQ, smoke from burning debris pollutes the air and can hurt your eyes and irritate your respiratory system. In the time of the coronavirus pandemic, this can compound health problems, especially for those in vulnerable populations. The DEQ air quality monitors in Clackamas, Linn, and Marion counties are still without power Thursday. The DEQ said it may be a few more days before it’s restored and the facilities are back online…

Seattle, Washington, KUOW Radio, February 18, 2021: Ancient Trees Show When The Earth’s Magnetic Field Last Flipped Out

An ancient, well-preserved tree that was alive the last time the Earth’s magnetic poles flipped has helped scientists pin down more precise timing of that event, which occurred about 42,000 years ago. This new information has led them to link the flipping of the poles to key moments in the prehistoric record, like the sudden appearance of cave art and the mysterious extinction of large mammals and the Neanderthals. They argue that the weakening of the Earth’s magnetic field would have briefly transformed the world by altering its climate and allowing far more ultraviolet light to pour in. Their provocative analysis, in the journal Science, is sure to get researchers talking. Until now, scientists have mostly assumed that magnetic field reversals didn’t matter much for life on Earth — although some geologists have noted that die-offs of large mammals seemed to occur in periods when the Earth’s magnetic field was weak. The Earth is a giant magnet because its core is solid iron, and swirling around it is an ocean of molten metal. This churning creates a huge magnetic field, one that wraps around the planet and protects it from charged cosmic rays coming in from outer space. Sometimes, for reasons scientists do not fully understand, the magnetic field becomes unstable and its north and south poles can flip. The last major reversal, though it was short-lived, happened around 42,000 years ago…

The Conversation, February 18, 2021: Africa indigenous fruit trees offer major benefits. But they’re being ignored

Indigenous fruits have been collected from the wild for centuries for human consumption and other purposes. Across the African continent, indigenous fruit trees are valuable assets for local communities. But the natural habitats of trees are being lost, mainly to widespread deforestation resulting from population growth. Industrial agriculture is also contributing to their loss. Indigenous fruit trees provide vital nutrients that may be scarce in other food sources. They are naturally adapted to local soils and climates, can enhance food and nutrition security and often adapt and survive environmental stresses better than exotic species. My colleague and I reviewed information on 10 fruit trees indigenous to Africa that are considered to be underused. We assessed their occurrence, distribution, nutritional components and medicinal potential. We also explored their challenges and prospects…

Norfolk, Virginia, Virginian-Pilot, February 18, 2021: 1,000 tiny seedlings will one day fend off mountain of moving sand at Jockey’s Ridge

More than 300 longleaf pine seedlings rise just six inches from the ground on the south side of Jockey’s Ridge State Park. They may be small and look like a child’s cowlick now, but in a few years, they will stave off the mountain of sand drifting toward homes on Soundside Road. The pine seedlings were among the 1,000 planted two weeks ago to stabilize the largest sand dune on the East Coast and diversify the habitat, said ranger Austin Paul. Park staff also will put up wood slat sand fencing and possibly add old Christmas trees to stand in for the slow-glowing trees, Paul said. The mountain of sand that is Jockey’s Ridge shifts about six feet a year as winter winds blow the sand to the southwest. The dune can move more than 30 feet some years, forming ominous cliffs near houses and roads. Two years ago, an excavating company moved 200,000 tons — or about 14,000 dump trucks — of sand away from Soundside Road to the opposite side of the park…

Omaha, Nebraska, World-Telegram, February 17, 2021: Omaha moving ahead with plans to remove trees damaged by emerald ash borer infestation

Plans are moving forward to remove thousands of Omaha’s ash trees that have been damaged by infestation. An inventory by the city forestry division found an estimated 14,569 ash trees that have been damaged by the emerald ash borer, according to a statement Wednesday from the Mayor’s Office. The first signs of the infestation in Omaha were reported in June 2016 at Pulaski Park near 40th and G Streets. “Our first priority is to save trees, not cut them down,” said Parks Director Matt Kalcevich. “We have unfortunately reached the point where treatment is not an effective strategy. The threat of personal injury and property damage is too significant to delay this work any longer.” The city estimates said that 6,119 ash trees have already been removed from public property. The Omaha City Council has approved contracts with private companies to remove an additional 1,382 trees…

New Orleans, Louisiana, Times Picayune, February 17, 2021: Madisonville considers cemetery, tree preservation ordinances

The Madisonville Town Council introduced ordinances regulating the use of the town cemetery and defining “protected trees” at its last meeting… The tree preservation ordinance defines a protected tree as any live oak or cypress tree over six inches in diameter at breast height and requires a permit for the cutting, clearing or removal of any tree that meets that definition. Pruning of a protected tree requires the issuance of a permit and must be supervised by a licensed arborist or a state forester at the owner’s expense. The ordinance also makes it unlawful to place soil or fill dirt in a way that would cause a protected tree to become diseased or die, and requires that protected trees be encircled by a protective barrier during any construction project…

London, UK, The Guardian, February 17, 2021: Brexit forces Northern Ireland buyers to cancel orders for 100,000 trees

Orders for almost 100,000 trees have been cancelled by Northern Ireland buyers because of a post-Brexit ban on the plants being moved from Britain, the Guardian can reveal. Leaders in the business say it is a major setback for tree-planting programmes in Belfast and elsewhere in the region. The Woodland Trust in Northern Ireland has just cancelled an order for 22,000 trees, which were destined for schools and communities as part of a Northern Ireland greening project. “It’s a disaster. They’re just stopping any exports from mainland UK over to Northern Ireland. We can’t get any trees over from any of the nurseries that we would usually deal with over there,” said Gregor Fulton, an estate and outreach manager at the trust…

Greensboro, North Carolina, WFMY-TV, February 17, 2021: Triad city crews, tree service companies preparing for more damage and debris after ice storm

Just days ago, ice brought down trees across roads, into homes, and onto power lines in many parts of the Triad. “I think the storm this past weekend…I think it took everybody by surprise – I know it did us. We knew that there was a chance of ice but we do really didn’t think it was going to be that significant,” said Scott Saintsing, owner of Outdoor Exposure, a tree service company. Those in charge of clearing the tree damage and debris are ready for round two. Greensboro’s Field Operations deputy director Chris Marriott says nearly a dozen crews start their shifts at midnight. “That will be tree crews to clear the roads and basically what we call ‘cut and shove’ – cut the trees up and shove them out of the way, to open up access for whoever needs it primarily emergency vehicles,” he explained Wednesday. Dispatched as needed from the operations center on Patton Avenue, he says it could take a while to clear the tree damage near you when you or your neighbors report it. Here’s why. “We’re going to clear [other trees] out of the way on the way to that other call. So we may not necessarily get to them in the order that they come in,” Marriott said…

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Case of the Day – Monday, March 1, 2021

FOOL FOR A CLIENT

Abe Lincoln could have been talking about Mr. Victor, who has a real dummy for a client.

Abe Lincoln could have been talking about Mr. Victor, who has a real dummy for a client.

Honest Abe Lincoln was right: Mr. Victor had a first-class knucklehead for a client. The old lawyer’s proverb warns that “The man who is his own lawyer has a fool for a client.” Today’s case from Iowa puts meat on those bones.

Mr. Victor’s car was hit by a truck at an intersection. That kind of thing happens on a daily basis. After the crash, he took matters into his own hands. That does not.

Usually, people use lawyers for that kind of thing. Back when we had phonebooks, the solicitors we needed were on the back cover soliciting us. Those guys usually take cases like this one on a contingency basis, meaning that they don’t get paid unless you win.

Of course, lawyers tend to be picky about the kinds of personal injury actions they will bring, , for the same reason that more people bet on the horse “California Chrome” than lay money down on “Old Glue Factory.” Who wants to waste time and money?

Maybe Mr. Victor didn’t like lawyers. Maybe (as is more likely), no attorney would touch the case from a remote control bunker in the Amazon rain forest. For whatever reason, Mr. Victor represented himself. Apparently subscribing to the old Vladimir Ilyich Lenin maxim, “Quanity has a qualtity all its own,” Mr. Victor sued the other driver, the company that owned the truck the other driver was operating, the property owner whose trees allegedly obscured the stop sign, the county for poor maintenance of the intersection, and the state for poor design of the road. Certainly someone in that thundering herd must have a fat wallet. 

Mr. Victor did it all in federal court, no doubt because suing in federal court sounds a whole lot cooler than suing in state court. And it is, too, except for those pesky rules about jurisdiction and sovereign immunity. Guess he only skimmed those chapters in Personal Injury Law for Dummies.

You thought we were kidding? There's really such a book ...

You thought we were kidding? There really is such a book …

By the time the Court was done, the State of Iowa was dismissed as a defendant, as was the property owner. In fact, the only defendant left was the County, which was unable to prove that its tree-trimming practices were a discretionary function. Still, Mr. Victor got pretty badly decimated, proving once again that there’s a reason trained professionals cost money – it’s because they know what they’re doing.

Victor v. Iowa, 1999 U.S. Dist. LEXIS 23530, 1999 WL 34805679 (N.D. Iowa, 1999). A car driven by Martin L. Victor collided with a truck driven by Ronald Swoboda and owned by the Vulcraft Carrier Corp. The accident happened at the intersection of County Road C-38 and U.S. Highway 75. Then the fireworks started.

Victor, acting as his own lawyer, sued the State of Iowa, Plymouth County, Vulcraft and adjoining property owner Elwayne Maser in U.S. District Court. Vic apparently alleged (1) that “Iowa law regarding the right to sue private property owners for negligence is unconstitutional;” (2) that Victor should be allowed to sue Maser for acting negligently in failing to trim vegetation that obstructed his view of southbound traffic on U.S. Highway 75; (3) that the State of Iowa and Plymouth County acted negligently by failing to properly maintain a roadway, investigate the accident thoroughly, and place warning signs and markings appropriately; (4) that the highway patrol failed “to perform duties of safety officers, in assessment of dangerous conditions existing;” and (5) that Vulcraft is responsible for its driver’s failure to follow safety standards for commercial trucking. All the defendants moved to dismiss or for summary judgment.

Held: The State of Iowa was dismissed, because the Iowa Tort Claims Act, which gives permission to residents to sue the State, limits those actions to state court. The Court held that the 11th Amendment to the U.S. Constitution barred actions in federal courts against States except under narrow exceptions. One of those is that the State have given a waiver and consent that is clear and express that it has waived sovereign immunity and consented to suit against it in federal court. Although a State’s general waiver of sovereign immunity may subject it to suit in state court, it is not enough to waive the immunity guaranteed by the Eleventh Amendment. In order for a state statute or constitutional provision to constitute a waiver of Eleventh Amendment immunity, it must specify the State’s intention to subject itself to suit in federal court, and the ITCA does not do so. Therefore, Victor’s claims against the State of Iowa was dismissed.

It was just your basic accident ... until Mr. Victor made a federal case of it.

It was just your basic accident … until Mr. Victor made a federal case of it.

As for the property owner Maser, the Court ruled that Iowa law put no duty on a private property owner to remove trees which obstructed the view of a highway. Although Victor claimed the Iowa law on the matter unconstitutionally deprived him of the right to sue, he never explained why. The Court observed that “while mindful of its duty to construe pro se complaints liberally, it is not the job of the court to ‘construct arguments or theories for the plaintiff in the absence of any discussion of those issues’… Besides the bare assertion that the Iowa law is unconstitutional, Victor has provided no other discussion of the issue.” Thus, the property owner Maser was dismissed as a defendant.

Victor’s claims that Plymouth County was negligent in failing to install proper warning signs and cut tree branches that obstructed his were not dismissed at this point. Section 670.4 of the Iowa Code exempts a municipality such as Plymouth County from liability for discretionary functions, if the action is a matter of choice for the acting employee, and — when the challenged conduct does involve an element of judgment — the judgment is of the kind that the discretionary function exception was designed to shield. Here, Plymouth County’s policy directed that employees “may trim branches of trees because the trees may constitute an obstruction to vision of oncoming traffic at an intersection,” thus giving employees discretion in implementation of this policy. Thus, the Court said, “the action (or inaction) of which Victor complains was a matter of choice for the county’s employee.”

However, the Court said, Plymouth County’s policy did not encompass “social, economic, and political considerations” and therefore the discretionary function exception does not apply. Victor could proceed with rebutting the County’s claim that the view was not obstructed.

– Tom Root

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Case of the Day – Friday, February 26, 2021

Toga, Toga!!

AnimalHouse150306So you heard about the sweethearts of Sigma Chi? The story broke about six years ago about how the Sigma Chi frat brothers at Southern Methodist University – who lived off campus in an upscale place called Maison des Animauxharassed the O’Connells, their next-door neighbors, for sport. Oh, the highjinx of these fun-loving rascals! Among other pranks, they liked to urinate on the O’Connells’ fence, write obscenities in the snow in their yard, spit on the O’Connell house and throw raw meat onto the patio (prime cuts of beef, we hope).

It all started with a noise complaint, something to do with the brothers’ 24/7 partying. As the Grinch might have said, “The noise, noise, noise, noise, noise!” Mr. O’Connell said he “brought it to their attention and said ‘you can’t do that.’ They told me they pay rent and they can do whatever they want. It’s their right.”

The O’Connells now, after a year of abuse, had the media worked into a righteous froth. So that should take care of that. But were the brothers right? Can they do whatever they want until you’re finally able to get a crew from Action News to show up with cameras and a scowling investigative reporter?

Consider the poor aggrieved neighbors, the Rileys, in today’s case. They didn’t have an Eyewitness News crew. But they did have a lawyer. The house next door to the Rileys was owned by a landlord who rented it to some dopers. But not just any dopers. This wasn’t just boom boxes blasting the Grateful Dead and the wafting smell of freshly decriminalized marijuana. Nope, the neighbors here were good capitalists, appearing to run a brisk retail operation, with traffic at all hours of the night and unsavory customers. Imagine a 24-hour McDonald’s drive-thru window, but handing out nickel bags instead of Big Macs and Eggs McMuffin. [Editor’s note – we had a lively debate over how to pluralize McDonald’s famous breakfast sandwich. The Editor won.]

The traffic was accompanied by the screeching of tires, the occasional and casual vandalism toward the Rileys’ property, cursing and shouting, and the discharge of firearms. Someone even shot the Rileys’ dog.

Now we’ll put up with a lot, but we won’t put up with that. You shouldn’t shoot a dog. The Rileys felt the same. They complained in winter 1999, but nothing changed. The police raided the place, but all they found was some personal-use marijuana. The Rileys complained to landlord Richard Whybrew again. The Attorney General complained to Mr. Whybrew. Nothing happened. Mr. Whybrew said the tenants were paying their rent, so he wasn’t going to do anything. Apparently, he believed that money talks, and neighbors walk.

Riley v. Whybrew, 185 S.W.3d 393 (Ct.App.Tenn. 2005). The Rileys lived in a house in a subdivision next to a house Richard Whybrew leased to the Parkers. Problems ensued.

Shortly after the Parkers moved in, the Rileys began experiencing problems with their tenant neighbors. A high number of unknown persons would come to the Parkers’ house at all hours of the day and night, with horns honking, tires squealing and loud voices. They would drive up, engage in a brief conversation or transaction with a resident at the Parkers’ home, and leave after a few minutes. The Rileys overheard many conversations about the sale of drugs, as well as frequent profane and abusive language. On several occasions, firearms were discharged at the Parkers’ residence at various times during day and night. Some activities were directed toward the Rileys: chemicals were put in their gas tanks, a laser pointer was aimed at Timothy Riley, personal property was stolen from the Rileys’ home, and when the Rileys were seen by the Parkers or their visitors, they were taunted, cursed at or stared at menacingly. The Rileys’ dog was even shot by a visitor to the Parkers’ home.

A month later, the police conducted a raid on the Parkers’ residence, and Marina Parker was arrested for possession of marijuana. Despite the arrest, the disturbing activities at the Parkers’ home continued. As a result, the Rileys employed an attorney to notify Whybrew of the problems. In February 2000, the attorney sent Whybrew a letter informing him that his rental property was “being used for illegal activities, in violation of the housing and zoning codes, and probably in violation of the terms of [the] lease.” Later that month, Whybrew received a letter from the director of the Narcotics Prosecution Unit of the Office of the Shelby County Attorney General about the drug trafficking. The letter noted that the amount of controlled substance found at the Parkers’ home was not enough to compel Whybrew to evict the Parkers, but stated that Carter wanted Whybrew to be aware of the situation. A year later, the Rileys again complained to Whybrew, who said the Parkers had a lease and paid their rent on time, and he did not plan to take action against them.

Of course, sometimes your neighbor's harassment is a little more subtle ...

Of course, sometimes your neighbor’s harassment is a little more subtle …

The Rileys sued Whybrew, the Parkers, and ten “John or Jane Doe” defendants, seeking damages for infliction of emotional distress and asking for abatement of the nuisance. Whybrew asserted that the other defendants were the sole cause of any injuries suffered by the Rileys. Whybrew maintained that the Rileys failed to state a claim upon which relief could be granted and asked the trial court to dismiss the complaint. The trial court granted summary judgment to Whybrew.

Held: The case was reinstated, and the Rileys were entitled to a trial. The Court of Appeals found that a material question of fact existed as to whether Whybrew negligently allowed the tenants’ illegal behavior to continue, and that issue precluded summary judgment against the Rileys on their nuisance claim. The Court agreed that even if Whybrew had had knowledge of his tenants’ illegal activities – including drug use, discharging firearms and harassment – his failure to stop the Parkers’ activities could only be characterized as negligence. Thus, as a matter of law, it could not constitute the intentional infliction of emotional distress.

However, the claim of negligent infliction of emotional distress was related to the claim of negligence for landlord’s failure to abate the nuisance caused by the Parkers’ illegal activities, and as such, the Rileys’ claim for damages for emotional distress was not a stand-alone claim, and could be heard even absent expert medical testimony as to their damages. Most importantly, the Court ruled, while Whybrew argued that there was no breach of any duty to the Rileys because there was no proof that he was aware of the Parkers’ illegal activities until February 2000 (and the Parkers moved from the residence after being served with this lawsuit two months later), it disagreed and held that the Rileys had established a genuine issue of material fact on the claims of maintaining a nuisance and negligent infliction of emotional distress, sufficient to withstand a motion for summary judgment.

The case went back to trial.

– Tom Root

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Case of the Day – Thursday, February 25, 2021

LET THE SUN SHINE

I do not often report on a case that is probably destined for the dustbin of history, but then, these are unusual times. Climate change  – after spending four years out in the cold – is a hot topic once again, and renewable energy (especially finding itself to be a whipping boy after the Texas freeze) is on the hot seat.

“You’re getting a little political, there, aren’t you, tree man?” readers are probably muttering. I am taking sides… I’m just observing that use of renewable energy is becoming a national priority. In today’s case, from 35 short years ago, access to sunshine was not a right that a landowner could assert against a neighbor whose trees had gotten too tall. I suspect that a California court today would not reach the same conclusion…

Sher v. Leiderman, 181 Cal.App.3d 867 (Ct. App., 6th District, 1986). In 1962, Rudolph and Bonnie Sher entered into a long-term land lease with Stanford University for a lot on the Stanford campus in an area known as Pine Hill 2, one of five model planned subdivisions developed by Stanford for use by faculty and staff. All building and landscaping on subdivision lots was subject to Stanford’s prior review and approval. Shortly after the Shers’ plans were approved, Herb and Gloria Leiderman leased an adjacent lot. They in turn obtained design approval for their home and proceeded with construction. Both families moved into their new homes in 1963 and have lived there ever since.

The Shers’ lot sits on the northeast slope of a hill. The Leidermans’ lot is southwest of the Shers’ and occupies the upper slope and the crest of the hill, fronting on Lathrop Drive. The two lots share a common boundary along the Shers’ southern – and the Leidermans’ northern – property line.

The Shers’ home was designed and built to take advantage of the winter sun for heat and light. The home is oriented on the lot so as to present its length towards the south. South-facing windows are relatively larger than others in the house. The south side of the house is also “serrated” to expose the maximum area to the sun. A large south-facing concrete patio operates to radiate sunlight into the home’s interior. Skylights add to the light inside the house and an open floor plan in the common areas increases the general circulation of light and air. Roof overhangs are designed at an angle and length to block the hot summer sun while permitting winter sunlight to enter the house. Roof and walls are well insulated. Deciduous trees and shrubs along the southern side of the house aid in shading and cooling in the summer but allow winter sunlight to reach the house.

The Sher home is a “passive solar” home., with design features and structures identified forming a system intended to transform solar into thermal energy. A concomitant design goal was to create a bright and cheerful living environment. Although the home includes many passive solar features, it does not make use of any “active” solar collectors or panels. Nor does it employ any “thermal mass” for heat storage and distribution. Building materials used throughout were typical and conventional for the time; the house does not contain any special materials primarily selected for effective thermal retention.

At the time the Shers and Leidermans designed and built their homes there were no trees on either lot. But over the years both the Shers and the Leidermans, as well as their neighbors, landscaped their properties. As noted above, the Shers’ landscaping was designed to enhance and complement their home’s effectiveness as a solar system. The Leidermans’ landscape plan was disapproved in part by the Stanford housing office, specifically because of trees to be planted along their northern property line bordering the Shers’ lot.

Despite the lack of approval, the Leidermans planted the trees, including a large number of Monterey pine, eucalyptus, redwood, cedar and acacia. The trees were planted to beautify the Leiderman property, to attract birds and other small creatures, and to provide shade and privacy, not with any intent on the Leidermans’ part to deprive the Shers of sunlight.

In 1972, the Shers discovered that some of the Leiderman trees cast shadows on the Sher house in the wintertime. The Shers paid to have the offending trees topped. In 1977, several other Leiderman trees were removed because their continued growth posed a threat to the sewer line. The cost of this removal was shared by the Shers and Stanford. Further tree work was done at the Shers’ expense in the winter of 1979. The Leidermans themselves also engaged in other tree trimming and removal over the years at a cost of about $ 4,000. Since 1979, however, the Leidermans refused trimming, either on their own or in cooperation with the Shers.

At time of trial, trees on the Leiderman property completely blocked the sun to much of the Sher home in the winter months. From December 21 to February 10, the central portion of the Sher home was cast in shadow between 10 a.m. and 2 p.m. The Shers added a skylight over their kitchen area to help alleviate the problem, but now this too is largely shaded during the winter.

The shade problem transformed the formerly cheerful and sunny ambience of the Sher home; the interior is now dark and dismal in the winter months. The shading has also had an adverse impact on the home’s thermal performance. The Shers’ expert testified that heat loss during the winter months amounted to an equivalent of $30 to $60 per season in heating costs. Two experts testified that the loss of sunlight to the Shers’ house has resulted in a diminution of market value between $15,000 and $45,000. The trial court also found that the Shers have suffered actual and serious emotional distress as a result of the blockage of sunlight to their home.

In order to restore sunlight to the Sherså’ home during the winter months it would be necessary to trim some of the Leidermans’ trees, top others and remove those where topping would destroy the character of the tree or possibly kill it. Annual trimming would also be necessary.

The Shers sued, claiming the Leidermans’ trees were a private nuisance as well as a public nuisance under the California Solar Shade Control Act (Pub. Resources Code § 25980); and alleging negligent infliction of emotional distress. The trial court found for the Leidermans.

The Shers appealed.

Held: The Leidermans did not owe a duty to the Shers, and their trees were not a nuisance just because they blocked the sunlight.

The trial court found that the relief requested by the Shers would amount to burdening the Leiderman property with a permanent easement for passage of light to the Sher property. It is well settled in California, however, that a landowner has no easement for light and air over adjoining land in the absence of an express grant or covenant. Nuisance law likewise holds that blockage of light to a neighbor’s property, except in cases where malice is the overriding motive, does not constitute actionable nuisance, regardless of the impact on the injured party’s property or person.

The public interest in promoting solar energy, the Court said, did not justify creating a private cause of action in nuisance by one neighbor against another for obstruction of light to a house designed to take advantage of winter sun for heat and light. Each landowner’s right to use his property lawfully to meet his legitimate needs is a fundamental precept of free society, and, although his use may be made subject to limitations for the public good, it cannot be said his rights as to adjoining landowners are thereby diluted.

The general rule is that in determining whether any interference with use and enjoyment of land is unreasonable a court must balance the gravity of the harm against the utility of the conduct. As for the value of solar energy, it is solely within the province of the Legislature to gauge the relative importance of social policies and decide whether to effect a change in the law so as to create a private cause of action in nuisance for blockage of light to a neighbor’s property.

The California legislature has created an exception to established nuisance law in the Solar Shade Control Act, Pub. Resources Code, §§ 25980-25986 The Act prohibits landowners from planting or allowing a tree to grow which will shade more than 10 percent of a neighbor’s solar collector during certain hours of the day. The Court observed that judicial expansion of the law would be unwarranted, whether it constitutes a limitation on legislative protection of solar access or the initial phase of a more comprehensive legislative plan to guarantee solar access, particularly where legislative solutions are feasible as shown by legislation enacted by another state.

The Court said that allowing a landowner to bring a nuisance action to prevent a neighbor’s blockage of sunlight to the owner’s property would violate established principles of due process and property law, which require that a property owner or prospective purchaser have notice of limitations on the use of his property. Zoning and other local ordinances provide such notice as do the recording laws, while abatement through a nuisance action does not. Furthermore, creation of such a cause of action would foster ill will and proliferate litigation between neighbors.

In an action to enjoin a public nuisance under the Solar Shade Control Act, Pub. Resources Code, §§ 25980-25986, the windows and skylights could not be construed as solar collectors as defined in Pub. Resources Code, § 25981, which includes in its definition a structure or part of a structure used primarily as part of a system which makes use of solar energy for space heating or cooling. Although the windows and skylights were intended to catch the winter sun and provide warmth to the house, this was not their primary purpose. Furthermore, inclusion of portions of a house such as the windows, walls, roof, patio, and skylights as within the act’s definition of solar collectors would impose upon the local law enforcement agencies responsible for enforcing the act the enormous task of determining whether a portion of a house was actually a solar collector whenever it was not readily identifiable as such.

In determining whether the Legislature intended the term “solar collector” in the Solar Shade Control Act to include passive solar collectors such as windows and skylights, Pub. Resources Code, § 25980 is not controlling. That section speaks of imposing only specific and limited controls on the shade cast by trees and shrubs on solar collectors. The Legislature’s intent to exclude passive solar collectors from the act’s coverage is also established by the requirement of § 25981 that structures must be primarily used as solar collectors to be included within the act’s coverage.

Finally, in their action for negligent infliction of emotional distress, the Shers proved they had suffered emotional distress due to the fact that trees planted on the Leidermans’ property had grown to the point that they shaded the south-facing windows of the Shers’ house, making it gloomy and cold during the winter months. Nevertheless, the trial court properly denied the Shers any recovery, where the injury causing the emotional distress was only to their property, where there was no trust, contractual, or other special relationship between the parties giving rise to a duty on defendants’ part, and where defendants had acted reasonably in planting trees on their property and allowing them to grow.

– Tom Root

TNLBGray

Case of the Day – Wednesday, February 24, 2021

SHOWING UP

Denise Pevarnek’s agent chopped down her neighbors’ trees so she’d have a better view of the river. The neighbors complained (surprisingly enough), but Denise steadfastly ignored their remonstrances. The neighbors then sued, but Denise ignored the summons. She finally decided to start paying attention after a default was entered against her and the trial court intended to assess treble damages against her in the amount of $77,000.

YouSnoozeYouLoseDenise tried futilely to undo the consequences of her earlier indolence. Alas, a stitch in time saves nine. The Court ruled that she had had plenty of notice, but her decision to ignore the lawsuit was her problem, and undoing the default she so richly deserved would have turned her problem into her neighbors’ problem. And they were already smarting from the loss of their trees.

Of interest in the case — one argument Denise included in her scattershot but untimely defense — was her contention that the cost to replace the trees wasn’t the right measure of damages, and that the trial court was wrong to rely on an affidavit of an arborist that didn’t explain in detail how he had arrived at the damage costs. The Court rejected this, saying that in the case of trespass, the measure of damages is either the reduction in value of the property, or — where the property can be repaired — the cost to fix things. The goal of the damage award, according to the Court, is to come as close as possible to compensating the owner for the damages, and trial courts have a lot of latitude to choose the method that seemed more reasonably calculated to do so.

The affidavit, the Court noted, laid out the expert’s education and experience, showed that he had inspected the damaged real estate. and proposed a reasonable strategy for repairing the harm. The arborist listed what had to be done and how much he’d charge to do it. It might not be perfect, but perfection is often the enemy of “good enough.” The affidavit, the Court ruled, was “good enough.”

Stitch2The Court reminded the defendant that if she really had found the damage showing to be flawed and superficial, she could have come to the hearing and contested it. Snooze and lose, indeed.

Bologna v. Pevarnek, 2007 Mich. App. LEXIS 2689, 2007 WL 4207801 (Mich.App., Nov. 29, 2007). Denise Pevarnek hired Chester Damiani to clean up her property. He was zealous to a fault, deciding that to improve the view of the Detroit River from her adjacent lot by cutting down trees belonging to her neighbors, the Bolognas. Believing that Denise and Chester’s conduct was baloney, the Bolognas sued for trespass, alleging that the destruction reduced the value of their property and exposed a view to Pevarnek’s unsightly neighboring property and asking for $28,000, trebled by Michigan’s wrongful cutting statute to $84,000.

Denise Pevarnek was served with the lawsuit, but she didn’t answer. As is customary when that happens, the Bolognas got a default judgment. Thereafter, they presented an affidavit of a certified arborist that the cost of landscape restoration was $24,050. At this point, Denise took notice, and began taking action to defend, seeking to have the default undone. The trial court refused, and it entered judgment against her for $77,730. Pevarnek appealed.

Held: The judgment was upheld. Much of the case revolves around whether Denise  should be relieved from her default judgment. The Court of Appeals ruled, in essence, that she knew about the suit and did nothing. In other words, “you snooze, you lose.” But of interest in the area of tree law was Denise’s claim that the trial court was wrong in using the cost of replacing the trees as a measure of the damages the Bolognas suffered. The Court of Appeals said where the wrong consists of a trespass to property resulting in an injury to the land that is permanent and irreparable, the general measure of damages is the diminution in value of the property. If the injury is reparable or temporary, however, the measure of damages is the cost of restoration of the property to its original condition (if less than the value of the property before the injury).

perfectThe rule is, however, flexible in its application. The ultimate goal is compensation for the harm or damage done. Thus, a court may apply whatever method is most appropriate to compensate a plaintiff for his or her loss. Here, the Court said, given the fact that the Bolognas’ trees could be restored, it was proper for the trial court to use the cost-of-restoration method.

Pevarnek argued that the trial court erred by adopting without question the assertion of alleged damages without sufficient foundation. The plaintiff had filed an affidavit of arborist Steve McCollum, who swore that – in order to return the property to its pre-trespass condition, that is, with no view of Pevarnek’s property – 12 new trees had to be planted, some existing trees had to be replanted, the over-pruned trees had to be removed, and the lawn had to be repaired. He stated that the total cost of this work was $24,050. The trial court awarded plaintiffs damages of $77,730, equal to three times the sum of the cost of work proposed by McCollum and $1,860 for the cost of a privacy fence. Although McCollum’s affidavit didn’t explain how he calculated the damages, he stated his qualifications and education, he said he had personally inspected the Bologna property, assessed their needs, specifically listed the work to be done, and listed the cost for his business was to complete it. The Court said the expert affidavit put forth a reasonable basis for the damage computation, and that was enough.

– Tom Root
TNLBGray

Case of the Day – Tuesday, February 23, 2021

THIS ONE IS FOR MY WIFE

Years ago, our neighbor Olwen – who, if she had not passed away (meaning, of course, that we cannot speak ill of her), we would have described as a battleaxe – surrounded two sides of her property with 2-3’ arborvitae. It didn’t really look that bad, but… well, they grew.

And grew, and grew and grew. Our neighbor never trimmed them before she departed this mortal coil. And the two families who lived there subsequently never trimmed the trees, either.

Consequently, the arborvitae are 25 feet tall and still growing. We finally had to move our vegetable garden about 20 yards to the west because of the shade they were throwing. Exercising our Massachusetts Rule rights last fall, we hacked about ten of them back to the property line in order to install a new shed. We then built a fence to try to keep the monsters in check.

My wife mutters about the arborvitae daily. I have no problem understanding Nancy – the protagonist in today’s case – who must have loved neighbor Pnita’s arborvitae as much as my wife loves Olwen’s. But while my wife just glowers at the arborvitae, Nancy – a woman of action – did something. She brought in a trimming crew, and topped the neighbor’s trees.

She didn’t kill them, just sort of knee-capped them. Who knew that so much visceral pleasure could end up being so expensive?

So this post is for my wife, a cautionary tale lest she decide to take matters into her own hands on the next-door arborvitae. Take a deep breath, honey…

Joseph v. Nathanson, 87 Mass. App. Ct. 1102, 23 N.E.3d 151, 2015 Mass. App. Unpub. LEXIS 37 (Ct.App. Mass. Jan. 16, 2015). Pnina Joseph and Nancy Ellen Nathanson owned abutting properties and share a property line. Pnina planted thirty-five arborvitae trees on her property close to the property line to serve as a privacy screen. In October 2012, Nancy directed her landscaper to go onto Pnina’s property and “prune” the trees. The landscaper “topped” the trees by cutting about five to six feet from the tops.

Pnina sued under Massachusett’s tree cutting statute, G. L. c. 242, § 7, and a jury returned a verdict in Pnina’s favor, awarding her $35,000. The award was trebled under the statute. Nancy appealed, arguing that her actions did not violate of the tree statute because the trees were not “cut down” or “destroyed” as required by the statute.

Held: “Topping” the trees so that they would no longer grow higher justified application of the Massachusetts wrongful-cutting statute.

General Law c. 242, § 7 provides for liability on the part of anyone who “without license willfully cuts down, carries away, girdles or otherwise destroys trees.” Nancy asserts that under the tree statute, Pnina’s trees had to be completely destroyed or cut down in order for the plaintiff to recover. She argues that the evidence showed that the trees were alive, growing, and healthy after the topping of the trees and therefore could not possibly have been “destroyed.”

The Court said it would interpret a statute to give effect “to all its provisions, so that no part will be inoperative or superfluous.” The statute here requires that the trees be “cut down, carried away, girdled or otherwise destroyed.” G. L. c. 242, § 7. “The phrase “otherwise destroyed” includes,” the Court said, “but is not limited to, the preceding phrases including ‘cut down’.” In other words, “cut down, carried away,” and “girdled” are examples of how a tree may be destroyed; they are not exclusive.

The judge instructed the jury that the word “destroy” has a commonly understood meaning, which includes “to ruin completely, to ruin the structure, organic existence or condition of a thing, to demolish, to injure or mutilate beyond possibility of use.” The Court held that this definition given to the jury correctly provided a broader meaning to the term destroy than the examples in the statute.

Pnina’s expert testified that the “topping” of the trees meant that they would never grow vertically again and were no longer functional as a privacy screen. The jury was entitled to credit that testimony, agree with Pnina that the trees were “mutilated beyond possibility of use” as a privacy screen and therefore find in Pnina’s favor.

– Tom Root

TNLBGray