Municipal powers to destroy private trees in an infestation emergency

The year has been a bad one trees.  In the Midwest, the Emerald Ash Borer — an Asian immigrant — is killing ash trees at a prodigious rate.   The Gypsy Moth is laying waste to southeastern Kentucky.  Hemlock stands in the Applachians are being attacked by the Hemlock Woody Adelgid.

State and local governments are looking for effective means of stopping the spread of insects and disease.  Sometimes, their methods make it seem to some as though government will fight pestilence to the landowners’ last dollar.

The notion isn’t far-fetched, but it’s probably unfair.  Still, more and more often, states and communities will adopt laws which put breath-taking power in the hands of appointed officials or even professional workers, and their dictates can cost a landowner thousands.

In Upper Arlington, a Columbus, Ohio, suburb, city ordinances are being modified to address the steady southward encroachment of the Emerald Ash Borer.  Upper Arlington recently proposed modifying its ordinances to outlaw permitting a tree to remain standing after it is designated by a city Certified Arborist to be dead, diseased or designated a menace because of its condition “to persons, buildings or structures on private property, or deemed to present a risk to the health, safety and welfare of people using public streets, parks or other city property …” It is up to the owner to remove the tree, and if he or she doesn’t. the City will do it and bill 150% of its costs.  If the City Manager declares an emergency, there’s not even a right of appeal.

As drafted, the city’s Certified Arborist could even decide that healthy trees constituted a menace “by condition.”  Sometimes perfectly good structures are destroyed to stop a wildfire as part of a firebreak.  Likewise, sometimes healthy trees can be ordered destroyed to end the spread of a pest.

Can Upper Arlington do this?  Generally speaking, it appears so.  In fact, not only can a state or local government order trees destroyed, but in many cases, landowners can’t even collect compensation from the city for their loss.

In Miller v. Schoene, 276 U.S. 272, 48 S.Ct. 246, 72 L.Ed. 568 (1928), the U.S. Supreme Court upheld the constitutionality of a Virginia law requiring landowners to destroy cedar trees to stop the spread of cedar rust.   The rust didn’t hurt the cedar trees at all, but it was devastating to apple orchards.  The Commonwealth would not compensate owners for the loss of their trees.  The Supreme Court held that Virginia was “under the necessity of making a choice between the preservation of one class of property and that of the other wherever both existed in dangerous proximity.  It would have been nonetheless a choice if, instead of enacting the present statute, the state, by doing nothing, had permitted serious injury to the apple orchards within its borders to go on unchecked.  When forced to such a choice a state does not exceed its constitutional powers by deciding upon the destruction of one class of property in order to save another which, in the judgment of the legislature, is of greater value to the public.” 

The Supreme Court said there was “a preponderant public concern in the preservation of the one interest over the other. And where the public interest is involved, preferment of that interest over the property interest of the individual, to the extent even of its destruction, is one of the distinguishing characteristics of every exercise of the police power which affects property.” 

The issue of the limits of a state’s or city’s police power to order the destruction of private trees is destined to arise more frequently as tree blight and insects spread.  Several years ago — and this sounds like the plot of a late-night low-budget sci-fi thriller — three citrus long-horned beetles were found in a suburban Seattle nursery, hidden in maple tree bonsai stock imported from Korea.  One beetle was a pregnant female.  Because there were eight beetle exit holes on the stock, scientists concluded five of the dangerous critters had escaped. The discovery of the accidental escape was alarming because the beetle, a major citrus pest, also liked to feed on many other species of trees, including apple trees, other fruit trees, alder, willow, oak and even some conifers.  Eventually the ungrateful beetle kills its host tree.

An elite and secret Army unit was sent to hunt down and kill … no, no, that’s from the movie.  In fact, the State of Washington declared an emergency and collected a scientific advisory panel.  It turned out that because of the way in which the beetle burrows into a host tree, its presence is very difficult to detect, until it emerged upon reaching adulthood.  The only effective method of wiping out the beetle is by completely destroying the host trees.

Washington’s eradication plan called for removal of all host species trees within a one-eighth mile radius from the escape site — a distance chosen based on how far the  scientists figured the five beetles could have flown from the nursery — affected approximately 32 acres of land and 51 landowners.  The Department set up a fund to purchase replacement trees, but its efforts to mitigate the effect of the eradication plan fell short of what several landowners regarded as fair.  They argued they were constitutionally entitled to just compensation before their trees could be destroyed.

The case reached the Washington Court of Appeals as In re Property Located At 14255 53rd Ave S., Tukwila, King County, Washington, 120 Wash.App. 737, 86 P.3d 222 (Ct.App.Wash, Mar. 22, 2004).   The Court followed Miller v. Schoene and applied the law of necessity, holding that in meeting an emergency — such as fire, flood, or pestilence — public officials and private citizens may employ almost any available means in an endeavor to control the danger.  

Interestingly, both the Supreme Court in Miller and, seventy years later, the Washington court in Tukwila, suggested that the law of necessity was related to the law of nuisance.  Both recognize the obligations of property owners to each other and to the community.  The power that the State has to prohibit uses of property that injure health, morals, or safety of the public is not burdened with the requirement that the State must compensate individual owners for the losses they sustain because they cannot use their property to inflict injury upon the community. 

In Tukwila, the Court held that not eradicating the trees constituted a noxious use of property — a nuisance, if you will — because of the risk the healthy tree might become a host to the beetle.   Although the landowners complained they had to bear a disproportionate cost of the State’s response to the threat, the Court of Appeals held, as in Miller v. Schoene, Washington had to make a choice to address the threat, and “when the private sacrifices that must be made to defeat a public enemy are not evenly distributed, the Constitution will not necessarily compel an equalizing adjustment.”

So can Upper Arlington and other municipalities may order the deaths of healthy trees to try to serve the greater good?  Under Miller v. Schoene they can. And the landowners who pay the price … well, they should probably consult their tax advisors on the extent of the casualty loss they suffer.