Evans v. Mayer Tree Serv., Inc.

89 Mass.App.Ct. 137

46 N.E.3d 102

George EVANS

v.MAYER TREE SERVICE, INC., & others.¹

No. 14–P–1642.

Appeals Court of Massachusetts, Worcester.

Argued Sept. 9, 2015.

Decided March 3, 2016.

E. Douglas Sederholm, Edgartown, for the plaintiff.

Denise M. Tremblay, Springfield, for Mayer Tree Service, Inc.

James T. Scomby for Marquis Tree Services, Inc.

Elizabeth W. Morse, Worcester, for Farm Family Casualty Insurance Company.

Present: MEADE, WOLOHOJIAN, & MILKEY, JJ.

Opinion

MILKEY, J.

In August of 2008, an invasive, wood-boring insect known as the Asian longhorned beetle (ALH beetle) was discovered in the Worcester area. The ALH beetle infests particular types of hardwood trees (host trees) that die as a result. Federal and State officials mobilized quickly to address the problem. Under the plans that they jointly developed and implemented, host trees that showed tell-tale signs of infestation were to be destroyed, together with those additional host trees that were deemed to be at high risk of infestation. The actual tree removal work was to be done by State contractors (and their subcontractors).

The plaintiff, George Evans, owns property at 14 Randolph Road in Worcester, where he lives with his wife. There were numerous host trees at his property, including Norway maples. It is uncontested that in February of 2009, defendant Marquis Tree Services, Inc. (Marquis),² entered Evans's property and destroyed at least twenty-one Norway maples there at the specific direction of a Federal field inspector who mistakenly believed that Evans had given written permission to have all host trees on his property destroyed.

The principal question before us is whether, under the particular circumstances presented, Marquis can be liable pursuant to G.L. c. 242, § 7, for destroying Evans's trees “without license” to do so. On cross motions for summary judgment, a Superior Court judge ruled in the defendants' favor in a detailed and thoughtful decision. Because we conclude that material facts remain in dispute that preclude entry of judgment as a matter of law, we vacate the judgment.

Background. 1. The Legislative response to the ALH beetle. According to documents in the record, the ALH beetle has the potential to devastate forestry and related industries if it is not contained. By emergency statute enacted on January 13, 2009, the Legislature declared the ALH beetle to be a public nuisance, and it provided the Department of Conservation and Recreation (DCR) broad authority to address the problem. See St. 2008, c. 493, § 1, amending G.L. c. 132, § 11. This included authority to “enter upon any land ... for the purpose of determining the existence, over-all area and degree of infestation or infection caused by the public nuisances named in section eleven [including

ALH beetles, and] suppressing and controlling said public nuisances.” G.L. c. 132, § 8, as amended through St. 1956, c. 657, § 2. The statute also gave DCR general authority to “make use of and require the use of all lawful means of suppressing such public nuisances.” G.L. c. 132, § 11.³

2. DCR general orders. On August 8, 2008, that is, even before the Legislature declared the ALH beetle to be a public nuisance, DCR issued a general order addressing its plans to eradicate the ALH beetle from Massachusetts. That order applied to a specifically designated area of central Massachusetts referred to as “the Affected Area.” In addition to strictly regulating the transport of firewood and certain other materials from host trees inside the Affected Area, the order stated that

“DCR may authorize, under separate agreements, DCR's duly authorized agents or designees ... to enter upon the Affected Area and undertake activities necessary for suppressing, controlling and eradicating [the ALH beetle], including removing or causing to be removed, and the destruction thereof, all Regulated Articles,^{[ 4 ]} within the Affected Area that are, may be or have the potential to be infested or infected by [the ALH beetle].”

The order went on to state that “[w]hile DCR seeks to implement this Order to ensure eradication of [the ALH beetle], DCR plans to do so in a reasonable manner, to the extent possible, to minimize impacts to private property.” Amended orders were issued from time to time in order to expand the geographical scope of the Affected Area.⁵

3. Tree marking and removal protocols. Working in partnership with the Animal and Plant Health Inspection Service (APHIS)

within the United States Department of Agriculture (USDA), DCR developed protocols through which the agencies would pursue their eradication goals. The first step in the process was to survey trees in areas known or suspected to be infested to look for outward signs of infestation, such as “an exit hole or an egg-laying site on [the tree] or an actual live beetle.” Trees that revealed such signs were marked with red paint. Host trees that did not show signs of infestation were marked with blue paint. Thus, host trees marked with red paint (hereinafter, red-marked trees) were known to be infested, while host trees marked with blue paint (hereinafter, blue-marked trees) were not. Blue-marked trees were at risk of becoming infested, especially to the extent they were in proximity to where infestation had been found.⁶

From the beginning of the ALH beetle eradication program, red-marked trees were slated for destruction, specifically, through their being cut down and then chipped into small pieces. The fate of individual blue-marked trees depended on the particular degree of risk they posed. It appears that some blue-marked trees could be treated with chemicals while others presented such unacceptably high risks that they would have to be destroyed.⁷ As discussed below, a DCR official provided deposition testimony that all host trees would have to be removed in a particular area of dense infestation.

4. Individual tree removal orders. In consultation with APHIS, DCR developed standard forms that would be sent to individual property owners in the event that trees “on or near the[ir] premises” were found to be infested. One form, labeled a “tree removal” order, notified the owner that “[t]he ... trees that have been previously marked with red paint (indicating an infested tree) on the above-referenced Premises are to be cut, removed and destroyed.” With regard to blue-marked trees, the individual orders stated that such trees “may need to be removed and destroyed [and that] [i]f such a determination is made by USDA

or DCR, notice will be provided in advance that such additional hardwood trees are subject to this Order.”

The individual tree removal orders also warned property owners that “[f]ailure to permit authorized contractors to perform the removal actions at the Premises, and any failure to otherwise comply with this Order, will result in the DCR seeking enforcement of this Order in Superior Court.” By statute,

“[w]hoever knowingly resists or obstructs the [DCR] commissioner, any local superintendent or employee or authorized agent of any of them, while any of those persons is engaged in suppressing or eradicating the Asian longhorned beetle ... shall be subject to a civil penalty of not more than $25,000 for each violation.”

G.L. c. 132, § 12, as amended through St. 2008, c. 493, § 2.

5. Permission forms. When DCR mailed individual tree removal orders to property owners, it enclosed a separate “acknowledgement and permission” form for property owners to sign. Property owners signing that form would thereby be acknowledging that they had received the tree removal order and that they were granting permission to have trees “previously marked with red paint” destroyed.⁸

The form specifically informed property owners that blue-marked trees “are not required to be cut and removed at this time.” However, property owners also were told they could opt to have their blue-marked trees cut, without cost to them. Thus, property owners were presented with three options: (1) they could give permission to have only red-marked trees on their property cut, (2) they could give permission to have both red-marked and blue-marked trees there cut, or (3) they could decline to sign the form (signifying that they had not given permission for the removal of any trees).

In the event that a property owner refused to sign the permission form, DCR escalated its efforts to persuade the owner to do so, and if necessary, DCR referred the matter to the Attorney General for enforcement. At least on the record before us, there

were only two occasions where DCR had to refer the matter to the Attorney General (both involving red-marked trees). In both cases, DCR ultimately was able to obtain the owner's permission without the need for a court order.

6. Mapping of property owner consent. The relevant officials used various geographic information system maps to track the extent to which property owners had permitted the removal of host trees from their property. The properties for which owners had given permission to have only red-marked trees cut were shown in red (or pink), those who had given permission to have all marked host trees cut were shown in blue, and those who had not given permission were marked in white.

7. The contracts. DCR solicited bids for private contractors to do the actual tree removal work.⁹ Through that process, DCR awarded a bid to defendant Mayer Tree Service, Inc. (Mayer), who in turn awarded a subcontract to Marquis with DCR's approval. It is uncontested that the bid specifications were incorporated into Mayer's contractual obligations with DCR, as set forth in the “notice to proceed.” It is also uncontested that Marquis agreed to abide by those contractual obligations in its subcontract with Mayer.

The bid specifications to which Mayer and Marquis agreed required Mayer to “ensure that it performs its work in such a manner to ensure no damage to private and personal property contiguous to tree cutting activities, including those public and private...