September 9, 2015
action commenced in the Superior Court Department on January
case was heard by Daniel M. Wrenn, J., on motions
for summary judgment, and a motion for relief from judgment
was also heard by him.
Douglas Sederholm for the plaintiff.
M. Tremblay for Mayer Tree Service, Inc.
T. Scomby for Marquis Tree Services, Inc.
Elizabeth W. Morse for Farm Family Casualty Insurance
Meade, Wolohojian, & Milkey, JJ.
N.E.3d 103] Milkey, J.
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
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), 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.
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.
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 [46 N.E.3d 104] 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
ing 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.
DCR general orders.
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
" 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, within the
Affected Area that are, may be or have the potential to be
infested or infected by [the ALH beetle]."
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
Tree marking and removal protocols.
in partnership with the Animal and Plant Health Inspection
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 [46 N.E.3d
105] been found.
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. 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.
Individual tree removal orders.
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."
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
" [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,
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. [46 N.E.3d 106] 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).
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,
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