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Evans v. United States

United States District Court, D. Massachusetts

September 30, 2016

GEORGE EVANS, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          ORDER

          DAVID H. HENNESSY, UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on the Defendant the United States of America's Motion for Summary Judgment. (Docket #25). The Plaintiff George Evans has filed a response (docket#35), and the motion is now ripe for adjudication. For the reasons that follow, the Motion for Summary Judgment is ALLOWED.

         I. BACKGROUND[1]

         On August 8, 2008, the Massachusetts Department of Conservation and Recreation (“DCR”) issued an order of quarantine for several towns in central Massachusetts to prevent the human-assisted spread of Asian Longhorn Beetle (“ALB”), a destructive insect known to infest, among other species, maple trees.[2] (DF 1, 4).[3] The DCR quarantine prohibited any person from harvesting, cutting, moving, carrying, transporting, or shipping “regulated articles” (i.e. trees and tree products) within or outside the affected area. (Docket #27-4 at 3-4). The regulated area included a portion of the City of Worcester. (DF 4). DCR periodically issued orders expanding the area of the quarantine along with maps of the regulated areas. (DF 5; Docket #27-4).

         On December 22, 2008, the United States Department of Agriculture (“USDA”), through its agency, the Animal Plant Health Inspection Service (“APHIS”), entered into an agreement, the ALB Cooperative Eradication Program Cooperative Agreement (the “Cooperative Agreement”), with the DCR codifying a joint action plan to eradicate ALB from the quarantine zone.[4] (DF 6-7). The Cooperative Agreement indicated that APHIS and the DCR would be involved with “[t]he destruction of infested and high risk host trees” and the “[r]eplacement of trees lost to ALB with non-host species on public and private property.” (DF 8). Pursuant to the Cooperative Agreement, APHIS agreed to “[p]rovide personnel to accomplish operational activities” as well as “a project manager who shall be responsible for coordinating project activities with [DCR] including planning, decision-making, management, implementation and execution” and “any other activity leading to the control and eradication of the ALB.” (Id.). DCR agreed to “[s]ecure a cost competitive tree removal contract” and “[p]rovide the resources and management to administer the contract.” (Id.).

         DCR solicited bids and entered into contracts with private contractors to cut down trees designated as ALB host or infected trees. (DF 9). A “host tree” is a member of a certain species of tree that is susceptible to infestation by ALB, including elm, ash, and all sub-species of maple. (DF 13). On December 10, 2008, the DCR promulgated bid specifications for these contracts (the “FAC 47”). (Docket #27-8). Under the FAC 47, tree cutting contractors and their employees “shall not enter any private property unless [it] is in receipt of a Permission Slip from the property owner . . . prior to . . . any tree removals.” (Id. at 11).

         As part of the eradication process, the ALB Cooperative Eradication Program sent men and women to visually survey trees in the quarantine area. (DF 16). Pursuant to the survey protocol, the inspectors marked infested trees with red paint and uninfested host trees with blue paint. (Docket #27-2 at 15). Because the community was not in favor of removing uninfested host trees, decisions on whether to remove uninfested host trees were made on a case-by-case basis. (DF 18). Under the ALB Eradication Program protocol, property owners were given the choice of whether to allow removal of uninfested host trees. (DF 21). DCR provided a notice to affected property owners indicating that infected trees, those marked with red paint, were required to be removed; however, uninfested host trees, those marked with blue paint, could be removed upon the property owner's consent, but would not be removed without consent. (Docket 27-2 at 17; Docket #27-10). A form entitled “Acknowledgement and Permission” was attached to the notice which was to be filled out by the property owner to indicate whether the property owner authorized the DCR to remove uninfested host trees on the property. (Docket #27-10).

         In December of 2008, the ALB Eradication Program identified a 2.2 square mile area within the City of Worcester which was targeted for removal of infested trees and for seeking permission to remove uninfested host trees. (Docket #27-2 at 13-14). Evans' property was located within this area. (DF 20).

         Prior to tree removal, ALB Eradication Program personnel prepared color coded maps of the quarantine area that showed whether individual property owners had given written permission for their uninfested host trees to be removed. (Docket #27-2 at 23; Docket #27-9 at 9-10). Properties marked in red indicated that the property owner had not given permission to remove uninfested host trees, properties marked in blue indicated that the property owner had given permission to remove uninfested host trees, and properties marked in white indicated that the ALB Eradication Program did not have a signed permission form from the property owner. (Docket #27-9 at 11-12). Program monitors and tree cutters used these maps to determine which trees to remove and whether homeowner permission had been obtained. (DF 25). According to the procedure in place during the relevant time period, no action would be taken if a signed permission form had not been obtained. (Docket #27-9 at 12). In addition to the maps, Program monitors were given a listing of properties within the area they were overseeing that included notes on the permission status of the property. (Id. at 17-20).

         On December 31, 2008, DCR entered into a tree removal contractor with Mayer Tree Service, Inc. (Docket #35-8). Mayer entered into a tree removal subcontract with Marquis Tree Service on January 5, 2009. (Docket #35-9).

         On January 9, 2009 APHIS issued a federal order quarantining a portion of Worcester County, Massachusetts. (DF 6). Unlike the DCR quarantine, the APHIS quarantine mandated regulation of interstate movement of ALB “regulated articles” (i.e. trees and tree products). (Id.). The order described the boundaries of the regulated area. (Id.).

         Crystal Franciosi was a Plant Protection and Quarantine technician with APHIS who oversaw tree removal on February 9, 10, and 11, 2009. (DF 26). On February 10 and 11, 2009, twenty-two Norway Maple trees were removed from Evans' property by Marquis.[5] (DF 26, 27). Franciosi reported that she had map permission to remove the trees from Evans' property. (DF 28). However, the listing of properties included the notation, “need release, ” with respect to Evans' property. (DF 29). After an investigation by a supervisory investigator with APHIS Investigative and Enforcement Services, no records were found that would indicate that Evans ever signed a form giving permission for the removal of his host trees. (DF 30). On February 20, 2009, after the host trees had already been removed, DCR sent Evans a written notice of the removal and an attached permission form. (DF 31). The notice was dated December 10, 2008. (Docket #27-10 at 4).

         II. STANDARD

         Summary judgment is appropriate when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Once a party has properly supported its motion for summary judgment, the burden shifts to the non-moving party, who “may not rest on mere allegations or denials of his pleading, but must set forth specific facts showing there is a genuine issue for trial.” Barbour v. Dynamics Research Corp., 63 F.3d 32, 37 (1st Cir. 1995) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986)). Moreover, the Court is “obliged to []view the record in the light most favorable to the nonmoving party, and to draw all reasonable inferences in the nonmoving party's favor.” LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 841 (1st Cir. 1993). Even so, the Court is to ignore “conclusory allegations, improbable inferences, and unsupported speculation.” Sullivan v. City of Springfield, 561 F.3d 7, 14 (1st Cir. 2009) (quotation omitted).

         III. ANALYSIS

         “The United States as sovereign, is immune from suit save as it consents to be sued, and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit.” United States v. Sherwood, 312 U.S. 584, 586 (1941) (internal citations omitted). The Federal Tort Claims Act (“FTCA”) “provides a ‘carefully limited waiver' of the federal government's sovereign immunity for certain claims alleging harm caused by United States employees or agents.” Carroll v. United States, 661 F.3d 87, 93 (1st Cir. 2011) (quoting Bolduc v. United States, 402 F.3d 50, 62 (1st Cir. 2005)). The FTCA allows civil actions against the federal government

for injury or loss of property . . . caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

28 U.S.C. § 1346(b)(1). “[T]he FTCA must be ‘construed strictly in favor of the federal government, and must not be enlarged beyond such boundaries as its language plainly requires.'” Bolduc, 402 F.3d at 56 (quoting United States v. Horn, 29 F.3d 754, 762 (1st Cir. 1994)).

         This statutory waiver of sovereign immunity comes with several exceptions. 28 U.S.C. § 2680. The United States argues that two exceptions to the waiver apply in the instant case - the quarantine exception ...


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