Male Asian longhorned beetle.

Beetle battle

By Leisa Boley Hellwarth, a dairy farmer and attorney near Celina

In June, the Court of Appeals for the Twelfth Appellate District of Ohio decided Ohio Department of Agriculture v. Thomas Brown, 2020-Ohio-3316. The case is about the Asian Longhorned Beetle (ALB) and the government’s eradication program. (At this point, I am anxious to think about something other than coronovirus, masks and death rates.)

The ALB is an invasive wood-boring insect that feeds on a variety of hardwoods, including maple, birch, elm, ash, poplar, horsechestnut and willow, among others, and kills them. It is native to China and Korea and is 1.5 inches in length, shiny black with white spots on their wing cases and black and white antennae that can be twice as long as their body.

Trees attacked by ALB have wilted foliage and canopy dieback, round exit holes, round egg-laying sites or excessive sawdust at the base of the trees. Currently, there are infestations in Massachusetts, New York, Ohio and South Carolina. The only solution is to eradicate the infected trees. To accomplish this goal in Ohio, the Ohio Department of Agriculture (ODA) and the United States Department of Agriculture (USDA) created the ALB Cooperative Eradication Program to help eliminate Ohio’s ALB infestation. The ODA oversaw the surveying of trees to identify ALB infestations while the USDA had sole responsibility for the removal of infested trees.

In 2012, the ODA identified an infestation of ALB on trees on Thomas Brown’s property in Clermont County. These infested trees were removed by Young’s General Contracting, Inc., which had contracted with the USDA for tree removal.

The ODA attempted to perform follow up inspections of Brown’s property to determine if the ALB infestation had been fully eradicated. However, Brown refused to allow access to his property on three separate occasions in October 2015 and January 2016. He refused ODA access for inspections because he believed Young’s damaged his property during removal of infested trees and failed to return the property to its former state after the trees were removed.

Consequently, in 2016, the ODA filed a complaint for injunctive relief, asking the trial court to restrain Brown from interfering with efforts to survey and later remove any infested trees. Brown asserted several counterclaims, including a request for injunctive relief and a takings claim in which he alleged destruction of property and failure to remediate his land after the removal of trees.

The matter proceeded to a bench trial (before a judge, not a jury) in September, 2016, during which the ODA presented a case for injunctive relief. Brown then presented his case-in-chief in support of his counterclaims. At the close of Brown’s case, the ODA made a motion to dismiss Brown’s counterclaims, which the trial court granted. The trial court determined that the proper party to pursue the counterclaims against was the USDA because it had authority regarding tree removal, not the ODA which only had survey and identification authority. Brown appealed this decision to the Twelfth District Court of Appeals who ultimately agreed with the trial court when the decision was released in June of this year.

Brown, through his attorneys, argued that ODA was the proper party to sue because they were engaged in the “same undertaking” as USDA regarding ALB eradication. Brown specifically referred to ODA and USDA as a joint venture.

The Court of Appeals, however, rejected those arguments and specifically held that USDA was the only party responsible for tree removal contracts. Until the proper party is sued, a court will not consider the substantive issues before it. Brown may have a winning case about the contractual issues. A case will need to be brought against USDA in order to proceed. This case demonstrates the value of form over substance.

 Leisa Boley Hellwarth is a dairy farmer and an attorney. She represents farmers throughout Ohio from her office near Celina. Her office number is 419-586-1072.

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