Clear Cut

On February 6, 2008, Wayne Wilson woke up and got ready to go to work at his flooring business just a short way down State Route 30 in downtown Lisbon, Ohio. As he finished breakfast, he could hear cars slowing down on Route 30, which borders his five acres, on which stand the two-story house he bought and rebuilt plank by plank, a garage, a large warehouse for his business and his 150 blue spruce trees planted along Route 30 he planted for privacy and noise reduction. As he heard the chain saws rev up, Wilson knew who had arrived and why the cars were slowing down to watch. He hurried out of his house to confront the unwelcome guests.

Ohio Edison’s trucks had blocked off the eastbound lane and some fifteen men with chainsaws had already begun cutting into forty of the twenty-foot tall spruces. Two company lawyers were prepared for Wilson’s arrival on the scene, and as he made his appearance, tall and tan, with shoulder-length gray hair pulled back in a ponytail they shouted, “The judge said we have a right to be here. Call [Ohio Edison attorney] Denise Hasbrook!”

“Well if you win in court, you can plant more trees.”

Wilson had been advised of what to do in the event that Ohio Edison rolled onto his property. They had threatened to do it in November, and he had managed to get a restraining order in the nick of time after being tipped off by his congressman’s office. That restraining order had been dissolved by a judge the previous month and though the case was still pending a hearing in court, the power company was not waiting for a verdict. Wilson pulled out his cell phone, first dialing his attorney, Jennifer Boyle Beck, but he only got her voicemail. Next, he called the county sheriff’s office.

The Columbiana County Sheriff’s deputy arrived first and was apprised of the situation. Wilson explained that Ohio Edison was intent on cutting down forty of his trees that he had spent over twenty years nurturing and growing, as the company claimed they interfered with the overhead transmission lines fifty feet above the tree line; the matter was pending in court, would the sheriff’s office please tell the men to go away until the matter has been fully heard?

The sheriff’s deputy replied, “Well if you win in court, you can plant more trees.” Wilson protested the remark, “They’re like children. I’ve raised them for twenty-three years; you can’t just tell me to grow more!” The deputy said the sheriff was on his way and would decide how to proceed.

The Sheriff

Sheriff David Smith was the next to arrive on the scene, and he was a man mightily preoccupied of late. Though he had filed in late December to run for re-election, he did so under a cloud. He was only permitted to drive for work-related activities, as his license had been suspended when he was pulled over by the Ohio State Highway Patrol for swerving and speeding on his return trip from a conference in Columbus.

An analysis of his urine showed twice the legal limit of alcohol, but it was a struggle to get him to surrender when stopped. The dashcam video that was widely released showed the sheriff pleading with the state trooper, “Can’t you just let me go home?” He assured the officer he would return the favor if the roles were reversed.

Just three weeks prior to Wayne Wilson’s call, Sheriff Smith was persuaded to withdraw from the race so the Republican Party could field some candidates with a real chance, since Smith’s likely conviction would make him ineligible for office.

When the Sheriff arrived, he addressed Wilson, now accompanied by his girlfriend Catherine, “Are you gonna let these guys do their job and cut these trees down today?”

“Dave, there is no final decision on this matter. It’s still pending in court as we speak, and they do not have the right to cut these trees. Will you please talk to my attorney?”

The Sheriff turned around and ordered, “Arrest him.”

“Arrest me?” Wilson was incredulous.

A deputy approached and instructed him to put his hands behind his back.

Catherine spoke up in disbelief, “You can’t arrest him. He didn’t do anything!”

Three deputies quickly approached Catherine, grabbed her, slammed her against the cruiser, cuffed her and tossed her in the backseat, charging her with resisting arrest.

Wilson was held throughout the day on charges of disorderly conduct—not even a jailable offense—until the last of the forty trees was cut, then he was driven back home. He had to post bail for Catherine, and when he returned home Ohio Edison was making off with his lumber and leaving the stumps behind.

Since Wilson planted the trees starting in 1985, he had been their only caretaker. Though Ohio Edison purchased the easement in 1958, from the time he planted the trees to the day they cut a quarter of them down, Ohio Edison had only once before set foot on his property, as far as Wayne Wilson could recollect.

The Blackout

It all started on one hot August day in 2003, when the largest blackout in North American history hit cities from the Midwest to Manhattan causing billions of dollars in losses. A scathing report that fall laid the blame squarely at the feet of Ohio Edison’s parent, FirstEnergy, for failing to detect and control the system failures that cascaded and escalated into the massive outage. In the report, three major transmission lines belonging to FirstEnergy failed because they sank into trees for want of “simple tree-trimming.”

FirstEnergy heard the message loud and clear. Two weeks later, at a December 4 investor meeting, president for energy delivery Charles Jones announced the company was adopting a zero-tolerance policy for tree-caused transmission line failures.

On July 29, 2004, FirstEnergy agreed to pay $89.9 million to settle shareholder lawsuits related to the blackouts. Up to this time, the company had maintained a practice regarding vegetation in easements under transmission lines promoting trimming on a five-year cycle. Since the blackout, Ohio Edison has clear cut over 175,000 trees across the state of Ohio.

The Build-Up

In March of 2007, it was Wilson’s turn for a visit, and he received a knock at the door. Company representatives asked him to sign a waiver stating that the forty trees could be removed under the 345,000-volt transmission lines carrying power from plants on the Ohio River north to Cleveland. Wilson declined to sign and sent the men on their way.

Feeling under threat, he began to do some research and pull some numbers together. He first let Congressman Charlie Wilson’s (D-OH 6^th) (no relation) office know the situation that was developing. He then placed calls to the Federal Energy Regulatory Commission (FERC) and North American Electric Reliability Council (NERC) to find out their guidelines for the safe distance of vegetation from transmission lines. He learned the recommended distance was between fifteen and twenty-five feet. Wilson’s tree line was a reassuring forty to fifty feet beneath the overhead transmission lines.

Power companies have at least two distinct responsibilities. Part of the company is dedicated to ensuring transmission, which is the bulk transfer of power between a power plant and a substation near a populated area. A separate part of the company is concerned with distribution, which is the dissemination of power from the substation to consumers. Wilson called the head of Ohio Edison’s distribution division and asked his advice about his trees. In distribution, he learned, when there was a concern over vegetation, a waiver of liability was offered, and the property owner could take over care and responsibility from the company.

Wilson called the representatives from the transmission department who had visited him earlier to make them the same offer. Why couldn’t he sign a waiver and accept responsibility for maintenance and liability? “We’re a big company. We don’t make deals,” was the response.

Judge Pike: “[I]t is not in the public interest to require a utility, which plays a role in the delivery of electricity to millions of customers to justify every change in its policy.”

Ohio Edison delivered a certified letter to Wilson’s attorney’s office at 5pm on Friday afternoon, November 30, 2007, stating their intention to visit Wilson’s property the following Tuesday morning at 8am. By chance, neither Wilson’s attorney nor Wilson was aware of the letter until Monday when Congressman Wilson’s office called to inform Wilson of Ohio Edison’s intent to cut down his trees on Tuesday morning. Wilson succeeded in getting a restraining order issued early the next morning and called the company’s forestry head to wave him off. The next confrontation would be in Columbiana County Common Pleas Court in front of Judge C. Ashley Pike.

The Case

“The Plaintiff seeks a preliminary injunction preventing the Defendant Ohio Edison Company from cutting certain blue spruce trees located on his property but within a right-of-way described in the easement owned by Ohio Edison over the Plaintiff’s property.” The case ruling goes on to cite the pertinent text of the easement:

“The easement and rights herein granted shall include the right to erect, inspect, operate, replace, repair, patrol and permanently maintain upon, over, under and along the above described right-of-way across said premises all necessary structures, wires, cables and other usual fixtures and appurtenances used for or in connection with the transmission and distribution of electric current, including telephone and telegraph and the right of ingress and egress upon, over and across said premises for access to and from said right-of-way, and the right to trim, cut, remove or otherwise control at any and all times such trees, limbs, underbrush or other obstructions within or adjacent to said right-of-way as may interfere with or endanger said structures, wires or appurtenances, or their operation.”

Wilson approached the January 8 case as a preliminary hearing in preparation for a venue where he would be able to bring expert witnesses to support his contention that his trees would not interfere with or endanger Ohio Edison’s transmission lines. Ohio Edison, however, came prepared to end things immediately. Ohio Edison had witnesses discuss the nuances of its vegetation management policies and the penalties for noncompliance.

Judge Pike was impressed by the testimony and proceeded to issue the following ruling: “It is very unlikely that the Plaintiff could succeed on the merits in this case and it is not in the public interest to require a utility, which plays a role in the delivery of electricity to millions of customers to justify every change in its policy.” Despite the ruling, the judge left the case pending so it could not be appealed, and Wilson was out of legal maneuvers.

In other words, the judge ruled that the company was not answerable to the public for its internal policies, and the Fifth Amendment considerations in this case did not merit the continued protection of the trees until a full hearing could be held. Instead, the judge said, “the court recommends forbearance,” which Ohio Edison took to mean they were free to proceed as they saw fit. So, they assembled their cutters and planned their assault for February 6. After all, they are a big company, and they don’t make deals or exceptions.

The Exception

Lisa Huff was walking along Kings Grave Road in Hartford, Ohio, back in June of 2004 when a huge maple tree fell on and crushed her, severing her spinal cord and breaking her neck. She suffered cardiac arrest and was dead for three to four minutes before being revived, and she is now a quadriplegic. Her husband, Reggie, an inventor, now cares for their two daughters, fourteen and three at the time of the accident. As he began to look into the case, he discovered that the huge maple, forty-eight inches in diameter and taller than the power lines, was located in an Ohio Edison easement. He’s suing Ohio Edison and FirstEnergy, along with the property owners, for negligence because the tree was clearly rotten and needed to be cared for.

What he found was that beyond thirty inches in diameter, according to how Ohio Edison pays its contractors, the cost/benefit analysis no longer favors removal of the tree. The mature tree might as well be left to its fate. Reggie Huff went so far as to call Ohio Edison’s head forester posing as an interested party to purchase the property where the now-hulking stump is located to inquire about liability issues should the stump fall into the power lines. With the entire conversation on tape, the head forester told Reggie not to worry about the stump falling into the power lines. “We’ll take that gamble.” Huff is now awaiting some more forensic tests on the tree and hoping for a jury trial.

The Future

The same story of power companies clear cutting their way across transmission corridors at the expense of private property rights is playing out not just in Ohio— where in Beaumont v. FirstEnergy Corp. the court gave FirstEnergy latitude to remove over one hundred trees from three adjoining properties, over the property owners’ protests. Outside of Philadelphia, Attorney Bart Levy purchased a wooded property last fall and last month suddenly found himself under threat of removal of fifty trees from his property.

Meanwhile, there are glimmers of hope. In Alabama, Barbara Wilson and Rufus Kinney of Jacksonville chained themselves to their pecan trees when Alabama Power Company tried to cut them down. Calhoun County Circuit Judge John Thomason challenged the utility to justify the removal of the trees when they could be trimmed to adequately protect the lines. “Alabama Power may continue to fully maintain its lines, as it has for many years, without the destruction of these trees,” wrote Judge Thomason.

On Easter Sunday, Wilson put forty white crosses on the stumps that were left behind.

In Cuyahoga County, Ohio, Judge Mary Eileen Kilbane found that Mary-Martha Corrigan and family, “have worked with and independently of the Illuminating Company to ensure the health of their tree and the safety of the transmission lines. . . . The Corrigans’ tree does not pose a possible threat to the transmission lines at issue.”

Back in Lisbon, Wayne Wilson has tried keeping a sense of humor about the gaping hole in his once proud tree line. On Easter Sunday he put forty white crosses on the stumps that were left behind, and the crosses remain standing today. Asked what he wants to see happen, Wilson just wants the company to pay to plant replacement twenty-foot blue spruces and to allow him to maintain them, since expert witnesses testified they did not endanger the transmission lines.

Though he’s not sure how much longer he can fight his court battles. He was disheartened to find that, while he would have to come up with the money somehow to fight the power company for his Fifth Amendment rights, the power company could just pass their legal costs on to the consumers’ utility bills. “There are no balances. There are just checks, and they’re from me to the court, me to the lawyer.”

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