Utility tree trimming sparks legal battle in Michigan
A legal battle is brewing across Michigan and the nation that pits the public against utilities over trimming trees to assure reliable access to power.
Utilities say they need to cut back brush and trees — some nearly a century old — to make sure limbs don't snap nearby power lines. But local officials and property owners say a ground-to-sky policy leaves unsightly gashes in local tree stands and allows trimmers unfettered access to private land.
The vegetation management dispute has prompted lawsuits in communities including Oakland County, where a letter-writing campaign seeks a review of state law.
Inge-Lise Gray, one of three Oakland County residents who have filed lawsuits in Circuit Court against DTE Energy, North Detroit Tree Service and The Davey Tree Expert Co., sent out an email to all 110 representatives asking them to get involved.
DTE is focusing attention on areas where power outages have been affected by trees and tree limbs that damage power lines, in a cutting approach the utility calls "Ground to Sky." Inge claims more than 50 trees, some of them estimated to be more than 100 years old, were cut down through her Bloomfield Township property in December without her consultation.
"I think its outrageous," said Gray, whose lawsuit, assigned to Judge Michael Warren, seeks more than $25,000 in damages. "I moved here because of the natural beauty and they have just clear-cut a 50-foot-wide channel behind my house."
The need for trimming is important according to utilities. On Aug. 14, 2003, tree damage on a transmission line in Ohio caused the line to switch off and resulted in the largest blackout in U.S. history. For two days 50 million people were in the dark in the Midwest and northeast U.S. and Canada.
Before the blackout, there were no mandatory federal standards regulating the reliability of electrical power. Since then, federal and state standards have been set requiring utilities to report on how they handle providing reliable power, including vegetation management efforts, according to Michigan Public Service Commission spokesperson Judy Palnau.
"The commission has no authority to tell them how to do their job but they (utilities) are reminded it is their obligation to keep (easements) clear," Palnau said of the 30-foot-wide area around utility poles and lines which has been held up in court cases.
DTE spokesman Scott Simons said the utility spent $60 million last year on tree and vegetation management and plans to spend an additional $10 million more this year.
"The frequency and duration of power outages in some of the communities we serve has been unacceptable," Simons said. "The most common cause of those outages is trees coming into contact with power lines. Two-thirds of customer outage minutes are tree related. We need to trim and in some cases, remove trees when they threaten the reliability of the electric system."
State solutions vary
Keeping utility lines clear has become a national issue, according to attorneys and tree activists.
Just ask Victor Merullo of Columbus, a former assistant attorney general in Ohio who has created a website http://www.treenandneighborlaw.com and writes a blog devoted to issues surrounding tree cutting and homeowners trying to defend their property rights.
"Utility companies aren't going to listen to a few home owners," Merullo said. "But if you can get neighborhoods involved on how things are being done, and your local officials taking a stand with them, you can get them to slow down.."
Solutions vary by state.
Utilities in Indiana are prohibited from removing more than 25 percent of a tree or topping it without an owner's permission, unless there is an emergency or safe and reliable service cannot be achieved. Landowners whos property is affected must be given a two-week notice before trimming.
Larry Silverstein in Tennessee has been involved with fights with the Tennessee Valley Authority for years. A judge there ruled the utility company can do whatever they want, Silverstein said, but his decision was reversed on appeal.
"We find its best to work with these companies on what needs to be done without knocking down every tree," he said. Utilities "will steamroll their cutters through until you stop them. They will lie about how many power blackouts are caused by trees falling on power lines.
"Why? Because the tree cutters have convinced them its cheaper to knock them all down."
Livonia Mayor Jack Kirksey, sees few problems, while others are circling the wagons.
Kirksey said of "a lot of customers, a lot of lines and a lot of neighborhoods" need to be trimmed by the utility within Livonia's 36 square miles. He said the cutting has been going on for two to three months and more needs to be done.
"Our residents know it needs to be done," he said. "Still, they don't always like the way the trimming is done or people showing up in their backyard without notice. We have had talks with the utility on matters."
'I'll chain myself to them'
DTE's aggressive attitude is not as accepted by officials in Birmingham, Bloomfield Township and Rochester — all of whom have called on the utility in recent weeks to take more care with their neighborhoods.
"I had one of our residents call me up a few weeks ago and told me they were cutting down all the trees," Bloomfield Township Supervisor Leo Savoie said. "I thought they were exaggerating until I drove out to see for myself and saw more than a half dozen trees chopped down in front of Sacred Heart (Academy) along Kensington.
"Then I drove to an area where they had clear-cut trees between residents' property. I couldn't believe it."
Kathy Bollerud Markovich of Howell Township wishes a public official would take such action in her community.
She is challenging a DTE-hired company's plan to cut down seven mature trees — pine, walnut and ash — on her property in Livingston County including an walnut tree which has a swing used by her granddaughter.
Markovich said tree trimmers told her they would be on her property to take down trees and had a legal right to go 15 feet on either side of utility poles.
"That puts them in my front yard close to my porch. I said: 'You can come trim the trees but you can't take them down. I'll chain myself to them before that's going to happen.' "
John Mogk, a Wayne State University law professor and expert on property law, said utilities have to follow language in easements, usually stemming from agreements made decades earlier.
" Easements are part of a chain of title and property owners have to follow that which was decided years before them," he said.
DTE's Simons said trimming — classified as "vegetation management" by the utility — is expensive.
"We trim about 6,000 miles per year," he said.
Burying utility lines also would be expensive, he said. The cost in some residential areas is $100 to $300 a month for each customer for 15 years.
"But even undergrounding power lines, which subdivision developers have done since 1970, does not guarantee 100 percent reliability," he said. "When underground cables fail, it takes longer to identify where the problem is than with overhead lines."
Tree-cutting critics such as Markovich and Gray view the major issue as boiling down to power: the property owners' need for reliable power and the power of the utility companies to pursue their easement rights without regard to property owners' concerns. And they are feeling powerless.
She said responses from lawmakers to her concerns have been lukewarm, including one from Steven Peruski an aide to State. Rep. Pam Faris, D-Clio. He noted while it's not pleasant to have trees and plants trimmed "in ugly ways or simply cut down" the easements are part of "long standing rules put in place decades ago ... because it is important for society to have a protected power source."
Markovich dug into township records dating back to the 1920s and found only Michigan Bell Telephone Co., back in the 1950s, had obtained a legal easement in that community to string lines to poles. Then, she learned that Michigan law permits any easement obtained can be used by other utilities.
Finding common ground
Even environmental watchdogs, such as the Michigan Sierra Club, view the issue as a battle best waged by cooperation with public utilities, according to Ann Woiwode.
"Good luck with that," said Woiwode, when informed some Oakland County residents were suing to stop the cutting. "We haven't been involved in that issue and I wish them all the success. But these are very powerful companies who appear to be lawfully doing what they think should be done to meet the public's need for service."
DTE argues it's working to better the environment. Since 1995 it has planted more than 20 million trees in Michigan in partnership with the Michigan Department of Natural Resources, restoring more than 20,000 acres of forestland.
Attorney Geoffey Fieger, who represents three Bloomfield property owners in a tree-cutting dispute, said DTE's efforts are unacceptable.
"I've seen the paperwork, I've seen the easements," Fieger said. "Easements just allow someone to go on someone's property, it doesn't give them the right to destroy it. It's still private property.
"Nowhere does it say anything about clear cutting."
"There are so many people being affected by this — not just in Bloomfield — but all over," Fieger said.
DTE Energy said vegetation management along its power lines is an ongoing process to ensure reliable power for the utility's customers. They say:
■More than $60 million went into vegetation management last year, an amount to be increased an additional $10 million this year.
■About 6,000 miles are trimmed annually.
■65 percent to 70 percent of all customer outages are related to trees or branches falling onto electric wires.
■Nine storms last year affected more than 100,000 customers each. The last two were Sept. 5 (375,000) and Nov. 24 (180,000). About two thirds of the customers affected were caused by tree branches or trees coming down on power lines.
■DTE trims to national arborist specifications.
■The utility says it works with communities and customers to help them control their vegetation.
■Retrofitting overhead power lines to underground is a costly and disruptive process. It would cost about $100 to $300 a month for 15 years for each customer on a block.
Source: DTE Energy