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Dispute Over Utility’s Right to Remove Tree in Easement Falls Under Jurisdiction of PUCO

2008-0708.  Corrigan v. Illum. Co., Slip Opinion No. 2009-Ohio-2524.
Cuyahoga App. No. 89402, 175 Ohio App.3d 360, 2008-Ohio-684.  Judgment reversed.
Moyer, C.J., and Lundberg Stratton, O'Connor, and Lanzinger, JJ., concur.
Pfeifer, O'Donnell, and Cupp, JJ., dissent.
http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2009/2009-Ohio-2524.pdf Adobe PDF Link opens new window.

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(June 4, 2009) A dispute over an electric company’s right to remove a tree located on a homeowner’s property but within the utility’s easement is a service-related issue subject to the exclusive jurisdiction of the Public Utilities Commission of Ohio (PUCO), according to a ruling issued today by the Supreme Court of Ohio.

In a 4-3 decision authored by Justice Judith Ann Lanzinger, the Court overturned rulings by the Cuyahoga County Court of Common Pleas and 8th District Court of Appeals holding that such disputes are contractual in nature and therefore subject to the jurisdiction of state courts rather than the PUCO.

The case involved a dispute between the Cleveland Electric Illuminating Company and homeowners Dennis and Mary-Martha Corrigan of Brooklyn. The company notified the Corrigans that it intended to remove a mature silver maple tree located at the back of their residential lot, within an easement owned by the utility. Under the terms of the easement, the Illuminating Company had authority to “cut and remove any trees, shrubs or other obstructions upon the ... property which may interfere or threaten to interfere with the construction, operation and maintenance of (CEI’s) transmission lines.”

The Corrigans obtained a temporary injunction from the Cuyahoga County Court of Common Pleas barring the company from removing the tree. During subsequent court proceedings in which the Corrigans sought a permanent injunction, the company moved for dismissal, arguing that the common pleas court did not have subject matter jurisdiction to hear the case because it involved a challenge to a service or practice of a public utility, and therefore fell under the exclusive jurisdiction of the PUCO. The trial court denied the Illuminating Company’s motion to dismiss, finding that it had jurisdiction to hear the case. After a hearing, the court issued a permanent injunction in favor of the Corrigans. 

The power company appealed. In a 2-1 majority opinion, the 8th District Court of Appeals affirmed the trial court’s decision. In its opinion, the court of appeals held that the removal of trees from an easement did not require the administrative expertise of the PUCO, and that the Corrigans’ suit centered on interpretation of the language of the easement, which was a contract law issue within the jurisdiction of the common pleas court. In finding that the trial court did not abuse its discretion in granting a permanent injunction against removal of the tree, the appellate panel noted that the power company had not been cited for violation of state or federal safety regulations due to the silver maple or that the tree currently or in the past had actually interfered with electric service, and also pointed out that the Corrigans had produced evidence that they personally paid to have the tree pruned and injected with a slow-growth hormone. Based on those findings, the 8th District held that the Corrigan’s tree did not “interfere or threaten to interfere” with power lines, and therefore the power company’s easement did not authorize it to remove the tree.

The Supreme Court agreed to review the 8th District’s ruling.

Writing for the majority in today’s decision, Justice Lanzinger cited with approval a 2008 decision of the 7th District Court of Appeals, DeLost v. First Energy Corp., that was issued several months after the 8th District’s ruling in this case. In DeLost, Justice Lanzinger wrote, the 7th District noted that “the Ohio Administrative Code chapter on electric service and safety standards, Ohio Adm.Code 4901:1-10, requires that utility companies establish a right-of-way vegetation-control program to maintain safe and reliable service ... Because vegetation management within an easement is necessary to ensure that reliable service is provided to consumers, the DeLost court concluded that cutting down vegetation is a practice relating to service as contemplated by R.C. 4905.26 and that it fell within PUCO’s exclusive jurisdiction. ... We agree with the DeLost court that this type of case falls within the exclusive jurisdiction of PUCO.” 

Citing the specific language in the power company’s easement granting it“full authority” to cut and remove any vegetation within the easement area “which may interfere or threaten to interfere” with transmission lines, Justice Lanzinger wrote: “This language grants the company the right to remove any tree within the easement that could pose a threat to the transmission lines. It is clear from the record that the Corrigans are not contesting the meaning of the language of the easement but rather the company’s decision to remove the tree instead of pruning it. In 2000, the company changed its vegetation-management plan so that its policy was to remove vegetation that threatened to interfere with its lines. Although the Corrigans disagree with this policy, the broad language of the easement granted to the company allows the utility to remove trees within its easement that may interfere or threaten to interfere with its power lines. Therefore, the Corrigans’ complaint with the decision to remove the tree is really an attack on the company’s vegetation-management plan. That type of complaint is a service-related issue, which is within PUCO’s exclusive jurisdiction.”

Justice Lanzinger concluded: “We agree with the DeLost court. The relevant sections of the Ohio Administrative Code show that vegetation management is manifestly service related.  ... R.C. 4905.26 specifically confers exclusive jurisdiction upon PUCO to determine whether any service provided by a public utility is in any respect unjust, unreasonable, or in violation of the law. Therefore, whether the company’s decision that the silver maple interferes or threatens to interfere with its transmission line is reasonable is a service-related question within PUCO’s exclusive jurisdiction. The judgment of the Cuyahoga County Court of Appeals is reversed.”

The majority opinion was joined by Chief Justice Thomas J. Moyer and Justices Evelyn Lundberg Stratton and Maureen O’Connor. Justice Terrence O’Donnell entered a dissenting opinion that was joined by Justice Paul E. Pfeifer.  Justice Robert R. Cupp entered a separate dissent.

Justice O’Donnell wrote: “Contrary to the majority, I am of the view that the utility’s right to remove the Corrigans’ tree depends on the terms of the easement, not the utility’s internal vegetation-management plan. Because the PUCO has no special expertise with respect to interpretation of an easement, the court of common pleas properly exercised jurisdiction over this action for a permanent injunction to prevent the removal of the tree. In addition, I would affirm the appellate court’s decision that the trial court did not abuse its discretion when enjoining the utility from removing this tree. We are obligated to give broad deference to the trial court’s factual findings, and in my view, the record contains sufficient evidence to support the trial court’s finding that the Corrigans’ tree does not threaten the transmission line.”

Justice Cupp agreed with Justice O’Donnell’s assessment that the case hinged on interpretation of the terms of the easement, and therefore was a matter within the jurisdiction of a trial court rather than the PUCO. He disagreed, however, with the 8th District’s majority holding that the trial court did not abuse its discretion in applying the law to the facts of the case. 

Justice Cupp noted that the Illuminating Company had presented testimony by an arborist and two professional engineers attesting that, under accepted industry guidelines, the Corrigan’s maple tree presented a threat of interference with utility service that required its removal. He quoted with approval from the opinion entered by the dissenting member of the 8th District appellate panel, which stated that: “The overwhelming testimony supported the tree’s removal. There was no testimony that the easement did not allow for removal. There was no argument that the easement was invalid. And the only person to testify that the tree was not or would not become a threat was the Corrigans’ arborist, who had taken no measurements. The Illuminating Company should be permitted to maintain its transmission conductors in accordance with industry guidelines. Since the easement allows for a tree to be removed if it threatens to interfere, the plain language of the contract allows the Illuminating Company to remove the tree.”

Justice Cupp concluded: “ ... I would affirm that part of the decision of the appellate court which holds that jurisdiction to determine the issues raised in this case resides in the courts and not the PUCO, and I would reverse that portion of the opinion below which affirms the order granting a permanent injunction preventing the tree within the easement from being removed.”

Contacts
Denise M. Hasbrook, 419.242.7985, for The Illuminating Company.

Lester S. Potash, 216.771.8400, for Mary-Martha and Dennis Corrigan.