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Invasive beetle causes massive legal battle over thousands of trees on farm

Beetle causes epic court battle over Bethel farm
Crews cutting down infested trees from Tom Brown's property on June 2.
Posted at 5:01 PM, Jan 26, 2022
and last updated 2022-01-26 22:23:14-05

BETHEL — The Asian longhorned beetle quarantine in Clermont County has cost Tom Brown more than 450 trees and more than $400,000 in legal fees – not fighting the invasive pest but fighting the federal government.

After nearly a decade of challenging how much power state and federal agriculture agents have over property owners in their quest to eradicate the invasive pest, a federal judge signed a settlement agreement on Jan. 20 that finally ends Brown's dispute with the government. It puts limits on inspections and tree removal, and requires agents to fix some past damage that tree-cutting has caused to his 60-acre farm near Bethel.

“It’s disastrous what the federal government can do to a man’s farm, with no explanation. No recourse,” Brown told WCPO last June during a tour of his farm. “They just come in and do what they want.”

Tom Brown walks along what's left of his tree line on June. 2.
Tom Brown walks along what's left of his tree line on June. 2.

Brown raises Black Angus cattle on 60 acres of family land. The fields are surrounded by a thick line of mostly maple trees that were planted during World War II when wire fencing was scarce.

His land was known as ground zero for the Asian longhorned beetle problem in Clermont County, he said, because maple trees are a main food source.

“Water bugs," Brown said. "That’s just what we thought it was."

Asian longhorned beetle found in East Fork Wildlife Area in Clermont County

The Asian longhorned beetle can be identified by its black body with random white spots. (File photo)

State and federal agriculture agents identified the bug as the destructive wood-boring beetle in 2011 and put large portions of Clermont County under quarantine. Only four areas in the nation are currently under quarantine for the beetles, and one of them is Tate Township, where Brown lives.

Brown believes the beetles arrived years earlier on wooden skids used to transport steel that a former neighbor imported from Asia to manufacture farm equipment. Brown later bought that land to expand his farm.

He remembered seeing the large black beetles with white spots for the first time climbing on his home window screens a decade ago. He had no idea that those strange-looking bugs with long curling antennae would eventually cost him his retirement pension savings, his farmland, his cattle herd, and his wife’s health.

When the U.S. Department of Agriculture discovered the beetles in Clermont County, they hired a local tree company to cut down thousands of trees to stop their spread – including 400 trees from Brown’s land in 2012.

Those trees along Brown’s fence line formed a natural barrier in the watershed between his land and the farms upstream. The impact of their removal was devastating. Storm water runoff now pools in fields as standing water. Deep ruts from where crews dragged heavy trees scar his fields and turn into raging streams after heavy rains.

Tom Brown's farmland with standing water near Bethel.
Tom Brown's farmland with standing water near Bethel.

Brown has gotten stuck in mud, along with his cattle. His basement has flooded more than 150 times, causing mold and his wife to develop breathing problems. He’s had to replace the roof on his barn and his home several times, due to damage from heavy winds that he says the tree line used to block.

Crews also caused his cattle to escape from a field. One was hit by a car and later put down, Brown said. He’s had to reduce the size of his herd and spend $25,000 to build a concrete pad so the cattle have dry footing.

“The erosion, the uncontrollable water. It’s just terrible what they’re doing, with no recourse,” Brown said.

Tom Brown with his Black Angus cattle on his farm near Bethel.
Tom Brown with his Black Angus cattle on his farm near Bethel on June 2.

Brown said the USDA-hired tree crews who told him they would repair his land after they finished removing trees in 2012, but never did.

So years later when agriculture agents wanted to return to remove an additional 1,300 trees from Brown’s land – including 1,268 high risk but healthy trees, Brown promptly refused.

What happened next shocked Brown.

Armed sheriff's deputies arrived unexpectedly at Brown’s property last March with a search-and-seizure warrant for trees on his land and a neighboring parcel owned by his sister, Donna Bowen. Tree crews cut down 32 healthy trees in 90 minutes – none of which were infested with the beetle, according to court documents.

Then a federal magistrate withdrew the warrant and put a stop to the cutting, according to court documents.

Attorney Brian O'Connell
Attorney Brian O'Connell

“That these sheriff’s showed up on their property with this ex-parte warrant to start chopping down 1,300 trees, that’s just not right,” said Brown’s attorney, Brian O’Connell. “The government shouldn’t be able to come in and deprive you of your property without you getting a chance to be heard in court.”

That brought the dispute to U.S. District Court Judge Tim Black, who tried to broker a compromise for nearly a year. He signed off on the settlement agreement last week, which he wrote serves the “competing needs” of removing beetle-infested trees while also protecting private property interest.

If Asian longhorned beetles were to become established in the United States, it could become one of the most destructive and costly species ever to enter the country, Phil Baldauf, Ohio's director of the eradication program for the USDA, wrote in a court affidavit last April.

“The beetle threatens urban and suburban shade trees, recreational resources such as parks, and forest resources and wildlife. It could also impact industries such as maple syrup production, hardwood lumber processing, nurseries, and tourism,” he wrote. “As of July 2019, ALB (Asian longhorned beetle) has already led to the loss of more than 180,000 trees in Ohio, Massachusetts, New York, New Jersey, and Illinois.”

The settlement agreement allows agriculture agents to inspect Brown’s trees once a year over the next six years and, in exchange, they will not cut down the 1,300 healthy high-risk host trees on his land.

Beetle of death? It could kill millions of trees

The Asian longhorn beetle is damaging trees in Clermont County.

“Basically any tree of the 12 species (the beetle feeds on) can be a host for the Asian longhorned beetle,” O’Connell said.

The agreement does not give agents the right to cut down infested trees. The judge will ultimately decide which trees must be cut down, if the two sides can’t agree.

The U.S. Department of Agriculture must fix the damage caused to Brown’s property from tree removal in 2021, by cutting and grinding stumps, leveling ground ruts, and adding topsoil, seed and straw, according to the agreement.

While the agreement protects Brown from future damage, it does not reimburse him for the tens of thousands of dollars in damage to his land that he said the 2012 tree removal caused.

“It’s been a very long and expensive process for them so I think they’re kind of tired. But satisfied that now they’re not going to have to worry about it for a little while,” O’Connell said.

USDA site office for the Asian longhorned beetle eradication program near Bethel.
USDA site office for the Asian longhorned beetle eradication program near Bethel.

This isn’t the first time Brown has been in court. The Ohio Department of Agriculture sued him in Clermont County Court of Common Pleas in 2016 to gain access to his property to survey for beetles and cut trees.

Brown filed a counterclaim against ODA for past damages to his land from the 2012 tree removal.

The judge dismissed Brown’s countersuit on a legal issue – ruling that Brown had sued the wrong party for damages – because the U.S. Department of Agriculture, and not the Ohio Department of Agriculture, had signed the contract with the tree removal company and was responsible for the tree cutting. The two agencies are working together to eradicate the beetles.

Brown has already spent $400,000 on legal bills, raiding his pension and forcing him to go back to work as a truck driver after years of retirement, he said.

“It’s a fundamental right in America that you can’t deprived of property without due process … and we really felt like that was what they were trying to do here,” O’Connell said.

Meanwhile, agriculture agents are continuing tree inspections in parts of Clermont County.

“To date, the eradication program has completed just under 4 million tree inspections in Clermont County. We continue to ask for the public’s help in finding Asian longhorned beetle and any tree damage it causes. The sooner we know where this destructive pest is, the sooner we can stop its spread,” USDA spokeswoman Rhonda Santos wrote in a statement to WCPO.

Santos did not comment on the Brown case. But she said agents will continue tree inspections and removals until the beetle is finally eradicated.

“Cooperation from the community ensures eradication will happen sooner than later,” she wrote.

If you believe you have found a beetle or tree damage, report it by calling the ALB hotline at 1-866-702-9938 or submitting an online report at www.AsianLonghornedBeetle.com