The Law of Trees
Natural Law suggests we owe them Respect
Trees provide stability in our environment. They often outlive us and memories of generations of humans can be woven around them.
Some of us feel outrage when trees are brutally cleared away to make room for a sidewalk; while some people are glad to kill a tree that drops tree sap on their car. But why do a few people engage in violent acts that destroy trees?
This week, a 200-year old tree was cut down in an act of vandalism in the United Kingdom atop Hadrian’s wall. In the United Kingdom, if they are able to convict the perpetrator(s), they face a maximum fine of £20,000 under the UK sentencing guidelines for this type of offense. That is for cutting down any tree or trees meeting a size threshold. However, the Sycamore Gap tree was not just any tree, it was a national iconic point of pride and destination for tourism. This will likely send the case to the Crown Court, a higher court, because the law in the UK might find it falls under the definition of a “memorial”:
A ‘memorial’ is defined in section 22(11A) CDA 1971 as:
a building or other structure (or part thereof), or any other thing, erected or installed on land (or in or on any building or other structure on land); or
a garden or any other thing planted or grown on land;
which has a commemorative purpose.
The Act urges giving plain meaning to the term “commemorative” and the Sycamore Gap tree is “commemorative” of centuries of history in the United Kingdom.
The Act describes what is “commemorative”:
. . . Section 22(11C) and (11D) CDA 1971 state that something has a ‘commemorative purpose’ if at least one of its purposes (so not necessarily its sole purpose) is to commemorate one or more individuals or animals, or a particular description of individuals or animals or an event or series of events (such as a war). . . .
‘Commemorate’ and ‘commemorative’ are not defined in the CDA 1971 and should be given their ordinary meaning.1
So if the tree is a “memorial” under the statute, the case will go to the Crown Court, according to the Sentencing Council with a statutory maximum sentence of 10 years’ custody regardless of the value of the damage.2
This statutory prohibition and penalty seem written to discourage exactly this kind of crime in the U.K., yet it happened and it cannot be reversed. Replacing the tree will take 200 years to restore its former grandeur, and it will no longer represent its time period it once had.
Does this retribution type of punishment really right the wrong? Perhaps ensuring the perpetrator(s) (if found) makes no money from books or interviews about their crimes or even more to the point, garnish their salaries for the rest of their lifes with the money going to plant trees.
The Sycamore Gap tree (before the vandalism)
What about destruction of trees in the United States?
The United States has a federal statute that prohibits injuring or destroying any tree on any land of the United States:
Whoever unlawfully cuts, or wantonly injures or destroys any tree growing, standing, or being upon any land of the United States which, in pursuance of law, has been reserved or purchased by the United States for any public use, or upon any Indian reservation, or lands belonging to or occupied by any tribe of Indians under the authority of the United States, or any Indian allotment while the title to the same shall be held in trust by the Government, or while the same shall remain inalienable by the allottee without the consent of the United States, shall be fined under this title or imprisoned not more than one year, or both.3
All the other trees
For trees not on federal or tribal lands, criminal vandalism is regulated by state and local governments. Tree ordinances are almost solely those of local governments and they can vary quite a bit. For example, one city may protect a tree species while another city may designate that same tree species as a nuisance. One such variance exists between two cities in California. The city of Mill Valley, California protects redwoods; whereas the nearby city of Sausalito categorizes them as undesirable because they are fast growing and block the views of the city.4
California’s Joshua Trees are candidates for listing under the state’s endangered species list, due to increased heat and dryness causing a threat to their existence, but not yet listed. In 2021, a couple building a new house, hired an operator to bulldoze 36 Joshua Trees so they could build a house on that area. They were fined $18,000 and criminally liable for the trees’ destruction. The trees were valued at $9,000 and the double damages is for inadvertent removal; whereas treble damages is for intentional or malicious destruction under California law. The owner said he did not know he could not remove them (despite being told by the neighbor he could not remove them after seeing them marked for removal).5 This effectively removed the intent element that would have potentially brought him treble damages.
In 2020, the famous Wanaka tree of New Zealand said to have grown from a willow fencepost, was vandalized when several large branches were removed with a saw.6 This causes nationwide grief and outrage.
In August 2022, fifteen trees planted in a public city park in Lubbock, Texas were vandalized by a probable, axe-welding perpetrator in about 15-20 minutes overnight. They were not national memorials, but the trees had been nurtured for three years by volunteer societies in a city that has relatively few trees that can stand the combination of extreme heat, dryness and elevation.7 The crime here is based on the value, which Lieutenant Brady Cross, with the Lubbock Police Department, says is approximately $7,500. Under the Texas Penal Code, a person commits an offense if, without the effective consent of the owner: (1) he intentionally or knowingly damages or destroys the tangible property of the owner. . . 8 This makes the crime a jail felony with up to two years in jail and a fine of up to $10,000. Unfortunately, there has been no public announcement of any arrest or prosecution for this crime.
Our existing criminal laws leave us without remedies that meet the gravity of these crimes. The United Kingdom has the most appropriate solution for destruction of iconic trees with an increased penalty for destruction of trees that are commemorative. Yet natural law may suggest we should do more to make the punishment fit the crime.
Natural law has something to say about this
Natural law is the philosophy of law that says humans have intrinsic values that dictate how they govern and do the right thing. Trees held in esteem and respected by the the community are going to be protected as valuable property in statutes and ordinances but underlying that law is a sense of natural law that it would be wrong to senselessly kill trees that would impact the community in a negative and damaging way.
New research about trees further sensitizes a normal human to a kind of sentience of trees.
New research about the sentience of trees
Recent research about tree communities has uncovered a kind of “secret life of trees” that should forever change our relationship with them. It has been discovered that trees communicate with each other when they are in distress from heat or lack of water, but also when being attacked by insects or even humans. How they communicate is just as surprising. They live with natural fungus that grows on the roots of the tree which is capable of communicating with other fungi on other tree roots about the tree and thereby communicating that to the other trees through this fungal network. 9
Should Trees have Standing?
Using a clever double entendre for the title helped make this one of the most popular law review articles ever written.10 Standing, meaning having the capacity or right to bring an action in court, which usually means you have an interest at stake which can be redressed by a court. In this case, the author, Christopher Stone, suggests that trees have natural rights to exist and to have their interests heard, which was an idea that even Justice Douglas of the U.S. Supreme Court suggested as plausible in Sierra Club v. Morton (1972).11
Just this week, in Ojai, California, the first ordinance to give rights to a natural object, was passed. The ordinance would give the elephant a right to be heard about the conditions of its captivity should there be one in the jurisdiction of Ojai.12 The elephants would have standing to be heard, with a guardian representing their interests, of course.
So should trees also have standing to challenge their removal? Or in the case of criminal and tortious acts toward trees, should trees be represented in court for their destruction or damage? These crimes might be types of wrongful death or assault and battery crimes?
This would mean trees are more important to us beyond the economic value that they represent in our parks, in our yards or as national memorials and we recognize their right to exist along side us. Maybe they should be more important to us and reflect that in our legal system.
“The old Indian teaching was that it is wrong to tear loose from its place on the earth anything that may be growing there. It may be cut off, but it should not be uprooted. The trees and the grass have spirits. Whatever one of such growth may be destroyed by some good Indian, his act is done in sadness and with a prayer for forgiveness because of his necessities…”
– Wooden Leg (late 19th century) Cheyenne
https://www.cps.gov.uk/legal-guidance/criminal-damage
Crime and Disorder Act 1998, s.30, Criminal Damage Act 1971, s.1(1) at https://www.sentencingcouncil.org.uk/offences/magistrates-court/item/criminal-damage-other-than-by-fire-value-exceeding-5000-racially-or-religiously-aggravated-criminal-damage/
(June 25, 1948, ch. 645, 62 Stat. 787; Pub. L. 104–294, title VI, § 601(a)(8), Oct. 11, 1996, 110 Stat. 3498.)
Bonapart, “Understanding Tree Law-A Handbook for Practitioners” 39 (2014).
https://www.washingtonpost.com/nation/2021/07/01/california-bulldoze-joshua-tree/
https://www.naturettl.com/limbs-cut-from-famous-wanaka-tree-in-new-zealand/
https://www.everythinglubbock.com/news/local-news/trees-vandalized-city-said-chopped-down-at-mccullough-park/
Tex. Penal Code § 28.03. CRIMINAL MISCHIEF.
https://www.smithsonianmag.com/science-nature/the-whispering-trees-180968084
https://iseethics.files.wordpress.com/2013/02/stone-christopher-d-should-trees-have-standing.pdf
https://www.mass.gov/news/do-trees-have-standing
https://www.forbes.com/sites/anafaguy/2023/09/28/california-city-becomes-first-to-legalize-rights-of-elephants