Everyone knows what a problem invasive species can be. Difficult problems require difficult solutions. In a recent case decided by the 1st Circuit Court of Appeals, the scope of the government’s authority to address one invasive species – the Asian Longhorned Beetle 
– was made clear.
On the merits, the case was relatively simple. In order to combat the ALB, the USDA removed numerous trees from plaintiff’s property without permission. The Court concluded that the discretionary function exception to liability under the Federal Tort Claims Act barred plaintiff’s claims, holding that the USDA had no non-discretionary duty to seek a landowner’s consent prior to removing the trees.
The decision is particularly noteworthy for the opinion by Judge Bruce Selya – known for his occasionally whimsical approach to opinion-writing – in which each section is given the title of a Beatles’ song. This seemed the least I could do in homage.
Norwegian Wood (It’s all about the wood)
Come Together (Massachusetts DCR and USDA come together to fight the ALB)
Here Comes the Sun (Plaintiff’s claim arises (bit of stretch, I’ll admit))
The Long and Winding Road (The history of the claim)
Her Majesty (The essentials of sovereign immunity)
Tell Me Why (Why the FTCA claim fails)
Let It Be (The 1st Circuit lets the decision below stand)
Hmm- perhaps a slippery slope… What’s next– Boston and Washington’s cherry blossoms, our swans, pigeons, starlings and house sparrows, carp, brown and rainbow trout and largemouth bass, Phragmites in the Belle Isle Marsh ACEC, or perhaps all of us who are not 100% Native American? Who decides which species is a “nuisance” and by what criteria? Casting the first stone might be complicated..