From the Editor
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In This Issue
This marks my second edition serving as Editor for this newsletter. I have to say that I really enjoy it. I appreciate the camaraderie among the membership and I continue to learn from the expertise and perspectives brought forth by our guest authors (let’s be frank, before becoming editor I can’t say that I actually read every article). As fulfilling as this role is, the Chapter and I also need more help.
From the Editor
By Benjamin Thompson, Urban Forestry Program Manager, Washington State Department of Natural Resources
Executive Director Cristina Bowerman and I would like to form an editorial committee to recruit and correspond with guest authors, edit and fact-check submitted articles, coordinate with advertisers, and potentially assist with the final layout before publication.
PNW Trees is published four times per year and the work can be done remotely from the comfort of your own home. The volunteer hours needed per edition will vary depending on the number and length of articles submitted, as well as the number of committee members we have to share the work. The whole point of asking for more help is to keep the workload relatively small for any one person.
Experience in writing, editing, journalism, marketing, or digital skill in graphic design, document layout, or website programming is helpful but not necessary. This is a great opportunity to learn more about arboriculture in the Pacific Northwest and network with other chapter members. It would be a huge help if even two or three people stepped forward to join the committee.
The success of our Chapter is fueled by the efforts of volunteers, and the success of this newsletter is no different. Our Chapter members continue to show up and give back so I know that some of you will join us! On that note…
I think this particular edition of the newsletter has a lot to offer, not just for its content but for the way each of our guest authors embodies the hopeful spirit of our Chapter. In such a curious time when most of us aren’t heading into the office or up into trees every morning, it can be easy to worry about all the things we can’t do.
Instead, this edition of PNW Trees doubles down on the things we can focus on right now, such as maintenance, safety protocols, continuing education, research, and advocacy. The interests we have in ethics, safety, standards, and planning distinguish us as professionals, and as an organization. Our professionalism has always helped us rise to new challenges, and that is especially important now given the uncertainty of our future.
In closing, thank you all for being awesome in a time that isn’t. Take care of yourselves and your families.
Tough times are upon us. The challenges of Covid-19 have brought an interruption to our work that is unprecedented. In Snoqualmie, our winter pruning season came to an abrupt end, and as I write there is a street lined with Nyssa sylvatica where only half of the trees have been pruned. Our spring planting season got compressed into a few days, with no help from citizen volunteers, who are normally a mainstay of this effort.
From the President's Desk
By Phil Bennett, President
I feel very fortunate to still have a job and am working remotely for now. It has given me the opportunity to reprioritize and work on some different projects. I’d like to offer a few suggestions or possibilities of what could be done during this time:
Review the ANSI Z133 Safety Standard, and ANSI A300 tree care industry standards, and their normative references. “Normative references” are other documents referenced by the standards which become a defacto part of them. In practical terms, this means that you can’t fully understand or apply the Tree Risk Assessment Standard (Part 9), without also reading the Migratory Bird Treaty Act, which is listed as a normative reference.
Learn something new. Increase your knowledge and improve your skills, which is an ongoing process for true professionals. You can find many free learning and CEU opportunities here: https://pnwisa.org/classes-events/online-education-resources/
PNW-ISA is here for our members, and we are in this for the long-haul. We are working on developing an online learning platform and additional educational resources to help members obtain CEU’s through the pandemic.
With help from SAGE (Strategic Advisory Group on Education), a group of chapter volunteers led by Gregg Staniforth, (PNW-ISA’s Education Director) we are updating the chapter education plan (created in 2007). We will share the updated plan later this summer.
Stay safe, stay healthy, and let us know if you need any help.
If the COVID pandemic has taught me anything it’s that many lawmakers in our region are unfamiliar with our industry and what we do as professionals. Since mid-March when executive orders were enforced, we have been left to interpret what categories of essential work, if any, our industry and professions fall in.
By Cristina Bowerman, Executive Director
For example, Alaska’s executive order made no reference to arborist related trades, only loggers. Idaho identified landscapers and while Washington specified arborists and forestry, it combined them with construction trades. British Columbia left plenty of room for interpretation with broad categories for infrastructure and non-health essential service providers. And, Oregon remained unique in its stance by not providing an essential businesses list but emphasizing that businesses could remain open if social distancing, hygiene and sanitation guidelines were met.
I received numerous phone calls, emails and social media posts asking for guidance and help when interpreting the executive orders. I understood the confusion and frustration shared by many of you as I too was navigating unchartered waters. But my greatest realization was this: When you have no presence in local or state governments you leave others to decide your fate. If you want to be recognized, you have to be identifiable.
There will come a day when COVID will be a distant memory. But we should take this opportunity to create an identity for lawmakers that emphasizes who we are, what we do, and how they can support us as citizens and taxpayers. Let’s take actionable steps such as forming coalitions in each state and British Columbia, outlining concerns, and scheduling routine appointments with government representatives so that we remain on their radar moving forward. That way when the next pandemic or disaster occurs, we are better prepared and more importantly, represented.
One of my jobs is to advocate on behalf of member concerns. Do you believe PNW-ISA should utilize its resources to better educate local and state lawmakers? If you believe this should be an initiative in our next strategic plan, please click on this link today to answer a quick, three question survey.
Over the past six months, I have worked alongside Katie Kosanke and Angel Spell, chairs of the Annual Training Conference '20, Canopy Connections: Advancing Equity, Wellness & Community in Arboriculture. It has been a joy to watch this year's ATC committee identify educational topics, select quality speakers, determine what type of fun, engaging activities and events they want to offer members and guests, and overall, work together as a team. That's why the last couple of weeks were particularly difficult as the committee weighed the pros and cons of hosting ATC '20 in a COVID-19 environment. After many discussions, the committee and board of directors made the decision to prioritize the health and safety of members and guests by replacing this year's in-person conference with a virtual conference instead.
Annual Training Conference
By Cristina Bowerman, Executive Director
While this year's conference will differ from past ATC's, our goal is to provide the same quality education and networking opportunities that everyone looks forward to annually. If there's a silver lining, it may be that those limited by financial and geographic constraints can now participate. Plus, having a virtual conference enables us to be more flexible with the number of offerings, scheduling, etc.
As plans are finalized, we will notify members via email, update the PNW-ISA website and promote on social media. Until then, stay safe and healthy and get ready for some fun virtual activities and events coming this October! And, be sure to save-the-dates below for upcoming ATC's.
September 18-21, 2021
Coeur d'Alene Resort
Coeur d'Alene, ID
October 1-4, 2022
Author: Justina Kraus, Owner, Champion Tree Care, LLC, ISA Certified Arborist & Certified Tree Risk Assessor
Annual Training Conference
By Guest Author
2020 was going to be the year that SIX tree climbing competitions (TCC) would be held across the PNW-ISA with five regional comps and the annual chapter championships in the fall. Your enthusiastic TCC Committee met in January 2020 to nail down all the dates and places. Idaho was going to host two climbing events this year, a regional and the chapter championships, which hasn’t happened in years!
Different types of prize packages were going to be offered at the various regional events to make it more interesting for competitors. As many women as possible were going to be encouraged to register and compete at the different events. Sponsors and venues were excited to partner with us…but that was before COVID19 entered our lives resulting in cancellations and closures.
Since January, the very fabric of our society has been shifted. As I write this today, instead of planning months in advance, I’m not even sure what my future will hold the day after tomorrow. Instead of life proceeding neatly as planned, there is an ongoing viral storm that requires resilience, adaptability and patience. Attributes that are very much like a tree and ones that I am learning more about daily.
My business is located in Everett, Washington. The first COVID-19 case in the US was in Everett at our nearby Providence hospital. The City of Everett had ordered “nonessential” businesses to close even before the entire State of Washington closed down with a “stay at home” Governor’s order. Our tree company stopped working on March 23 and while I’m happy to see that social distancing and shelter in place measures appear to be working in my area, these measure have also led to business closures, unemployment and lay-offs.
Given all of these unknown variables, the TCC Committee found it difficult to move forward with competitions for 2020. We want to give everything time to settle and once comps return, we will make them better than before!
My crystal ball is broken, and my magic 8 ball only offers “better not tell you now” and “try again later”. For now, we are focusing on 2021 comps and encourage everyone to save-the-dates below. As new information regarding TCC schedules or changes becomes available they will be posted on the PNWISA TCC webpage. Questions or comments regarding any and all TCC events can be emailed to email@example.com.
In the meantime, stay safe, go hug a tree since you can’t hug humans, and we look forward to connecting with everyone in 2021.
2021 TCC Competitions
Date: May 15, 2021
Date: June 12, 2021
British Columbia Regional
Date: July 10, 2021
Location: Maple Ridge Park, Maple Ridge BC
Puget Sound Regional
Date: August 28, 2021
PNW-ISA Chapter Tree Climbing Championship
Date: September 18-19, 2021
Location: Tacoma, WA
Southern Oregon Regional
Date: October 16, 2021
Location: Palmerton Arboretum, Rogue River, OR
On the night of September 7th, 2019, over 1250 lightning strikes were recorded over Western Washington in a span of three and a half hours. Up until this point, I had never responded to a lightning struck tree. This storm presented me with the opportunity to assess four sites with lightning struck trees and two different types of lightning damage. This article will focus on the two most interesting.
By Chris Rippey, Rippey Arboriculture, LLC
The first tree I assessed was a blue atlas cedar (Cedrus atlantica ’Glauca’). This tree was 49 inches in diameter and was roughly 85 feet tall. This tree looked like what I thought a typical lightning-struck tree would look like. About a third of the upper canopy and trunk was blown apart, and there was a twisting line of missing bark down the length of the trunk showing the path the lightning took to the ground.
After assessing the tree, I determined the damaged limbs and upper trunk needed to be removed. The undamaged and lower portions of the tree could safely remain standing. This seemed a pretty straightforward prescription, but the next lightning-struck trees I was called to assess were not as easy.
The second location of lightning-struck trees was in the backyard of a residence. At this site, eight mature Douglas-firs (Pseudotsuga menziesii) showed signs of lightning damage. Each tree showed longitudinal spirals of missing bark along their trunks with tiny cracks in the exposed wood. Some trees had several streaks while some had only one. In two of the trees, the lightning appeared to go down one tree, then jumped to a different tree before contacting the ground. My assignment was to assess the extent of damage and determine if the trees needed to be removed.
To do this, I first used a resistance drill to look for internal decay to make sure the lightning did not travel down an internal decay column and damage the roots. Not finding any internal decay, I hired my brother to climb the trees to assess the depth of the cracks. I handed my brother a bunch of small pieces of aluminum to insert into the cracks as a gauge of their depths and he cautiously ascended the tree. My guess was that the easiest way for lightning to reach the ground was to travel down the water found between the bark and sapwood along a tree’s trunk. I assumed that if we didn’t find cracks deeper than an inch or so, the trees were not severely impacted and would likely recover.
Upon his return to earth, my brother informed me that he didn’t find any cracks deeper than an inch. He also informed me that he didn’t think this was the first time this grove of trees had been hit by lightning. Interesting.
We re-inspected the trees and discovered that four of them had similar crack depths and strike patterns, but had mold growing under the bark around the lightning cracks. We guessed these trees had been stuck at least a year ago.
These four trees were also responding very well, growing new wood to seal the damage. Seeing this lent confidence to recommending that the newly struck trees could be retained. I believe the trees were structurally stable. If the lightning damage results in dieback or decline in the future, then the trees can be re-evaluated then.
I don’t know how common it is to see trees struck by lightning more than once, but of the four calls of lightning-damaged trees I received after this storm, three were Douglas firs that had been hit before. Another thing that surprised me about this storm was the number of calls I got from other arborists looking for advice on assessing lightning-struck trees. I couldn’t offer a lot of help as I was still working through my own process, but I now feel somewhat confident and hope this article helps you with your assessments of lightning-damaged trees in the future.
During the past few years I have observed a rise in aerial lift use for arboriculture. An influx of tracked and other mounted lifts have made tree canopies more accessible than ever before. These tools can make a potentially hazardous tree removal safer and more productive. All that being said, I have also noticed an increase in accidents and injuries involving aerial lift devices.
By Phillip Kelley, Contract Climber & Owner of Samara Tree Preservation and Training
Some contributing factors for this increase can be traced back to a lack of training, either in operation of the lift, in tree risk assessment, or in rigging practices. Poorly executed rigging leading to tree parts hitting the boom and resulting in lift failure are very common. Contact with utility wires on the job site is also a cause of injury.
Here are a few suggestions and reminders about safe work practices for aerial lifts that, if implemented, will make your day safer:
Inspection of the lift
Lifts should be visually inspected by the operator prior to operation each day. This ensures the lift is functional and safe to use. A few things to look for include hydraulic leaks, cracks, loose bolts, and worn or discolored hoses. Visual inspections should only take a few minutes and can reduce hours of costly maintenance and medical bills.
Lower control function testing and drift testing
After visual inspection, run the lift through a full range of motion using the lower controls. This must be done before climbing into the basket/bucket. These controls are extremely important because this is how someone will be rescued from the ground. Next, a drift test should be performed. Set a traffic cone (or some other measurement tool) on the ground off to the side of the lift. Move the bucket over the top of the cone so it is within a few inches of the cone. Turn off the truck and wait 3-5 minutes to make sure the boom does not drift down and touch the cone. If the boom does drift, remove the truck from service until it can be repaired.
Job site safety assessment with your team
Identify any potential hazards, especially utility conductors, and discuss ways to mitigate or eliminate the hazards with your team. Also perform tree inspections and assess overall health and stability of the tree. Make sure everyone on the team is involved in this process. Agree on emergency response protocols so everyone on the team knows their role in the event of an emergency. Finally, establish a clearly defined work zone and drop zone. These should be marked so they are readily visible. No one may enter the drop zone without permission of the arborist working aloft. Struck-by’s are still the number one cause of fatalities in our industry, so this is a crucial step.
Your fall protection harness shall have a sternal or dorsal attachment and meet industry standards for fall protection. An arborist belt without an upper attachment will not meet these requirements. Make sure your harness is the proper size and adjusted to fit you. Next, connect your fall arrest system with the harness and then to the life support attachment on the aerial lift, and be sure the bulky part of the fall arrest system is attached closest to you. The new ANSI standard will state that all fall protection attachments (snaps and carabiners) shall meet or exceed the Z359 standard and shall have a gate rating of 3,600 lbs. Please don’t ignore or skip this step! It is virtually impossible to fall out of an aerial lift device if you do this.
Here are a few final things to consider when operating your aerial lift:
Aerial Lift devices are amazing tools that when used properly can reduce risks and extend the careers of arborists. All we need to do is follow a few simple steps to ensure safe and productive tree work for years to come.
- Make sure you have proper traffic control established (when applicable).
- Don’t let your outrigger cross into the opposite lane of traffic.
- Double check that ground under the outriggers is solid enough to support the truck.
- Never use your aerial lift as a crane to lift tree parts or as a rigging point from which to lower tree parts. These types of loads can easily cause the boom or cylinder to fail and bring you crashing to the ground.
- ANSI now states that aerial lift operators must have a saw scabbard for a chainsaw as well as a hand saw in the lift anytime during pruning or removal work.
- As lastly, as this bears repeating, practice aerial rescue scenarios with your team so they understand their responsibilities in an emergency. This is an opportunity to practice operating the lower controls so they can be confident using them in a stressful situation.
I normally use this space to highlight our industry standards. My last update centered on getting our Regional Plant Appraisal Committee formed and working. The COVID-19 outbreak has caused a delay in this, and is affecting us all personally and professionally. So, I thought it appropriate to revisit the way we approach our work and talk a little about ethics.
By Zeb Haney, Tree Resource
The topic of ethics was a focal discussion at the last ASCA conference in regard to tree appraisal. Some folks proposed that ethics would result in arborists on opposite sides of a legal valuation producing identical appraisals. Some insinuated that all other arborists besides themselves are biased and let their agendas influence everything from tree work sales to risk reports. Of course, this only makes sense if every arborist making that claim is the most-skilled, intelligent, bravest, boldest, and baddest arborist in the room!
Ethics are moral principles that govern our behavior and activities. They come into play when there does not seem to be a rule or law dictating exactly what to do. When there is law, our actions and behavior may simply be labeled legal or illegal. And if the law is clear, any moral ambiguity disappears. Some things are so obvious that they are illegal in every culture - murder, theft, and fraud come to mind. Other laws are clear but perhaps not so easily applied.
Speed limits are a classic example of clear law that we deal with day in and day out. Do you always obey the speed limit? What if everyone else is going ten miles per hour over? What if in obeying the speed limit you are causing disorder on the highway?
Questions like these apply to our lives as arborists.
We have nine parts to the ANSI A300 and the Z133 safety standard that cover good and safe work, yet we may still find ourselves wondering how to act. For example:
Let’s also consider our current climate during the coronavirus pandemic. How do you behave when the governor orders people to stop working and shelter in place? Do you work or not? Do you report others who may be endangering community health and safety?
- A crew member is working unsafely - do you talk to him? Do you report him to your boss?
- Your boss is under reporting worker’s comp? Is it your problem?
- A long-time client wants an otherwise healthy and sound tree removed but city code requires it to have a high risk rating before issuing a permit. Do you write that report?
These can be tough questions and situations. It would be foolish to assume that the answer is always clear.
At the end of the matter, it may come down to your conscience. I often reason this out by asking myself how I will feel about a decision later. If I recognize that one course of action is going to trouble me, then I’ve probably figured out what not to do.
When restrictions on social distancing are lifted and we are all back to work, let’s be healthy, and safe… and ethical.
Authors: Dr. Paul Ries, Oregon State University, Corvallis, OR & Joshua Petter, Tree Solutions Inc, Seattle, WA|
Editor’s note: This article is a follow-up to one published by the same authors in the Winter 2020 edition of PNW Trees.
Urban sprawl and development can lead to a reduction in the canopy volume of urban trees, which reduces the benefits provided by those trees. When selecting tree species for urban areas, carefully considering the site criteria can lead to greater benefits and longer-lived trees. Selecting a diverse array of trees contributes to urban forest diversity which can help avoid catastrophic tree losses due to pests and climate change.
Oregon State University researchers surveyed tree managers in Tree City USA designated cities throughout Oregon and Washington to help understand the municipal tree species selection process. We received responses from 79 out of 151 municipalities for a 52.3% response rate. Both open-ended questions and descriptive statistics were used to understand the answers.
We asked managers to provide us with the five most planted tree species within their municipality in 2016, and the five most planted tree species prior to 2016. Our responses for 2016 included 236 different species, 49 genera, and 23 families. The top five most common tree species planted prior to 2016 included 77 species, 33 genera, and 15 families. While we observed a marked increase in the overall diversity of tree selection in 2016, there was similar tree species selection across municipalities.
Ten managers reported ash (Fraxinus spp.) in their top five most planted genera, which is concerning if (or when) Emerald Ash borer (Agrilus planipennis) reaches the PNW. Our results also showed a propensity towards planting large quantities of the maple genus (Acer spp.), which is already abundant in municipalities across the PNW.
In another portion of the survey, we asked respondents to rank their top three tree species selection criteria, which we used to create a hierarchical ranking called a Borda count. We assigned three points for the first choice, two points for the second choice, and one point for the third choice (i.e. 1=3, 2=2, 3=1).
Our responses indicated that mature size was the most important criterion overall, followed by aesthetics, and proximity of infrastructure. The three criteria at the bottom of the Borda count were genetic diversity, citizen preference, and hours of sun. Of the respondents, 63% ranked mature size as very important and it was also first in the Borda count. Proximity to infrastructure was ranked as very important by 67.9% of respondents, but only nine respondents selected this criterion as their most important criterion.
We also analyzed open-ended questions on tree species selection using qualitative analysis software to illicit greater detail surrounding our quantitative results. We found several interesting responses that contributed greater detail to the challenges faced when selecting tree species. Among the most common themes we found were aesthetics, diversity, “right tree, right place”, maintenance, and hardiness.
Once again, I find myself impressed with a relatively new tree cultivar. We are fortunate that nature provides so many alternatives. The Lindsey’s Skyward bald cypress tree has many unique qualities, especially attractive to urban plantings.
PNW Tree Profile
By James Barborinas, Urban Forestry Services | Bartlett Consulting
First of all, it is a relatively compact tree, maturing out at less than 30 feet tall and under 10 feet wide. It is a deciduous conifer, dropping its small flat needles in the fall after an extended period of rusty red fall color. Many experienced arborists have stories of being called by tree owners to cut down or investigate why their tree is dying only to get the good news that it is similar to their broadleaf relatives, still alive and well, but going into dormancy.
Apical dominance in a central leader is a strong trait in the Lindsey’s Skyward bald cypress. But, it is important to inspect young trees for double leaders battling for dominance and to immediately prune the less dominant leader out. Lateral limbs typically have a small aspect ratio to the main trunk, growing upward at 45 degrees or tighter.
The summer foliage is lime green at first, soft to the touch and appear as fine, almost feathery needles or flat sprays on the twigs. Mature foliage turns a dark green color that accents the elegant upright structure of this tree. In fall, the needles tend to drop all at once, creating a short-lived dense cover of bronze color around base of the tree.
Bald cypress are generally known for their “knees” that develop around their base from surface roots, but this Lindsey’s Skyward selection lacks that peculiarity, which could pose a nuisance or trip hazard for many urban planting sites. Bald cypress transplants relatively easily and this selection apparently has a deep root system. It will grow in full sun to light shade and tolerates wet locations, as well as poorly drained or tight clay soils, all attractive qualities for an urban tree.
Like so many other unique cultivars, this tree was discovered in 1990 in a seedling plot in Mustang, Oklahoma by Robert M. Lindsey. It was observed for 20 years and patented in 2012. It is certainly worthy of consideration for any number of urban, street, garden and landscape locations.
As always, let me know if you have any experience with this or other trees to consider in our urban plantings.
James M. Barborinas, ASCA Registered Consulting Arborist #356
ISA Certified Arborist #PN-0135A, ISA Tree Risk Assessment Qualified
Principal Consultant-Local Manager
Urban Forestry Services | Bartlett Consulting
James Komen, Board Certified Master Arborist WE-9909B & Registered Consulting Arborist #555
By Guest Author
Consulting Arborists are hired to provide opinions and information about trees. Often, they are called to do so in the context of litigation as experts or even as lay witnesses, also known as fact witnesses. Consultants may be designated as experts for litigation, or they may provide more limited consulting services for the parties involved. How consultants are classified can have significant consequences for their testimony, involvement, and compensation.
A witness is an individual who testifies, under oath, to facts that will aid a court of law in resolving a case. In general, “every person is competent to be a witness, unless [the rules of evidence] provide otherwise.” Fed. R. Evid. 601. Witnesses will be limited to their own personal knowledge unless they have special qualifications as experts in the subject matter. Fed. R. Evid. 602. Statements given by witnesses are evaluated by the court’s finder-of-fact—the group or individual charged with determining the answer to a factual question based on evidence admitted at trial.
Resolving questions of fact often requires specialized knowledge, experience, or training in order to interpret facts. Thus, there is a need for expert witnesses, those who are qualified by “knowledge, skill, experience, training, or education” to “help the trier of fact to understand the evidence or to determine a fact in issue.” Fed. R. Evid. 702.
The differences between expert witnesses and fact witnesses may seem subtle, but there are some key distinctions:
Expert witnesses and fact witnesses are governed by different sets of rules with respect to the admissibility of their testimony, the pre-trial disclosure of their identities and opinions, and their compensation. This article addresses some important differences between the two through the lens of consulting arboriculture. Though this article focuses mainly on the Federal Rules of Evidence and Federal Rules of Civil Procedure, most state procedural laws regarding witnesses share a number of close similarities. An in-depth discussion of various states’ procedural laws is beyond the scope of this article.
- Expert witnesses can be well compensated, but most fact witnesses are paid only nominally for their time and expenses.
- Fact witnesses can be legally obligated to attend trial or deposition, but in most cases, experts have discretion over which assignments they take.
- Expert witnesses can testify to a broad range of topics and assertions, whereas assertions by fact witnesses are very limited in their admissibility in court.
According to Federal Rules of Evidence Rule 602, fact witnesses may testify to a matter only if they have “personal knowledge” of it. Fed. R. Evid. 602. This includes not only sensory and perception, but also opinions “rationally based on the witness’s perception” and “not based on scientific, technical, or other specialized knowledge.” Fed. R. Evid. 701. Rule 701 essentially draws a line between the content of the testimonies of fact witnesses and expert witnesses.
Fact witnesses can offer such testimony as:
This assumes the witness actually measured or perceived the tree’s distance from the property line. Although it may include the use of a tool (a measuring tape, in this case), the results of the measurement were directly perceived.
- “The tree’s canopy was green.”
The witness observed the tree. This observation is based on the witness’s sense of sight. If the witness did not personally observe the tree, then this statement would be inadmissible as hearsay (an out-of-court statement used to prove the truth of the matter asserted).
- “The tree was 5 feet from the property line.”
Unlike the prior two assertions, this one is an opinion. Opinion testimony from fact witnesses is admissible if the opinion is rationally based on the witness’s perception. Here, the fact witness perceived the canopy was green and inferred the tree was healthy. This assertion is admissible for the finder of fact to evaluate during trial even if another witness claims the tree was not healthy despite its green canopy.
- “The tree appeared healthy.”
Fact witnesses cannot offer testimony such as:
This is an assertion of the standard of care – conduct that would be expected of a reasonably prudent person. It is an opinion based on existing documentation such as Best Management Practices and industry standards. Since these are not common knowledge, a fact witness would not be allowed to testify to them. In contrast, an expert witness in the field of arboriculture could make this assertion if she was qualified by adequate experience, knowledge, and training to do so.
- “Tree cables should be inspected annually.”
In federal court, expert witnesses may testify opinions based on information that they received and did not directly perceive, provided that each of the four requirements in Rule 702 are met:
- “If the tree were not pruned in this way, it would not have died.”
This assertion is a hypothetical; the tree was actually pruned, so the witness is offering an opinion of a scenario that he did not directly perceive. This assertion would not be admissible by a fact witness but would be admissible by a qualified expert witness.
- “He deliberately poisoned the tree.”
This assertion is inadmissible whether the witness is a fact witness or an expert witness. It is asserting another person’s state of mind, which cannot be known—only inferred. While the witness may testify to facts that support such a conclusion, it is up to the finder of fact to make the determination of a person’s state of mind.
Fed. R. Evid. 702.
- The specialized knowledge [helps] the trier of fact to understand the evidence or to determine a fact in issue.
- The testimony is based on sufficient facts or data.
- The testimony is the product of reliable principles and methods.
- The expert has reliably applied the principles and methods to the facts of the case.
Some states have a more stringent requirement for expert designation. California requires experts have knowledge that is “sufficiently beyond common experience…” Cal. Evid. Code § 801.
Unlike a fact witness, an expert is not required to have “personal knowledge” of the matter at hand, and the expert may base his or her opinion on facts or data “that the expert has been made aware of or personally observed.” Fed. R. Evid. 703. For example, although the expert may not have personally witnessed the irrigation provided to a tree, the expert may opine on the sufficiency of irrigation based on another person’s recollection of the irrigation schedule. “Unlike an ordinary [fact] witness…, an expert is permitted wide latitude to offer opinions, including those that are not based on firsthand knowledge or observation.” Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592.
Based on these requirements, expert witnesses may offer testimony such as:
In addition to an expert’s opinions regarding the matter at issue, the expert will also be asked to testify to his or her credibility. This may include the expert’s credentialing level, past education, or experience in the field. But, while experts can discuss their qualifications outside the facts of the case at hand, fact witnesses cannot testify as to their own honesty and credibility unless their reputation has been attacked. (Easton 2000).
- Standard of Care: The level of performance at which a reasonably prudent person would be expected to act is critical in determining whether a party’s duty of care was met in a tort negligence case. Testimony regarding the standard of care expected of an individual will assist the finder of fact in determining whether there was a breach of duty, which is a fact at issue in such a case.
- Tree Appraisal: An appraisal of the value or cost of a tree will help the trier of fact determine the amount of loss in a controversy. It must be based on sufficient facts or data, such as nursery stock pricing and tree measurements. It must be the product of reliable principles and methods, such as those outlined in the Guide for Plant Appraisal. And the expert must also reliably apply the principles and methods to the facts of the case.
- Scientific or Technical Knowledge: An expert witness may explain the results of a relevant scientific study and how they apply to the facts of the case. For example, a study showing the efficacy rate of different trunk injection methods could be used as evidence to show that a party met its duty of care when it chose the method with the highest efficacy rate.
Compensation for Testimony
As an inducement for spending time gathering data and formulating an opinion for the case, experts can be paid for their services. Payment may be hourly, per diem, or a flat project rate. Some consultants charge a “designation fee” in addition to their hourly rate to reflect the opportunity cost of reserving a trial date on the calendar, even if the case settles before trial. However, the expert’s compensation cannot be contingent upon the outcome of the case, or the jury’s perception of the credibility of the expert will come into question. All forms of payment and agreement between the expert and the hiring attorney are discoverable (see Pre-Trial Disclosure below) by the opposing party.
Expert witnesses may require special payment for their services, but fact witnesses cannot be paid for their services. Fact witnesses may only be reimbursed for their direct expenses and lost time in delivering testimony. ABA Comm. on Ethics & Prof'l Responsibility, Formal Op. 96-402 (1996). Different jurisdictions provide for witness compensation amounts, but they all tend to be very skimpy. In California, it is $35 per day plus $0.20 per mile traveled. Cal. Gov't Code § 68093; see also 28 U.S.C.A. § 1821 ($40/day plus reasonable travel costs in Federal Court); see also La. Stat. Ann. § 13:3671 ($8/day plus $0.16/mile in LA); see also N.Y. C.P.L.R. 8001 ($15/day plus $0.23/mile in NY).
That is not to say a fact witness cannot be compensated more than the statutory minimums. In New York, the “per-day fee does not preclude a party from voluntarily paying such witness additional amounts to compensate him or her for time lost.” N.Y. C.P.L.R. 8001. However, the voluntary payment provision must be tempered by the potential to bias the witness. While a fact witness may be compensated more than the statutory minimum, “the jury should assess whether the compensation was disproportionately more than what was reasonable for the loss of the witness's time from work or business.” Caldwell v. Cablevision Sys. Corp., 20 N.Y.3d 365.
Trouble for a consultant arises when a consultant is hired directly by a party to a lawsuit and not the party’s attorney. If the consultant is not designated as an expert witness, the consultant’s client does not have to pay the requested expert witness fee rate. Worse, since the consultant presumably has personal knowledge of the matter (after observing the tree in person, for example), the opposing counsel could potentially subpoena the consultant and require her to testify at trial or deposition for only the meager statutory witness fee as compensation.
This is a good reason for a consultant to require the attorney hire her rather than the party involved in the conflict. If the party to the suit pays the consultant, her involvement in procuring advice is discoverable (see Pre-Trial Disclosure below). But, if the attorney hires the consultant, the consultant’s involvement and reports are protected under work product privilege. Fed. R. Civ. P. 26. In this case, the consultant’s involvement and reports are only discoverable if the consultant is designated as an expert witness, for which the consultant would likely require compensation.
After a complaint is filed by a plaintiff and an answer is filed by a defendant, the next phase of the litigation timeline begins: discovery. Discovery is a pre-trial exchange of information between the two parties. Most information relating to a case is “discoverable,” meaning that a party can compel the opposition to provide a copy of it during this phase. Discoverable materials include, “all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses…” Fed. R. Civ. P. 26.
However there are some documents and communications that are protected by the work product privilege, giving a party’s attorney the option to withhold materials prepared in anticipation of litigation. Such materials may be disclosed voluntarily or withheld, so long as the consultant providing the information is not designated as a testifying expert witness. Some consultants are never designated as experts; rather, they provide their opinions to the attorney of record and their reports are never disclosed to the opposing party. Once an expert witness is designated, the expert’s materials and communications become discoverable, subject to some limitations.
In Federal Court, “communications between the party's attorney and any [expert] witness” are still privileged (even after designation), except for communication relating to compensation for the expert or the facts or assumptions relied upon in forming the expert’s opinion. Fed. R. Civ. P. 26. Federal Court also protects draft reports. A consultant can prepare and revise a report, but the final version of that report would be the only version the opposing party could review. Fed. R. Civ. P. 26 (b)(4)(b).
In contrast, some states require full disclosure of all communication between the designated expert and the attorney and all draft versions of reports. Florida allows discovery of all drafts and communications between attorney and expert. Peck v. Messina, 523 So. 2d 1154. See also Nat'l Steel Prod. Co. v. Superior Court, 164 Cal. App. 3d 476 (identifying an expert as a witness in CA waived the attorney-client privilege). Some cases can begin in state court and get removed to federal court; others can be remanded from federal court to state court, subjecting them to the new jurisdiction’s rules of civil procedure. It is good practice for a consultant to treat all communications and reports with the same sensitivity and caution as any other ordinarily discoverable materials.
The opposing party must be informed when an expert is designated. In federal court, designated expert witnesses must be declared at least 90 days prior to the trial date. In addition, all reports and materials upon which the expert will rely must be furnished to the opposing party. This is an important step because failure to identify witness as required in Rule 26 will result in exclusion of that witness’s testimony. Fed. R. Civ. P. 37 (c) (1).
Experts must be disclosed in advance of trial, but lay witnesses need not be disclosed in advance. (Kreiter 2016). This means that consultants can still be subpoenaed and dragged into court after the expert designation period has passed. However, if they are named as witnesses after the designation period, they will only be fact witnesses, limiting their testimony to personal knowledge of the matter.
Some expert witnesses are hybrid witnesses, having both personal knowledge pertaining to the matter at hand and also specialized technical knowledge that they use to formulate opinions. If a witness is intended to be a hybrid, she must be disclosed as an expert witness according to Rule 26(a)(2) or the witness’s expert testimony will be excluded. Musser et ux. v. Gentiva Health Services, f/k/a Olsten Health Services, No. 03-1312, 2004 WL 145335 (7th Cir. Jan. 28, 2004).
If a consultant is subpoenaed as a fact witness, only testimony that relates to the witness’s personal knowledge, direct perception, or opinion rationally based on that perception is admissible. That means that opinions regarding standard of care, hypotheticals, and scientific research are inadmissible. While it may seem that an unscrupulous attorney could obtain free (or very inexpensive) expert testimony by skipping designation and subsequently subpoenaing an expert, the testimony may not be worth much because the expert’s opinions based on technical knowledge are inadmissible.
If a consultant is served with a subpoena to appear as a fact witness, it is advisable to consult a legal advisor regarding the applicable jurisdiction’s procedural rules. Non-party witnesses are permitted to have their own counsel.
Fact witness testimony is limited to individuals’ direct knowledge or opinions which are rationally based on their perceptions. Expert testimony can be an opinion or information based on specialized knowledge, training, and experience. Expert testimony is entitled to special protections, but it is subject to rules of disclosure, timing, and compensation. These rules can vary by jurisdiction in critical ways. A prudent consultant should seek the advice of a qualified legal advisor.
ABA Comm. on Ethics & Prof'l Responsibility, Formal Op. 96-402 (1996)
Cal. Evid. Code § 801
Cal. Gov't Code § 68093
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592, 113 S. Ct. 2786, 2796, 125 L. Ed. 2d 469 (1993)
Easton, Stephen D. Ammunition for the Shoot-Out with the Hired Gun's Hired Gun: A Proposal for Full Expert Witness Disclosure, 32 Ariz. St. L.J. 465, 478 (2000).
Fed. R. Civ. P. 26
Fed. R. Civ. P. 37
Fed. R. Evid. 602
Fed. R. Evid. 701
Fed. R. Evid. 702
Fed. R. Evid. 703
Kreiter, Maria L. How to Distinguish Lay and Expert Witness Testimony. American Bar Association. 2016. Accessed January 2018.
Musser et ux. v. Gentiva Health Services, f/k/a Olsten Health Services, No. 03-1312, 2004 WL 145335 (7th Cir. Jan. 28, 2004).
Peck v. Messina, 523 So. 2d 1154
In February and March of 2020, samples taken for DNA Sequencing from a declining Sycamore maple (Acer pseudoplatanus) and red maple (Acer rubrum) in Seattle, Washington came back positive for Cryptostroma corticale, also known as Sooty-Bark Disease. This is the first time this disease has been found in red maple.
By Chris Rippey, Rippey Arboriculture, LLC
Sooty Bark Disease attacks and kills the cambium and bark of infected trees resulting in canopy decline and eventually death. This pathogen is from northeastern America where it does not cause disease. It was introduced to Europe where it has caused a disease in field maple (A. campestre), Norway maple (A. platanoides) and box elder (A. negundo).
Signs of this disease include twig or branch dieback, brownish necrosis with green margins in the cross section of infected trees and shedding of bark to reveal brown-black fungal masses. Like many fungal infections, the incidence of this disease is expected to increase with higher temperatures and drought conditions.
Most importantly, the fungal spores of C. corticle are hyper-allergenic and can cause what is known as hypersensitivity pneumonitis, a disease found among paper mill workers who dubbed it “Maple Bark Stripper’s Disease”. Recommendations have been made in Europe to protect both people and trees from infection, such as keeping the public away when working on infected trees, performing work in wet weather to minimize spore spread, not using the wood of infected trees for firewood, covering loads while in transit, and burning debris from infected trees.
Please consult with your company’s safety representative to develop work protocols related to this disease and to determine requirements for Personal Protection Equipment.
PNW-ISA welcomes Corey Basset as its new Public Outreach & Engagement Director for the Board of Directors. To better introduce Corey, we've asked her to answer the questions below. Please feel free to reach out to Corey and join us in welcoming her to PNW-ISA.
What do you do, and what drew you to arboriculture/urban forestry?
Currently, I am a PhD Student at the University of British Columbia, Faculty of Forestry, researching the impacts of urban forest management and working as a Teaching Assistant in the Bachelor of Urban Forestry program.
In high school and college, all I knew was I wanted a career somehow related to nature. I was interested in urban farming, conservation, even sustainable energy, mainly because those were the sectors I had heard of; arboriculture and urban forestry were completely invisible to me. I had visited the Morris Arboretum of the University of Pennsylvania as a freshman in college and in my last year, somehow found out they offered full-time, paid, internships. I applied, and was luckily accepted! This was a game changer for me. The Morris Arboretum was very supportive of interns and provided us with the chance to attend conferences and workshops, so I was fortunate to be exposed to the greater community of arborists and urban foresters early on.
The internship at the Morris Arboretum showed me that I loved the work, but the intentional connection they provided me with the industry’s professional community kept me on this path. It allowed me to envision the many future career paths available and to meet people who are now lifelong mentors. I easily could have ended up in a different field, but the right opportunities at the right time showed me that I could have an impactful career and work with passionate people in arboriculture and urban forestry.
Why did you decide to serve as a volunteer board member?
Before moving to Vancouver, BC, in August 2019, I lived in Hawaii and California and loved being involved with the Western Chapter ISA. When I moved here, I had heard so much about the great community of PNW-ISA that I knew I had to get involved. Many thanks to the Chapter members who have reached out to me too.
As a Board Member, I hope to help create paths for new people to find rewarding careers in arboriculture and urban forestry and to serve as a link between PNW-ISA and the research community. I’m excited to engage with the amazing work this Chapter is doing.
What do you like to do for fun?
I love taking walks and hikes with my dog and husband, biking around the city, and staying in touch with friends and family around the world.
Feel free to reach out to me through LinkedIn, Twitter, or by emailing me at firstname.lastname@example.org!
In Spring 2020, PNW-ISA will convert its board nominations process to online voting. Members will have an opportunity to nominate themselves for the open board positions below from now until Friday, July 10, 2020.|
To learn more about each open position, click on the position title below. We also encourage members to review PNW-ISA's Board Member Agreement which summarizes the responsibilities and commitment each board member must make.
Board Positions Up for Election in 2020:
- Last Day to Submit Nominations Interest Form: Friday, July 10, 2020
- Member Voting: Late August - Friday, September 18, 2020
- New Board of Directors announced during Annual Training Conference week of October 4-7, 2020
President-Elect (2-year term)
Secretary (2-year term)
Treasurer (2-year term)
With much of our work being restricted heavily due to COVID 19, we have had an unusual amount of time to refocus and allocate our efforts. I have been studying tree care standards and research to help develop new marketing material for areas of practice that I haven’t focused on in the past. For me, as I delve into this marketing project I keep coming across research that was supported by the TREE Fund. This is a great reminder to me of how integral the TREE Fund is in furthering the professional practice of arboriculture. Much of the published work funded by TREE Fund is available in the ISA’s Journal of Arboriculture and Urban Forestry.
TREE Fund Updates
By Evan Sussman, Board TREE Fund Liaison & Sonshine Tree Care, LLC
Here are a few updates for you:
- Database of Arboricultural Safety Standards: This is something I’m personally really excited about. Jamie Lim, Dr. Brian Kane, and Dr. David Bloniarz worked together to compile a database of arboricultural safety standards used by ISA components around the world. This was just published last month and can be viewed here. What excites me most is having a database that allows us to reference other safety standards to incorporate different perspectives into our work practices and discussions of safety and work practice development in our workplaces, and in our standard review committees.
- Tour des Trees 2020 is currently on track: Our region currently has three riders, Phil Graham, Karen Jenkins, and Christy Grimm. All three riders have ridden in the past and each has a great story as to how they got involved with the Tour. “The Tour has become an annual family reunion of sorts, reconnecting with my extended tree family. It is amazing to see so many cyclists coming together and supporting their other passion: trees and the research that supports their care." – Phil Graham, past PNW ISA President. Please consider joining Phil, Karen, and Christy on this ride or contribute to their fundraising goals. Approximately 65 of the 85 rider slots are filled, so get your position while you can! Stop by the Tour des Trees 2020 fundraising page to donate now, and visit treefund.org/tourdestrees for more details on Tour des Trees and how to get involved.
- TREE Fund has increased webinar quantity in response to COVID 19: Indirect response to our newly available time,TREE Fund responded by adding additional webinars to give arborists opportunities to continue their education from home at no cost. I highly suggest tuning in for some of them if you can make it. You can read more about and register for webinars here. In case you can’t make a live webinar, you can view archived webinars at treefund.org/webinar-archive.
As always, thank you for your interest and support of the TREE Fund. Please feel free to reach out to me at email@example.com if you have questions about the TREE Fund, including what research and education is currently happening, how to apply for research grants or education scholarships, or really anything TREE Fund related.
There is no doubt that we are all facing the most challenging times that we have ever experienced. Along with the likes of the Great Depression (4 years), WW1 (4 years), the Spanish Flu – 1918 (2 years), WW2 (6 years) our current crisis threatens our well being on many levels. We are just four months into this and there’s strong evidence that our daily sacrifices are saving lives as we forge onward into this new "normal".
TREE Fund Updates
By Guest Author
The Canadian TREE Fund Board of Directors hope that everyone is keeping up with their physical and mental health. Both the isolation and the dark unknowns can take a toll on us and our family, as well as in our workplaces. We are getting bombarded daily with new information and theories about the virus; however, we must comply and act upon the medical advice that we know to be factual from the accredited medical experts. Knowing the ebb and flow of the tree research world, we cannot fathom the amount of collective brain power working on vaccines and related therapeutics that are all generated from intensive research and trials ongoing in every corner of the world. Perhaps some of the prophylactics may even be derived from the plant world.
Fund raising for the CTF will be challenging this year to say the least. Each year we count on you to rally behind our mission of providing funding for innovative basic / applied research and related educational initiatives. It is the constant search for new techniques, best practices and unlocking knowledge that keeps our industry moving forward. Plans are still moving ahead for the Tour des Trees in Colorado in late August. PLEASE SUPPORT OUR RIDERS BY MAKING A DONATION TO THEIR ACCOUNT.
So here we are, spring 2020, facing unprecedented adversity at home, and at work and also with our various passions and commitments. Our “normal” world has been turned upside down and inside out. This is when we have to learn to harvest the value in adversity. There will be value in this colossal episode that perhaps may not reveal itself to us now or even next week, but we will push back on this adversity and strategically work towards our goals all the while keeping our selves a pole pruner away from potential COVIDS contacts. The value in adversity is that is presents an opportunity to sort the good from the bad and recalibrate our professional and personal values to a system that works best for our own personal and professional circumstances.
We at the Canadian TREE Fund know it will be a challenging year for us as well. We too will be looking inward and recalibrating our goals.
Lastly we would like to recognize both the brave Health Care workers as well as the dedicated frontline works that have made the world go round in the past few months. This crisis has propagated a new type of hero and they walk amongst us every day.
I hope our next missive won't be as somber. Be diligent and keep healthy.
Warmest wishes to all – Board of Trustees
PNW-ISA is assisting members who have recently lost positions due to COVID-19. If you are seeking employment opportunities, email your resume to firstname.lastname@example.org. PNW-ISA will post your resume on its website, free of charge, and inform members throughout the region so that individuals can contact you directly should they know of an opening or have an opening available at their company/organization. Should you have any questions, please contact Sharon Korte, Member Services Coordinator at (503) 874-8263 or (800) 335-4391.
By Guest Author
Each year, PNW-ISA recognizes the skill and dedication of our members through the Chapter Awards program and the Chapter Tree Climbing Championship. This year’s award winners will be recognized during the virtual ATC conference in October 2020.|
The Chapter’s Annual Awards Ceremony is cause for celebration for the award winners, the audience, and the entire Chapter membership. To encourage more participation and bring a new level of prestige to the award winners, awards are restricted to three categories: Arborist of the Year, Tree Worker of the Year, and Volunteer of the Year.
Anyone can nominate a prospective award winner. We encourage you to submit the name of an outstanding event volunteer, industry researcher of note, or your favorite arborist. Multiple submissions are accepted. To nominate an individual, please click on this link. Next, indicate which award you are nominating them for and include as much information as possible about your nominee.
Jim Wentworth-Plato is the faculty lead instructor for the Arboriculture Program at Clackamas Community College in Oregon City. It’s a two year associate's degree program that provides opportunities for new and practicing arborists to hone their skills and advance their knowledge in controlled settings.
By Guest Author
How did you get started in this industry?
I was an ADHD kid before Xbox and spent days in the ‘pits’, hundreds of acres along the Connecticut river full of frog ponds, trails, and a patchwork forest of birch, maple, oak, and pines.
After graduating from the University of Vermont with a Forestry Management BS, I worked seasonally until a job on the Sandy River changed my life. I met my wife and the Pacific Northwest old growth forests. Growing up, I never thought I’d live anywhere but New England with its rock walls and fall color, but the PNW blew me away with trees 3-4 times bigger than the ones I knew, a relative lack of biting insects, and mild weather.
A few years on the Olympic peninsula passed; burning slash piles, studying tree growth, feeding bears, running chainsaws, and being thankful that my nostrils point down. We had over 100 inches of rain one year.
I feel lucky that my first job as an arborist was with Stephen Peacock, who cared about the trees even more than the clients, and was adamant that we follow proper pruning guidelines.
If you were not waking up caring for trees, what would you be doing?
Y’know I speak the truth when I say tree work ain’t easy. Long hours and high risk for less money than our skill set deserves leave you physically and sometimes emotionally drained. But even on the cold, dark, wet February mornings as I drank my coffee and pondered my decisions, there’s nothing I wanted more than to work in trees. In fact, there’s nothing else I could see myself doing and being happy, period. Age brings some relief from the adrenaline cravings, and again, I feel lucky. I’ve found my next calling. I spent the first 20 years of my life learning, the second 20+ doing, and now I get to wrap my experiences into a program where I can teach new arborists the ropes.
What type of work or projects are you currently engaged in?
Scaffolding, progression, and exposure. Exposure to different techniques, tools, and resources for different scenarios. Progression is the journey from your baseline to an advanced skill set that allows you to integrate the how and why of biological systems and treatments with your work. And scaffolding is the way we support students learning complex ideas and systems by focusing on one aspect of the task at a time. Students can learn concepts without the added pressures of the time clock, watchful clients, or the increased risk of using unfamiliar equipment.
What changes do you see coming in our industry?
In my career, the three big changes I’ve seen involve people, equipment, and knowledge. There seems to be fewer people in our hiring pool with the endurance and desire to work outdoors, perhaps because they grew up indoors on computers? Equipment keeps getting more specialized. Safer, but more expensive and complex, compounding user error. My $20 rope end climbing hitch has morphed to an array of clever mechanical devices running $300 and up. The third major change I’ve witnessed is the explosion of knowledge. I still have my PP Pirone book on the shelf, but next to it are 6 newer books on tree maintenance, and a whole shelf of BMP’s, SOP’s, and ANSI, OSHA, and ODA guidelines. The sheer volume of things you CAN learn in arboriculture, combined with availability has changed the role of instructor to that of a guide.
Anything else you’d like to share with the membership?
I’m honored to be the lead faculty of a program that so many of us contributed time, money, and effort to create. The need for trees and arborists is only increasing as cities continue reducing canopy cover, invasive populations balloon and spread, and the environment changes faster than trees can react. What I need now are more students in class, to help feed the need. If you know folks who are as interested in doing as they are in learning, send them my way. About half my students are in the 2-year program, and half are taking classes to learn more about specific subjects. Most classes are only one day a week so there’s room in your schedule for a little learning too! Feel free to contact me at (503) 594-6493 or email email@example.com to learn more. Or check out the degree program at https://www.clackamas.edu/academics/departments-programs/landscape-management-aas-arboriculture-option
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