BY Donna Lacey
Brace yourself, this is not going to be a happy good news column.
It is time to talk about yet another scary creature on our doorstep ready to attack our fruit and forest trees. We need to watch for this one as it is looking at our grape vines, apples, pears, cherries, peaches, nectarines, apricots, tree-of-heaven, willows, black walnuts, birch, sumac, maples, oaks, and hops. With that list, we can be grateful that at least our conifers are safe with this pest, maybe. I should note that this pest has been observed feeding on conifers, but not to a great extent. Even if not found feeding on conifers, they can be found hitching a ride from one forest or nursery to another. Who is this horrible predator? The Spotted Lanternfly is this killer beast.
This nasty bug is native to Asia, where it has some naturally occurring pests to help keep it under control. The Canadian Food Inspection Agency started its awareness campaign on this pest around 2018. I remember receiving a new stack of wallet cards with pictures of this rather attractive bug on them. The list of host species seemed to be completely unbelievable. However, the Spotted Lanternfly had already been found to be established in Pennsylvania in 2014. More recently, there have been other finds in Pontiac, Michigan, and Buffalo, New York. Now I don’t know a lot about the United States, but I do know that those are three of our neighbouring states.
Spotted Lanternfly is commonly distributed by having egg masses that hitch a ride on vehicles, campers, firewood, tires, timber, rocks, and nursery stock. The insect is not a great flyer and will only travel short distances. The egg masses are very difficult to spot as they start out with a grey waxy coating which disappears over time revealing tiny brown eggs. The egg masses are only about an inch long (2.5 cm). With this small size and camouflaged colouring they tend to blend right into the item they are attached to. If you can or do find an egg mass or more, please take a picture for a positive identification then, scrape those egg masses off immediately, smush and crush them and put them in soapy water, hand sanitizer, or rubbing alcohol.
Eggs are laid in the fall and hatch in the spring. In the spring, the newly hatched nymphs are mainly black with white spots. As they mature in early summer, the nymphs grow to be about a half inch long and change from black with white spots to red with white spots. In late summer, the nymphs finish their maturity to their adult form. I choose to describe the appearance of the nymphs to be that of most weevils or plant sucking insects. The adult, however, has what I describe as the appearance of a moth.
The adults are quite beautiful. When wings are folded back, they are held more upright like that of a katydid, damselfly, or more loosely, a butterfly. They have long black legs, similar to that of a butterfly. Their wings are white to pale pink with black spots on them, this colouring fades out towards the end of the wings where they are mainly grayish. When the adult opens its forewings, it reveals a beautiful black tipped wing with a white bar and then an amazing band of red with black dots as it reaches the body.
While these adults are pretty to look at, when they infest an area they are so plentiful that people can see the problem and happily take part in stomping them. The critters are quick to try to jump or fly to safety. As the planthoppers can fly or jump quickly forward, they are not great at backing up. It is therefore best to approach them from the front to successfully eliminate them.
As these pests feed on our plants they, like many other pests, exude a honeydew. This sugary liquid is quick to attract fungus which stops the normal function of the host.
These beautiful bugs are all over the internet. Both search engines and social media have countless documents and videos available. This is the first pest that I have seen that has a large following of people posting about its presence, identification, and the act of squishing.
Information from this column has been taken from past webinars and information sessions as well as the websites of: Canadian Food Inspection Agency (CFIA), United States Department of Agriculture, Invasive Species Centre, and Pennsylvania Department of Agriculture. I encourage you to do a search of on-line documents if possible, or, if you are not on the internet, to please call your local Conservation Authority or CFIA office for further information. We need to watch for this pest as it may be devastating to our fruits, vegetables, and forests. ◊
According to Ontario’s Weed Control Act, “every person in possession of land shall destroy all noxious weeds on it.”
The owner of land is deemed by the Act to be in possession of the land. Provincial and municipal road authorities are deemed to be in possession of road allowances. Noxious weeds are those that are prescribed in the Regulation made under the Act (including giant hogweed, poison-ivy, leafy spurge, sow-thistle, ragweed, etc.) and other plants that may be deemed to be a noxious weed (called a “local weed”) in a by-law passed by a municipality. Weed inspectors enforce the Act. Only municipalities that have appointed a weed inspector may pass a by-law deeming other plants to be noxious weeds.
Weed inspectors are empowered to enter any land and buildings (dwelling houses excepted) between sunrise and sunset for the purpose of searching for noxious weeds and weed seeds and may also inspect implements, machinery, vehicles, crops and other plants. Where access to a property is denied, the weed inspector can obtain a search warrant without prior notice to the owner or occupier of the property.
The inspector may order a person in possession of land to destroy noxious weeds or weed seeds. If the person in possession does not comply with the order, the weed inspector may “cause the noxious weeds or weed seeds to be destroyed in the prescribed manner”, with the cost of the work charged back to the owner of the lands by the municipality. The prescribed manner of destroying noxious weeds includes pulling or removing the plants from the soil, cutting the roots or stalks of the plants, ploughing or cultivating the soil, or treating the plants with a herbicide.
In August of this year, Justice Sheard of the Ontario Superior Court of Justice released her decision in a lawsuit brought by landowners against their local municipality after the Municipality cut down an apple and pear orchard on the landowners’ property. The orchard was cut down in 2014 and the landowners were billed $12,800 for the work. Their court action commenced in 2015 and a trial took place before Justice Sheard over several days in 2022 and 2023. The lawsuit included claims for: $1,500,000 in general damages for negligence, misfeasance in public office, negligent assumption of jurisdiction, trespass, and nuisance; $1,000,000 in punitive and exemplary damages; a declaration that the Municipality’s weed by-law was void for bad faith, vagueness, overreach, etc.; a declaration that the landowners’ natural justice rights were violated; and an order for reimbursement of the $12,800 cost of the tree removal work.
The landowners had purchased their property in May, 2011. The property was 20 acres in size and included two abandoned orchards of about 2.5 acres each (only one of which was at issue in the litigation). Very shortly before the landowners’ purchase, a new neighbour purchased an adjacent farm property where he planted apple trees with a view to developing an orchard. That neighbour had concerns that the landowners’ abandoned orchard was full of disease and insect pests that would threaten the existence of his young apple trees. The neighbour raised this concern with the Municipality and had learned through OMAFRA that other municipalities had passed by-laws designating abandoned orchards as noxious weeds. He requested that his own municipality do the same.
In 2013, the Municipality’s Council passed a by-law designating diseased fruit trees as “local weeds” to be treated as noxious weeds pursuant to the Weed Control Act. A “diseased fruit tree” was defined in the by-law as “a fruit tree as herein defined, whether dead or alive, which fruit tree as part of a planting of greater than 0.25 ha (0.618 ac) and which planting is within the 375 m (1,230.31 ft) of a fruit growing operation or plant nursery operation, and which planting has been neglected from normal standards of good farming practices, such that it exhibits fruit tree disease or populations of insects which represent a reasonable threat by movement to such commercial fruit growing operation.” A “fruit tree” included both apple trees and pear trees.
In April, 2014, the Municipality determined that the landowners’ one abandoned orchard contained diseased fruit trees and issued an order to the landowners to “bring down and burn” the apple trees within 30 days of service of the order. Nearly four months later, the trees had not been destroyed. In August, 2014, the Municipality moved in and had the diseased trees cut down.
Justice Sheard dismissed the landowners’ court action in its entirety. She found that the weed control by-law passed by the Municipality was not void – it was clearly within the scope of the Municipality’s statutory authority given to it under the Act. The Municipality followed the proper procedure in passing the by-law and the bylaw was submitted to and approved by the Minister of Agriculture, Food and Rural Affairs as required by the Act. Justice Sheard disagreed with the landowners that the by-law targeted them in particular, commenting:
Had the plaintiffs acted in accordance with “normal standards of good farming practices” in the management of the Orchard, the Bylaw would have been of no concern to them. Indeed, had the plaintiffs acted on their stated objective to develop a commercial apple growing operation, they might well have been advocates for the Bylaw, intended to protect all fruit growing or plant nursery operations.
Having found that the by-law itself was valid, Justice Sheard concluded that the landowners’ court action must fail because their recourse was not to the Court but to the chief weed inspector appointed pursuant to the Weed Control Act. Where a municipal weed inspector makes an order against a person in possession of land, that person may appeal the order to the chief inspector who may either confirm or revoke the order or make a new order. The chief inspector’s order may be appealed to the Divisional Court. In this case, the landowners did not appeal the order and were bound by it. As the order was found to be valid, there was no basis on which the landowners could sue the Municipality for damages allegedly resulting from the operation of the order.◊
John D. Goudy’s law practice includes real property and environmental litigation, expropria-tion law, energy regulation, and regulatory offences. Agrilaw provides information of interest to the farming community, not legal advice. Readers should consult a legal professional about their particular circumstance.