By Myron Levin, Lilly Fowler and Stuart Silverstein
FairWarning.org

Tallahassee Democrat

Robert Barnhart, right, and his wife, Kimberly. Barnhart claims he was fired by Lamar Advertising in August 2011 when he refused to continue poisoning trees that blocked the view of Lamar billboards. He has been granted immunity in a criminal investigation, and has sued over loss of his job.

Robert J. Barnhart was a crew chief for a billboard company, and a soldier in a war on trees.

Trees were the enemy if they spoiled the view of a billboard. On days of an attack, Barnhart, 27, would arrive by dawn at Lamar Advertising Co. in Tallahassee, Fla. After removing the magnetic Lamar logo from a company truck, he would set forth with a machete, a hospital mask and a container of what he described as a "pretty gnarly" herbicide.

It was all about being fast: Hack into the roots or base of the tree, douse the wound with herbicide, and get out of there. The Lamar executive who gave the orders, said Barnhart, called it "a hit and run."

Barnhart’s account, detailed in court papers and in statements to investigators, is the focus of a criminal investigation. It also is the basis for a whistleblower suit in which Barnhart, who through his lawyer declined to be interviewed, maintains that he was fired because he would not keep poisoning trees. His claims are supported by sworn testimony from Barnhart’s former supervisor, Chris Oaks, who admitted that he, too, had illegally poisoned trees before Barnhart took over in 2009 as poisoner-in-chief.

As long as there have been billboards, trees have been getting in the way. And billboard companies have been removing them — sometimes legally, sometimes not. News archives are replete with accounts of mysterious tree disappearances near billboard sites. Usually, no one gets caught, due to lack of evidence or to officials failing to aggressively pursue those responsible.

North Carolina Department of Transportation

Poisoned trees near a billboard for a topless dance joint in North Carolina in 2006.

Fewer trees means more viewing time for motorists, and more money for billboard operators. A 500- foot clearance in front of a sign creates more than five seconds of viewing time for a motorist going 60 mph.

It’s uncertain if the Tallahassee tree-poisonings were isolated, or reflect a pattern at Lamar. The Baton Rouge, La., company has nearly 150,000 billboards, more than any other U.S. outdoor advertising firm.

Barnhart and Oaks said they acted under orders from Lamar’s former regional manager, Myron A. "Chip" LaBorde, who ran company operations in Florida and Georgia and was past president of the Florida Outdoor Advertising Association LaBorde died of pancreatic cancer last summer.

Hal Kilshaw, a Lamar vice president and chief spokesman, declined to discuss the criminal investigation, but said "cutting of trees or poisoning of trees without the required permits would be contrary to company policy."

Charges in the tree-poisoning case could be filed soon. Meanwhile, another tree-killing binge in the Florida panhandle has also drawn attention. In that episode, billboard operator Bill Salter Outdoor Advertising cleared more than 2,000 trees from public rights of way to enhance views of its signs.

Florida transportation officials acted "in flagrant violation of the law" in issuing permits for the cutting, a grand jury found in January, because, among other things, they did not require Salter to compensate the state for the loss of the trees, valued at $1 million to $4 million. The permits were issued to Salter after a state legislator, Greg Evers, intervened by making calls to the state Department of Transportation. The agency is currently negotiating with Salter for repayment.

Tree pruning also happens routinely, and legally, by arrangement between billboard operators and private landowners. The industry has lobbied for state laws to allow tree-cutting along public highways under certain conditions. According to the Outdoor Advertising Assn. of America, the industry trade group, 29 states, including Florida, have "reasonable" regulations on clearing vegetation that blocks views of signs. The group says on its website: "The OAAA discourages vegetation control that is not in compliance with state and local laws and regulations."

However, environmental groups have criticized these laws, asking why publicly owned trees that provide beauty and shade should be removed to accommodate advertising signs. Though billboard companies pay for the cutting, critics say permit fees and compensation for destroyed trees do not meet the real cost to taxpayers. Moreover, they note, in states that permit vegetation removal, illegal cutting still takes place.

Lamar’s Kilshaw said his company’s record is good. "We have over 150 offices, we have thousands of employees, we’ve been in business over 100 years," he said. The record shows Lamar is "doing the right thing almost all the time, almost everywhere."

'An honest, legitimate mistake'
In 2008, Lamar was sued by the state of Connecticut after the company and a tree service trespassed on state land and removed 83 trees along Interstate 84, including oak, spruce, maple and birch trees up to 37 inches in diameter. They "swept a swath of destruction," said then-Attorney General Richard Blumenthal, "obliterating a vital environmental buffer protecting homeowners from noxious noise and views."

The problem was that Lamar had a permit to trim — not cut down — trees. It also felled trees outside the permitted area.

Florida Office of Agricultural Law Enforcement

An oak tree in Florida allegedly poisoned by Robert Barnhart. The tree "had signs of dying and chop marks near the base," said the report by Florida investigators.

It was "an honest, legitimate mistake," Kilshaw said, adding that a state transportation official had observed the work without raising objections. But a judge found Lamar liable in October, 2010. In lieu of paying damages, Lamar agreed to fund a replanting program for an estimated $181,000.

In 2009, Lamar was forced to pay about $182,000 to an irate Ohio couple for illegally felling 34 trees on their property to improve views of a sign.

The dispute began in the late 1990s when, according to John Blust, he and his wife rebuffed Lamar’s offer to plant a sign on land they owned in the Dayton suburb of Beavercreek.

A neighbor proved more obliging, and the billboard went up there. But it turned out that the Blusts’ trees were in the way. They lived a few miles from the property, and did not learn of the destruction of their woodland until alerted by a cousin.

Blust told FairWarning that he sought compensation, and "If they had sent me $3,000, it would have been all over." But a Lamar executive "laughed at me over the phone from Baton Rouge, Louisiana," said Blust, who then decided to sue.

A jury awarded the Blusts more than $2.2 million in punitive damages. Appeals dragged the marathon case into 2009, when an appeals court ruling led to Lamar paying damages and attorney fees.

"In that case, our contractor made a mistake," Kilshaw said, "and simply went across a property line, and we ultimately paid on that."

For his part, Blust, 76, said he was "satisfied that I caused them pain. Did we make a lasting impression on the management of Lamar? If they’re still cutting down trees, I guess we didn’t."

What is unusual about these episodes is that someone got caught. More often, over the years, the culprits remained unknown or were not aggressively pursued by authorities.

For example, a 1985 report by the General Accounting Office cited dozens of incidents in Georgia of illegal tree cutters acting with impunity, including a case in which about 500 trees were poisoned near three signs along interstate highways.

In Louisiana, said the GAO, "over 2,000 feet of vegetation and trees were cut and cleared to enhance the visibility of two signs. We counted over 900 stumps from destroyed trees at this site."

In a 1996 deposition, a former billboard company tree trimmer testified that he had cut down and poisoned trees in the Los Angeles area for many years, usually without the owners’ consent. The former employee, Fred Jackson, worked until the late 1980s for two large billboard companies, Foster & Kleiser and Patrick Media, that eventually merged and were absorbed by Clear Channel Outdoor.

Jackson said he occasionally was confronted about what he was doing, and would make up a lie. It might be "‘I’m working for the Edison Company,’" Jackson testified. "That was a great one."

More recently, illegal tree clearing near billboards and "supergraphics’’ — giant ads draped on buildings — has been a problem in Southern California, said Dan Freeman, an official with the state Department of Transportation, or Caltrans.

"The billboard industry — well, my impression of them is they’re kind of lawless," said Freeman, Caltrans’ deputy director of maintenance for Los Angeles and Ventura counties. "They pretty much do whatever they want."

"We’ve been victim a number of times to people who come in the middle of the night, with a chainsaw, and just kind of clear cut the area immediately in front of one of these supergraphics or a large billboard," Freeman told FairWarning.

"And, of course, we call them," Freeman said, referring to the sign company, "and they say, ‘We have no idea who could have done it. My, what a terrible thing.’ They don’t own up to it. We have had a very, very difficult time in getting traction on prosecuting them."

The right to be seen
Billboard companies have sometimes claimed an inherent right to have unimpaired views of their signs. If revenues go down because of public trees, they have argued, public agencies should pay damages. This has been a hard sell.

For example, a Tennessee appeals court rejected an industry lawsuit against the state department of transportation over its failure to maintain unrestricted views of roadside signs.

"It is true that wild vegetation, as well as that planted by the State, has and will have a normal tendency to grow taller," said the 1979 ruling. "Plaintiffs seem to insist that the licensing of a billboard confers some special right of visibility or imposes some special duty upon the State to maintain visibility of the licensed billboard. No authority has been cited or found to sustain this novel theory."

In 2006, the California Supreme Court rejected claims of billboard operator Regency Outdoor, which had sued the city of Los Angeles, claiming it lowered the value of its signs by planting palm trees for a beautification project.

"The right to be seen from a public way…simply does not exist," the Supreme Court ruled. "Regency cannot claim unfair surprise from the plantings. Local governments have long planted trees along roads for aesthetic reasons, to lessen the burdens of climate, and for other salubrious purposes."

So the industry has turned to state legislatures to establish the right to be seen. Under laws or regulations of most states, billboard operators can legally cut back trees and other vegetation along state and federal highways. Typically, they must pay for a permit, file a work plan, and either replant or pay for lost trees.

The Outdoor Advertising Assn. of America failed to respond to interview requests, but in an email described vegetation control as "a common, longstanding practice along roadways for the sake of safety and visibility."

Once state rules are in place, billboard companies often lobby state legislatures to relax restrictions and expand the freedom to cut. In the past year, for example, the industry pushed through such changes in Georgia, North Carolina and Wisconsin.

In Georgia billboard companies won more freedom to clear trees, though the new law is tied up in a court challenge. The industry’s legislative success followed years of cultivating lawmakers. From 2001 through 2010, billboard owners and the Outdoor Advertising Association of Georgia contributed at least $467,522 to candidates for state office, according to a report by the advocacy group Scenic Georgia.

The Outdoor Advertising Association also did some wining and dining, last year hosting 34 Georgia legislators and two board members of the state Department of Transportation at a golf outing at the Reynolds Plantation resort, according to The Atlanta Journal-Constitution.

A Georgia Department of Transportation spokeswoman said that in the past five years, the agency has completed investigations into 20 complaints of illegal tree cutting, and collected about $203,000 in compensation.

In North Carolina, the industry-backed law passed last July expanded the cutting area to up to 380 feet on each side of billboards — up from 250 feet before. This translates into extra viewing time of 1.5 seconds for motorists approaching billboards at 60 mph. State transportation officials estimated that up to 200,000 trees could be removed in the next five years as a result.

From 2005 through June, 2011, billboard interests donated at least $206,000 to state legislative and gubernatorial candidates in North Carolina, according to a report by the nonprofit group Democracy North Carolina, and research by FairWarning.

"They’ve got a lot of money, and it’s amazing how cheaply legislators can be bought," said North Carolina resident Charles Floyd, a retired University of Georgia business professor who has written extensively about the billboard industry and is critical of the new law.

Even in states such as North Carolina that provide a legal means to enhance billboard views, incidents of illegal cutting and poisoning still occur. In some respects, loosening restrictions is the path of least resistance, reducing the number of violations and need for enforcement.

"If you legalize vandalism,’’ Floyd complained, "that helps out a lot.’’

Since July, 2006, the North Carolina Department of Transportation recorded 88 incidents of illegal tree removal near billboards, according to agency data reviewed by FairWarning.

The cost to the state was $923,000 under a formula based on the size of lost trees. Of that amount, records show, the state was able to collect only about $39,000. Without admitting liability, Lamar paid $18,487.50 to settle one of the cases.

Criminal probe in Florida
Soon after Barnhart filed his whistleblower suit, he led state agriculture officials to an oak tree he claimed he had poisoned next to a CVS pharmacy in Tallahassee. When the lab results came back in October, they revealed a herbicide, Triclopyr, in soil and vegetation samples.

Florida Department of Transportation

The stump of one of more than 2,000 trees allegedly cut by a billboard company in northern Florida. According to a grand jury report, state officials issued permits to cut the trees "'in flagrant violation of the law."

He told officials it was one of seven to 10 trees he had illegally poisoned since 2009. Sometimes, he said, he used a machete before pouring in the poison, other times drilled holes in a tree, and on still other occasions he simply cut them.

Barnhart has been granted immunity by the state attorney in Tallahassee. Asked to comment on the criminal probe, State Attorney William Meggs said his office is continuing to gather information.

In a deposition taken in the whistleblower case, Chris Oaks, Barnhart’s supervisor, confirmed Barnhart’s account. Oaks admitted to poisoning trees himself under orders from his boss, LaBorde.

Oaks, 35, claimed he initially balked, saying he thought Lamar must first get permits.

"And he told me, he said to just jump over the fence and do what needs to be done and kick a little dirt over it," Oaks testified, referring to LaBorde, "and if you don’t know how to do that, I’ll take out my gun and I’ll shoot you in the head."

Oaks said he figured LaBorde was joking. But "I felt then that I needed to do what the man was telling me for fear — not for death, I didn’t really think he would kill me, but I did feel like it was threatening to my job," Oaks said.

"I just want to get it clear that none of this was me," Oaks said. "I did not want to do any of this."

Barnhart said fear of getting caught on a surveillance camera and, according to his lawyer, pressure from his wife led him to come forward. Barnhart said that after suffering a back injury and going on light duty, he told managers that he would no longer poison trees when he came back. In August, he says, he was fired.

Lamar contends it never fired Barnhart. The company’s response is less clear cut on the other alleged violations, such as criminal mischief and illegal handling of poisons.

"Any act or omission by Lamar was done in good faith," the company said in court papers. "To the extent that the actions of any Lamar employee were, in fact, in violation…, those actions directly violated Lamar’s corporate policies and procedures and were, thus, beyond the course and scope of their employment."

FairWarning is a nonprofit, online investigative news organization focused on public health and safety issues.

Support for this story came from the Fund for Investigative Journalism.

A study of electronic billboards and traffic safety commissionedtThe Federal Highway Administration was supposed to have been completed in 2009, but it remains cloaked in mystery.

Billboard companies are moving aggressively to plant digital signs along U.S. highways and city streets. But debate persists on whether the eye-grabbing displays, which typically change messages every 6 to 8 seconds, pose a risk to traffic safety.

Combatants in the billboard wars -- including local and state officials under industry pressure to permit more of the lucrative signs -- are eager for a study by the Federal Highway Administration (FHWA). They have hoped that the much-anticipated study, launched in 2007, would help clarify some key safety questions.

Yet the politically sensitive research, which was supposed to have been wrapped up in 2009, remains cloaked in mystery. All the FHWA has said, time after time, is that the study is under review.

It turns out that officials may be afraid to make an embarrassing admission.

According to records obtained by FairWarning under the Freedom of Information Act, expert reviewers have told the FHWA that the study appears to have been botched. The key findings vary so wildly from previous research that, as one reviewer put it, they “are not plausible.”

The agency has refused to answer questions. “We have no one available to be interviewed,” said spokesman Doug Hecox, adding that “internal discussions about the draft of the study are ongoing.” He would not say if FHWA plans to toss the research or try to salvage it.

The hundreds of pages of agency emails and other records reviewed by FairWarning, however, speak loudly about the political and financial stakes, as well as industry efforts to influence public opinion.

The unreleased draft, which drew withering critiques from two experts, gave the billboard industry what it wanted, the documents show. Those results indicated that drivers’ glances at billboards were exceedingly brief, suggesting that the displays aren’t a threat to traffic safety. 

Yet the billboard industry, led by the Outdoor Advertising Association of America, was deeply worried. The trade group campaigned to remove a study consultant that the industry accused of having an anti-billboard bias and brought out its own studies to frame public debate while the FHWA was still studying the issue.

Digital signs proliferate
Today, of more than 400,000 billboards in the U.S., estimates of digital displays range from slightly more than 2,000 to as many as 3,200. The industry has been adding hundreds of the more-profitable signs each year.

The FHWA study followed a controversial memo by the agency in September 2007 that appeared to green light the digital expansion. The memo stated that electronic displays were not prohibited under longstanding federal-state agreements that ban “intermittent’’ or ‘’flashing’’ signs. 

Anti-billboard groups, including Scenic America, denounced the memo as farcical, saying billboards that alternate content every few seconds are the exact definition of “intermittent’’ signs. Responding to attacks, the FHWA said that it was only clarifying existing policy. 

Stung by backlash from the memo, the FHWA launched its study. It relied on sophisticated instruments to monitor how long drivers on fixed routes in Reading, Pa., and Richmond, Va., glanced at digital billboards.

“Lots of interest from all sides,” said an email from senior agency official, referring to the research. “There is huge money involved here, so the interests are getting pretty strident.” 

A consulting firm, Science Applications International Corp., was hired to run the study. It brought on Jerry Wachtel, a Berkeley-based traffic safety expert, as an adviser. Science Applications declined comment.  

The industry at the time was smarting from a report by Wachtel for Maryland transportation officials. They had asked him to review two industry-sponsored studies that the industry said confirmed the safety of digital billboards. Wachtel’s report said both studies were biased and misleading. 

Scenic America

A Clear Channel digital billboard advertises itself through electrical wires in Sarasota, Fla.

In a seemingly orchestrated campaign, several industry groups and members of Congress fired off letters attacking Wachtel and seeking his removal from the FHWA study. In its letter to Transportation Secretary Ray LaHood, the outdoor advertising association blasted what it called Wachtel’s “high-profile activism.” 

Five House members from Pennsylvania — Democrats Jason Altmire, Christopher Carney and Tim Holden, and Republicans Charles W. Dent and Todd Russell Platts — signed a letter to FHWA Administrator Victor Mendez complaining of biased remarks by Wachtel at a hearing on billboards in their state. His involvement, they wrote, “may undermine the credibility of ongoing federal research.”

Billboard industry's political donations
All five lawmakers have received campaign support from billboard executives or political action committees since 2006, according to research by the Washington-based Center for Responsive Politics. The donations totaled at least $26,484. 

Altmire spokesman Richard Carbo said in an email that the congressmen “were concerned that the reports from the Federal Highway Administration were not unbiased.  That was the only purpose of the letter.”

In fact, Wachtel’s role was limited and his involvement basically had ended by the time of the protests.  However, FHWA officials wanted to avoid any appearance of caving in. “I think we have to be very careful in dealing with this issue,” one official said in an email.  “We do not want industry dictating whom we may or may not employ on our projects.” 

Responding to the outdoor advertising association, FHWA Associate Administrator Gloria Shepherd wrote: “We are well aware of the sensitive nature of this research. … I can assure you that we will be monitoring’’ the work “to be sure it is accomplished in an objective manner.” 

Wachtel, who has worked for billboard companies in the past, told FairWarning that “in their eyes, I have been both the world’s smartest guy and the world’s worst individual. I’m the smartest guy when I tell them what they want to hear.” 

In response to questions from FairWarning, the association said in an email that “OAAA and the outdoor industry support fair research. In fact, we’ve researched traffic safety for years. …The results have not indicated a correlation between digital billboards and traffic accidents.” 

Records show that FHWA officials rebuffed a Freedom of Information request from an industry lawyer to disclose the research locations, saying they would be kept secret “until the tests are completed to protect the integrity of the results.” 

But the industry found out, anyway. It launched its own studies in Reading and Richmond and blared the results. “Digital Billboards Not Linked to Accidents,” a press release said. 

Records show the FHWA study was submitted in September 2010, and circulated for internal review in the fall. “The final report is scheduled to be released to the public in December 2010,” an agency memo said. 

However, the review continued into 2011, when the two outside experts criticized it. Identified only as “REVIEWER 1” and “REVIEWER 2,” they concluded that the data appeared to be wrong. 

Distracted driving research has sought to find the amount of time when drivers looking away from the road raises the risk of a crash. In the scientific literature, glance times associated with a higher crash risk have been variously estimated at 2 seconds, 1.6 seconds or three-quarters of a second. 

Almost impossible
In the FHWA study, recorded glances were so brief that none came close to 2 seconds or even 1.6 seconds. Only about 1 percent were above three-quarters of a second.

In fact, the average was slightly below one-tenth of a second -- a number both expert reviewers considered almost impossible.

“The reported glances to billboards here are on the order of 10-times shorter than values reported elsewhere,” one reviewer wrote. “The pattern of results certainly raises questions over the quality and legitimacy of the underlying data.’’

The other said, “The data reported as average glance durations are not plausible.”

Two other experts contacted by FairWarning confirmed that the data was highly suspect.

Alison Smiley, president of Human Factors North, Inc., in Toronto, said the glance times were “extremely short’’ and substantially at odds with her own studies.

Paul A. Green, a research professor at the University of Michigan Transportation Institute, said glances so brief would mean the drivers “never really looked’’ at the billboards.

“It’s a flaw in the data,” Green said. “You wonder, if they made this mistake did they make other mistakes?” 

FairWarning is a nonprofit, online investigative news organization focused on public health and safety issues.