Oakland Turned a Tree Ordinance Into a Revenue Machine

A city council has decided that if you cut down trees without a permit, they can hand you a fine that is bigger than the land itself. That happened in Oakland, California, this year, and it’s exactly why the Eighth Amendment’s Excessive Fines Clause exists.

Matthew Bernard and Lynn Warner bought a hillside lot in North Oakland in 2019. The Oakland Fire Prevention Bureau ordered them to clear dead and dying trees off the property in 2020. They cleared the trees. They didn’t get a permit first. The city says they removed 38 trees; Bernard disputes the count and says some had already fallen before the couple owned the land. Under Oakland’s Protected Tree Ordinance, that omission carries a price: nearly a million dollars.

In May, the Oakland City Council voted to impose a $915,135 fine, calculated tree by tree on a replacement-value formula running from $750 for a plum tree to $95,000 for a mature coast live oak. The council also threatened a lien on the property and froze every building permit the couple needs to put a house on land they already own. The vote split badly: three council members voted no, and the motion to impose the maximum penalty passed by a single vote after two earlier attempts failed to produce any majority at all.

The Texas Public Policy Foundation filed suit in June in the U.S. District Court for the Northern District of California, arguing the penalty is an uncompensated taking, an unconstitutional permit condition, and a violation of the Eighth Amendment’s ban on excessive fines.

They have a case. The Supreme Court settled the threshold question in Timbs v. Indiana (2019): the Excessive Fines Clause binds state and local governments, not just Washington, because it protects a right the Court called “deeply rooted” in the nation’s history. A decade earlier, in United States v. Bajakajian, the Court held that a fine violates the Eighth Amendment when it’s grossly disproportionate to the underlying offense. A fine running roughly five times the value of the property it’s attached to, with no finding that anyone was actually harmed, is not a close call under that standard.

The Founders didn’t write the Excessive Fines Clause to shield people who cause real damage from real consequences. They wrote it because English monarchs had turned fines into a revenue stream, extracting money from subjects under color of law rather than through punishment proportioned to an offense. Oakland’s formula runs the same play. It doesn’t ask whether removing a given tree hurts a neighbor, a hillside, or a fire line. It assigns the tree a dollar figure and mails the bill, whether the absence caused harm or not.

I’ve spent thirty years advising clients on regulatory exposure, and the pattern here is a familiar one. A municipality writes an ordinance broad enough to catch nearly any property owner, then enforces it hardest against the one who needs something from the city, in this case a building permit. That’s not incidental. The fine surfaced only after Bernard and Warner applied to build a house, years after the trees came down. A government that discovers the size of a violation only when a citizen asks it for something isn’t protecting trees – it’s collecting a toll.

City officials point to real ecosystem value in mature trees: erosion control, cleaner air, wildfire resistance. Fair enough. It’s also beside the point. The Fifth Amendment’s Takings Clause and the Eighth Amendment’s Excessive Fines Clause don’t ask whether the city’s underlying goal is worthwhile. They ask whether the city made one property owner pay, alone, for a benefit that flows to the whole neighborhood, without the compensation the Constitution requires when government takes from a citizen for the public’s benefit.

Council President Kevin Jenkins framed the vote as a message about consequences, and he’s not wrong that consequences matter. But the Constitution caps what those consequences can be, and a fine five times the value of the land, built on a formula that never asks whether harm occurred, sits well above that cap. A federal court now has to decide whether Oakland’s ordinance survives Timbs and Bajakajian. On the numbers alone, it shouldn’t.