TIMBER THEFT - OUR OWN EXPERIENCE
by Therese L. Pryor, Attorney at law
This true story began in 1976 when my husband Carl, a Purdue University forestry graduate, purchased a forty-acre tract of woodland in Orange County, Indiana. During the ensuing years, Carl established a timber management plan with the IDNR district forester, made sizeable investments in timber stand improvement and enrolled the bulk of the tract in the Classified Forest program.
Since its purchase, we have managed the tract for timber production, emphasizing wildlife enhancements and recreation, including turkey and deer hunting, birding and hiking. During the timber stand improvement projects over the years, younger family members were taught timber management and sound forestry principles.
A stand of white oaks on a hillside in the northeast corner of the property contained the finest trees in the forest. Several trees were larger than twenty-four inches DBH with twenty to thirty feet to the first limb. Some of these would certainly grade for veneer quality. Just walking through the stand of white oaks was food for the soul.
The call came on an evening in early December 1996. A neighboring woodland owner who had a logging operation in progress on his property told us that he believed the logger with whom he had contracted had crossed our property line and cut several of our large trees. Carl obtained the name of the logger from the neighbor.
Our first thought as absentee landowners was to stop the logger from any further trespass and theft. Carl called the Orange County Sheriff's office and was referred to the IDNR conservation officer, who told Carl that he could not take action against the thief unless he could see proof of the property lines. The officer made an appointment to meet Carl on the site after Carl insisted that he knew precisely where the property lines were as shown by the previous owner. The only property-line evidence existing at the time were old, deteriorating fence lines.
The neighboring property owner told the logger that Carl was looking for him. The logger then telephone, claiming that the neighboring property owner had shown him his property line, not ours. The logger met Carl at our tree farm the next morning. Carl was horrified to see that all that remained of the white oak stand were stumps and tops. The logs had been skidded from the property and mixed in with the logs from the neighboring property owner. The logger offered to pay Carl on the spot for the trees, which just added to his anger.
The stump of the best white oak taken measured 33 inches across. Carl took photographs
of the entire site including the stumps, using a hardstock for size reference. Carl was
sure that the taking of seven of the best white oaks encroached on our property by at
least 150 feet but could not prove it. Carl warned the logger not to move the logs or his
equipment from the neighbor's property.
Because I was associated with a northern Indiana law firm at the time, Carl engaged local counsel and arranged for the property line survey for a firm price of $2,000.00. The surveyor agreed to install permanent steel markers for corners as well as boundary lines. The survey was completed and disclosed what we already knew - that the logger had trespassed more than 150 feet post our property line and had illegally cut seven white oaks.
Next Carl hired a consulting forester. With only stumps to go by, determining the timber quality was difficult. However, our consultant managed to match a few of the very best logs with the original stumps. The consulting forester arrived at a conservative and defensible valuation of the trees at $7,500.00 and said that he would be willing to appear in court to defend his appraisal, if necessary.
At the time of this occurrence, I.C. 25-36.5-1-17, the Indiana statute which had mandated three times the stumpage value of appropriated timber as damages to the owner by the timber cutter had been repealed by PL 220-1993. A diluted version of the treble damages provision had been incorporated into I.C. 25-36.5-1-3.2. Consequently, treble damages were no longer mandatory. A party could "seek" damages three times the stumpage value of any timber wrongfully taken, but the administrative law judge had discretionary power to award them.
Carl talked with the licensing forester at the Indiana Division of Forestry who advised that the logger's Timber Buyer's License had expired several month ago, which meant that he was no longer bonded. (The bond requirement under I,C. 25-36.5-1-3 has a$2,000 minimum and increases by $ 100 for each $ 1000 of timber paid to growers in the preceding year, to a maximum of $20,000.In addition to damages, civil penalties of up to $ 10,000 may be imposed for violations.)
The conservation officer was then informed that a survey and timber appraisal had been completed. He revisited the site, witnessed the newly surveyed property line and was given a copy of the consulting forester's appraisal. He promised to file an official complaint against the logger. Carl informed him that the logger or his attorney needed to contact our local counsel regarding settlement.
A preheating conference was held before an IDNR administrative law judge. Present were Carl, our local counsel and the logger's attorney. The ALJ advised that if a settlement could not be negotiated between the two parties, the process would then go to a formal evidentiary hearing at a future date. The ALJ made no reference to the logger's expired Timber Buyer's License, or the treble damages provision of the existing statute. He instructed the two parties to "work it out."
A negotiated settlement was reached in the amount of$4,500.00. We had paid $2,000.00 for the survey plus the consulting forester's fee. Our local counsel, a lifelong friend, kindly donated his services. Other out-of-pocket costs included several trips to our tree farm, photography and telephone expenses. We barely recovered the stumpage value of the logs with no compensation for the future value of the prime trees or for the emotional distress we suffered.
Had we not settled with the logger's attorney at the prehearing conference, we would have proceeded to an evidentiary hearing before the ALJ. His appealable decision would then be presented to the full IDNR Commission, which would probably affirm. After completion of the opportunity for judicial review, the final decision of the IDNR may be enforced in a civil proceeding as a judgment, or, in the alternative, the losing party can bring a new action in civil court, having exhausted all administrative remedies.
Timber theft can become a criminal matter. A person who:
1. engages in business as a timber buyer without securing a registration or otherwise violates I.C. 25-36.5-1et.seq. or
2. refuses to permit inspection of his premises, books, accounts, or records commits a class B misdemeanor. Criminal charges must be filed by the prosecuting attorney in the county where the violation occurred.
WHAT YOU CAN DO TO PREVENT TIMBER THEFT
If your property has not been surveyed, do so soon. Mark your property lines adequately with permanent posts, signs, fences, and/or flags.
Work with a consulting forester to inventory and appraise your woodlands. Establishing a timber value basis will help in the case of timber theft and also provide a tax advantage for future timber harvests.
Photograph or videotape valuable trees with landmarks or other points of reference in the background. Attach photos to your timber inventory with notes about location, species and quality.
If you are an absentee landowner, visit the property often. Get to know your neighbors and ask them to report suspicious activities.
Don't invite timber theft from a neighbor by allowing unlicensed timber buyers or loggers to operate on your land. Market your timber only via sealed bids with a timber sale contract prepared by an attorney and with the professional assistance of a consulting forester. The small cost of these professional services will be more than offset by your financial returns while protecting the future of your woodlands.