TIMBER THEFT – WHAT IT’S LIKE TO BE A VICTIM
“The majority of timber theft occurs under what has been deemed a ‘culture of theft’ [emphasis added]. This [culture] is responsible for the belief that taking. . .trees here or there. . .has no real ‘harm’ but is necessary to allow the logger to ‘make a buck’. (Government Accountability Project: Field Guide to Timber Theft, page 2, http://www.bark-out.org/tsdb/borg/Field_Guide_toTimber_Theft.pdf)
“What’s all the fuss about a few trees?” (Purported statement by relative of logger indicted for stealing more than a hundred trees and suspected of stealing many more)
“What murder case do you want me to stop working on to investigate your timber theft?” (Question by Sheriff to more than one victim)
“Why are you clogging up the courts with a civil case?” (Question by Commonwealth’s Attorney to Sheriff’s Deputy who investigated a timber theft and asked for a criminal prosecution)
“Many times criminal acts are hidden under the cloak of civil remedy.” (General Accountability Project: Field Guide to Timber Theft, page 2, at website
“Go file a civil suit.” (Statement to a number of victims by legal authorities)
“This won’t come to nothing. You know they [the victims] aren’t going to have the kind of money you need to get a survey and get a timber consultant. He don’t have to worry.” [reported statement by relative of person suspected of timber theft.]
“I have heard through the rumor mill that________________ bragged that they had in fact stolen your timber. _________________________ has apparently said the same thing according to the sources, none of which are willing to give a statement to these comments”. (Prosecutor to victim of timber theft after a trial in which an accused timber thief got off)
“The reason people continue to steal timber is because they can.” (statement by timber theft victim)
The above are statements relating to timber theft by victims and others.
TIMBER THEFT: WHAT A VICTIM NEEDS TO KNOW
A. Victims, Losses, and Victimization Methods
3. Victimization Methods
1. Criminal Law
2. State Civil Action
3. Federal Racketeering Statute
1. “Boundary dispute”
2. “You’re not from here.”
3. “Clogging” the courts
D. Property rights
E. ”Get-Even:/”Strike First” Warrant:
1. The “Keep off your own land” tactic.
2. The Fake charge
3. “Harassment without contact”
4. Countersuit for Defamation Threat
F. The “entry” fee
1. Survey costs
2. Timber Appraisal
3. Witness Fees
4. Legal Fees
G. The Loss Valuation problem
1. “Clean Water Act” limitation
2. “Can’t count in court” problem
3. “Garage” analogy
H. The “Legal” aspect
1. Finding a lawyer
2. Dealing with legal tactics; evidence gathering, etc
3. Bar Association Futility
4. Rights in court.
5. Be the Criminal
I. Trial Issues:
2. “Don’t get me involved.”
3. Reluctance to testify
4. “Let’s Settle It” issue
J. Incentivizing the Thief:
1. R’s case
2 . J’s situation
3. “Undergoing chemotherapy”
4. Nobody goes after the “fence” or the transporter
5. Bad Actor” if pollute water, but not if steal.
K. What Other States Do
L. Where to From Here?
PART A: VICTIMS, LOSSES, AND VICTIMIZATION METHODS
Victims: A timber theft victim is potentially anyone who owns timber, but especially hardwoods that are used in furniture and cabinet making. The victim doesn’t have to own a thousand acres, or a hundred acres, or even fifty acres. The owner of just one tree is a target, if that type of wood is in demand.
- Absentee Landowners: While there’s no absolute pattern, there are some trends. Victims often tend to be absentee landowners -that is, they live away from their land. They may live in a town nearby, or in another state.
- Elderly and/or Ill: Victims that live on their land may be too old or too sick to get around to all of it. One who lost 30 big oaks is legally blind, so there is no way he can monitor his timber. That is a problem especially in Eastern Kentucky where the land tends to be fairly vertical, and where most people live in the valleys. Because of the land conformation and because nobody may live near, many elderly victims are out of earshot of logging noise, even if their hearing is still good.
- Temporary Absentees: Even victims who live on their land, and would be able to hear loggers working when at home, can be away for a short time and lose timber. It doesn’t take months to get in, get trees, and get out. One victim tells of knowing there was logging on adjacent land, of showing the logger the boundary creek, of checking frequently to make sure that the logger stayed on his side of the creek, and then of going away for two days, only to return and find that his black walnut twelve feet across the creek into his land had been cut and taken away, and an effort made to conceal the removal.
- Number of victims: Nobody knows. Statistics are hard to find, and there don’t appear to be any in Kentucky. There is reason to suspect that most losses by small landowners are never even reported, which would skew any statistics that may exist toward understating losses. The way victims are identified is, for the most part, word of mouth. Victims have timber taken, and mention it. Word gets around, and other people mention their timber theft. Not a very reliable method of gathering statistics, since one might learn about 1 in 100 victims that way.
Occasionally the media may do a story. That may get wider dissemination and cause people to call the paper or TV station that aired the story. Around the first of 2008, the Associated Press did a story on a timber theft in Letcher County. The story mentioned some people who were working to bring attention to timber theft.
Within the first two weeks, roughly a dozen people went to the considerable trouble of searching out a phone number and calling. Logic says there are dozens more out there who never saw the story and many more who didn’t know how to, or couldn’t be bothered to, make contact. Still, one person who is gathering names of people alleged to have been the victims of timber theft has a list that exceeds the 100 mark.
Loss Size and Impact:
Loss Size: Some victims may have just one good shade tree in the front yard, maybe a nice mature hard maple or a black walnut. Any black walnut is valuable, but a black walnut over twenty inches in diameter, and especially one over twenty-four inches in diameter, will bring a premium price because it’s large enough that veneer can be produced from it. In Ohio, a few years ago, a timber buyer and logger targeted and cut two large old black walnuts that belonged to somebody else. They were planning to export the wood, and had a buyer in Germany who was willing to pay $150,000 per tree. They were caught and fined substantially, but only after the trees were cut.
They at least were caught. A lot of victims have not been that lucky. Fifteen or twenty years ago, a family on Mill Branch in Letcher County came home to find that the black walnut in their yard had been cut down and hauled away while they were out shopping.
The same thing happened a few years ago to a family in Louisa, Kentucky while they were away from their house. Their nice maple shade tree was a stump when they got home.
The norm is that a lot more than one tree is taken. Victims are more likely to lose 100 trees, or 450 trees, or perhaps to have 200 acres clear-cut. The loss may vary from several hundred to several hundred thousand dollars worth of trees. Losses usually fall in the thousands to tens of thousands of dollars in identified cases.
Outside Kentucky, there is somewhat better data on thefts from various sources (states, the federal government, large corporations). Much of that is still estimated, but there is enough data to give a glimpse of the tip of the iceberg. For instance,
1) The US Forest Service estimates that more than 10 percent of all trees cut in national forests are stolen, and that the annual value is more than $100 million. In just one case, a firm called the Columbia River Scaling Bureau was fined $3.2 million dollars for timber theft, fraud, and kickbacks. A task force compiled evidence that a large national timber company stole 88,000 trees valued at more than $5 million from national forests. There were estimates that the company may have been stealing 33,000 trees a month, but it was never prosecuted.
2) The Arkansas Forest Service estimates that landowners in Arkansas lose hundreds of thousands of dollars a year to timber theft.
3) South Carolina estimates losses of $10 million a year.
4) In Georgia, in one case, stolen timber that totaled more than $4 million was uncovered.
5) In Louisiana, the state estimated $555,000 as the value of timber losses just for the cases they investigated in 1998. In 1999, that went up to $3-4 million for cases under investigation. In 1998, 140 of the 144 cases investigated in Louisiana involved thefts from private landowners.
6) Boise-Cascade estimates that, just from their land, and only in the Southeastern US, they lose $75 million a year (a figure that may have climbed with the value of timber since that estimate was made).
7) In West Virginia, in 1997, a logging company had to repay more than $200,000 for stealing trees.
All told, a group of forestry economists estimated in 2003 that timber theft in the U.S. was then at least $1 billion a year, enough to provide the wood for about 25,000 homes. To give you an idea of magnitude, auto theft is around $8 billion a year. So timber theft is not petty theft at all; it needs to garner the kind of attention its magnitude warrants.
Loss Impact: Setting aside the amount of land they may have, victims usually don’t have a lot of money. For many victims in Eastern Kentucky, land and timber are their whole wealth. They often live on social security or a small pension. The economic consequences of timber theft can be devastating. Victims might have been saving those trees for their children, or for a time of desperate need.
One landowner only agreed to have his 13 acres cut because he had a bad accident and was unable to work.
Another, a farmer around Richmond, KY who had a very bad summer in 2007 because of the drought, and couldn’t afford the price of imported hay to feed his livestock, had been counting on selling his black walnuts to tide him over when somebody else came in and stole them.
It’s a common thing to hear people ask “What’s all the fuss over a few trees?” The answer is simple. Theft is wrong. It would be wrong even if the landowner were wealthy; it is doubly wrong to take trees from people who have little else.
Tax Records: One South Carolina official says it is not uncommon for timber thieves to go to the County courthouse, and search out tax bills that go to an address different from the land address. Armed with that, they know they have a potential target in that land.
Local Gossip: In rural counties, which are often small and close-knit, information about who is home and who is away is easy to discover. The intent is to get in, get the timber, and get out before being caught. Once the operation is over, it’s very difficult to locate the thief or prove the theft.
Back Routes: Besides ‘get-in-and-get-out,’ logging thieves may take other steps to conceal their activity. Victims find it’s common for the logger to bulldoze a road into a property from the back side – over a ridge from another drainage, perhaps – and take the cut trees out that same way. Anybody observing the truckloads of logs coming out of that drainage area will assume that they are being legally cut in that drainage area, not that they have been stolen from another property across a ridge.
Hollowing out: Coming in and going out the back way was a technique used against a victim in Letcher County whose thief added an additional twist – he took the trees from the center of the victim’s land, leaving an uncut area a hundred yards or so deep all around the land to screen his activity from roads and houses. The roughness and remoteness of mountain land makes such tactics particularly effective.
Contract with one; cut many: Sometimes victims come in pairs and groups. A logger in Morgan County is alleged to have contracted with one owner at the head of a hollow, and cut at least three properties while he was in there. That practice is by no means unique.
Dishonest reporting: Sometimes landowners are victimized by loggers they have trusted enough to contract with for logging services. Instead of paying for every truckload, the logger will “forget” to pay for a few truckloads he sold to a sawmill. Or he may take some particularly valuable trees – cherries, perhaps – sell them to a different buyer, and keep that money. Or cut an tract of the owner's land which is outside the agreed-on area. Unless victims are able to monitor the logger all the time, count every truckload, and follow the logger to the sawmill, they are easily cheated.
“Straying”: The easiest method, though, is to "accidentally" stray onto adjoining land. One man who regularly worked for loggers in Letcher County said forty-four out of fifty loggers will deliberately come over the line to take a good tree, and blame it on accident. One logger is reputed to have justified timber theft by saying, “Timber don’t belong to nobody; timber belongs to the Lord.” Presumably when he sold it, though, he had the sawmill made the payment check out to him.
People who know say that the economics are such that if loggers can get away without being caught in only 40% of the cases, they will do much better economically than if they bought the timber honestly, because they don’t have to pay the owner a share. They try to maximize their chances of getting away scot-free by selecting victims that are absentee owners, old, and/or ill.
Victims have more than one avenue of recourse, and against more than one person. They can ask for criminal prosecution, can sue civilly, or can try to strike a deal. None of the three will be easy, but criminal prosecution will be hardest because there is massive resistance on the part of most authorities to investigating and prosecuting timber theft. (More about that later.)
Both criminal and civil action are described below, but to put the bottom line right up front, and simply: Timber theft is a crime, and the first recourse is to ask law enforcement to do what they do in other crimes, which is to investigate and prosecute.
Criminal prosecution: Timber theft is said to be the least prosecuted crime in Kentucky. It is an understatement to say that, in Kentucky, the incentive system favors theft. Note: The following information concerns legal issues, and carries the following warning label: Although information from a number of attorneys was used in the material below, no attorney directly participated in writing this, and it is not intended as legal advice. It is intended for education only.
Statutes: The statute under which criminal prosecution of theft should occur is Kentucky Revised Statute (KRS) 514.030. (They are all called revised statutes.) In some ways, Kentucky has a rather elegant way of dealing with felony theft. KRS 514.030 says that theft of any item(s) with a value of $300 or more is a felony. No quibbling over what type of item it is. Some states have laws specific to the type of goods stolen and the punishments. Kentucky doesn’t do that. Kentucky throws all types of theft into a single statute.
The upside of that is that it’s simple. The downside of that – and it’s a big one – is that because timber is not specifically named in the criminal statutes, most people and most authorities don’t seem to regard it as a crime. “Timber don’t belong to nobody. Timber belongs to the Lord.” was mentioned above. While the authorities don’t seem to regard timber as belonging to the Lord, too many of them unfortunately also don’t seem to regard timber theft as a crime they need to take action on.
But it is a crime, and not just a crime but a felony if the value of the timber is at least $300. So victims who lose timber should report the theft to law enforcement immediately and ask for action.
Breadth of prosecution: Depending on the circumstances, the person who hired the logger may be liable along with, or instead of the, logger, if the that person is deemed to have knowingly directed the logger to take the illegal trees.
Furthermore, other people associated with the theft may be subject to criminal charges as well, including the person who transports the stolen goods and the person who buys them. KRS 514.110 states that “A person is guilty of receiving stolen property when he receives, retains, or disposes of movable property of another knowing that it has been stolen, or having reason to believe it has been stolen…. The possession by any person of any recently stolen movable property shall be prima facie evidence that such person knew such property was stolen. “ [Italics and underscores added to emphasize that, under the law, the burden of proof is not on the victim in this case, but on the buyer. In practice, this language is often ignored.] If the value of the property is at least $300, then purchase is a felony and the possessor is subject to the same penalties as the thief. So if someone besides the thief transports the stolen timber to the buyer, both the transporter and buyer are vulnerable to prosecution.
In addition, if the logger had to trespass on the victim’s land to get the timber (and unless he dangled from a helicopter, that probably happened) the charge of trespass may be added. Criminal trespass is generally, if not always, a misdemeanor, and some prosecutors may advise victims not to pursue that charge because they don’t want to provide a non-felony ‘out’ for the alleged thief.
One last comment on the criminal route: There is no Statute of Limitations on a felony, so victims have the rest of their life to take action. Of course, the older the crime, the less likely it is that the victim can produce witnesses and evidence, so the sooner the better generally.
Legal Process: There are generally two ways to get a criminal prosecution going: First way: The County Attorney, at the request of the Sheriff or the victim, may issue a warrant for the suspect. The person will be arrested, and a hearing will be set in District Court. If, at that hearing, the District Judge thinks there is reason to pursue prosecution, he will look at the size of the loss. If, as in most logging thefts, the loss is $300 or more – felony theft – then it falls under the purview of the Circuit Court, not the District Court, and the District Judge will refer the case to the Grand Jury. The Grand Jury will hear the evidence, and will indict or not indict. If they indict, a series of hearings (disclosure, settlement, and pre-trial) will take place in Circuit Court, and eventually there may be a trial. May be, because prosecutors often elect to settle. If they do, they will ask for the victim’s agreement, but they can settle without the victim's agrement, on whatever terms they and the defense agree to. Second way: The Commonwealth’s Attorney can bypass the warrant and the District Court hearing and schedule a Grand Jury hearing directly. (This is probably more common on felonies than going to District Court first.) If there is an indictment, the process will proceed from there as described above.
Inaction by Law Enforcement: When law enforcement won’t do anything - which seems to be what victims run into in the majority of cases - you the victim have a couple of alternatives. If a Sheriff won’t act, you can try the State Police. If a prosecutor won’t act, you can go higher in the system and ask the Attorney General to either appoint another prosecutor or ask for a Writ of Mandamus to force prosecution. If all of these fail, you can sue civilly.
Civil Suits: Filing a civil suit will mean that you, not the state, will have to pay for the prosecution. But since some victims are bearing much of the costs of the Commonwealth’s cases right now, the only difference may be paying for the lawyer in addition to the other costs.
If you decide to sue, and can afford to sue, you can sue for compensation under common law for theft/conversion of your timber, or you can sue for compensation under the Timber Trespass Act, KRS 364.130. You may not even need to specify which you want to recover under when you initially file. KRS 364.130 says essentially that if a logger encroaches on your land from adjoining land, you are entitled to stump value for the trees taken, but if the logger has not provided notice to you that he will be cutting neighboring land so you can agree on boundaries, then you are entitled to triple the stump value and damage to your land, plus your legal fees. (There will be discussion later of the "stump value" question.) If that statute were followed, it would do a lot to eliminate genuine accidents, and would certainly put a crimp in the "accidentally on purpose" straying that victims are subject to.
Few victims receive such notification, and many of them believe that notification was omitted on purpose, because notification would have allowed them to watch their boundaries and curtail encroachment.
“Excuse defense”: When such encroaching loggers are discovered, they are ready with excuses. They may initially deny that they strayed, forcing the victim to pay for a survey, which most can’t afford. If it’s proved they cut on the victim’s property, they may claim accident. If asked why they didn’t notify the victim they were cutting in the area so that the victim could show them the boundaries, they may say that they tried to notify the owner but couldn’t find him. One logger told a victim that he had asked somebody wandering around the area to tell him where her boundaries lay, and had cut based on that without ever approaching her. If still pressed, may loggers will essentially"‘dare" a victim to do something, knowing that many can’t or won’t. Others will offer a pittance, in the full knowledge that pursuing them is so expensive that the victim can’t do it. Most of the time the logger gets away with that, for reasons given in more detail farther on.
One last thing before we leave this area: You don’t have to choose between civil and criminal. You can do both, and will probably receive advice to do just that. Let’s call that the “O.J.Simpson” response. After O.J. Simpson was criminally prosecuted by California and found not guilty, the Goldmans, the family of one of the victims, sued in civil court for wrongful death and won a civil judgment for millions of dollars. You can do that. You can elect to file a civil case first and follow up with a criminal case. Since there is no Statute of Limitations on theft if the theft value is at least $300, you won’t have to worry about the Statute of Limitations expiring if you take this route. You will not have the benefit of having the government investigate and prosecute, and it will be more expensive, but you’ll have more control of a civil than a criminal case.
Alternatively, you can elect to file a criminal case first, and a civil case second. What’s nice about this is that if you get a guilty verdict in the criminal case, and compensation you’re happy with, then you never need to file a civil suit. Furthermore a criminal conviction will make winning a civil case much easier. The fly in that ointment is the Statute of Limitations. If you’re suing because a contract has been violated, then you have five years. But if the logger was not cutting for you but for himself or someone else and there was no contract with you, then you may have only one year from the time you discovered your loss. There is about as much chance that the criminal case will be resolved in one year, especially in Eastern Kentucky, as there is of being abducted by a UFO. So you will be faced with the decision of whether to go through the process and expense of filing a civil suit before you have any idea what is going to happen on the criminal case. And which way you go will involve megabucks.
Federal Racketeering (RICO): If you can’t get criminal action under Kentucky law, and you can’t afford the money, stress, or time involved in a civil suit (which is likely, since so many victims are poor, in ill health, and older, making them three for three in the money, stress, and time sweepstakes), think federal government. Specifically, think RICO, the Racketeering Influenced and Corrupt Organizations Act. RICO doesn’t just apply to the Mafia. Generally speaking, RICO applies if the crime is repetitive, and a defined group is involved. It was used successfully by the federal government a few years ago to prosecute the people running in a chop shop in Letcher County. So if all else fails with state authorities, call a United States Attorney or the FBI, describe your problem, and ask for help.
But whatever you do, don’t just shut up and take it. That’s how victims got into this situation where timber theft is an accepted culture in Kentucky and victims rarely can get anything done about it. So contact other victims and work with them. Some victims are helping each other; some are trying to get legislation. In addition, write letters to newspapers, write your elected representative, try to get the press interested, do whatever occurs to you to make sure that people know what is happening to you. The Mountain Eagle, the largest Letcher County newspaper, carried a story a few years ago about a landowner who called law enforcement with no response but came up with a creative response to his theft: he put up a huge sign naming the person who took his timber and warning other landowners. A victim in another county placed an ad to the same effect in the county paper. So do something, so that everybody becomes more aware of this problem and the next victim has a better chance.
Not just in Kentucky but in other places, a "culture of theft" has grown up that says that stealing timber is not really stealing. As one handbook on timber theft stated, “The majority of timber theft occurs under what has been deemed a ‘culture of theft’. This [culture] is responsible for the belief that taking. . .trees here or there. . .has no real ‘harm’.”
It’s hard to follow logic that says that taking $5000 from your billfold is stealing, but taking $5000 of your trees is not. But that’s the way it seems to be. One County Sheriff investigating a timber theft approached his Commonwealth’s Attorney about convening a grand jury for what appeared to be a solid case of timber theft, only to be asked why he was cluttering up the criminal courts with a civil case.
This “Go file a civil case” approach is more common than potential victims might realize. One victim who lost timber called the Sheriff’s office and asked about getting a warrant against the alleged thief. The Sheriff explained that he had no authority to do that, and referred the victim to the County Attorney’s office. There, the victim never even got past the secretary, who just kept saying to the victim, “You need to file a civil suit.” The Commonwealth’s Attorney finally agreed to let the Grand Jury hear the case, bypassing the County Attorney and the warrant. A lot of other victims don’t get as far as a County or Commonwealth’s Attorney. Being told to file a civil suit is a story you hear a lot from victims who try to get criminal investigations.
Boundary Dispute: The authorities will automatically tell you that what you have is not theft but a boundary dispute, and they can’t open a case until the boundary dispute is settled. This is a wonderful way to get rid of you, and it’s used even when there is no boundary dispute. And it may not be the fault of the authorities. After all, if you were a logger who had taken someone’s trees, and knew that all you had to do to send the whole case into confusion was to claim that you owned the land, wouldn’t you do that? In fact, if you know the system and you know before you start a logging job that you can at least delay, and probably short-circuit, any action by the victim, wouldn’t that encourage you to steal? Especially if you didn’t have to bring a shred of proof of your claimed ownership, as is often the case? And if you were an owner who admired your neighbor’s trees and wanted to cut them, wouldn’t it be easy to state that you owned them? One owner being investigated for hiring a logger to cut timber on unowned land offered as a justification that a surveyor had been hired, and that said surveyor asked an elderly person in the area where the victims’ boundary was and apparently used that as valid survey information. In another case, a logger told a victim, when she caught him on her land cutting her trees, that he had asked someone in the neighborhood where her boundary was, and he was cutting in accordance with that person’s information. How many people, if they were interested in buying a car parked along a curb, would accept the word of someone on the street about who the owner was? Or when buying a house? Wouldn’t they want proof of ownership? You’d think they would contact the owner, especially since the Kentucky Timber Trespass Law, KRS 364.130, lays out what the logger ought to do, and one of those things is that he should do is contact adjoining landowners. Yet at least two victims have reported that the incursion onto their land was justified as being based on the word of someone casually met and having no ownership in the land.
But let’s say the logger who took trees from your land, or the person he is logging for, isn’t claiming your land. Chances are you may still be told that you have a boundary dispute. In the case of one victim, neither the logger nor the only owner he had a contract with claimed the victim’s land. But the victim was required to get and pay for a survey anyway, to resolve the non-existent ‘boundary dispute.’ In a criminal case, it surely ought not to matter who the land belongs to, so long as it doesn’t belong to the person or persons who took the trees. It’s a crime whoever the victim is, so if the logger or person he is logging for is not claiming the land the trees were cut from, why is there a ‘boundary dispute?’
To a lot of victims, this just looks like an excuse to avoid action. Two adjoining landowners who appeared to be victims of the same logger met with a County Attorney. The County Attorney determined that there might be some slight tinge of doubt about ownership in one of the cases, and refused to proceed with either case. He gave no rationale for why the second landowner’s case would not be prosecuted.
Not From Here: Setting aside the ‘boundary dispute’ problem, victims who own land in a Kentucky County but don’t vote there often feel that they are not receiving cooperation precisely because they don’t live and vote there. In Kentucky, Sheriffs and prosecutors are elected, and it’s a common belief among citizens that vote counts affect justice. No Sheriff or prosecutor would probably admit that, but if the accused is a member of a large family or otherwise controls a large number of votes, it’s hard to believe that fact may not at some point occur to a person whose continued income depends on vote counts.
Setting aside the election issue, it is a human characteristic to give less consideration to an outsider than to people you know, live among, and may very well be friends with. For one thing, you probably won’t have to face the outsider again, but you may have grown up with the local person(s) and will certainly see them again. It’s human, but it’s wrong. One prominent Kentucky tree farmer who lost valuable white oaks from one of his tree farms in another county said he twice tried to get an indictment in that county, and twice failed. Would it surprise anyone that he might occasionally suspect that the fact that he is an outsider was a factor in that, however wrong that is?
If you live in another state, lose timber in Kentucky, and run into the situations just described, it may affect the way you feel about the whole state. One victim stated that she had always had a good opinion of Kentucky, where she is from originally, but her experience with her timber loss has turned her attitude 180 degrees, and she has no interest in ever coming back.
Corruption: There is also the corruption factor. Such an unfortunate number of local officials have been convicted of corruption in Kentucky, and perhaps especially in Eastern Kentucky, that only the most innocent and saintly won’t occasionally wonder if that is a factor.
Foot-dragging: Victims who get past the above obstacles often find that while they may be hearing agreement with their desire for criminal prosecution, they are not seeing any action. If victims hit the "boundary dispute" obstacle and are forced to get a survey even though nobody is claiming to own their land, law enforcement might not even open a case until after the victim gets a survey (more about that later). Even after that, victims may despair at the prospect that the case will ever move forward. There will be reason after reason why it’s not happening. Sometimes persistence, especially loud persistence, will do the trick when nothing else does. Sometime that is not enough. One victim who got an indictment but was years into the process without a trial, finally went to the Attorney General and got the case transferred to another prosecutor. “Justice delayed is justice denied.” does not seem to be a primary consideration in court schedules, and especially not for the victim.
D: PROPERTY RIGHTS:
Victims may pay taxes on their land, but have less say than the logger about what happens on it, as some victims have learned.
Most victims believe that if they find somebody on their land logging, they can hold their equipment. And that may be. But that’s not what law enforcement is telling a lot of timber theft victims. A victim who found a logging truck on his land asked law enforcement if he could impound the truck. He was told that the law didn’t allow that, and if he wanted to hold the equipment, he needed to file a civil suit and get a court order. Setting aside the cost of having to file a civil suit when his timber was being taken right under his nose, the victim figured that by the time he could get all that done, his land would have been stripped. He then asked if he could at least let the air out of the tires so that it would be harder for the logger to drive the truck off with a load of his timber. The reply was that that would be a criminal act. So there is apparently no way that the logger can be impeded, but the victim had better watch his p’s and q’s if he doesn’t want to end up in court.
Another set of victims found an operating logyard on their land, for which the logger could not produce permission. The logger was three times asked to vacate the land, and he refused. He claimed he had a contract to be on the land and promised several times to produce it, but never did. Law enforcement said they could not act. The logger went on working until he decided he was through. When the owners of the land hired an expert to check their land, they found that 450 very valuable hardwoods were missing.
The nephew of a third set of victims, an elderly couple, found a logger on his relative’s land. When he informed the logger he was on the wrong land, the logger left but left his bulldozer behind. The logger was apparently not satisfied to just come back with a flatbed truck and get his bulldozer, but evidently used the presence of the bulldozer as an opportunity to threaten the victims. He allegedly went to the Sheriff and asked the Sheriff to get his bulldozer. When the Sheriff declined to get involved, the logger supposedly told the Sheriff that he was planning to go to the County Attorney and charge the victims with holding his bulldozer unlawfully, and also threatened to file a civil suit asking for lost income for every day the bulldozer sat on the victims’ land. The Sheriff passed this on to the victims. Under that kind of threat, the victims were at a standstill. They certainly hadn’t driven the bulldozer onto their land, but were being held responsible for its being there. If victims were allowed to hold logging equipment found on their land without permission, as it certainly seems they should be allowed to do, then the value of the bulldozer potentially could offset some of a victim’s loss. But victims can’t.
It is no wonder that, when victims meet problems like this, they begin to talk about vigilante justice. A lot of people have commented that, if logging theft is allowed to go on unchecked as it does now, someone is going to get killed.
And, in fact, somebody has been killed over logging theft – several somebodies. In Perry County a few years ago, there was a shootout between alleged logging thieves and their alleged victims. It resulted in the deaths of two people and injury to a third. So far as can be determined, nothing has yet been done on the logging theft question.
All of this has caused people to ask: Who owns my land anyway? If people can come on my land without permission, take logs without permission, stay when asked to leave, and threaten to sue because they brought their bulldozer onto my land without permission, then what’s left for me to control? How did we end up with a system where the owner holds the deed and pays the taxes, but the logging thier calls the shots?
E: THE GET EVEN/STRIKE FIRST WARRANT:
Part D discussed victims’ lack of power when they find loggers on their land. That’s not the half of it. There are a number of other ways for loggers to get at victims, and most illegal loggers, at least, seem to be fully aware of them. There’s a short-cut name for these actions. They’re called "Get-Even” or “Strike-First" warrants.
For clarification, the “Get-Even” warrant is not limited to logging situations. “Get-Even” warrants can be and are used in a wide variety of situations. It’s apparently a common occurrence in some areas for one party in a fight, even if he instigated the fight and came out on top, to immediately go to the County Attorney and swear out a warrant against the other person. The warrant is often issued without one iota of investigation of the claim. One Sheriff told of an incident where two men beat a third so severely that he ended up in the hospital, then went straight the next morning and got a warrant against him – issued without investigation - which the Sheriff had to serve on him at his hospital bed.
A "Get Even” warrant in a logging situation can take several forms, and can take place at any point after a landowner discovers that he’s lost trees.
One landowner recounts his experience with a ‘Get Even” warrant this way: He got a call from his niece telling him someone was logging his land. He drove to his land the next day and walked it, and discovered trees missing. He followed tracks back until he came within sight of another owner’s land, where he saw a pile of logs. At that point, although he was still on his own land, the neighbor came out and challenged his right to be in the area. He reported the theft to the Sheriff, who subsequently sent him to the County Attorney’s office. When he reached the County Attorney’s office, the County attorney took him into a separate room and read him his rights. The neighbor had reached the County Attorney ahead of him and charged him with terroristic threatening, or something similar. He found himself in court at considerable expense defending himself against that charge, while nothing was being done to investigate his timber theft. And this in spite of the fact that the neighbor allegedly told someone in authority that they ‘might have strayed over’ and taken trees from his land (straying which he describes as being nearly half a mile).
Several landowners have met a different problem. One woman who was told that her land was being logged said she tried to go out and check her land, and found the road she had to use was blocked by a bulldozer belonging to the person reported to be cutting her timber. She called the State Police to ask that they come and have the bulldozer removed from this public access right of way, since it is supposedly illegal in Kentucky to block anyone’s access to their land. When the State Policeman arrived, he informed the woman that he couldn’t do anything, because the road was not a state highway. When she proposed to leave her vehicle behind, walk around the bulldozer, and go along the road by foot to check her land, however, the State Policemen told her that she would be committing criminal trespass and could be arrested.
Other landowners have met the same problem. One landowner in the central part of the state had to go to court and get a court order to be able to bring in a surveyor and timber expert to check his losses.
Another victim of a logger who was indicted for taking his missing trees was the victim of not only the logging theft, but the following “Get Even” accusation: The indictee went to the County Attorney and charged the victim with “harassment without contact.” Specifically, he charged the victim with following him along a state highway. Not with making any gestures, no threats, not a single indication that the victim even knew the logger was on the same road - just driving on the same highway. Setting aside the ridiculousness of that, considering that State Highways are for public use by anyone, it happened that the victim had a workman at his house on the named day who could testify the victim hadn’t left the place on the day he supposedly was following the indictee. But the prosecutor issued a warrant/summons on the word of the logger. Once the document was issued, it cost the victim considerable time and money, and a lot of stress, to contest the charge. (It is notable that only two states, West Virginia and Kentucky, permit the "harassment without contact" charge and that it appears to be ripe for abuse.)
Ths is another of those cases when there was not a shred of investigation before the warrant was issued. And so long as illegal loggers can impose this sort of burden on victims, they will continue to do that.
F: THE “ENTRY FEE”
If a rare victim does persuade law enforcement to investigate a loss, he or she will find that there are entry fees to contend with.
Survey: Chances are, before a Sheriff will even agree to open a case, he/she will demand a survey. This will be true even if nobody else – not the logger, not the neighboring owner – is claiming title to the land.
Furthermore, it’s always the victim who is required to get the survey. Let’s take the example where Landowner A contracts with Logger B to cut A's land. Logger B cuts not only on the land of landowner A but also on the land of neighboring landowner C. The law directs landowner C, whose only participation in the whole situation is to be the innocent victim of A and/or B, and who is the only one not making money from the timber, to get and pay for the survey. That clearly makes no sense, but is the interpretation law enforcement puts on timber theft.
Besides the questionable fairness of making the victim pay this entry fee before an investigation can even begin, it is another source of frustration to victims, who rightly suspect that if you reported that you were robbed of $10,000 in cash, there would be no demand that you prove that the cash was yours. The authorities would take your word in the absence of any information to the contrary. If you reported your car was stolen, victims doubt that the first thing you’d be asked for is registration, before the authorities would even consider taking action.
Besides the fairness issue, the delay can have a long-term impact on the victim’s ability to win a case, if one is ever opened. Getting a survey can take weeks to months. Meanwhile, evidence is disappearing. One set of victims found bulldozer tracks in their torn-up land where the logs had been hauled out. The Sheriff said he needed a survey to prove the land was theirs before he would open the case. In spite of their best efforts, it took more than a month before the victims could obtain the survey. Meanwhile, it had rained several times. When the Sheriff finally opened a case, the tracks had been rained out. The attorney defending the logger took advantage of this to claim that if there had been such tracks (the implication being that there were not), then the tracks should have been cast and compared to the logger’s bulldozer, and, anyway, they would not have matched. Understandably, this totally specious assertion without a shred of proof added to the frustration of the victims, who felt they were almost being taunted for their inability to get a case opened when the evidence still existed.
Then, there is the cost consideration. Some victims have found that, even with an excellent deed from which an absolutely reliable table-top survey could be produced, the authorities required an on-the-ground survey, which is considerably more expensive. One set of victims paid more than five dollars a foot for their survey. An owner of 100 acres may have a boundary of two miles. Even if the whole boundary doesn’t have to be surveyed, that will still run to a lot of money. One elderly lady who lost timber was told by the authorities that the first thing she had to do was to get a survey, and it would cost her about $3000. She was on Social Security, and $3000 was three months of income for her, so she could not possibly afford it. The survey “entry fee” stops a lot of cases before they are ever started.
Timber Appraisal: Victims also find they are expected to hire a professional timber consultant to estimate their loss, tree by tree. The rationale is that, without a valuation, the authorities cannot know if they are dealing with a felony or a misdemeanor. Professional timber appraisers charge $350 to $450 per day. To count and value a loss of 100 trees, say, is likely to take at least a full day, so the victim is stuck with another expensive process. Victims feel it is an unnecessary one, and that the authorities should apply the “reasonable person” standard. Almost any reasonable person would say that, if you’ve lost, say, 100 trees, then clearly your loss is greater than $300, and the case should be tried as a felony. Besides such simple, straightforward logic, there are other ways to set value. If the victim knows where the stolen trees were sold, then the amount paid to the logger by the sawmill can be determined. The estimate can be used to allow the case to proceed. Then, if the investigation leads to a conviction, a professional appraiser can be brought in to calculate the loss more closely for setting reparations, at the expense of the convicted thief instead of at the expense of the victim.
Witness Fees: A timber theft victim may find himself subject to another cost – that of paying witnesses not just in civil cases, but also in criminal cases brought by the Commonwealth. Most victims are given to understand that they have no power and no standing in criminal cases brought by the Commonwealth. The Commonwealth prosecutes crimes as a matter of enforcing laws established by the state for the protection of state citizens at large. The prosecutions are controlled by the Commonwealth, and all decisions belong to the Commonwealth. Victims are incidental. Timber theft victims, having never heard of a murder victim’s family/estate’s being forced to pay for expert witnesses at the trial, naturally expect that the Commonwealth will also stand the expense of timber theft prosecutions. Some of them have found that was not the case. One set of victims found to their surprise that they were billed for meetings the Commonwealth’s Attorney had with the surveyor and the timber expert, and also for the time the surveyor and timber expert spent preparing for, and testifying in, court. They asked that these bills for what was, after all, a state prosecution be sent to Frankfort, but Frankfort refused payment. The victims ended up paying. Timber theft victims feel that this is another area where they are being discriminated against, and naturally wonder why they are being singled out. In the case of the victims cited, one prosecutor (not the one bringing the case), in justifying this practice to the victim, added insult to injury by stating that the person who hired the experts pays for their time in court as well as in the woods. A victim who has already been required to hire these experts as a pre-condition of having the authorities do the job of prosecuting crimes which they are theoretically paid to do, strongly resents having that mandatory “entry fee” to the justice system used as a justification for imposing on them yet further expense, as if they had had a choice in getting a survey or a timber appraisal.
These “entry fees” – survey, timber appraisal, and witness costs – are major factors in whether a victim can afford to even ask for justice. Many timber theft victims – perhaps most – don’t even bother reporting timber theft to the authorities. They are aware that most Sheriffs and prosecutors will fob them off by telling them to file a civil suit. One not-unusual response to a timber theft victim is, “What murder case do you want me to drop to investigate your timber theft?” That county authorities are overwhelmed with murder cases is not persuasive to most victims, for good reason. From 1999 through 2008, according to Kentucky Law Enforcement Uniform Crime Reports, Kentucky as a whole averaged fewer than 200 murders a year. Spread across Kentucky’s 120 counties, that is fewer than 2 murders per year per county. In rural counties with small populations, likely not even that. It is therefore hard to believe that a Sheriff is so busy with murder cases that he cannot investigate timber theft.
Those who do ask for prosecution are usually forced out by the “entry fees” described above.
Legal fees: While the “entry fees” described above are a major factor in whether timber theft victims who cannot get the Commonwealth to protect their rights can afford to protect their own rights by filing a civil case, they will find that if they do try to file a civil case, these “entry fees” are just a start. The big expense will be the legal fees. Very few victims can find an attorney who will take a timber theft case on contingency. The reasons are simple. First, an attorney who takes a case on contingency is running the risk of putting in a lot of time and work with no guarantee that he will win. So he wants a slam dunk. Second, and more persuasive to an attorney, is that a jury award has to be high enough that his percentage will amply reward him for the work he puts in. Since most timber losses are probably in the low five figures, even with a full-restitution verdict, his percentage is not likely to reward him very well. Most attorneys will therefore want to be paid hourly. That can range from as low as $150 to as high as $400 per hour. It is thus not uncommon for the cost of a timber theft civil suit to approach six figures.
Worse is that the verdict rarely will include full reimbursement, either of the value of the direct losses or of legal fees. A group of landowners in Ohio who won a case against a timber thief were awarded only a fraction of their losses and costs. In one case, the court ruled that, although the victim had paid, at hourly rates, nearly a hundred thousand dollars to the attorney who won his case, he was entitled to be reimbursed for his legal costs a maximum of 30% of the award for his losses – the amount legal fees would have been if he had been able to find an attorney to take the case on contingency. That amounted to only a fraction of what he had spent for the attorney, so even if he received full restitution for his loss, the victim still was out tens of thousands of dollars of legal fees on a successful case.
If the survey, timber appraisal, and witness fees do not price a victim out of justice, the attorney’s fees usually will. This is another source of frustration to victims, who believe that the state should protect them against timber theft instead of leaving them outside the system that protects other victims and requiring them to seek restitution on their own.
G: THE LOSS VALUATION PROBLEM
Clean Water Act Limitations: If a victim does hire a timber expert to estimate his loss, he will meet another problem – that of what the timber expert will count as a loss. He will find that, beyond the stump value of the missing trees, most appraisers will count only two things: the cost of putting water bars across roads of more than a certain steepness, and the cost of seeding grass on stripped land. The reason for this limitation is that those are the only damages required to be remedied under the Clean Water Act, the sole purpose of which is to protect the water quality of streams. Most timber appraisers are schooled on the Clean Water Act, and it is the lens through which they, and Kentucky State Foresters, look at logging jobs. The wider damage done by the behavior of logging thieves is not considered. The timber expert hired by one victim, when asked about other damage, responded that the cost of water bars and of seeding grass were the only damages he was allowed to count.
Anyone who has ever looked at a legal logged site knows that water bars and seeding are not a start on damages. An illegally logged site is likely to be badly damaged in a variety of ways. For one thing, anyone who is setting out to steal trees is going to want to get in and out quickly, and is not going to care about how steep a slope they put roads on or cut trees from, in spite of state-mandated “best practices” for logging. Logging roads may have been cut so deeply into a steep slope that the road's upper side has four-foot-or-higher banks. Roots of trees above the road will have been undercut, taking away downhill support and almost assuring those trees will eventually uproot or be blown over and die. Steep erosion ditches will have formed after rains. Trees will have been taken on slopes steeper than legally allowed. Less desirable trees may have been knocked over to get to more desirable trees. Topsoil will have been scraped away. Head-high piles of debris will cover large areas and will constitute a major fire hazard for years. In general, a victim will have been left with a cut area that looks like a war zone. The contour will need to be restored. Topsoil will need to be replaced. Debris will need to be removed or cut to the ground to reduce the hazard of fire. The lost, damaged, and destroyed trees will need to be replanted.
Chances are the expense of none of these restoration efforts will be considered by the timber expert, or included in his report of damages. Yet these damages may, together or even individually, surpass the loss of the timber itself. When he asked for estimates to cut down the piles of debris to the ground and chip them so they would decay faster and reduce time exposure to fire danger, one victim received estimates that range around the $10,000 mark. One bidder explained that, where trunks, tops, limbs, and other debris are crossed over and under each other as they are in these slash piles, the work is very slow and very dangerous. The contractor has to make sure before he cuts one component of a pile that it will not cause another to spring up or fall down and injure or kill him. Restoring land contours, restoring topsoil, and replanting are also expensive. When one victim pointed out the problem to one expert, the response was, “Logging is a messy business.”
The problem with dismissing all this land damage and restoration cost by saying that logging is messy, is that it presumes the victim had some choice in the logging. If a landowner contracts with a logger to cut on his land, he has the option of negotiating these issues with the logger. He can elect to accept the mess and damage, or he can elect to deal with a logger and logging method that does not incur them. Unlike a person who contracts with a logger, however, a victim has no say in the matter. The logger came on his land uninvited and illegally and did the damage. Why should the victim not be allowed to count the restoration costs as part of the expenses the logger should be liable for?
Can’t Count in Court Problem: The victim always has the option of getting separate estimates of damage that the Clean-Water-Act experts exclude, as the victim cited above did. But getting those separate estimates is no guarantee that they will be counted in court. That victim found, when he got to court, that although the Judge knew about and accepted the $10,000 cost to get the debris piles taken care of, he did not allow that cost when considering the charges. He dismissed the felony criminal mischief charge against the defendant because the Clean Water Act water-bar-and-seeding cost, which is all the timber expert included in his report, came to less than the felony threshold of $1,000. It is as though the only damage that a landowner can suffer from an illegal logger on his personal property is damage to public streams.
If a homeowner awoke one morning to find that his lawn had been covered with tons of trash right up to his doorstep, no one would question that the person who dumped it there had committed criminal mischief, in fact almost surely felony criminal mischief considering the quantity. Victims ask why the damage caused by a logging thief should be treated differently?
The Garage Analogy: Even on an item where the expert unquestionably will include the loss – that of the timber itself – the loss is strangely computed. What the expert estimates the timber loss at is stump value. When a victim made the case that he should receive not just stump value but the amount paid to the logger by the sawmill, several people countered that, after all, the logger had expenses – payroll, fuel, etc, - to get the trees down and get them to the mill, so stump value was all the victim should expect. This is a unique view of loss. Logging theft appears to be the only theft most victims are aware of where the thief is allowed to deduct his expenses when compensation to the victim is computed.
All in all, it is as though, if a thief broke into a garage to steal a car, the victim could not count the damage to the garage as part of his loss. Furthermore, if the thief had to buy a wrecking bar, steal and copy a car key, hire a lookout, pay for the fuel, and conceivably pay someone to hide the car until he could sell it, it’s as if those expenses should automatically be deducted from the car’s value when the victim was paid.
H: THE “LEGAL” ASPECT
Finding a lawyer: The problem of affording a lawyer in a civil suit was discussed in F above. There is a further problem. Some victims have not been able to find a lawyer at any cost, or at least a lawyer close enough to prevent the victim from having to pay unreasonable travel costs for his attorney. One victim was told by several lawyers: “We don’t take land cases.” Sometimes the victim leaves a message and never gets a return call, and can only guess why the case is being rejected. Some lawyers have told the victim that they have at some time in the past represented the defendant or the defendant’s family, so it would be a conflict of interest for them to represent the plaintiff in a timber theft case. Please note that they do not say they are representing the defendant or his family currently; only that they have at some time in the past. This is such a broad interpretation of conflict of interest that, in a county with a small population, it is hard to see how, after a few years of practice, any attorney could take any new case. A victim who has already been refused help by the Sheriff and Commonwealth’s Attorney can hardly be blamed if his frustration boils over at also not being able to find an attorney to represent him civilly, and he begins to question the entire justice system. Victims who are up against rich or powerful interests are particularly inclined to question whether those factors had something to do with being unable to find a lawyer.
Dealing with legal tactics: Victims who have grown up believing in the fairness of the American justice may have a rude awakening. The “get-even” warrants mentioned in E above are part of that, but there are others. One victim received a phone call one morning to inform him that surveyors hired by the opposition would be on his land that morning surveying. There had been no motion for permission, no court authorization, none of the advance notice surveyors commonly give – nothing. The victim needed to be, and had intended to be, in Frankfort that day. With no idea of what his rights were against this court-orderless incursion, he had to cancel that trip to deal with the situation. The opposing attorney dismissed his concerns and the lack of a court order with the cavalier statement that he could do anything with the victim’s land he wanted to. It is true that the opposition attorney can get access to the victim’s land if he can convince a judge to issue a court order, and so long as he stays within the boundaries of the order, but legally his rights go no further than that. In practice, unfortunately, they apparently go considerably further. The same victim learned later in the court process that there had been a number of trespasses on his land without a court order. There were no sanctions – in fact no action at all - against the defendant or his attorney for those illegal trespasses.
Bar Association Futility: A victim who hopes that the Bar Association will act on complaints based on actions like the above will learn that a bar complaint is probably a waste of time. One victim filed a bar complaint in a case where one of the opposing attorneys had sworn a false statement – a complaint backed up by copies of the attorney’s own emails that contradicted his own sworn false statement – a complaint which was immediately rejected by the Bar Association on the grounds that no breach of legal ethics had occurred. The victim has no recourse when this occurs.
Rights in Court: Many victims are new to the legal system, and are ignorant of what they can and cannot do, and there will generally be nothing to guide them.
Furthermore, the rules are different for criminal and civil cases. For example, in a prosecution by the state, the victim has no standing. The prosecutor will be very clear about the fact that the victim is not his client. A good Commonwealth’s Attorney may consult with the victim periodically, but there is apparently no requirement to do that. A victim generally can attend court hearings as a spectator, but generally cannot participate in any way, even if he disagrees with information being presented or wishes to provide information that might be helpful. Some judges have been known to recognize a person in the audience who stands in an attempt for attention, but that is apparently at the discretion of the judge and he has no requirement to apply that privilege even-handedly; some judges do not, as at least one victim discovered. A bid for participation may even irritate the judge. Furthermore, a prosecutor can elect to negotiate a settlement with the defendant without the permission of the victim, and the victim will have no power to alter it. A judge may ask the prosecutor if the victim agrees, and may even let the victim speak in court, if he is one of the judges who does that, but he can and probably will accept the settlement over the objections of the victim, although the settlement may drastically reduce, or totally exclude, any restitution for the victim.
In a criminal case, the victim is even more restricted during the trial. He cannot be present in court except when he testifies, whereas the defendant is present during the whole proceeding and can fill in his attorney if a new issue comes up. The victim has no such advantage. The Commonwealth’s Attorney is not even allowed to ask the victim about points made by the defense which may be false, to enable him to rebut them, because the victim is not allowed to hear any other person’s testimony if he is a witness during the trial, which he almost always is. In at least one case, the judge ruled that the victim’s wife could not be in court, even though she was not a witness. Consequently, the victim will only know what transpired at the trial by getting the court record later.
In a civil case, a victim has a little more freedom. While he may not be able to come forward with his attorney when routine motions are being heard, he can be present at the table with his attorney when the trial takes place. This eliminates what can often be a great disadvantage to the victim, that of not being able to hear and assess opposing testimony, and provide rebuttal where it exists.
Be the Criminal: All of this has caused at least one victim to tell his friends that if you are going to be caught up in the court system, especially the criminal side, then be the criminal, because criminals have all the rights and victims none.
I: TRIAL ISSUES
Delays: It is not unknown for timber theft cases to drag on for five years, and some much longer. Partly this may be because of the apparently low priority the court puts on such issues, but partly it may occur because it is to the advantage of the defendant to drag the process out. For one thing, if a victim is old, as is often the case in timber theft, the victim may die before the trial, if the trial can be delayed long enough. Or the witnesses may die. The death of witnesses may seem to be a problem that applies equally to the victim and the accused, but a little thought will show this is not necessarily so. Especially in a criminal case, the burden is on the prosecution to prove guilt. In the absence of that proof, innocence is assumed. That means the prosecutor has a greater need to call witnesses to make his case, and is at more of a disadvantage if those witnesses die before the case is heard. Then there is the affordability factor. In a civil case, dragging out the case increases the legal fees to the victim. A victim who was barely able to afford a lawyer in the first place will not be able to stand long against the mounting legal fees. One older female victim who had to pay a surveyor and hire an attorney found she was running out of money, and at the same time had a serious heart attack. For the sake of her health, both bodily and fiscal, she had to drop out of the case. She told another victim, “Honey, they took everything I had.” One might say that dragging out the case also increases the cost to the defendant, but the defendant may at least have the profit from the victim’s timber to apply to the cost. The victim doesn’t have that.
“Don’t get me involved.”: Victims who seek information from others will often find that those others will talk to them only reluctantly, if at all, because they don’t want to be involved in what they correctly perceive is likely to be a long, difficult, messy process. Since, unlike law enforcement, the victim has no authority to press for information, such information is unlikely to be elicited. Victims caught in this dilemma need to be extremely careful not to offer any incentives for information, since that is likely to be construed as a bribe for false testimony.
Reluctance to testify: Of course, not everybody will be reluctant to speak to a victim. Other victims of the same logger, particularly, may be open with information. Openness in a personal conversation may not extend to the courtroom, however. Some victims find that people who were very willing to share information are not willing to be so forthcoming when they realize testifying will reveal who they are. They offer various reasons. In Eastern Kentucky, the fear of retaliation is often one of the reasons. Unemployment is high, jobs are hard to find, and large numbers of jobs may be under the control of a small number of people or organizations who may have ties to the logger, and no one wants to take any action that might jeopardize their employment. Beyond that, one commonly expressed fear is that “They’ll burn my house.” Responding that there are jails for arsonists too is generally not persuasive.
This fear is so prevalent that it impacts not only fear of testifying in another’s case, but also to even reporting the crime. One victim in 2015 called to a timber theft website and asked the website managers to report his crime for him because, as he said, logging thieves can be pretty rough people, and he was fearful of retaliation if he reported it himself. Since no Sheriff is likely to act on a third-party report, without knowing the name of the victim, where in the county the crime occurred, and other details, the third-party report would have gone nowhere. The victim was urged to report it personally, but since he didn’t identify himself or his location, whether he did or not is unknown.
“Let’s settle it” issue: As mentioned earlier, the issue of settling often comes up in court cases, whether civil or criminal. In criminal cases, in Kentucky, prosecutors generally have many more cases than they have resources to try, so settling is almost inevitably a preferred way of disposing of a case. The victim therefore may find both the prosecution and defense pushing for a settlement, with the victim the only one opposed and having absolutely no authority to intervene. This would not be a problem if the settlement terms took care of the victim’s loss, but that is often not the case - the very word settlement suggests the indictee will not paying in full for the charges, much less any compensation to the victim. One victim in a criminal case estimated his losses and expenses (surveys, etc) at $70,000. The prosecutor and defense arrived at a settlement in which the thief admitted guilt, served not a day in jail, and was instructed to pay the victim $9,000 in monthly installments. The victim objected but to no avail. He has stated that he does not expect to receive a dime of those payments, but even if he does, the admitted thief made a killing from the theft. $9000 is probably much less than the logger would have owed if he had signed a legal contract with the owner. In the view of that victim, crime clearly paid for that particular admitted thief, and the Commonwealth conspired in that.
In a civil case, the victim theoretically has more control over whether a settlement is arrived at, but practically, that may not be true. He has to think about the cost of continuing to pay an attorney, with no guarantee that a trial will result in a better deal and the possibility of a worse deal. So his options may nearly as limited as in a criminal case.
Compensation: If there is no settlement, then the victim’s power over compensation, criminal or civil, is even more limited. What the victim gets will depend on the jury (or in some cases the judge). It is a regrettable fact that, in most cases, the court-ordered compensation is a great deal less than the loss, and may be only a tenth of it. Or the judgment may involve some sort of jail time, possibly waived, but compensation to the victim may not even be mentioned, much less imposed. In a criminal case, the victim doesn’t have standing to appeal, so the settlement will be the end of the situation. In a civil case, he may have standing, but he again has to weigh the cost of an appeal against the likelihood of an increased judgment. In a state where the prevailing custom is to regard timber theft as a non-crime, he may well feel that an appeal is not a good gamble.
In fact, some victims have found out personally that appeals may work better for the other side. A victim in Virginia who lost timber some years back went through a long civil suit and eventually prevailed, only to find it was a pyrrhic victory. The jury granted the victim partial compensation for her lost timber and, more critically, awarded her legal costs, which were substantial. The logger challenged the award, maintaining that “legal costs,” which are specified in the Virginia law covering timber theft, are limited to items such as court fees and documents, but do not cover attorneys’ fees, which for her were five to six figures. He appealed to the Virginia Supreme Court. In January 2016, the Virginia Supreme Court, to her astonishment, upheld the interpretation that legal costs do not include legal fees. So the result of her long, stressful, expensive struggle for justice is that she is much worse off than if she had never taken action.
J. INCENTIVIZING THE THIEF:
Bottom Line: Victims, for reasons of absence, ill health, etc, can’t watch their timber all the time (nor do we want a nation where it is assumed that it is the victim’s responsibility if a crime occurs). Loggers rarely notify landowners whose land abuts their logging areas to enable the owners to guard their land against “straying” by a logger. Loggers have many options for getting in and out of a victim’s land without being caught. If caught, loggers can claim such “straying” was accidental. Law enforcement will rarely take action. Even in cases where law enforcement personnel do not immediately rule out action, they demand expensive surveys of the victim, not the people involved in taking the timber, and the victims can rarely afford that, nor the other “entry fees” levied on them. Even if a rare Sheriff will open a case, a prosecutor may decline to prosecute. Even if a victim can find an attorney to take his case, civil suits are prohibitively expensive. Cases drag on until the victims runs out of money, develop drastic health problems, or die, or until witnesses die. Too many people will not provide information to a victim, and many of those that do will not testify. For a victim, going through a court case has been characterized as the equivalent of going through chemotherapy, the stress is so extreme. A victim’s losses are undercounted for legal purposes, often being limited to actions that may harm water quality. Add to that a situation in which a logger essentially is allowed to deduct the expenses of stealing a victim’s timber from any counted compensation, and it's easy to see that the logger rarely has to worry about potentially facing payment of full compensation. Even if the losses are fully allowed, and the logger admits to or is convicted of the theft, compensation is not likely to cover the losses and expenses and the logger is not likely to face any jail time. Under those circumstances, it is no wonder that timber theft is attractive. The incentive system virtually guarantees timber theft.
One of the interesting facets of logging is that the Commonwealth maintains a list of loggers that is called a ”Bad Actor” list. The irony of the situation is that a logger can get on the “Bad Actor” list for failing to meet clean water standards (not sowing grass on a bulldozer road, for instance), but that same logger could steal tens of thousands of dollars of timber year after year, and never be put on the bad actor list, for the simple reason that the Commonwealth apparently feels more obligation to keep silt out of the water than it does to protect victims of timber theft.
K. WHAT OTHER STATES DO: Over the last decade and a half, a number of states have been toughening their statutes against timber theft. Sometimes that means increasing penalties, but at other times it has meant establishing a professional unit to investigate and assist in prosecution of timber theft. Some examples are:
In the early nineties, South Carolina passed specific criminal laws on timber theft and assigned investigation to the State Forestry Service,, not the local Sheriffs or State Police.
New York in 1997 toughened their laws. The new law requires State Department of Environmental Conservation Officers to enforce trespass laws against timber thieves. Governor Pataki pointed out that timber theft not only results in significant property losses but also irreversible environmental damage. Article 155 of state penal law classifies the theft of any property with a value of greater than $1000 as grand larceny, a felony, and punishable as such. New York also has felony criminal mischief laws that can be brought to bear on timber theft. In 2004, one thief got up to 3.5 years in prison and a fine of $5600 for stealing from state land. His accomplice, who helped him load the logs, got 3 months and 4.75 addition years of probation.
In 1997, Texas toughened its laws, making theft of more than $500 in property a felony.
In Virginia, timber thieves can be prosecuted criminally as they can theoretically be in Kentucky, but, as in Kentucky, that rarely happens. If a victim can by some luck get a criminal prosecution going, then timber theft of over $200 in Virginia is a felony and the penalty is up to 20 years, restitution, and a fine up to $2500.
Washington State has prosecuted a number of timber thefts criminally. In one jurisdiction, Deputy District Attorney Jason Richards sent at least a dozen people to jail for timber theft, including one man for 7.5 years.
In 1993, Mississippi established an Agriculture Theft Bureau that investigates timber theft. They have investigated a number of cases and made a number of arrests. It is not clear whether they investigate only thefts from the state or all thefts.
Louisiana’s Forestry commission investigates timber theft. In 1998, they completed investigations on 144 cases with losses estimated at $555,000. It is not clear whether they investigate only thefts from the state or all thefts.
The Texas Forest Service investigates timber theft. In early 1999 they had 53 investigations going and had gotten 4 convictions in the first half of the year. It is not clear whether they investigate only thefts from the state or all thefts.
In 2001, Arkansas passed Statute 15-32-601 giving their Forestry Commission the authority to investigate timber theft. It supplements the general felony theft statute with provisions specific to timber. Under the new law, the thieves can also get felony prison time.
In Alabama, one logger got three years in prison and a $154,000 fine for timber theft.
In 1998, the FBI helped conduct an investigation that spanned four states - Louisiana, Texas, Oklahoma, and Arkansas.
To take specific instances, Indiana and South Carolina have established investigative units inside their state Department/Division of Forestry. That offers the benefit of assuring that the people investigating timber theft have specialized training which most Sheriffs' offices and Police units do not. They know the territory – who the loggers, buyers, and sellers of timber are, what the value of timber is, the wisdom of taking a thin slice of a stump to match to a log bought by a sawmill, how to use DNA for matching stumps and logs, what evidence to gather, etc. Some of them issue news releases when they make arrests for timber theft, which have the secondary effect of making sawmills wary of buying from people whose names show up several times in such news releases. These units can also put out educational materials telling people what to do and who to call if their timber is missing. The roughly-two-dozen South Carolina Forestry investigators apparently deal with about 200 cases a year, but an official stated that one measure of their success is that the average value of the thefts has steadily declined since they set up the special unit.
L. WHERE TO FROM HERE: Timber theft is tremendously destructive to the victims, to the legitimate industry, and to the environment:
The victim suffers many adverse effects. There is monetary loss, not likely to be recompensed by the current legal system. In many cases, timber is the major financial asset of these people, which has been passed down from earlier generations, and is needed for retirement or education, or other essential uses. Even more important is the mental and emotional damage caused by the stress of the loss, and the difficulty in combating it. This is particularly difficult for some of the elderly, who don’t have the stamina or resistance needed to manage it. In recent years three people have died while in the process, and their relatives are convinced that the strain and mental anguish of this arduous process hastened their deaths. Many have described timber theft as having affected them in the same way as a rape, causing the same sense of violation.
There is also a great loss of reputation and credibility to the legitimate loggers, because they are tarred by the same brush as the timber thieves.
Timber theft causes severe and permanent environmental damage. Timber thieves are only interested in getting prime timber and getting out as quickly as possible. They probably cause more permanent damage than any other industry. They think nothing of driving a road straight up the side of a mountain, pushing over poplars and other less desirable trees to get to red oaks, white oaks, and maples, and then abandoning the mess they have created , with no thought of remediation. The roads quickly become eroded and the topsoil washes away, ending up in, and clogging up, a river. The underlying clay then becomes waterlogged and breaks up into larger and larger clumps and balls. Eventually all the roads will get down to bare rock. As everyone in Central and Eastern Kentucky should know, water supplies are becoming crucial. Hindman, Kentucky has run out of water and had to have it trucked in by the National Guard. Other towns have intermittent water failures.
Kentucky clearly has a serious timber theft problem which is not being adequately addressed. A few years back, the Louisville Courier-Journal published an article in which they characterized timber theft as probably the least prosecuted crime in Kentucky. In 2008, 2009, amd 2010, legislation was drafted to attempt to change the incentive system and to strengthen the hand of the Commonwealth and its investigators and prosecutors in going after timber theft. Those legislative attempts have gone nowhere so far. As some people have pointed out, including one University of Kentucky official involved in logging programs, the best approach may be to bypass the thieves and file a class action suit against the Commonwealth itself for failing an entire class of victims.
Meanwhile, every victim needs to report timber loss immediately to the Sheriff or local police, and to pursue prosecution. Victims need to band together for strength in fighting the problem. They need to make noise, bring attention to the problem, do as much on their own case as their health and resources allow, talk to General Assembly members about the problem as a whole, and generally refuse to meekly accept victimhood. Banding together is the best way to gain power and attention. If you are a victim, please call Eco-Outpost at 606-633-9546 or606-335-2073 and report your timber loss, or click here to email Eco-Outpost. Even if you elect not to go through the trauma of trying to get justice/compensation in your own case, you may be helping someone else by your presence on the list and the circumstances of your loss.