VICTIMS' GUIDE TO TIMBER THEFT - RECOURSE
(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.)
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.
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.
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 $500 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 $500. 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 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: “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 $500, 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 state criminal prosecution going: First way: (The following example is from Kentucky, but the procedures are similar in other states, although the titles of the players may differ.) 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 $500 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 the Grand Jury indicts, 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 may ask for the victim’s agreement, but they can settle without the victim's agreement, 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. (In Kentucky, 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 - victims have a couple of alternatives. If a Sheriff won’t act, victims can try the State Police. If a prosecutor won’t act, victims 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, victims can sue civilly.
Civil Suits: Filing a civil suit will mean that the victim, 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 a victim decides to sue, and can afford to sue, he can sue for compensation under common law for theft/conversion of your timber, or can sue for compensation under the Timber Trespass Act, KRS 364.130. He may not even need to specify which way he wants to recover under when he initially files. KRS 364.130 says essentially that if a logger encroaches on a victim’s land from adjoining land, victims are entitled to stump value for the trees taken, but if the logger has not provided notice to ythe victims that he will be cutting neighboring land so the victim can agree on boundaries, then victims are entitled to triple the stump value and damage to their land, plus 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 encroachment is discovered, loggers 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 in court 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: Victims need not choose between civil and criminal. They 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. Victims can do that. They 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 $500, the victim won’t have to worry about the Statute of Limitations expiring if he takes this route. he will not have the benefit of having the government investigate and prosecute, and it will be more expensive, but he’ll have more control of a civil than a criminal case.
Alternatively, a victim can elect to file a criminal case first, and a civil case second. What’s nice about this is that if the criminal case results in a guilty verdic,t and with compenstion the victims is happy with, then the victim need never 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 the victim is suing because a contract has been violated, then in Kentucky the victim is allowed five years. But if the logger was not cutting for the victim but for himself or someone else and there was no contract with the victim, then the victim may have only one year from the time he discovers his 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 the victim will be faced with the decision of whether to go through the process and expense of filing a civil suit before he has any idea what is going to happen on the criminal case. And which way he goes will involve megabucks.
Federal Racketeering (RICO): If you’re a victim, 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, Kentucky. So if all else fails with state authorities, call a United States Attorney or the FBI, describe your problem, and ask for help.
And think Lacey Act. In 2015. a new method surfaced for bringing federal prosecutions to bear on logging thieves. Although the application is new, the law is an old one. It's called the Lacey Act, and it was first passed roughly a hundred years ago. Originally, it was intended to prevent fish and game from being illegally taken in one state and sold in another state, and particularly seemed to be focused on birds and bird plumage, for which there was a flourishing market among makers of hats and clothing, and the practice of which decimated some bird populations. Over the years, the Act was gradually expanded. Around the eighties, taking timber in violation of the law was added. At that time, though, the big push to add timber came about because timber harvested illegally in other countries and imported here was becoming a threat to the American timber industry. Perhaps because of that focus, prosecutions were confined to stolen timber entering the country from outside, not timber crossing state lines. In 2015, however, that all changed. A Washington State sawmill owner allegedly either hired or contracted with some men to cut a particularly valuable form of maple used to make musical instruments. The alleged loggers chose, either by direction or otherwise, to harvest those trees from an Oregon National Forest. The Federal Government successfully brought the Lacey Act to bear in that prosecution. It will be some time before this internal application of the Lacey Act will be well defined. Still, so far as can be determined, there is nothing in the Lacey Act that confines its application to wood from national forests. Furthermore, most stolen timber likely does cross state lines, since people in all states use wood, but many states don't grow nearly what they use, and must source the balance from other states. So, if you can't make a RICO case, perhaps you can establish that your timber walked across into another state, either as logs or as boards, and can talk to your nearest federal attorney about the Lacey Act.
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.