VICTIMS' GUIDE TO TIMBER THEFT - 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 person who hired him – 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. Arranging 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' 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 $500, 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. Such 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 in Kentucky, 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.