VICTIMS' GUIDE TO TIMBER THEFT - 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 ranged 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 knowingly 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 arranging 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.