Whitesburg KY

Banks wants guidance from attorney general in timber theft cases

Letcher Commonwealth’s Attorney Edison G. Banks II is asking Kentucky Attorney General Jack Conway for guidance in prosecuting cases involving allegations of timber theft.

A copy of a letter Banks wrote to Conway explains the problem of timber theft in Kentucky and defines the areas in which Banks believes prosecutors are in need of guidance from the state’s top law enforcement official.

Following is the text of the letter:

Dear Attorney General Conway,

Prosecutors as well as state and local law enforcement officers are receiving numerous complaints of timber theft. In nearly every case the timber is not discovered stolen until the thief has long since left the area and sold the logs. The logs are usually processed into lumber within a week and thus become impossible to identify and distinguish from other lumber which has legitimately been harvested and processed into lumber.

In nearly each case in which a person is identified as having cut down the trees, they allege that they were acting in good faith and that any trespass or theft was entirely innocently done. In most cases the logger states that they were relying on old mining maps or upon a third party who pointed out the boundary line of adjoining property owners to the logger before operations began.

The logger then offers the landowner a ridiculously low price for the timber which the landowner did not wish to sell. The landowner generally accepts the money knowing that they can not afford a survey nor an expert to provide estimates for the value of the timber or for the damages to the real property.

In nearly every case the logger argues to law enforcement that because there was a boundary dispute, the matter must be pursued as a civil matter. They base this argument on an unpublished opinion of the Kentucky Court of Appeals . . . that held that because there was a genuine issue of ownership of the property, as neither party had their property surveyed to determine the actual boundary line until after the timber theft issue arose, sole remedy available to the landowner was a civil action. The case left many unanswered questions and seems to limit the vast majority of alleged timber theft cases to civil actions.

The issue of timber theft is made even more complicated by virtue of the ‘master logger’ statutes found in KRS 149.342 and the civil penalty of treble damages provided for under KRS 364.130 and 364.990. In a recent timber case that I tried in the Perry Circuit Court, the court refused to allow any of these provisions to be heard as evidence in the trial, specifically any testimony requiring the master logger to notify adjoining landowners prior to harvesting of timber of the proposed site of operations and of flagging the boundary lines as provided for in the ‘master logger’ statutes.

I am accordingly requesting an opinion of your office upon the following issues:

1. What role do the ‘master logger’ provisions of KRS 149.132 and the penalty sections of KRS 364.130 and 364.990 play in a criminal prosecution for theft of timber? Is there a duty to adhere to the master logger provisions which if not followed may be used in a criminal trial to show lack of mistake or common scheme, motive or intent? What effect would any award of damages in a criminal action have on KRS 364.130 and 364.990 if the civil remedy of treble damages is later pursued? What effect would a judgment in a civil case for damages have in a criminal prosecution?

2. What effect does the (court’s earlier decision) have in pursuing a criminal prosecution? What would be considered as a valid dispute to require the alleged theft be pursued as a civil and not as a criminal action?

3. Must a landowner in order to meet the burden of proof in a criminal case have a survey clearly identifying the property lines and location of the timber alleged stolen? If the survey is not obtained until after the theft of timber is discovered does this limit the remedy to a civil action?

4. What is the measure of damages in a criminal case, i.e., the stumpage value of timber or the fair market value of the timber or the value after the timber is harvested and converted into lumber? What is the measure of damages in a criminal case for the destruction of other timber and damage to the surface of the real property? How do you prove this value in a criminal case? Must these values be proven by an expert witness or at the very least by an individual who can qualify as an expert witness?

5. Who bears the cost for a survey, timber appraisal, and appraisal for damages to the real property – the victim who generally does not have the funds (normally several thousand dollars) or the Commonwealth to whom the victim asks why should I pay for the expert witness? A victim in a robbery does not pay for the analysis of the evidence by the crime lab so why should I?

I believe that an opinion on these matters will be of great use to numerous prosecutors, law enforcement officers, and to the land owners, loggers and other concerned citizens of the Commonwealth.

Thank you for your assistance in these matters.

Edison G. Banks II Commonwealth’s Attorney Letcher County

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