Whitesburg KY
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Telling their side of the story




To the Editor:

Having read the article in the 14 May 2008 Mountain Eagle, we wanted to present our view of the case and the lack of indictment. We do not know what instructions were given to the grand jury when they considered the case, nor what evidence was presented (or not presented) which led to the failure to indict. What we can do, however, is present our evidence in this letter.

1. The logger was caught on our land in the very act of cutting our trees by our nephew, Mark, and also was seen by neighbors hauling our timber out.

2. He had not given notice to us or, as far as we know, any other neighbors, although such notice is laid out in Kentucky law. He cannot plead that he did not know that he was supposed to give notice, because he is a master logger and the notice requirements are taught in the master logger course. He was fully aware that, before he cut a single tree, he needed to notify adjoining landowners. He deliberately did not do that, although that simple action would have prevented him from taking our timber.

3. He did not do anything to verify that the woman who contracted with him actually owned the timber he bought from her. If he had been buying a car, he would certainly have demanded proof of title before he proceeded. If he had been buying a house, he would have demanded proof of title. Why then, when he was buying timber, did he not verify title?

4. His failure to make even a minimum effort to make sure that the person selling him the timber actually owned it is bad enough. But there is worse. When my nephew caught him, the logger defended himself by saying that when the woman first approached him, he looked over the area she was proposing he cut, and told her it didn’t hold any marketable timber. Yet when she came back and showed him a new tract with timber, and told him she had recently bought it from us, he accepted her word. We submit that a reasonable person would have suspected immediately that there was something wrong and checked at that point. But the logger did not evince the slightest suspicion that there might be anything wrong. Apparently her statement was enough for him, although a simple trip to the courthouse would have shown him that we had not sold any land. It is hard to avoid the assumption that he simply did not care, or that he deliberately did not make any effort to make sure he was cutting legally.

5. Our family has owned that land since the early 1800s – almost 200 years. Almost anyone in the area could have told the logger that it was ours, had he bothered to make the most cursory check. Two professional surveyors have told us that it is one of the easiest deeds to follow, since it references gaps, ridges, points, etc. Furthermore, the boundary he came inside when he cut our timber was fenced, both along the ridge and down the point. Nevertheless, at the request of the Commonwealth’s Attorney, we had an on-the-ground survey done which verified that our boundaries were exactly where we and the deed said they were.

6. We have video of the logger’s bulldozer on our land, and video of our losses.

In summary, the timber that was taken was ours, and the land it was taken from was ours. The logger was caught in the act of cutting it and hauling it out. He had reason to be suspicious, but made no effort to verify ownership. He gave no notice to adjoining landowners, although he was aware that he should have. He exhibited more than simple negligence in his actions.

As we said, we do not know how much of this evidence was actually presented to the grand jury, and we do not know how the jury was advised by the Commonwealth’s Attorney. We do know that none of us – including the only eyewitness, our nephew Mark – were allowed to testify before the grand jury, to make sure that our evidence was given to the members. In fact, we were actively discouraged from testifying, or even appearing outside the grand jury room, by Officer Collins, who several times told us we would not be allowed in with the grand jury. We also know that the logger’s actions demonstrate an amount of ‘negligence’ that certainly ought to rise to the level of criminal negligence. When a drunk driver kills someone, the fact that he did not intend to does not mean no crime was committed. A Letcher County man recently was given 15 years for causing a death while driving under the influence. How are the logger’s actions different, except for not having the excuse of being impaired? Why is taking our timber not a crime if killing someone without intention is? The logger had means to avoid stealing our timber, he was aware of those means, and he chose to ignore them and take our timber.

We have only the unsupported word of the logger that the woman who sold him the timber told him she owned the land and showed him where to cut. Had she been brought before the grand jury, she might have told a different story. Furthermore, if the grand jury elected to believe the logger on those points, then why was the woman herself not indicted for deliberately directing him to cut on land she did not own and taking money for the timber? She was at least as negligent, or worse-than-negligent. If the grand jury was going to accept any map or survey, why did they take an informal invalid one allegedly from her instead of the actual, certified, on-theground survey that the Commonwealth’s Attorney required from us? For that matter, why is it that actual proof of boundaries is required of the victim but no actual proof is required of the logger or the person contracting with the logger? The victim is the only one with no voice in the taking of their timber. Why should it be that the system will let people who take timber without permission get by with no evidence of ownership, but makes the victim bring proof of ownership? Other states do this better. What is wrong with Kentucky?

The lesson this action teaches loggers is that any logger can cut any property he wants to, excuse himself by saying he didn’t mean to, bring no proof, and be let off. And so long as loggers can get away with ignoring notification, ignoring title verification, and depending on the fact that the law won’t act and the victim can’t afford to sue, a large number of them will take timber that doesn’t belong to them. And they do. Regularly. That’s why we have such a plague of timber theft in this area, including multiple ‘accidental’ timber cutting by the same person, which we also have. If a logger were honest, after his master logger training, or at worst after one genuine accident timber removal, he would take care to assure that in the future he did whatever was necessary to be sure he didn’t take timber wrongfully. Yet time after time we have the same logger involved in taking timber without permission. It is hard to see that, or any situation in which the logger did not notify, check title, etc., as an honest mistake. The truth is that it is to the advantage of a dishonest logger to neither notify nor check title because then he can always play innocent, and that will apparently work.

MARVIN and VERNA POTTER Ermine


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