[NOTE: Vacated by ALJ on October 4, 1994 when the parties entered a settlement. No action by NRC.]
Marvin L. Zwahlen is granted an administrative judgment under IC 25-36.5-1 against Richard L. McDurmon in the amount of $1,757. The bond of the Ohio Casualty Insurance Company, posted with the Department of Natural Resources on behalf of Richard L. McDurmon and applicable to timber cut in 1993, is forfeited in favor of Marvin L. Zwahlen in the amount of $1,757. Richard L. McDurmon shall receive credit to the extent payment is made by Ohio Casualty Insurance Company to Marvin L. Zwahlen as a result of bond forfeiture. This administrative judgment addresses all issues of damage and responsibility, and, after the completion of the opportunity for judicial review under IC 4-21.5, may be enforced in a civil proceeding as a judgment.
FINDINGS OF FACT
1. The department of natural resources (the "Department") is an "agency" as the term is defined in IC 4-21.5-1-3.
2. Ajudicatory proceedings of the Department are governed by IC 4-21.5 (sometimes referred to as the "Administrative Orders and Procedures Act" or "AOPA".
3. The natural resources commission (the "Commission") is the "ultimate authority" (as defined in IC 4-21.5-1-15) for the Department.
4. The Commission governs any hearing for the Department which is conducted under the AOPA. IC 14-3-3-25. To assist in the administration of hearings under the AOPA, the Commission has adopted a rule as codified at 310 IAC 0.6-1.
5. On November 24, 1993, Marvin L. Zwahlen ("Zwahlen") filed with the Commission a complaint against Richard L. McDurmon ("McDurmon") for timber alleged to have been wrongfully cut from real estate owned by Zwahlen and his wife in Vanderburgh County, Indiana.
6. The complaint commenced a proceeding before the Commission which is governed by the AOPA; Stephen Lucas was appointed the Administrative Law Judge to conduct the proceeding.
7. Notice of the complaint and notice of a preheating conference were served upon McDurmon by letter dated January 6, 1994. McDurmon appeared in person for the preheating conference.
8. The substantive law at issue is found primarily within IC 25-36.5-1, a statutory chapter which addresses the licensing of timber buyers and the administrative remedies for landowners aggrieved by a wrongful cutting of timber. In addition, the Commission has adopted rules at 310 IAC 23 to assist in the administration of IC 25-36.5-1.
9. McDurmon is a timber buyer who was, at all times pertinent to this proceeding, licensed with the division of forestry of the Department under IC 25-36.5-1.
10. A timber buyer is required to maintain a bond with the Department made payable for the benefit of any landowner whose timber has been cut by the timber buyer, or an agent for the timber buyer, where the landowner is not paid for the timber. IC 25-36.5-1-3. See, also, IC 23-3-2.
11. McDurmon has provided bond to the Department, as required by IC 25-36.5-1-3, through the Ohio Casualty Insurance Company ("Ohio Casualty") - Notice of the proceeding was provided by first class mail to Ohio Casualty in advance of the January 6 preheating conference, but Ohio Casualty did not appear for the preheating. Notice of this proceeding and of a scheduled hearing was then provided to Ohio Casualty by certified mail with return receipt requested, and the notice was delivered as demonstrated on a return receipt dated August 8, 1994. In addition, the Administrative Law Judge telephoned Ohio Casualty on August 5, 1994 and informed the company of the pending action.
12. Service has been made upon McDurmon and upon Ohio Casualty. Zwahlen, McDurmon, and Ohio Casualty are the parties to this proceeding. The Commission has jurisdiction over the person of each of the parties and over the subject matter.
13. McDurmon received oral permission form Zwahlen to enter Zwahlen's real estate in order to access and cut timber from a neighboring landowner, Fred Boehne. In addition, McDurmon received oral permission from Zwahlen to purchase and cut one red oak tree located about 100 feet from the line separating the Zwahlen and Boehne properties. Terms of the oral agreement did not include access to the south end of Zwahlen's real estate
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and was made with the understanding that all areas would be restored to the condition prior to timber cutting.
14. In January and February 1993, McDurmon entered upon the Boehne and Zwahlen properties for the purpose of harvesting timber. The red oak tree, located on the Zwahlen property and described in Finding 13, was cut. McDurmon used a farm field and swale, without Zwahlen's permission, as a log-cut from Boehne's woods. Tree limbs and branches were left in Zwahlen's tillable land. The consequence was to reduce the effectiveness of the drainage system and to cause previously cultivated land to be removed from cultivation.
15. Zwahlen telephoned McDurmon on May 9, 1993 and asked him to repair the damages and remove the debris. He also demanded payment for the red oak tree. McDurmon apologized and promised to send an agent to the site within two weeks to repair the damage but no one appeared.
16. Zwahlen wrote a certified letter to McDurmon on July 5, 1993 again requesting him to repair the damages and to remove the debris from the Zwahlen property. There was no response to the letter.
17. A preheating conference was conducted in this proceeding on January 6, 1994. During the preheating conference, Zwahlen and McDurmon agreed to terms for the settlement of the case, but McDurmon later took no action with respect to the settlement.
18. McDurmon has never paid Zwahlen for the red oak tree cut from the Zwahlen property.
19. Testimony received at hearing demonstrates that the reasonable cost of restoring the Zwahlen real estate is a follows:
A. Equipment rental (including a back hoe) to repair the ruts, restore the contour of the swale, and remove the debris from the surface in the amount of $432.
B. Reseeding one side of the swale following land restoration in the amount of $1,000.
20. Testimony received at hearing demonstrates that reasonable compensation for the red oak tree, estimated to have included 650 board feet at a value of $0.50 per board foot, is in the reasonable amount of $325.
21. A landowner claiming damages against a timber buyer has the burden of proof with respect to the claim. Baird Trust v. Speedy Howe Logging, Inc., 7 Caddnar 14 (1993). Those damages include compensation for any harm actually resulting from the wrongful activities of a timber buyer or timber cutter. IC 25-36.5-1-3.2(f)(1).
22. Zwahlen has sustained the burden of proof that he is entitled to receive $432 to repair the ground surface, $l,000 to reseed the swale, and $325 to compensate for the red oak tree. The compensation owed by McDurmon in favor of Zwahlen is in the total amount of $l,757.
23. As the surety for McDurmon, Ohio Casualty is responsible for a bond forfeiture in favor of Zwahlen in the amount of $1,757.
24. A final determination should be entered in favor of Zwahlen and against McDurmon and its surety Ohio Casualty in the total amount of $1,757. The determination would address all issues of damage and responsibility presented by this proceeding.