[CITE: Chacon v. Richards Sawmill, et al., 10 CADDNAR
311 (2006)]
[VOLUME 10, PAGE 311]
Cause #: 06-065F
Caption: Chacon v. Richards Sawmill, et al.
Administrative Law Judge: Lucas
Attorneys: all parties pro se
Date: July 11,
2006
NONFINAL ADMINISTRATIVE JUDGMENT
[NOTE: A CONFERENCE WAS HELD ON AUGUST 7, 2006 IN
WHICH THE PARTIES REPORTED THE AMOUNTS ORDERED IN THE NONFINAL ADMINISTRATIVE
JUDGMENT HAD BEEN FULLY SATISFIED. A
FINAL ORDER OF DISMISSAL WAS THEN ENTERED INSTEAD OF A FINAL ADMINISTRATIVE
JUDGMENT.]
(1) Ruben Chacon is granted
an administrative judgment against Ralph Howard and Randall Howard, doing
business as Howard Logging, in the amount of $318.65. The administrative judgment is joint and
several as to Ralph Howard and Randall Howard, as well as to the business
entity known as Howard Logging. The
entry of an administrative judgment is without prejudice to Chacon to seek bond
or security forfeiture, as authorized by the Timber Buyers Act, if the
administrative judgment is not satisfied within 30 days after the entry of a
final administrative judgment. Interest
at the rate of 8% per annum accrues from the date of the Commission’s entry of
a final administrative judgment.
(2) Ruben Chacon is granted
an administrative judgment against Jerry A. Richards and Robert Richards, doing
business as Richards Sawmill, in the amount of $66.60. The administrative judgment is joint and
several as to Jerry Richards and Robert Richards, as well as to the business
entity known as Richards Sawmill. The
entry of this administrative judgment is without prejudice to Chacon to seek
bond or security forfeiture, as authorized by the Timber Buyers Act, if the
administrative judgment is not satisfied within 30 days after the entry of a
final administrative judgment. Interest
at the rate of 8% per annum accrues from the date of the Commission’s entry of
a final administrative judgment.
(3) Ralph Howard and Randall
Howard, doing business as Howard Logging, have no responsibility with respect
to the judgment described in part (2).
Jerry Richards and Robert Richards, doing business as Richards Sawmill,
have no responsibility with respect to the judgment described in part (1). Satisfaction of the administrative judgment
described in part (1) does not satisfy the judgment described in part (2). Satisfaction of the administrative judgment
described in part (2) does not satisfy the judgment described in part (1).
(4) This administrative
judgment addresses all issues of damage and responsibility, and, after the
completion of the opportunity for judicial review, may be enforced in a civil
proceeding as a judgment.
[VOL. 10, PAGE 312]
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. Ruben Chacon (“Chacon”)
initiated the proceeding when on April 5, 2006 he filed a complaint seeking to
obtain compensation for timber allegedly harvested unlawfully from real estate (the
“subject property”) he owns in
2. The complaint identifies
Jerry A. Richards, Cheyenne D. Allen, Roger Risner, Robert Richards, Ralph
Howard and Randall Howard as persons who may have been individually or jointly
responsible for the harvest. These
persons are collectively the “Respondents”.
3. The Natural Resources
Commission (the “Commission”) served a “Notice of Prehearing Conference”, with
the complaint attached, upon Chacon and upon each of the Respondents.
4. Chacon’s complaint is
governed procedurally by IC 4-21.5 (sometimes referred to as the “Administrative
Orders and Procedures Act” or “AOPA”) and rules adopted by the Commission at
312 IAC 3-1 to assist with its implementation of AOPA.
5. The regulation by the
Department of Natural Resources (the “DNR”) of timber buyers, and other persons
associated with the enterprise of timber harvesting, is provided in IC 25-36.5
(the “Timber Buyers Act”).
6. Chacon is a “timber
grower” as the term is defined in the Timber Buyers Act.
7. A timber grower may
commence an action under IC 4-21.5-3-8 against a timber buyer or timber cutter
if there is no written contract with the timber grower for the sale of timber,
and if the timber buyer or timber cutter has cut timber without payment having
been made to the timber grower equal to the value of the timber as determined
under IC 26-1-2. IC 25-36.5-1-3.2.
8. The Respondents or some of
them are “timber buyers” or “timber growers” as those terms are defined or used
in the Timber Buyers Act.
9. Chacon has filed a
complaint under IC 25-36.5-1-3.2 that states a claim for relief against a
timber buyer or a timber grower under the Timber Buyers Act.
10. The Commission is the
“ultimate authority” under AOPA for an action under IC 25-36.5-1-3.2. The Commission has jurisdiction over the
subject matter of Chacon’s complaint and over the persons of the Respondents
and him.
[VOL. 10, PAGE 313]
11. Conservation Officer
Brian Hultquist investigated the subject property based upon requests by Chacon
and Chacon’s neighbor, Shelley Fletcher. The investigation supported Hultquist’s theory
there were two separate harvests, one by Ralph Howard and Randall Howard, doing
business as “Howard Logging”. The other
was by Jerry Richards and Robert Richards, doing business as “Richards Sawmill”. The Howard harvest took place in the summer
and the Richards Sawmill harvest took place when leaves were off the trees. Hultquist also distinguished the two harvests
because the Howard stumps showed a dovetail cut and the Richards stumps showed a
stair-step cut. The DNR marked the
stumps from the Howard harvest with red paint, and those from the Richards
Sawmill were marked with white paint.
12. Based upon the
identification of stumps by Hultquist, and applying principles that are
standard in the DNR and in the timber harvesting industry, Duane McCoy of the
DNR’s Division of Forestry determined the stumpage value for trees harvested by
Howard Logging and by Richards Sawmill from the subject property.
13. McCoy determined the
stumpage value attributable to the unlawful harvest of timber by Howard Logging
from the subject property was in the amount of $318.65.
14. McCoy determined the
stumpage value attributable to the unlawful harvest of timber by Richards
Sawmill from the subject property was in the amount of $66.60.
15. During a telephone status
conference held on June 5, 2006, the participating parties agreed the amounts
described in Finding 13 and Finding 14 would appropriately compensate Chacon
for the unauthorized harvest of timber from the subject property by Howard
Logging and by Richards Sawmill.
16. In a “Report of Telephone
Status Conference and Notice of Telephone
Status Conference” entered on June 6, 2006, the Administrative Law Judge
emphasized that the parties were not required to enter a settlement based upon
the amounts described in Finding 13 and Finding 14. These amounts were his understanding of the
reimbursement that would be provided, based upon the representations and
aspirations of the parties expressed during the initial prehearing conference
held on May 4, 2006, if the calculations made by McCoy were to be applied. The parties were informed they might yet
determine not to enter a settlement, or they might enter a settlement based
upon different terms. The parties were
advised and ordered to file and serve a pleading or document by July 1, 2006 if
the amounts described in Finding 13 and Finding 14 were determined by any of
them to be unacceptable.
17. No party has elected to
file a pleading or document to contest or to express reservations concerning
the amounts described in Finding 13 and in Finding 14.
[VOL. 10, PAGE 314]
18. Chacon should be granted
an administrative judgment against Ralph Howard and Randall Howard, doing
business as Howard Logging, in the amount of $318.65. The administrative judgment should be joint
and several as to Ralph Howard and Randall Howard, as well as to the business
entity known as Howard Logging. No
surety was made a party to this proceeding.
The entry of an administrative judgment should be without prejudice to
Chacon to seek bond or security forfeiture, as authorized by the Timber Buyers
Act, if the administrative judgment is not promptly satisfied. Interest at the rate of 8% per annum should
accrue from the date of the Commission’s entry of a final administrative
judgment.
19. Chacon should be granted
an administrative judgment against Jerry A. Richards and Robert Richards, doing
business as Richards Sawmill, in the amount of $66.60. The administrative judgment should be joint
and several as to Jerry Richards and Robert Richards, as well as to the
business entity known as Richards Sawmill.
No surety was made a party to this proceeding. The entry of an administrative judgment
should be without prejudice to Chacon to seek bond or security forfeiture, as
authorized by the Timber Buyers Act, if the administrative judgment is not promptly
satisfied. Interest at the rate of 8%
per annum should accrue from the date of the Commission’s entry of a final
administrative judgment.