CADDNAR

[CITE: Fletcher v. A & S Logging, et al., 10 CADDNAR 315 (2006)]

 

[VOLUME 10, PAGE 315]

 

Cause #: 06-079F

Caption: Fletcher v. A & S Logging, et al.

Administrative Law Judge: Lucas

Attorneys: all parties pro se

Date:  July 12, 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) Shelley Fletcher is granted an administrative judgment against Ralph Howard and Randall Howard, doing business as Howard Logging, in the amount of $1,265.55.  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 Fletcher 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) Shelley Fletcher is granted an administrative judgment against Jerry A. Richards and Robert Richards, doing business as Richards Sawmill, in the amount of $829.75.  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 Fletcher 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). 

 

[VOL. 10, PAGE 316]

 

(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. 

 

 

FINDINGS OF FACT AND CONCLUSIONS OF LAW

 

1. Shelley Fletcher (“Fletcher”) initiated the proceeding when on April 20, 2006 she filed a complaint seeking to obtain compensation for timber allegedly harvested unlawfully from real estate (the “subject property”) she owns in Starke County, Indiana.

 

2. The complaint identifies A&S Logging, Cheyenne D. Allen, Howard Logging, Ralph Howard, Randall Howard, Richards Sawmill, Jerry Richards and Robert Richards 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 Fletcher and upon each of the Respondents.

 

4. Fletcher’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. Fletcher 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. Fletcher 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.

 

[VOL. 10, PAGE 317]

 

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 Fletcher’s complaint and over the persons of the Respondents and him.

 

11. Conservation Officer Brian Hultquist investigated the subject property based upon requests by Fletcher and Fletcher’s neighbor, Ruben Chacon.  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 $690.55. 

 

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 $254.75.

 

15. In addition, Fletcher was reasonably required to incur the expenses of a surveyor in the amount of $1,150 to determine the property lines pertaining to the two timber harvests.  Howard Logging agreed to and should reimburse Fletcher for half of the survey expenses in the amount of $575, and Richards Sawmill agreed to and should reimburse for the other half of the survey expenses in the amount of $575.

 

16. During a telephone status conference held on June 5, 2006, the participating parties agreed the amounts described in Finding 13, Finding 14 and Finding 15 would appropriately compensate Fletcher for the unauthorized harvest of timber from the subject property by Howard Logging and by Richards Sawmill.

 

17. 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, Finding 14 and Finding 15.  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.  Also, they would provide Fletcher for reimbursement of her survey expenses.  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, Finding 14 and Finding 15 were determined by any of them to be unacceptable.

 

[VOL. 10, PAGE 318]

 

18. No party has elected to file a pleading or document to contest or to express reservations concerning the amounts described in Finding 13, Finding 14 and Finding 15.

 

19. Fletcher should be granted an administrative judgment against Ralph Howard and Randall Howard, doing business as Howard Logging, in the amount of $1,265.55.  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 Fletcher 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.

 

20. Fletcher should be granted an administrative judgment against Jerry A. Richards and Robert Richards, doing business as Richards Sawmill, in the amount of $829.75.  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 Fletcher 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.