CADDNAR

 

 

[CITE: Lewis v. Willard, dba Putnam County Hardwoods, 15 CADDNAR 70 (2019)]

 

[VOLUME 15, PAGE 70]

 

Cause #: 17-132F

Caption: Lewis v. Willard, dba Putnam County Hardwoods, Putnam County Logging

Administrative Law Judge: Wilson

Attorneys: Lewis (pro se); Willard (Bond) 

Date: May 29, 2019

 

                                                                                                           

[See Editor’s note at end of this document regarding change in the decision’s original format.]

 

 

Final Judgment

1.      Pursuant to IC 25-36.5-1-3.2(f)(1), Kristi Lewis is entitled to damages in compensation for damages resulting from the wrongful activities of Brien Willard, dba Putnam County Hardwoods, Putnam County Logging, in the amount of $500.

 

2.      Pursuant to IC 25-36.5-1-3.2(f)(2), Kristi Lewis is entitled to no damages. See Attachment A.

 

3.      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 AND CONCLUSIONS OF LAW WITH FINAL ADMINISTRATIVE JUDGMENT

 

A. Statement of the Proceeding and Jurisdiction 

1.      On November 8, 2017, Petitioner, Kristi Lewis (Lewis), filed a petition with the Natural Resources Commission (Commission) against the Respondent, Brien Willard dba Putnam County Hardwoods, Putnam County Logging for damages subsequent to a timber sale. The petition states that the Petitioner and the Respondent contracted for the harvest of 201 trees and that the Respondent harvested 159 trees, paid her less than the full contract amount and “wrecked the woods”. The petition seeks to “recover triple amount [as allowed, 3 X sufferage] still owed me”.

 

2.      Lewis’ petition was identified as a complaint filed pursuant to IC 25-36.5-1 (also known as the “Timber Buyers Act”). See also 312 IAC 14-1.

 

3.      An action for administrative review filed pursuant to the Timber Buyers Act is conducted under IC 4-21.5-3, also known as the Administrative Orders and Procedures Act or “AOPA”.

 

4.      The Commission is the ultimate authority for an action under the Timber Buyers Act. 312 IAC 14-1-2(d).

 

5.      On June 29, 2018, following the completion of briefing by both parties, the Administrative Law Judge (ALJ) found the proceeding was ripe for consideration on summary judgment and issued an “Order of Partial Summary Judgment in Favor of Respondent” (PSJ). Summary judgment was granted, in part.

 

6.      Following issuance of the PSJ, issues that remained for determination at administrative hearing were limited to the Petitioner’s entitlement to damages in compensation for actual damage resulting from wrongful activities by the Respondent.

 

7.      Subsequent to the issuance of the PSJ, the ALJ held multiple status conferences to allow the parties a full opportunity to pursue appropriate settlement negotiations and to view the Petitioner’s property. Upon proper prior notice to the parties, a final status conference was held on January 31, 2019, at which a date, time and place for an administrative hearing was determined and procedural orders were issued.

 

8.      The administrative hearing was held as scheduled, on March 13, 2019, with both parties present. At the administrative hearing, prior to any presentation of evidence, the ALJ identified a scrivener’s error within the PSJ. The ALJ noted to the parties that the reference to recovery related to trees wrongfully cut or appropriated without payment pursuant to “IC 25-36.5-1-3.2(f)(1)” in Paragraph 82 was in error in that the reference should have been “IC 25-36.5-1-3.2(f)(2)”. No party asserted that any potential for confusion or prejudice resulted from the error. The scrivener’s error is corrected in the “Corrected Order of Partial Summary Judgment in Favor of Respondent” (OPSJ) and is attached hereto as Attachment A. The OPSJ is incorporated by reference as if stated herein and the matters established on summary judgment are affirmed. See Attachment A.

 

9.      At the conclusion of the presentations of evidence, the parties were allowed the opportunity to file closing briefs, on or before April 15, 2019. Both parties timely filed briefs.

 

B. Findings of Fact[1]

10.  Petitioner Lewis owns 31.2 acres in Putnam County. Lewis maintains standing timber and horses on her property. Testimony of Lewis.

 

11.  Lewis completed interrogatories during the pendency of this proceeding. The interrogatories were served upon Respondent’s counsel on October 22, 2018. Within the interrogatories Lewis identified her claim for damages as follows: “Due to the damages caused by the Defendants that caused ruts on the real estate and the need to restore contours, remove and reclaim areas where debris has been left and removal of fallen trees not harvested that bar recovery of other trees, Plaintiff has suffered damages in the amount of $85,000.00” Stipulated Ex. A.

  

12.  Lewis presented no evidence to support a claim, due to any wrongful activity by the Respondent, for damages resulting in ruts, debris or fallen trees not harvested. Lewis failed to meet her burden in this regard and any request for damages pursuant to IC 25-36.5-1-3.2(f)(1) on these bases will not be discussed further.

 

13.  Brien Willard (Willard) operates as a licensed timber cutter and has operated Putnam County Hardwoods and Putnam County Logging since 2010. Willard has worked in the timber industry since 1982. Willard has bought and sold timber, sliced veneer, sold veneer and exported logs. Willard has a good understanding of standard industry practices. Testimony of Willard.

 

14.  Willard harvested trees from the Lewis property with his most recent harvesting activity in 2016.  Id.

 

15.  Dan Cooper and Willard’s son, Devin Willard, assisted with Willard’s timber harvest on the Lewis property. See testimony of Devin Willard and Dan Cooper.

 

16.  Willard acknowledged that he entered the Lewis property through access points that were not roadways and did not place stone at his entry points. Willard made the determination not to place stone at his entry points based upon his observation that there was already existing gravel adjacent to the county road and that the ground was firm. In addition, he was cognizant that the contract between Willard and Lewis required Lewis to pay 50% of such costs. Testimony of Willard.

 

17.  Steve Goodwin (Goodwin) is a consulting forester, a position for which no license is required, and has been a forester for 35 years. Goodwin obtained a Bachelor of Science degree in Forestry from Purdue University in 1984. Goodwin has marketed and sold timber as a consulting forester for ten years. Goodwin plants trees and participates in timber stand improvement efforts, urban forestry and he prepares forestry related appraisals. Goodwin is familiar with industry standards for timber cutting in Indiana. See testimony of Goodwin.

 

18.  Goodwin inspected Lewis’ Putnam County property in December of 2018 and “looked for damages above and beyond what is considered standard in the industry.” Ex. 1.  After his inspection, Goodwin prepared a written report. See testimony of Goodwin and Ex. 1.

 

19.  Goodwin reported in his inspection report: “Rutting was minimal and no tops were left in the waterways. Erosion was slight and damage to trees that remained was light.” Ex. 1.

    

20.  During his inspection, Goodwin observed that evidence of logging practices in the wooded areas were well within industry standards. Testimony of Goodwin.

 

21.  Goodwin is aware of a standard industry practice to place stone at entry points to prevent “rutting”. Goodwin stated that a single application would be consistent with standard practice in the industry, with the stone being spread out, but not reapplied, upon completion of the job. Id.

 

22.  Goodwin reported that he observed two entry points onto the Lewis property without stone. Goodwin’s report stated that there was no stone “on” the road. In his testimony, Goodwin clarified that his report was in error and that he intended to document that he did not observe adjacent to the road at the entry to the property. Testimony of Goodwin and Ex. 1.

 

23.  Goodwin estimated the cost, to place stone at two entry points, at $500. Testimony of Goodwin.

 

24.  William J. Stevenson (Stevenson) has been the owner and operator of “Stevenson Wood Products”, primarily a logging business and part-time firewood sales operation, for six years. Currently, in his capacity as a logger, Stevenson primarily deals with foresters and sawmills. He has participated as a part of the logging industry for approximately 30 years, working with different stages of buying timber on behalf of various sawmills and for himself. He has also cut timber for 20 years using heavy equipment. Stevenson learned about industry standards from foresters who, in his experience, “will straighten you right out on it if you make a mistake”.  He has also learned about state requirements and industry standards through his attendance at training classes sponsored by the State, including “Substantial Forestry” and “A Better Management Practice”. The classes he attended addressed State standards, for “how you should leave a job, what you want to do to prevent erosion and how you want to look at your future crop for the next harvest”. Stevenson attended his most recent class in 2006. He met Willard, approximately 15 years ago. Willard was a timber buyer when they met. Stevenson and Willard have coordinated their efforts for some jobs because Willard does not have the large equipment that Stevenson has. See testimony of Stevenson.

 

25.  Stevenson inspected the Lewis property and did not observe that any gravel had been added to Willard’s entry points. Id.

 

26.  Stevenson reported that he has never been “forced” to add gravel at an entry point and did not observe any location on the Lewis property where gravel should have been placed. In his experience, the placement of gravel is to avoid ruts, and the need for it is dependent on ground conditions. During Stevenson’s inspection, he also looked for damage from felling and skidding where Willard entered the woods and Stevenson observed minimal rutting. Id.

 

27.  Willard’s failure to place stone at his points of entry upon the Lewis property did not result in damage to the Lewis property beyond standard industry expectations.

 

28.  Willard entered the Lewis property at three entry points. At one entry point, Willard cut the Lewis fence to create approximately a 20 foot entryway to her property. At his second entry point, Willard did not cut any fence because there was a 14 foot gate at that location. At his third entry point, he unwound existing fencing and rolled the wire back. Willard concluded that the condition of the original Lewis fencing was sufficient to be rolled back and reused. After the timber cut, he purchased and utilized red hangers to reinstall the fencing up to her gate. Testimony of Willard.

 

29.  On rebuttal, Lewis recalled that Willard rolled woven wire fence back, because his truck would not fit through the gate. At a different entry point, Willard cut the fence next to a county road to enter her property. See testimony of Lewis.

 

30.  Goodwin’s inspection revealed fencing that looked to be different than older adjacent fencing in two locations, with one location having a length of approximately 20 feet and the other having a length of approximately 50 feet. The longer location was at the front of the Lewis property, off the main county road. The shorter location was near a feed lot, off a different county road. Testimony of Goodwin.

 

31.  The ALJ concludes that Willard entered the Lewis property at multiple locations. The weight of the evidence presented supports a conclusion that Willard cut fencing approximately 20 feet in length at one entry point and unwound fencing at a second entry point.

  

32.  Although Goodwin was unable to determine the original condition of the Lewis fencing, he concluded that the fencing at the locations where the Respondent entered the property was not “put back” into its original condition. Goodwin based his conclusion on his determination that some fencing appeared to him to be older. Id.

 

33.  Goodwin observed that some barbed wire fencing was merely hung between two trees, not installed in three strands, consistent with adjacent fenced areas. Testimony of Goodwin.

 

34.  Goodwin’s report states, “Fence repairs were not correct in two spots where loggers entered the woods. I estimate 70' of the fencing needs to be replaced….” See Ex. 1.

 

35.  Willard’s understanding is that standard industry practice would include the reuse of existing fencing, as long as it would leave the fence in a condition that was as good as it was prior to the logging activity. Willard implemented his understanding of industry standards for the repair or replacement of fencing. Willard disputes that he damaged a full 70 feet of fencing.  See testimony of Willard.

 

[VOLUME 15, PAGE 71]

 

36.  Regardless of whether Willard cut or unwound fencing to enter the Lewis property, the conclusions reached by Goodwin as to the length of fencing that was ultimately damaged or not properly repaired or replaced by Willard during the harvest is found to be accurate.

 

37.  Stevenson inspected the Lewis property in 2018. Stevenson observed some fencing that had been taken down and put back. Stevenson acknowledged that, based on his own practices, even though the fencing he observed was better than the existing fence, he would have bought new barbed wire at that entry point for that area of fencing. Stevenson did not inspect any entry point on a different side of the Lewis property. See testimony of Stevenson.

 

38.  Stevenson’s understanding is that there is no specific industry standard for the replacement of pasture fencing. Stevenson’s own practice is to “put [fencing] up better than you found it.”  In Stevenson’s experience, fencing guidelines or requirements are generally stated in a contract. Id.

 

39.  Stevenson owns cattle and estimates the installation of 70 feet of new barbed wire fencing would cost approximately $150.00 for fencing, $7.00 for each post and an unidentified cost for labor.  Id.

 

40.  Goodwin estimated the cost of replacement for 70 feet of fencing, including one or more broken posts, at $500. Testimony of Goodwin.

 

41.  Melanie Broadstreet (Broadstreet) owns 60 acres adjacent to the Lewis property. Broadstreet observed that Goodwin failed to walk all of the Lewis property and that Willard cut fencing on the Lewis property in five areas. Broadstreet did not describe any of the areas with a specificity necessary to determine the extent of any actual damage or appropriate corrective measures for the areas she described beyond the areas that were identified by Goodwin. The areas of fencing identified by Broadstreet, that were not also identified by Goodwin, are not determined to be areas that would require repair or replacement based on forestry industry standards. No additional area referenced by Broadstreet will be further evaluated in this judgment. Testimony of Broadstreet.

 

42.  Lewis’ completed interrogatories in this matter did not report any damage to fencing. Lewis offered in her testimony that she was unaware of an industry standard at the time she completed her interrogatories and that she only became aware of a standard after she contacted Goodwin. See testimony of Lewis and Stipulated Ex. A.

 

43.  Lewis identified generally four areas of fencing where she “kept horses”. Lewis reported that hooks and the “equivalent of bailing wire” were installed and she believes that her fencing, in its current condition, is substandard to contain horses. She has not replaced or repaired the fencing. Testimony of Lewis.

 

44.  Lewis identified a total of five areas where she determined fencing had been inadequately repaired. Lewis, provided no installer’s estimate of the cost to replace any of the fencing and did not specify her original fence installation cost. For three general areas of fencing that were not in areas specified by Goodwin, Lewis estimated a replacement cost, at $1,000 per area. She offered no basis for her estimate for these for unspecified lengths of fencing.  Id.

 

45.  The areas of fencing that were identified by Lewis and were not also identified by Goodwin are not determined to be areas that would warrant repair or replacement based on forestry industry standards.

 

46.  Lewis recalled that Willard also cut woven wire in an interior location on her property. Id.

 

47.  Willard credibly denied that he cut or rolled back any interior fencing at the Lewis property. See testimony of Willard.

 

48.  The testimony by Lewis that Willard cut interior fencing conflicts with and is not supported by the weight of other credible evidence presented during the administrative hearing. Willard’s testimony regarding interior fencing is found to be supported by Goodwin’s inspection that revealed incorrect fence repairs at only two entry points.

 

49.  During his inspection, Goodwin observed that higher value trees had been cut and lower value trees at the site remained uncut. Due to the over story of the lower value trees, Goodwin determined that the remaining higher value trees would be unable to grow as fast as the trees would have otherwise grown.

 

50.  Goodwin estimated a timber sale in 10-15 years, but not before, would bring a price reduced by approximately a third of the value it would have been but for the harvest that was completed. Goodwin estimated that a future “cut” of the “stand” would bring approximately $12,000 to $13,000, instead of $20,000. Testimony of Goodwin and Ex. 1.

 

 

C. Conclusions of Law

 

51.  Through summary judgment it was determined that Lewis is not entitled to recovery of damages pursuant to IC 25-36.5-1-3.2(f)(2). See Attachment A.

 

52.  The Timber Buyers Act operates “to protect the timber grower in two ways. Primarily, the act insures that a timber grower will be paid for any timber sold to a registered timber buyer. A second goal of the act is to protect the timber grower from damage to his land resulting from improper logging methods.” Roberts v Voorhees, 435 N.E.2d 342, 343 (Ind App 1983).

 

53.  The Timber Buyers Act states that a petition filed under IC 4-21.5-3-8 may seek “Damages in compensation for damage actually resulting from the wrongful activities of a timber buyer or a timber cutter.” IC 25-36.5-1-3.2(f)(1).

 

54.  While the Timber Buyers Act does not define what constitutes “damage actually resulting from wrongful activities”, the Indiana Court of Appeals has provided insight into interpretation of the phrase and has determined that the costs for repairing fencing, repairing ruts and removing felled by unharvested tress and debris might be appropriately included. O’Neal v Bowers and Spurgeon, 13 CADDNAR 64, 68 (2012) citing Wright v Reuss, 434 N.E. 2d 925, 930 (Ind App 1982).

 

55.  “Industry standards are significant to determining whether a timber buyer conducted a timber harvest properly.” See O’Neal at 68, citing Goldasich v Hites, et al, 1 CADDNAR 165 (2007).

 

56.  Following summary judgment, the extent of the Petitioner’s available damages for compensation actually resulting from the wrongful activities of Respondent, a timber buyer, pursuant to IC 25-36.5-1-3.2(f)(1) must be determined. Petitioner asserts three types of recoverable damages, stone or gravel placement, fencing and a potentially reduced value of a future timber harvest.

 

Stone or gravel placement

57.  Lewis asserts that she is entitled to damages resulting from Respondent’s failure to place stone or gravel on her property.

 

58.  Respondent placed no stone or gravel during the timber operation or during any reclamation of the Lewis property.

 

59.  The weight of the evidence presented supports a conclusion that industry standards may require the placement of stone or gravel by a timber cutter or a timber buyer necessary to avoid rutting at the entry points to a timber grower’s property.

 

60.  In this instance, minimal rutting found on the Petitioner’s property is found to be within an acceptable range.

 

61.  Even if industry standards would have traditionally required Willard to place stone or gravel, insufficient evidence was presented to show that Petitioner’s property suffered from his failure to place stone at his entry points.

 

62.  Insufficient evidence was presented to show the value of any damage resulting from Willard’s failure to place stone. Therefore, no compensation is available.

 

Fencing

63.  Lewis asserts damage to her fencing by Willard.

 

64.  Goodwin observed two areas where fence repairs were not sufficient. Goodwin observed damage to 20 feet of fencing in one area and 50 feet of fencing in another area. Goodwin estimated the cost to replace the fencing would be $500.

 

65.  Willard cut fencing at one entry point to the Lewis property that he estimated to be approximately 20 feet. Willard unwound but did not cut fencing at the location of his entry into the Lewis property from an alternative entry point. While he disputes the entry would have required a gap of 50 feet of fencing, the weight of credible evidence supports a conclusion that he unwound or cut the fence in the area and that the area was not properly reconfigured. By this, Willard failed to adhere to forestry industry practice.

 

66.  Damage to fencing as a result of Willard’s failure to properly comply with industry standards in his repair or replacement of fencing at the entry points to the Lewis property entitles Lewis to compensation in the amount of $500.

 

Uncut trees

67.  Lewis asserts a claim for damages by the presence of uncut trees on the value of the Petitioner’s woods.

 

68.  Goodwin estimates that trees left uncut could diminish the value of Lewis’ timber stand, in a future sale, anticipated for 10 to 15 years in the future.

 

69.  “The possible future value of timber is speculative and not compensable.” O’Neal at 68.

 

70.  “Based upon Roberts v Voorhees and Wright v Reuss, and as consistently applied by the Commission, the conclusion is that the Timber Buyers Act was not intended to provide compensation based upon the alleged diminution to the fair market value of the underlying real estate as a result of a timber harvest.” Goldasich at 177, as cited in paragraph 73 of Attachment A.

 

71.  On these facts, consistent with the Commission’s prior decisions, no compensation for damages is available for calculation on this claim.

 

 

[EDITOR’S NOTE: The original format of the Administrative Law Judge’s Findings of Fact, Conclusions of Law, and Final Order has been modified to correspond with CADDNAR format.  The Final Order has been relocated to the “Final Order” section at the beginning of this document.]

 

 

 

 

 

 

 

 

 

 


[1] Findings of fact that may be construed as conclusions of law and conclusions of law that may be construed as findings of fact are so deemed.