CADDNAR

 

 

DNR v. Russo (23-019F), 16 CADDNAR 20

 

Administrative Cause Number:      23-019F

Administrative Law Judge:             Elizabeth Gamboa

Petitioner Counsel:                           Ihor Boyko

Respondent Counsel:                        pro se

Date:                                                   August 7, 2023

 

 

[Editor’s Note: Final Order follows Findings of Fact and Conclusions of Law.]

 

           

FINDINGS OF FACT AND CONCLUSIONS OF LAW WITH FINAL ORDER

 

Procedural Background and Jurisdiction

 

1.      On March 27, 2023, the Department of Natural Resources (hereinafter Department) filed a Complaint to Impose Civil Penalties (hereinafter Complaint) with the Natural Resources Commission (hereinafter Commission) alleging that Lane T. Russo (hereinafter Respondent) engaged in buying timber without securing a registration certificate and purchased timber without a written contract.  See Complaint.

 

2.      The Department requested the Commission impose civil penalties of $2,000 against Respondent pursuant to Ind. Code 25-36.5, I.C. 4-21.5-3-8 and 312 Indiana Administrative Code 14-4-3.  Id. 

 

3.      By filing the Complaint, the Department  initiated a proceeding governed by Indiana Code 4-21.5-3, also referred to as the Administrative Orders and Procedures Act (AOPA) and the administrative rules adopted by the Commission at 312 IAC 3-1 to assist with the implementation of AOPA. See IC 4-21.5-3-1, et seq.

 

4.      Administrative Law Judge (ALJ) Elizabeth Gamboa was appointed under IC 14-10-2-2 to preside over this matter on March 27, 2023. 

 

5.      A copy of the complaint with a notice of Telephonic Prehearing Conference (PHC)  was mailed to Respondent by the Commission on March 29, 2023.  The Notice indicated a PHC was scheduled for April 18, 2023 at 11:00 a.m.  The Notice included instructions on how to participate in the PHC telephonically. 

 

6.      Respondent did not appear at the PHC and a Notice of Proposed Default was entered on April 19, 2023. 

7.      Respondent was given seven days from April 19, 2023 to file a request a final order of default not be entered and stating the grounds relied upon for the request

 

8.       Respondent did not file a request a final order of default not be entered.

 

9.      The deadline for filing such a request has passed. 

 

10.  A Final Order of Default was entered against the Respondent on May 8, 2023. 

 

11.  An Administrative Hearing was held as scheduled on June 14, 2023, at 10:00 a.m. at the Commission’s Division of Hearings hearing room in Indianapolis, IN. 

 

12.  The Department was represented at the June 14, 2023 hearing by attorney Ihor Boyko.  Duane McCoy also appeared.  McCoy was duly sworn and provided testimony at the hearing and Department’s Exhibit 1 was admitted into evidence.

 

13.  Respondent did not appear at the hearing.

 

 

Findings of Fact[1]

 

14.  Duane McCoy is employed by the Department’s Division of Forestry as the Timber Buyer Licensing Forester.  His responsibilities include keeping the necessary records for enforcement of the Timber Licensing Law and assisting the Department’s Division of Law Enforcement in investigating violations of the Timber Buyer Law.  See Duane McCoy (McCoy) testimony.

 

15.  In response to an inquiry by one of the Department’s Conservation Officers, McCoy searched the Department’s records for Respondent’s timber buyer license.  See Id. 

 

16.  Russo has never held a license as an agent or a timber buyer.  See Id.

 

17.  In the fall of 2022, Russo purchased timber without a written contract on two occasions. See Id; Exhibit 1.

 

18.  Russo also engaged in two incidents of buying timber without a written contract.  See Id.

 

19.  Respondent has not been previously adjudicated for violating the Timber Buyer Act.  See Id.

 

 

 

Conclusions of Law

 

20.  After a default order is issued, the ALJ “shall conduct any further proceedings necessary to complete the proceeding without the participation of the party in default and shall determine all issues in the adjudication, including those affecting the defaulting party.” Ind. Code § 4-21.5-3-24; 312 IAC 3-1-9.

 

21.  A final order of default was issued against Respondent on May 8, 2023.  The administrative hearing was conducted without Respondent’s participation to determine the issues in adjudication. 

 

22.  A person may not engage in the business of timber buying in Indiana without a registration certificate issued by the Department.  IC § 25-36.5-1-2(a).

 

23.  A person may not buy timber from a timber grower without a written contract.  I.C. § 35-46.5-1-2.1.  Each timber purchase without a written contract is a separate violation  of the Timber Buyer Act.   Id.   

 

24.  “Buying” is defined as “acquiring an interest in property by the payment of a price, value or other consideration.”  IC § 25-36.5-1-1; 312 IAC 14-2-3.

 

25.  The Department may file a complaint with the Commission that seeks to impose a civil penalty against a person for violations of Ind. Code § 25-36.5.  I.C. § 25-36.5-1-13.5; 312 IAC 14-4-3(a).

 

26.  The maximum civil penalty that may be imposed for engaging in business as a timber buyer without securing a registration certificate is $10,000.  The maximum civil penalty that may be imposed for purchasing timber without a written contract is $1,000.  I.C. § 25-36.5-1-13.5. 

 

27.  Subject to mitigating and aggravating circumstances, the presumptive civil penalty is one-half of the maximum penalty that may be imposed under I.C. § 25-36.5-1-13.5.  312 IAC 14-4-3.

 

28.  Among the mitigating circumstances stated in 312 IAC 14-4-3(d) is that the violation was an isolated occurrence.   312 IAC 14-4-3(d)(3). 

 

29.  The Department requests a civil penalty of  $1500.00 for two incidents of engaging in the business of buying timber without securing a registration certificate and $500 for two incidents of purchasing timber without a written contract, for a total civil penalty of $2,000. 

 

30.  The civil penalty requested by the Department is less than one-half of the presumptive civil penalty and is support by at least one mitigating circumstance. 

 

 

 

Final Order

 

31.  Respondent sold timber on two occasions without having obtained a certificate of registration issued by the Department. 

 

32.  Respondent purchased timber without a written contract on two occasions.

 

33.  A total civil penalty of $2000.00 is assessed against Respondent.

 

 

 

 


[1] A Finding of Fact more appropriately construed as a Conclusion of Law or a Conclusion of Law more appropriately considered a Finding of Fact shall be so considered.