For conducting a timber buying operation without obtaining a timber buyer's license, a civil penalty of $5,000 is imposed against Frederick Hovey Lyons a/k/a Rick Lyons d/b/a Rick Lyons Logging.
For conducting a timber buying operation without posting a bond, a civil penalty of $500 is imposed against Frederick Hovey Lyons a/k/a Rick Lyons d/b/a Rick Lyons Logging.
FINDINGS OF FACT
1. The Indiana Department of Natural Resources ("DNR") is an agency within the meaning of IC 4-21.5.
2. IC 4-21.5, IC 25-36-5, and 310 IAC 23 apply to these proceedings.
3. The Natural Resources Commission ("NRC") is the ultimate authority for the DNR in matters adjudicative involving IC 25-36 and 310 IAC 23, the Timber Buyers Law ("TBL").
4. During 1994, Rick Lyons ("Lyons") acquired a 50% interest in timber on property owned by William Cockrell and cut and sold approximately $15,000 worth of timber.
5. During 1994, Lyons did not have a timber buying license as required by the TBL.
6. Lyons was issued a notice of violation ("NOV" by the DNR for unlicensed activity in violation of the TBL in December of 1994.
7. Lyons did not request administrative review of the NOV pursuant to IC 4-21.5 thus it became a final, non-appealable order.
8. On February 14, 1995, the DNR filed a complaint to impose a civil penalty against Lyons and another individual.
9. On June 29, 1995, the DNR filed a motion for summary judgment pursuant to IC 4-21.5-3-23 against Lyons and included a clause stating the other party had shown he was neither an owner or partner in the business and should not be subject to any penalty.
10. The complaint alleges that Lyons has engaged in the business of timber buying without obtaining a license from the DNR or posting a bond as required by the TBL.
11. The attachments to the motion show that these allegations are true.
12. The attachments also show that Lyons once had a timber buyers permit (in 1985) and posted a bond so he was well aware of the requirements and deliberately ignored them.
13. 310 IAC 4-3 allows the DNR to seek a civil penalty against any person who violates the TBL. It also sets a maximum penalty of $10,000 for anyone who engages in timber buying without a license and $1,000 for other violations (failure to post bond in this case).
14. 310 IAC 24-3-3(c) sets a presumptive penalty of 1/2 the maximum and 310 IAC 24-3-3(d) and 3(e) set forth aggravating and mitigating circumstances which can move the fine up or down from the presumptive amount.
15. Mitigating factors which the DNR concedes apply include the facts that no timber grower suffered harm (Mr. Cockerel was paid and the site adequately restored) and there was no environmental harm.
16. Aggravating factors include prior violations of the TBL and intentional violations.
17. The attachments to the summary judgment motion show prior violations and the fact that Lyons was once licensed and posted a bond shows he knew timber buyers were required to obtain licenses and post bonds.
18. The aggravating and mitigating factors would seem to be about equal.
19. Civil penalties totaling $5,500 should be imposed.