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Cause #: 98-026FORDER
[NOTE: RESPONDENT CURRY TOOK JUDICIAL REVIEW TO THE JACKSON CIRCUIT COURT (36C01-0001CP-9). ON OCTOBER 4, 2000 JACKSON CIRCUIT COURT ENTERED "ORDER ON JAMES CURRY'S PETITION FOR JUDICIAL REVIEW." CIRCUIT COURT DECISION FOLLOWING ADMINISTRATIVE ORDER AND FINDINGS.]
1. Rose Acres Farms, Inc. is granted an administrative judgment against Jackie Ault and James Curry in the amount of $57,458.14.
2. The judgment amount includes a stumpage value of $16,719.38 times three for a stumpage recovery of $50,158.14; timber stand improvement $600; residual tree damage $1200; and a sum of $5500 to perform treetop removal from waterways.
3. On January 4, l999, a Modified Interlocutory Default Judgment was issued on a crossclaim filed by James Curry against Jackie Ault. Curry was awarded $12,664.53 as found by the administrative law judge. Findings with respect to this crossclaim are detailed above. This award is now included in the Nonfinal Administrative Judgment for this cause.
4. This administrative judgment addresses all issues of damage and responsibility and, after 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
1. Indiana Code (IC) 25-36.5 (the "Statute") and 312 Indiana Administrative Code (IAC) 14 (the "Rule") govern disputes regarding timber buyers regulated by the Department of Natural Resources (the "Department").
2. In accordance with IC 14-10-2-3, the Natural Resources Commission (the "Commission") is the ultimate authority for the Department under IC 4-21.5 (The Administrative Orders and Procedures Act (AOPA)).
3. This case was initiated by Rose Acre Farms, Inc. ("Rose Acres") filing a Complaint for Compensation for Wrongful Activities of Timber Cutter (Jackie Ault) and Adjoining Landowner (James Curry) with the Commission's Division of Hearings on February 9, l998.
4. The Commission initially assigned Sylvia R. Wilcox as the administrative law judge (ALJ) to examine the Complaint but Judge Wilcox elected to recuse herself due to a conflict with one of the parties, so Tim Rider assumed her duties.
5. In its Complaint Rose Acres charged that Ault, while cutting trees under a contract with Curry, had crossed a property line and cut trees belonging to Rose Acres Farms, Inc.
6. During the course of this litigation several conferences were conducted. At these conferences it was ascertained that Ault did cut the trees in question and while the claimant's stumpage figure was never stipulated to it was never refuted either.
7. The major question to be litigated for this case dealt with the degree of Curry's responsibility regarding Ault's cutting of the claimant's trees.
8. Another question presented and contested was the amount of damages due the claimant in regard to damage done to its real estate.
9. The parties had commissioned surveys which produced conflicting results regarding the best method of treating the real estate damage.
FACTS STIPULATED TO BY THE PARTIES
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10. Rose Acres is the owner of certain real estate located in Jackson County, Indiana, more particularly described as follows: the southwest quarter of Section 6, Township 5 North, Range 3 East, containing approximately 129 acres, more or less.
11. Rose Acres is the grower of timber located on the above described real estate as that term is used and defined in the Statute and the Rule.
12. James Curry is the owner of real estate which adjoins the above described real estate owned by Rose Acres.
13. Jackie Ault is a timber cutter and timber buyer as those terms are used and defined in the above cited Statute and Rule, although the said Jackie Ault was neither licensed nor bonded as required by state law at the time the events described herein took place.
14. Ault entered into a contract with Curry, to purchase, cut, and remove timber located on 428 acres of land located in Jackson County, Indiana, owned by Curry.
15. On a series of dates in 1997, Ault entered upon Rose Acres' above described real estate and cut and removed 244 trees without Rose Acres' authorization to do so.
16. In addition to cutting and removing 244 trees, Ault did damage to 10 - 15 acres of the real estate owned by Rose Acres including leaving excessive skidder ruts, damaging residual trees, leaving tree tops in a stream bed, and failure to undertake soil erosion prevention measures.
17. Ron Haubry, a Licensed Forester, prepared a report which summarized the damages done by Ault to Rose Acres' real estate. A copy of which was admitted into evidence at hearing. The parties also stipulated that said report contains an accurate calculation of the stumpage value of the timber damaged, destroyed, and removed by Ault's timber cutting activities on Rose Acres' real estate.
18. Rose Acres did not authorize any cutting of its timber nor has it received any compensation for the events described herein. Rose Acres has not received compensation for the value of the timber or the damage to its property.
19. The boundary line between the Curry real estate and the Rose Acres real estate where timber was being cut by Ault was clearly marked by a fence and that said fence was torn down and smashed by Ault's activities.
20. Rose Acres has obtained estimates for the cost of repairing the damage done to its real estate by the unauthorized timber cutting activities and the estimates were stipulated to and admitted into evidence . However, Curry reserved the right to argue that not all of the work described therein is in fact necessary to repair the damage done to Rose Acres' real estate by the unauthorized timber cutting activities.
21. The parties also stipulated to the admission of numerous maps, photos and other documents which were admitted as a matter of record by the ALJ. These stipulated exhibits were referred to from time to time during testimony.
FINDINGS OF FACTS AS TO LIABILITY
22. Rose Acres first learned of the encroachment onto its property from Ault. Ault spoke to someone about a tree stand which he learned might be on Rose Acres' property. Ault called someone he knew at Rose Acres to report the problem. Rose Acres sent an employee to the site to verify Ault's report.
23. In the Fall of 1997, Ault gave Rose Acres a copy of what was later stipulated into evidence as Exhibit J as being his contract with Curry.
24. There was a dispute in the evidence concerning where and under what circumstances Exhibit J was signed. All witnesses agree that it was signed on the hood of a vehicle, but disagree about whether it was Ault's vehicle or Curry's vehicle. Curry claims that only he and Ault were present when the contract was signed at Curry's residence and that Curry's son was in the area when the signing took place.
25. Ault, his sister Kathy Gorbett, and Gerald "Buck" Ault claim the contract was
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signed on the hood of a vehicle at Ault's residence. Curry admits being at Ault's residence with documents, but denies signing the contract there.
26. Ault and Curry agree that two copies of the contract were filled out, one for each party. Curry claims the contract has been altered since it was signed, but cannot produce his copy.
27. Curry admits that the contract he signed permitted Ault to cut timber on all 428 acres of the Curry farm and that the arrangement was a 50/50 split. Curry claims the remainder of the hand-printing across the top of the Exhibit and down the margin on the right side was added after he signed the contract. Curry also claims that the cross out of the words "Buyer agrees not to cross any boundary lines, nor to tear down any fences " occurred after he signed the contract.
28. Exhibit J is a preprinted form which Ault claims he got from his uncle.
29. Kathy Gorbett, Ault's sister, testified that the hand - printing was on the form when Curry signed it at Ault's residence. She also observed that Ault had some aerial photos with him rolled up like a tube. She observed a large aerial like one from the surveyor's office and a small aerial like one from the A.S.C.S. office. Gorbett heard Ault and Curry discuss marking the boundaries by painting trees.
30. Rose Acres and Ault have asked for a ruling that the handwritten paragraph on the contract which states "Sellor agrees to be Responsibility (sic) For marking All Lines and any cost of Trees That are marking (sic) over any boundary lines" be considered a "hold harmless" clause which would absolve Ault of blame for the illegal cutting of Rose Acres' timber by requiring Curry to assume all the damages.
31. The ALJ is not convinced that this handwritten clause was not added after-the-fact. None of the witnesses who testified to having witnessed the signing of the contract are credible.
32. Such a ruling would be self serving to Jackie Ault so his testimony is not credible. Several witnesses were presented by Curry as testimony to Ault's reputation in the community. Each characterized Ault's reputation as being untruthful and untrustworthy. While that testimony is helpful to Curry in regard to the contract issue it will be mentioned later by the ALJ in another facet of this case.
33. Testimony by Ault's brother and sister and Danny Jackson was not persuasive. Both Gorbett and Jackson signed statements detailing their presence at the contract signing. These statements were entered into evidence (Respondent's Exhibits B & J). The wording of each statement is almost exactly the same. It is likely that the witness statements were coached or prepared for them. Ault's brother was not sure of what happened at the alleged signing.
34. In addition, it is unlikely that Curry would sign a contract with a notation that he owed Ault $10,285.00 for past dozer work. No proof of the performance of such work was ever presented by Ault.
35. Rose Acres and Ault have not shown by a preponderance of the evidence that Curry signed this contract after the marginal notations were added or that he was aware they were added after signing.
36. Curry also argues that he had no control over Ault and should not be held responsible for Ault's crossing the property line and cutting Rose Acre's trees.
37. There was a dispute in the evidence as to how much control Curry exercised over Ault's cutting activities on a daily basis. Ault claimed that Curry was often in the woods, directed Ault where to cut, and even complained if certain trees were left behind uncut. Ault claims that Curry kept a sharp eye on his activities and used a log rule to check up on how much timber was cut.
38. Curry owns and operates a cattle operation which is located on the land contiguous to Rose Acres' Hilltop Farm where the timber was cut. County Road 1150 West essentially bisects Curry's property. The Rose Acres property is on the east side of the road. Curry does not live on the farm, but his son does.
39. Curry engages in automobile racing which causes him to travel, primarily on weekends, during certain times of the year. When Curry is not racing, he is at his
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farm just about every day. When Curry is in his racing season, and during the events which gave rise to this case, he was usually at his farm at least one time per week.
40. Curry has prior experience with timber cutters. Before getting involved with Jackie Ault, timber had been cut at Curry's farm on at least three prior occasions.
41. Further, Curry is familiar with logging procedures. He knows how to use a log rule and calculate the value of fallen timber. On prior occasions, Curry marked trees he wanted cut, and on certain occasions, he marked the boundaries of his farm with paint on trees so that his timber cutters would not trespass on his neighbor's property. Curry also went into the woods from time to time to supervise the work of his timber cutters.
42. Curry was aware of the importance of the location of the boundaries of his farm as it relates to timber cutting activities. Curry was aware that aerial photos could be obtained from the County Surveyor's Office and the A.S.C.S. Office in order to locate the boundaries of his property and assist him in doing so. Curry also admitted in his testimony that he was aware that photos obtained from the A.S.C.S. office were not always accurate in depicting the true boundaries of farms.
43. The area cut on Rose Acres' property is adjacent to a cornfield which is shown on both the aerial photos from the County Surveyor's Office and the A.S.C.S. Office. There are two fences in the immediate area of the trespass onto Rose Acres' property: a woven wire fence which a later survey confirmed was the true boundary between Rose Acres' property and Curry's property, and a pasture fence which generally followed the meandering line of the cornfield.
44. A pasture fence is typically a barbed wire fence which is installed along the edge of a field to contain cattle which are released into the field to glean crops once harvesting has occurred. Such a fence does not necessarily follow a straight line, but follows the contours of the field. Curry, as a cattleman, is familiar with the use of pasture fences.
45. In this case, Ault's disputed activities took place in the area between the true boundary woven wire fence and the pasture fence along Rose Acres' cornfield. Rose Acres' pasture fence was down in various places, but its existence and location were discernable to those who visited the woods after these events occurred.
46. Ault had cut for Curry previously at another location on the farm. In conjunction with that cut Curry had marked the boundary of his property by painting slashes on trees for Ault to notice.
47. Curry admits marking trees on the west side of CR 1150 West along an entire quarter section of his property where there was no fence for Ault's crew, but he denies marking trees on the east side of CR 1150 West along Rose Acres' pasture fence. Ault states that Curry marked the trees along the Rose Acres' pasture fence.
48. There were trees marked with horizontal slashes along the pasture fence near Rose Acres' corn field. Ross Stewart, who was the first one to cut in Rose Acres' woods, saw pink slashes marking the boundary along the pasture fence. Those pink slashes clearly marked the boundary where he was to cut and each marked tree was visible from the last. Between ten and twenty trees were marked in this way. Ault told Stewart to leave the marked trees behind and Stewart apparently started cutting along the pasture fence/marked tree line and moved toward the west into what he thought was Curry's property.
49. Curry claims that he pointed out the boundary between his property and Rose Acres' property on the aerial photo he gave Ault. He also stated that he described certain fences and fence posts or stones which marked his boundaries with Ault while on CR 1150 West. Curry stated that he had no reason to mark a tree boundary at the area in question because the woven wire fence clearly marked the boundary and Ault was ordered not to cut beyond said fence.
50. Curry admitted that when he marked trees on the west side of CR 1150 West as a boundary, Ault's crews cut up to the marked trees, but left the marked trees behind as
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they had been instructed to do. Curry admitted visiting Ault's logging operation on the west side of CR 1150 West and telling Ault where to start cutting.
51. Curry was aware that Ault had moved his logging operation from the west side of CR 1150 West to the east side of CR 1150 West. Curry also gave Ault permission to cut on the east side of CR 1150 West. Curry stated that he never set foot on the east side of CR 1150 West during the entire three month period that Ault was cutting on that side of the road.
52. Curry justified his failure to supervise Ault's east side cutting by pointing-out that this cut took place during the racing season when Curry was frequently out of the area and, since the woven wire fence clearly marked the property line, there was no need for close supervision at that location.
53. Non-party witnesses testified about Curry's visits to Ault's logging operations. Gerald "Buck" Ault, Ault's brother, observed Curry in the woods often on both sides of the road. Danny Jackson observed Curry "walking the woods" with Ault to discuss the job and remembered one occasion on which Curry was in the woods on the east side of CR 1150 West. Danny Jackson only worked a few days on this job.
54. Curry's son lived on the farm, but never undertook to check on Ault's activities, and apparently was never asked to do so by Curry.
55. Ault claims that Curry used his equipment to move and load logs that were cut off of Rose Acres' property. Curry denies this. Gerald "Buck" Ault, who went to the woods often with his brother, remembers that equipment was moved from one day to the next for unexplained reasons.
56. Curry did not trust Ault from the beginning of their relationship and attempted to control where the timber would be sold so he could be assured of receiving his share of the proceeds. Ault sold some of the timber to Curry's requested buyers, but not all of it.
57. Again, the credibility of the witnesses who testified they saw Curry in the woods while Rose Acre's trees were being cut is very questionable. Ault's brother "Buck" cannot be certain of the "when and where" of such a sighting; Ault lacks credibility due to self interest; and Danny Jackson, who had previously stated in a sworn document that he had never seen Curry at the site, now swears that he had seen Curry there. He was asked which swearing was truthful and he stated that this testimony was truthful and that his previous sworn testimony was not the truth.
58. Despite the lack of credibility by the witnesses it is inconceivable to the ALJ that Curry, knowing the reputation of Ault, would never visit the site or ask his son to monitor Ault's progress. Curry clearly did not trust Ault but he would have the ALJ believe that he allowed Ault to cut trees on his property for several months unsupervised in any way.
59. While evidence indicates that it is more likely than not that Curry know what Ault was doing when Rose Acre's trees were cut, ignorance on his part would still not excuse him from liability in this case.
60. Under the timber buyers contract Curry was to receive 50 % of the value of the timber harvested by Ault. Ault testified that Curry had received some of the proceeds from the sale of Rose Acres' timber.
61. Curry maintained that Ault had not paid him all that he was due. However, Ault's refusal to pay Curry his entire share of "all the trees cut" is not a defense because Curry was entitled to his share and took action in an attempt to collect his 50 %.
62. Curry know that Ault had no license to purchase timber and he also knew the nature of Ault's reputation in the community. Curry testified that he did not trust Ault and that he knew Ault was not sharing evenly in the timber proceeds as required by thhe contract.
63. Curry wa responsible for monitoring Ault's timber cutting. Curry cannot be allowed to share in the profit
made when Ault cut and sold trees belonging to Rose Acres and then avoid any penalty by claiming that he had no knowledge of what Ault was doing because he never visited the site to check on Ault.
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FINDING OF FACTS REGARDING DAMAGES
64. Rob Haubry testified as to the nature and extent of Rose Acres' damages and the need to do some clean up and repair work as a result of the unauthorized entry onto Rose Acres' property.
65. The stumpage value of Rose Acres' trees was stipulated as $16,719.38.
66. In addition to the stumpage value of the timber removed from Rose Acres' property and any penalty associated therewith, Rose Acres suffered additional damage to residual trees left on the premises and to the land itself.
67. Both Curry and Rose Acres presented evidence related to damages other than stumpage value of the timber. Rose Acres' expert, Rob Haubry, was in the woods inspecting the damage in the fall of 1997 shortly after it was discovered by Rose Acres. Curry's expert, Brian Cruser, first went to the woods about one year later on September 17, 1998.
68. Cruser admitted that landscape had undoubtedly changed during the intervening year. For example, tire tracks and ruts had somewhat dissipated as a result of rainfall, freezing and thawing, and the settling of the soil. Leaf fall and new vegetation had accumulated and grown up which may have partially disguised damage to the land.
69. Both foresters agreed that streambeds had been blocked by treetops which had been felled and left behind. The foresters disagreed on how to address the repairs. Haubry recommended the use of a bulldozer to clean out the stream beds, build water bars, and undertake erosion control measures.
70. Rose Acres presented two estimates for bulldozer work on the premises. Exhibit D, the Caudill estimate, indicated that 280 trees needed to be removed, cut up and burned in order to restore the property. The lower of the two bulldozing estimates (Exhibits D and E) was $45,000.
71. Neither Haubry nor Cruser actually counted the number of felled trees and tops left behind in Rose Acres' woods.
72. Cruser recommended the use of hand labor to remove the treetops from the stream beds only. His estimate of that work was $4,500 to $5,500. Cruser's recommendation included leaving all the remaining fallen trees other than those in the stream bed behind. Rose Acres feels that this proposal does not "make it whole" for what has occurred.
73. Rose Acres maintains that this is not a case where the land owner contracted for timber removal and later has a dispute about the nature and extent of damage to the remaining trees and property. It points-out correctly that no entry should have been made onto Rose Acres' property in the first place.
74. Cruser recommended the use of a log skidder to do some of the erosion control work. However, Haubry pointed out that the blade of a log skidder cannot be used to build water bars because it will not angle and that a bulldozer leaves less damage behind when used for this purpose.
75. Both foresters agreed that timber stand improvement work was necessary at this site. Cruser agreed that Haubry's estimate of $600 for this work was "very reasonable".
76. Both foresters agreed that 2-3 trees per acre were damaged due to the logging activity. Haubry quotes $2,000 as the cost thereof. Cruser quotes $1,200 as the cost thereof.
77. Rose Acres also presented evidence related to the cost of seeding and replanting the damaged area. (Stipulated Exhibits B and C) The lower of these two estimates is $28,812.
CONCLUSIONS OF LAW
78. In accordance with the Statute necessary parties to this action are the timber grower (Rose Acres) and the timber cutter (Jackie Ault). (IC 25-36.5-1- 3.2 (d)).
79. In addition, Rose Acres properly joined Jim Curry who is "An owner of land adjacent to the land from which the timber
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was cut". (IC 25-36.5-l-3.2(e)).
80. The parties stipulated to the fact that Ault, while cutting for Curry on Curry's land, had crossed onto land owned by Rose Acres and cut Rose Acres' trees.
81. The evidence indicates that Curry is responsible to Rose Acres for the actions of Ault (See findings of fact above).
82. The Statute at IC 25-36.5-1-3.2(f) allows a timber grower to seek the following: "(1) Damages in compensation for damage actually resulting from the wrongful activities of a timber buyer or timber cutter. (2) Damages equal to three (3) times the stumpage value of any timber that is wrongfully cut or appropriated without payment."
83. Rose Acres has asked for three times stumpage in this case. Absent mitigating factors, the ALJ will award the full amount of three times stumpage. There are no factors that would mitigate Rose Acres' award.
84. Rose Acres has also asked for compensation regarding damage actually resulting from the wrongful activities of Ault. In determining any damage award in this regard the ALJ will examine testimony as to custom and/or usage of the trade (See Kreuzman Farms v. Jones and Pike Lumber, 7 CADDNAR 122- while this case did not involve illegally cut timber it did resolve matters dealing with what type damage should be repaired and what can be left in place.)
85. Rose Acres specifically asked to be compensated for damage caused by Ault to Rose Acres' woods, including leaving tree tops in a stream bed, damage to residual trees, damage to the land itself, and the need to do timber stand improvement work as follows:
a. Bulldozer work $45,000
b. Timber Stand Improvement $600
c. Residual tree damage $2,000
d. Seeding and Replanting $28,812
86. Clearly, Rose Acres is entitled to payment for timber stand improvement and residual tree damage and the amounts shown in finding 85 above are reasonable for repairing damage done by Ault.
87. Conflicting expert testimony was offered regarding the bulldozer work. Rose Acres desires to remove all treetops while Curry's expert testified that it would be counterproductive and detrimental to the land to remove all treetops. Rather, he maintained that the custom of the trade is to remove treetops only if they are blocking a waterway.
88. The expert testimony of Cruser (Curry's expert) is convincing regarding the treetops. In determining custom of the trade, reference again is made to Kreuzman Farms v. Jones and Pike Lumber, 7 CADDNAR 122. In that case custom of the trade was discussed and the claimant's damage request only referred to removal of treetops in waterways. In Kreuzman Farms at 124, a consulting forester, Joe Schuerman, testified that treetops should be removed from waterways but other treetops (he used treetops in ravines as an example) should not be removed because damage to land during removal is generally extensive.
89. Cruser's testimony was almost identical to Schuerman's opinion presented in Kreuzman Farms. Cruser recommended that treetops not in the waterway be left in place to avoid further damage to the land. Cruser recommended that the waterway treetops be removed by hand to prevent further damage. His top estimate to perform this function was $5500 and that figure is awarded to Rose Acres as the amounted needed to perform treetop removal customary in the trade.
90. The last item of damage to address is the sum for seeding and replanting. A careful analysis of the statute indicates that this
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item is not collectable under IC 25-36.5-1-3.2(f)(1). Compensation regarding the timber itself is included in IC 25-36.5-1-3.2(f)(2).
91. In section 3.2(f)(2) of the Statute the timber grower is entitled to reimbursement for the timber cut and may request three times it value. In this case three times stumpage is being awarded. This is adequate compensation for the trees that were taken and includes a punishment factor for Ault and Curry which is designed to preclude any recurrence of this behavior.
92. In section 3.2(f)(1) of the Statute the timber grower is entitled to reimbursement for damage actually resulting from the "wrongful activities of the timber cutter". It would be a double recovery to include the value of the trees in both (1) and (2). Rose Acres desires Ault and Curry to pay for the trees taken times three and, in addition, to pay to have the trees replanted. In addition, testimony of Cruser was that the replanting was unnecessary because "With the completion of timber stand improvement, good quality regeneration will return this site to a productive forest state."
FINDINGS ON CROSSCLAIM CURRY v. AULT
93. On April 8, 1998, Curry filed a "Crossclaim for Compensation for Wrongful Activities of Timber Cutter." The Crossclaim was amended in April 10, 1998. Ault was given until August 21, l998, to respond to the Crossclaim. Ault, without apparent good cause, failed to respond as ordered and as prescribed by IC 4-21.5-3-24(a).
94. On November 16, 1998, a proposed default was entered against Ault and he was given ten days to file a written motion requesting that the default not be imposed. No appropriate motion was filed so, on December 11, l998, an interlocutory order of default was entered pursuant to 312 IAC 3-1-9(d).
95. When the Interlocutory Default Judgment on Crossclaim Curry v. Ault, was issued, some damages requested by Curry were not awarded due to lack of proper documentation. Curry was given until December 31, 1998, to file more evidence.
96. On December 28, l998, Curry filed sufficient evidence to allow a Modified Interlocutory Default Judgment on Crossclaim Curry v. Ault to be executed with findings as listed below.
97. In November 1996, Ault cut Curry's trees and sold them for $2500. Ault did not tender to Curry his 50% share or $1250 but tendered only $550 and still owes $700.
98. In August 1997, Ault cut Curry's trees and sold them for $4000. Ault did not tender to Curry his 50% share or $2000.
99. Based on the above findings, Ault owes Curry a total of $2700 for timber cut and sold but not paid for.
100. Previously the ALJ ruled that Curry's recovery for timber is limited to the amount previouslyspecified unless the stumpage value of the trees cut can be established with some certainty because the treble damage section of the Timber Buyers Statute (IC 25-36.5-l-3.2(f)(2)) refers to three times stumpage value of "timber wrongfully appropriated without payment".
101. By affidavit filed with the ALJ on December 28, l998, A. Brian Cruser, a forester certified by the Society of American Foresters, swears that "a timber owner's one-half share of the gross proceeds of the sale of timber cut under an agreement...is the stumpage value' of the timber owner's timber within the meaning of IC 25-36.5-1-3.2(f)(2)".
102. Based upon Cruser's expertopinion, the $2700 owed by Ault to Curry is trebled making the recovery for timber cut and sold but not paid for $8100.
103. Ault is also responsible to Curry for damages actually resulting from his wrongful activities. (See IC 25-36.5-1-3.2(f)(1)). Curry has presented a precise estimate of cost to repair damage to fence caused by Ault and is awarded that estimate of $2464.53.
104. Curry has also asked that Ault be responsible for repairing ruts but the estimate
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presented listing "30 hours of dozer work in the woods" at the cost of $2100 is not precise enough to be the basis for a monetary award. Curry was given until December 31, l998, to submit a more precise affidavit or official estimate describing damage noted and detailing the cost to repair damage to the land.
105. On December 28, l998, Curry filed an affidavit executed by Richard Bane who is the proprietor of Richard Bane Construction. Bane swears that he inspected the damage to Curry's land where Ault cut timber and estimates his charge to repair the land would be $2100. Accordingly, that amount is awarded to Curry for repair of damage to land inflicted by Ault.
106. The ALJ found that Curry is entitled $12,664.53 on his Crossclaim against Ault. Such award will be noted in the Final Order disposing of this case.
JACSON CIRCUIT COURT: FINDINGS AND CONCLUSIONS OF LAW
Pursuant to IC 4-21.5-5-14(c), the Court makes the following findings on each material issue on which the Court's decision on James Curry's Petition for Judicial Review is based.
Standards for Judicial Review
1. The standard by which trial and appellate courts review the decisions of administrative agencies prohibits a reviewing court from weighing conflicting evidence and choosing that which it sees fit to rely upon in determining whether there was substantial evidence to support the decisions of administrative agencies.
2. The standard by which trial and appellate courts review the decision of administrative agencies prohibits the reviewing court from reweighing the evidence to make findings of fact not made by administrative agencies.
3. The standard by which trial and appellate courts review the decisions of administrative agencies prohibits a reviewing court from judging the credibility of witnesses.
4. The reviewing court must accept the facts as found by administrative agencies where the findings are supported by substantial evidence.
5. However, a reviewing court need not accord the same degree of deference to an administrative agency's conclusion on a question of law.
The Statutes and Regulations
6. This proceeding is governed by the provisions of I.C. 25-36.6-1-1 et seq. and 312 IAC 14-1-1 et seq.
7. I.C. 25-36.5-1-3.2 permits a timber grower [Rose Acres] to commence a proceeding against a timber buyer [Ault] and join therein the owner of land adjacent to the land from which the timber was cut [Curry]. The complaint may seek compensation for damages resulting from the wrongful activities of the timber buyer and 3 times the actual stumpage value of any timber that is wrongfully cut or appropriated without payment. I.C. 25-36.5-1-3.2(j) explicitly provides that: "a final agency action in a proceeding under this section must address all issues of damage and responsibility [word emphasized by Court] and, after the completion of the opportunity for judicial review, may be enforced in a civil proceeding as a judgment." This statute was passed in 1993.
8. The above cited statute also permits others to be joined in such a proceeding such as: the surety of the timber buyer, a consultant receiving a fee for services related to the timber, and a land surveyor performing a minimum standards detail survey.
9. The regulations promulgated by the Indiana Natural Resources Commission which govern proceedings under I.C. 25-36.5-1 and apply to this case were published and filed in 1997.
10. A court reviewing an administrative agency's actions is expected to give "considerable weight" to the administrative agency's interpretation of its statutory powers. Ind. Civil Rights Comm. v. Wellington Village, 594 N.E.2D 518, 529 (Ind. App. 1992).
11. The ALJ's Conclusion of Law Number 79 provides: "In addition, Rose Acres properly joined Jim Curry who is "An owner of land adjacent to the land from which the timber was cut." (I.C. 25-36.5-1-3.2(e))."
12. The ALJ concluded as a matter of law that Curry was properly joined as a potentially responsible party under the applicable statutes and regulations.
13. The plain language of the statutes and regulations themselves provides that an adjoining landowner can be held liable for losses such as those suffered by Rose Acres in this case.
14. If Ault had been a licensed timber buyer, he would have been required to file a bond with the Department of Natural Resources against which Rose Acres could have made a claim. That bond would have provided coverage of no less that [sic] $2,000 and no more than $20,000. I.C. 25-36.5-1-3.
15. The purpose of I.C. 25-36.5-1-17 [now I.C. 25-36.5-1-3.2] is to protect landowners from the careless felling of their trees. Beeman vs. Marling, 646 N.E.2d 382,385 (Ind. App. 1995). There is no mistake of fact defense available to a responsible party under the statute who claims he acted in good faith. The statute in question is a strict liability statute. Id.
Conclusions of Law
16. This court will not disturb the ALJ's findings and conclusions of law regarding Curry's duty to Rose Acres.
17. However, this court finds that the ALJ misapplied the law as regards the assessment of 3 times the stumpage value against defendant Curry.
18. I.C. 25-36.5-1-3-2(f) is punitive and, as such, must be strictly construed to its plain and unambiguous meaning.
19. This Court finds no caselaw, or statutory interpretation, that would make defendant Curry liable for the statutory treble damages, for which damages defendant Ault clearly is responsible.
20. This Court finds that defendant Curry is liable to plaintiff for compensatory damages as follows:
$16,719.38 stumpage value
$ 600.00 timber stand improvement
$ 1,200.00 residual tree damage
$ 5,500.00 treetop removal from waterways.
21. The Court, therefore, vacates that portion of the ALJ's ruling regarding treble damages assessed against Curry, but affirms all other aspects of the ALJ's Judgment.
SO ORDERED THIS 4TH DAY OF OCTOBER, 2000. (Signed) Kathleen Tighe Coriden, Special Judge.