Timber trespass

[Phil]

I was wondering if anyone could offer tips for measuring a timber trespass.  I've been asked to estimate the volume of a trespass that meant the loss of approx. 40 of a landowner's trees.

When I was with the Division of Forestry, I gave several landowners a "ballpark" estimate of stolen timber volume, but this guy wants something that'll stand up in court.  So, I want to be as accurate and scientific as possible.

Any tips for maximizing that accuracy?

Thanks.

Phil

[Jeff]

Oh boy you come to the right place. Ron Scott has a good handle on this. Looking forward to the forthcoming info. Sorry, I can't help. I'm just with Maintenance.

[Texas Ranger]

Not trying to be a snob, but, if your not a forester, or have other good and valuable credentials (buyer, mill owner, logger of long history) the courts may ignore your information.  As a forester I have had the courts throw out some of my testimony for little or no reason.  I made the mistake on one case where I informed the land owner that in other cases in Texas there were triple damages awarded.  The court ruled that this statement was in fact me practicing law, my answer was that it was not the practice of law, but the history of other cases I had worked.  I lost.

I do 10 to 15 cases a year of trespass, I will try to answer any questions, or Ron Scott can as well.

[Ron Wenrich]

Credentials are important.  But, I've blown 2 guys away that had better credentials then mine.  One was a forester and a lawyer, the other was a high level state forester before retirement.  Both were discredited due to field procedures.  Hint:  check your math.

I've always taken stump diameters and converted to dbh by using the tables in the Forestry Handbook.  I've gotten tree height from adjoining trees.  Stumpage figures came from comparable sales.

Trees in urban areas have a different method of measure.  They get valued at a square inch and location standard.  I've done a few of those, but they are harder to make stick.

Have the property surveyed.  Don't get into a battle over lines, unless you are well qualified.  

[Texas Ranger]

I have done some of the urban esthetic values as well.  Last big bunch was after a hurricain that hit the Houston area.  My evaluations were for insurance purposes and usually went through.  They are a tough one through a civil trial procedure, though.  Juries have a problem with "what they might be worth" as opposed to "actual mill value".

[Ron Scott]

One needs to be sure that they are well qualified to handle a trespass appraisal that will hold up in court.

One should be a professional certified forester with much experience to know what they are "talking about" as an "Expert Witness". They usually have to be accepted as such by the court and the parties involved.

The more credentials and experience the better for recognition by the court and your peers. However, its also very important as to how you present your side of the facts.

As Ron W. said, one never knows how the judgement will go. I've been involved in some though ones, up against other well experienced foresters, lawyers, state agencies, etc.

A diversity of experiences is important along with a well written Trespass Report of Damages with pictures. I usually assess damages to the entire landscape and ecosystem and not just the timber values.  It's an All Resources Damage Assessmant to include soil, water, wildlife, recreation, aesthetics, timber, etc. That usually get's them to the table for negotiations and settlement of the timber values involved.

As was previously stated, the first thing is to have is a registered landline survey of the property involved. The first thing the judge usually asks the landowner with the trespass claim is to "prove that its their property."

Remember that Forestry is not an exact science, but use your best "professional" judgement and don't try to "snow the judge". They will ask some tough questions and words used in response are also important.

[Phil]

If the snow doesn't get us, I'm going Wednesday morning to take a look.  Thanks for the excellent advice.  It'll certainly help.

Credibility-wise, I'm an SAF-certified forester and have experience with timber cruises, etc.  However, the fact that I've been out of field forester for about three years DOES have the potential to hurt my credibility, so I wanted to make sure I do this with as much precision as possible.

Phil

[bull]

  Phil  good luck!! Don't forget  other damages to the wood lot
Skidder scars on standing trees, decrease there future value.
Even though they tresspassed their harvest activities are in question.... If you have a slash law did they violate that *( top and screw)* leave a mess etc.... Did they violate any wetland laws, remember "No cut plan equals no exemptions"!!!!!..... What about disruption of wildlife. Video tape your site...  Bring the Jury into the woods on video show everything!!!!
The Thrice damage law does exist and you state forestry office should have it.It is old common law in Mass.. and has not been removed from the books....  Three times the estimated log volume value was set to air infavor of the landowner and slap the theif in the face...   Bull

[bull]

 Research Case law and bring the info and decisions to court with you... Site case dates history and damages awarded...
Beware of contempt but question the Judges Knowledge on forestry law if it were to become an issue, remember they work for the good of the law and the people it is suppose to serve..Appeal all decisions you feel are wrong if you do not win or are not awarded damages....  We also need to create laws to get rid of SCUM LOGGER and THEIFS...They make us good guys who care and have our heart and soles in this buisness    Sorry if I sound harsh but we have enough trouble Keeping the Tree Huggers and NIMBYS off our backs
we don't need our own making use look bad..

[Texas Ranger]

Phil, stay with it, you have the credentials. Dot the "I's" and cross the "Y's" and  you will do all right.

When they ask about your back ground give it to them with no flurishes or ruffles, lay out your experience and education.
The others have told you what you need, have it documented, printed in a viewable form, and available for all parties.

[Ron Wenrich]

This came out of the Northern Logger.  It isn't quite trespass, but the court has found it to be illegal.

A Connecticut couple pleaded guilty to fraud.  A man & wife logging team recently plead guilty to several counts of larceny for stealing $267,000 in timber from large parcels of historic and scenic proportions in CT.  

The company is Tri-State Timber Products of New Milford, CT.  They agreed to pay a "conservative" restitution to elderly and non-resident landowners who they cheated from 1997 to 2000.

As part of the plea, Lee Morsey must pay $70,000 by Jan 23 to avoid a 2 year jail term.  His wife must pay an additional $140,000 by July 30, 2003 or face eight years in jail.  She faces making an additional $57,000 payment after making the first two.

I'm glad someone has made severe underpaying a crime and has taken action.  I just would like to see more on the specifics on how they were caught, and how the case was made.  I just hope they didn't put the excess money in Enron stock.

[Larry]

Question?? I have two pieces of ground with small woodlots on them.  If a timber trespass were to occur the logger wouldn't make a great deal of money.  To recover damages I would have to hire a Forester, lawyer, and spend a lot of time just to get that done.  Then if I won the suit that is no guarantee I will ever get paid damages.  Both pieces of ground have survey stakes at the corners and almost non-existent fences.  So what is the best preventative action?
Larry

[bull]

Larry if you are sawing you know what logs are *(the good the bad & the ugly,Inventory your wood lot. Know your trees. I don't know how many acres you have. I have over 100 and I can tell you where and what is on it......  Experience and knowledge can outway a College degree... Do a video inventory in two to three acre plots using survey flags.....
that will cover the Foresters job...... Forget the lawyer you can represent yourself, it doesn't take much to research case
law.  Use your state forestry office  *( state foresters)* are at your disposal to confirm your findings.. The local library, and the internet.. Most Lawyer don't know a dam thing about forestry.  

[Ron Wenrich]

In most trespass cases, it is stumpage plus costs.  That means the trespasser will pay pay your legal fees and your expert witness fees.  But, if you are accused of trespassing, then there is no recourse to recover your expenses, even if you are innocent.  So much for innocent until proven guilty.

I wouldn't recommend doing much of the appraisal work on your own.  It is OK from a standpoint of personal use, but, it wouldn't be viewed very well in the eyes of the court.  You have a vested interest, so there is an expected bias.  You may have the expertise to value the trees, but that would make little difference.

For starters, your boundary lines should be established and well marked.  This used to be done years ago.  They would blaze marks on the trees, and then leave those trees as witness to the lines.  Corners would be established with concrete markers, stone piles, iron pins, or other things that could be found easily.  Some landowners will paint the lines, while others find that objectionable.

A timber inventory and appraisal is also a good deal for any landowner.  It can help to seperate the timber from the landbase and is useful in figuring the timber depletion on timber sales.  But, an independent forester's report will hold more weight if you ever get into court.

Your best prevention is to have and be a good neighbor.  That is how most trespassers get caught.  A neighbor asks about the timber being cut.  They let you know about it.  It also pays to visit the property several times a year.  In most states, there is a statute of limitations, usually 2 years.

Pictures are useful, but you will have to be able to prove it was your trees.  A lot depends on the court and the lawyers.  

Most of the trespass cases I've been in on have had to do with boundary line location.  Rarely has a logger just gone out and cut down trees unless he thought he had them bought.  I make a practice of contacting adjoining landowners.  Sometimes you end up buying/selling their timber as well.  It is a good PR move.

[swampwhiteoak]

bull, I don't know how Massachusetts works, but a lot of state forestry authorities won't touch a timber trespass case on private land.  I know ours certainly doesn't.  That is something we leave for the consultants.  

[Ron Scott]

Have a registered survey of your property with maintained corners and boundary lines.

The degree of negligence established is usually by how well the boundary line is maintained after being estyablished by registered survey. The burden of proof is on the landowner to know where their boundary lines are.

Paint a number on each cut stump so it can be continually identified. Some involvde trespass cases can go on for several years depending upon the issues, court scheduling, etc.

I've been working as Expert Witness on one for the past 3 years and its still going on with numerous court sessions, depositions, preparations, attorney breifings, etc. They can impact quite a bit of one's time an interrupt much personal time, especially if one has several cases going on at one time. They get to be a "pain".

[Scott]

I know its not dirrectly related but i think loggers should have to get a lisence to do business. Like a drivers lisence if they violate laws they face losing the lisence. I think this would be a decent way to keep the losers out of the woods.

[Ron Wenrich]

That's good in theory.  A driver's license doesn't keep the bad drivers off the road.  A logger's license won't keep bad loggers out of the woods.  But, it is easier for the government to keep an eye on them.

The problem with a license is that it then gives some credential that has been bestowed by the state.  In some landowner's eyes, this may be perceived as being an authority on forestry, since many landowners don't know the difference between a logger and a forester.  A dishonenst person would use that to their advantage.

In some states that do have licenses, only one person on the crew needs to be licensed, and he doesn't need to be on the job.  He may be the president or some official of the logging company, for example.  Get your license lifted?  No problem, just get another person to become licensed and change the company name.

[Tillaway]

Phil,
Some nuts and bolts on a couple I have worked on.  Sometimes the land line survey costs more than the timber cut.  To aleve this problem we have used Phase/Code corrected GPS data to establish location of each stump.  The accuracy is of survey order.  Or better yet use a RTK GPS reciever, the accuracy to a centimeter or so.  Be sure to GPS the location of property corners as well.  This is faster and easier than a line survey.

Measurements

Drive a nail into the center of the stump, use the GPS to get the position of the nail.  Make two measurements across the stump perpendicular to each other and average to get the diameter at stump height.  Number and photograph each stump.  This information can be entered into the GPS and linked to a database, some programs will link the photo, measurement info, and location.  It makes a very professional presentation.

Take measurements of similar trees in the immediate area.  Be sure to get a stump diameter as well as the usual measurements.

We have used this successfully to head off going to court.  When the offending party sees the map presentation then they will often settle for double stumpage.  Normally out here you have to prove it was a malicious act to get triple stumpage damages and they are rarely awarded.  Going to court usually only gets the double so showing the offending party what was done heads off an expensive court case and is better for everyone involved.

[smwwoody]

PHOTO PHOTO PHOTO !

YOU CANT TAKE ENOUGH!

[Phil]

I'm wondering, do any of you try to estimate Form Class per tree for the stolen timber?  

Phil

[Ron Wenrich]

It depends on the species and size of tree.  For larger trees, I will increase the FC.  For trees that grow with less taper, like white pine, I will use a higher FC.

To see what FC should be used for most species, click on the toolbox to the left.  Find the tree volume calculator.  There you will find a listing of form classes for trees in different areas of the US.  It was developed by the USFS and we added it to the calculator.

[Tillaway]

Form factor or form class is measured from your sample trees taken on site.  I measure the diameter at the top of the first log then apply a bark thickness ratio to obtain form class.  I will do this for every sample tree on a trespass.  If any felled trees are on site sample these for a BTR.

[Phil]

I 'preciate it, y'all.  

Phil

[Ron Scott]

I use the USDA Forest Service Form Classes as Ron W. mentioned above. They are in the Tool Box Calculator.

[Phil]

Ron,

Yes, I found those.  Thanks.  Actually, I didn't know there was a Toolbox here until Ron W. enlightened me    Lots of useful stuff in there.  (Hence the name "Toolbox," I suppose.)

Phil

[Ron Scott]

Beaver Timber Trespass. Not all timber trespass is by humans or indiscrete loggers. Beavers may even remove the evidence of the boundary line trees to "cover their trail". Austin timber harvest' 6/06.

[Dana]

Ron, Are you sure its not to cover their tail instead? 

[J_T]

Ron I see what happened  They got the signs up to high  . They must of put them up for tall beavers 

[Phorester]

There's some lawyer somewhere that would sue those beavers.

[Ron Scott]

Some more wood hauler and work truck names noted while on the road.

"Broken Toys" (on a wrecker)
"Chip"
"Crusher" (on a gravel truck)
"Big Elmo"
"Rookie"
"Just A Little Pussy Cat"
"Dog House"
"Renegade"
"Timber Wolf"