At first, Beverly Kaiser and her husband Phillip were pleased when a father-and-son logging team stopped by their house in Washington, Vermont, in late August 2008. Ken Bacon Sr. and Jr. of Barton, Vermont, told the Kaisers they had just finished working a job nearby. Since their equipment was in the area, the men offered to cut down the taller trees on the couple’s property, which partially blocked a panoramic mountain view. The next day, the Kaisers, then retirees in their late 60s, signed a simple handwritten contract that said nothing more than the price the company would pay them per log removed.
For the first few weeks, the Kaisers received the money they expected. Then the payments stopped coming. And when the Bacons finally pulled out their equipment in late October, Beverly Kaiser said, the woods were a muddy mess: rutted skidder trails, flattened culverts, ditches blocked by slash piles, and a severely eroded brook. According to her 2010 court statement, most of the trees planted around the Kaisers’ pond, which they told the loggers not to touch, were gone; the rest had been cut and left where they dropped. The Bacons also took several trees from a neighbor’s property, an area from which she also recalled warning them away.
“They never did cut the large group of tall trees we especially wanted cut for the view,” Beverly Kaiser wrote. “They seemed to choice cut what they wanted and the ones in their way.”
A small claims case against the company would subsume the couple for the next three years. Although the verdict was in the Kaiser’s favor, almost six years later an award has not been paid.
The Kaisers were one of at least six landowners in four Vermont counties who filed civil or small claims complaints against the Bacons between 2007 and 2011. Two cases were settled out of court; one was dismissed for procedural reasons. Of the remaining three, all were decided for the plaintiff. The court concluded that the Kaisers were owed $4,500. For another couple in Caledonia County, damages topped $23,000.
Meanwhile, starting in 2008, the Vermont Department of Environmental Conservation pursued the Bacons for environmental violations at several other logging jobs. Over the next five years, Bacon Timber Harvesting racked up almost $41,000 in fines stemming from judgments in three state cases, compounded by ongoing non-payment. In early 2010, a court ordered the Bacons to notify the agency whenever they planned to start a new logging operation in the state. But they have ignored that order and continue to find work from unsuspecting landowners.
Today, Gary Kessler, chief of the Vermont department’s enforcement division, is frustrated. The Bacons and their company hold no assets that the state can seize and there are no tax returns to garnish, he said. He and his colleagues now believe that their activities are in a category beyond his department’s jurisdiction.
“Our agency doesn’t consider the Bacons loggers,” he said. “This is a criminal enterprise that just happens to occur by logging.”
So far, Kessler has been unable to convince any state prosecutor to file criminal charges. “I’ve tried to encourage cases like this to go forward, but it’s been difficult,” he said. Because the Bacons have the landowners’ permission to cut on their properties, the outcome is usually seen not as theft or fraud, but as a breach of contract, a matter for the civil courts.
“If somebody kicked down the front door of your house and took your TV and your jewelry” it would obviously be a theft, Kessler said. “If somebody steals a whole bunch of trees, it’s looked at as, ‘they had an agreement and did it by mistake.’”
That attitude does not surprise forester Richard Carbonetti, head of the timberlands division of LandVest, a regional consulting and property management company and a Northern Woodlands board member.
Until recently, the only timber theft cases that went to criminal court in northern New England were those involving blatant trespassing, when loggers had no business being on a property at all. “The legal system has been very uninterested or unwilling to deal with this as a theft in a criminal sense,” Carbonetti said. “It is often presented by the loggers as a misunderstanding.”
In New York, as well as Vermont, this is still largely true. If loggers have been contracted to do a job, then take more trees than agreed upon or fail to pay full value for the logs they take, they are difficult to prosecute, said Ken Bruno, a lieutenant with New York’s Bureau of Environmental Crime Investigation. “Those are very difficult and are decided on a case-by-case scenario, based on the facts,” he said. “Most [district attorneys] are hesitant to get involved when there is a contract.”
In those instances, landowners are left to try to seek justice and recompense at their own expense. Unfortunately, a civil case, even when successful, often does not yield much satisfaction, as the Kaisers discovered.
New Laws and a New Attitude in New Hampshire and Maine
All four northern New England states have civil laws to protect landowners against unscrupulous loggers. They allow for recovery of at least triple the value of logs removed without the owner’s permission, as well as reimbursement for the full cost of repairs from damage to the property. The problem with the laws, though, is that some loggers are able to avoid paying for verdicts against them by putting their equipment and other assets in a family member’s name. And as the old saying goes, you can’t get blood from a stone.
In response, Maine and New Hampshire have enacted stricter regulations for logging contracts and sales, making it harder to transport and sell stolen lumber. Also, criminal prosecutors in those states no longer hesitate to bring felony cases against rogue loggers, particularly habitual offenders. A guilty verdict can result in a year or more in prison, serious fines, and tens of thousands of dollars in restitution for landowners.
Take as an example the recent case of Andrew Pysz of Newport, New Hampshire. Like the Bacons, he has a long paper trail of fines stemming from environmental violations and logging disputes in the civil courts. In January 2014, Pysz pleaded guilty to two counts of deceptive forestry business practices, which has been a felony in New Hampshire since the late 1990s. He spent almost five months in the state prison in Concord. Placed in a home confinement program in May, he’ll now wear an ankle monitor for up to four years. Also, because of a 2011 law that allows a court to set “enhanced penalties,” Pysz has been permanently banned from logging in the state.
“We have come quite a long ways in the last 10 to 15 years,” said Brad Simpkins, chief of forest protection for the New Hampshire Division of Forests and Lands. “We now have county attorney’s offices that are absolutely right on board with prosecuting a timber case.”
These changes occurred gradually. Forestry officials describe a two-pronged approach: enactment of new laws that clarify what counts as a logging crime and deliberate outreach and education to lawmakers, prosecutors, and judges about the problem. At the same time, rangers and others in the business began informing landowners about the new legal resources and continued to advise them on how to protect themselves from predatory logging.
“There has been a continual evolution of the law and tools in terms of prosecution,” explained Bill Hamilton, chief ranger for the Maine Forest Service. “The vast majority of people who work in the timber industry are very honest. We’ve worked pretty hard over the last decade to protect landowners from that very, very small group out there that tries to take advantage,” he said.
Both states have an advantage over Vermont and New York in that they employ a cadre of forest rangers who are trained in law enforcement and focus solely on forest concerns. The rangers act as the front lines in investigating timber theft and bringing cases to the attention of district and county attorneys’ offices. Maine’s Forest Service employs more than 65 rangers under Hamilton’s command. There are 16 forest rangers reporting to Simpkins in New Hampshire.
New York, too, has a longstanding corps of forest rangers. But they get involved in timber theft only when it occurs on public land. Otherwise, it falls under the purview of the 40-odd officers with the state’s Bureau of Environmental Crime Investigation, part of the New York Environmental Conservation Police – a team that is also responsible for enforcing the gamut of environmental laws in the state, from those involving endangered species to water quality. Similarly, eight civilian investigators handle logging irregularities in Vermont, but they also respond to a litany of other environmental violations, including those involving salvage yards and underground storage tanks.
In Maine and New Hampshire, changes in laws and attitudes were just as important as more manpower, officials said. According to Hamilton, “timber was treated differently than other assets” for a long time. Changing that “has been an educational process for us.”
One important step in boosting oversight of logging activities has been the establishment of reporting requirements for all commercial timber harvests. Vermont now requires notification and approval of large cuts – 40 acres or more. In contrast, Maine mandates reporting of all harvests that span more than two acres, unless the wood is solely for the landowner’s use, and that notification must include a cutting plan describing the type and location of trees to be removed. Since the late 1990s, all logs transported through Maine must carry a trip ticket naming the owner of the land it came from and the logger who cut it. Mills must provide timber sellers with stumpage sheets upon delivery, and the logger must provide copies to the landowner at the time of payment.
The next step was establishing penalties for not following the rules. Maine law requires that loggers pay landowners within 45 days, unless a timeline is otherwise specified in a contract. Failure to pay within that timeframe, regardless of intent, results in fines. The third incident of nonpayment within a five-years period is treated as a crime with up to six months of jail time attached. State law also defines timber “theft by deception” as a form of theft subject to the state’s criminal larceny laws. For values over $10,000 that means up to 10 years in prison.
Simpkins describes a similar evolution in laws and attitudes in New Hampshire. “It has taken some time, years of working with them for the courts to start becoming familiar with the value of wood and county attorneys to start becoming comfortable with how to prosecute the case,” he said.
In New Hampshire, an “intent to cut” announcement must be signed by the logger and filed with a landowner’s municipality. The paperwork is then forwarded to the state’s Division of Forests and Lands. The requirement is waived in a few circumstances: harvests of up to 10,000 board feet cut for the construction of buildings on the owner’s property; harvests of up to 20 cords of firewood for use on site by the landowner; or where the cutting is done for the purpose of development.
New Hampshire law defines the “reckless” felling of trees as criminal. If the trees cut are worth less than $1,000, the crime is a misdemeanor. Over that amount, the act is treated as a lower-level felony, with the possibility of up to seven-and-a-half years in jail and up to five years of probation.
Under New Hampshire’s “deceptive forest practices” law, loggers can also be found guilty of a misdemeanor if they “recklessly” fail to provide a written contract to the landowner. The contract must describe the agreed upon amount the landowner will be paid for a set number of logs and when that payment is due. Other behavior – “recklessly” taking more logs than specified, not paying for logs taken, not providing scale slips for the wood taken, or falsifying scale slips – are misdemeanors if the resulting loss is worth less than $1,000 and a lower-level felony if it’s worth more.
Recently, both state legislatures have fine-tuned their timber theft laws to target habitual offenders. A Maine law from 2013 requires all loggers with more than two civil violations of “unlawful cutting” to seek written permission from the division of forestry and, more importantly, to be bonded for a minimum of $500,000 dollars before starting any new harvest. The law gives forest rangers the authority to issue stop-work orders if one or both requirements are not met.
In New Hampshire, a law from 2011 addresses loggers who frequently run afoul of civil and criminal law. It allows for enhanced civil penalties of up to $10,000 along with “any other injunctive relief deemed necessary by the court,” including a lifetime prohibition against filing “intent to cut” notices in the state.
In both states, the odds are better for a criminal conviction than they are in Vermont or New York. In Maine, rangers investigate hundreds of cases of timber trespass and theft every year. Of those, several dozen are prosecuted in criminal court. State law also allows district attorneys to take weaker cases to civil court, sparing landowners the expense. In New Hampshire, the state’s 16 forest rangers responded to 163 complaints of timber theft in 2013, according to Simpkins. Roughly half resulted in an action, ranging in seriousness from a written warning to fines and cease-and-desist orders. Five cases led to felony indictments.
In contrast, in New York, the conservation police receive an average of 50 timber theft complaints in a year, though the annual tally has been as high as 95. Vermont received six forest resource-related complaints in 2013 and 20 in 2012. Twelve were found to be true violations, but only eight resulted in formal administrative action. Kessler said only one case in recent memory has gone to criminal court.
Smart Steps for Landowners
Despite the new laws in New Hampshire and Maine, there are still many situations in which it is unclear if a crime has occurred, officials said. Mistakes and miscommunication between landowners and loggers do occur.
Landowners anywhere can take several steps to protect themselves, Carbonetti said. The most important is to ensure that your boundary line is surveyed and clearly marked prior to cutting in the area. A written contract that includes a cutting plan, a payment schedule, and the expectation that loggers will follow best management practices is also essential. Several models of standard agreements can be found online, and most consulting foresters will work to customize a contract for a particular job.
Finally, in most cases, it is worth the fee many times over to engage a professional forester to assist in planning and carrying out the harvest, Carbonetti said. Any good forester will be very familiar with the loggers in the region and will know those with bad reputations by name. “If you have a forester, they never get in the door,” he said.
Kristen Fountain is a freelance writer living in Vermont’s Northeast Kingdom.