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reprinted from the New York Property Rights Clearinghouse, Vol. 6 No. 1 (Spring 2002)

March 2002:

Commission on Rural Resources Backs Senate Bills to Help Landowners
and Model Local Law to Make Life Difficult

New York State: Eliminate Timber Theft by Restricting Land Use

Environmental Regulation of Timber Harvesting is The Answer

By Carol W. LaGrasse

 

"In Central New York, a thief read an obituary of a deceased woman who owned forest land, and stole $20,000 worth of timber while her grieving relatives planned her funeral."

The above tearjerker, one of several without identity, date, or attribution, is part of the groundwork that state agencies laid in their final recommendations issued last spring on the issue of timber theft on public and private lands in New York State.

The report rightly points out that civil suits to deal with timber theft can be expensive and that it is difficult to prove criminal intent in self-serving boundary mistakes during logging.

"...the current laws for both civil and criminal actions regarding timber trespass on public and private forest lands are weak and work to the advantage of the unscrupulous in a potentially very lucrative endeavor," states the publication, "Timber Theft on Public and Private Lands in NYS Final Report" issued in spring 2001.

However, the report, presented after public hearings held in Albany, Jamestown, and Syracuse by two New York State Senators, Patricia K. McGee, Chair of the Legislative Commission on Rural Resources, and Nancy Larraine Hoffmann, Chair of the Senate Committee on Agriculture, goes beyond legislative recommendations that would ease the effort that landowners face to protect their timber assets from thieves.

The two Senators announced, "We are immediately introducing three pieces of legislation which will help alleviate problems in the short term management of this issue...:

· "Increased penalties for timber theft
· "State assistance in surveying boundaries and assisting land owners with timber harvests
· "Reinstating DEC assistance in marking trees for property owners with more than 20 acres of land"

Although the report included forest production, price, and ownership statistics for New York State, it presented no statistics on the occurrence of timber theft or on the cost or failure of civil and criminal efforts for redress. However, the numerous graphs about forest ownership and the like somehow led up to an important highlighted statement:

"Since there tends to be a change of ownership about every 15 years on average among the state's private forest owners, communication with them about best management practices and protection of their forest resources is a continuing need."

From that point forward, without explanation, the report slants toward regulation of forestry. But it fails to explain why regulation of forestry practices is needed to prevent timber theft. Furthermore, among the quoted statements by loggers and timber property owners about timber theft, none called for land use regulation to solve the problem of timber theft.

The report points out four "methods currently used to address timber theft." The first method is, "A logger training program which encourages loggers to be responsible and progressive in their forest harvesting." The fourth method is, "A directory of Cooperating Consultant and Industrial Foresters who have pledged to adhere to certain timber harvesting guidelines and to promote sustainable forest management practices, included continuing forestry education, maintained by DEC."

A key feature of the report's drift is clearly toward environmental education and bringing loggers into the approved DEC list if they want to practice in New York. The pressure that DEC uses to get local towns to require that only loggers on the DEC list be allowed to work in their jurisdiction has already been a source of complaints from loggers and foresters.

Another tack in the report is the "uniform standard" argument, so often touted by those who advocate more regulation of private property and personal life.

"A uniform standard needs to be extended to laws covering both public and private lands, in order that all timber will be equally protected. This is imperative in order to discourage timber theft in New York and not provide an incentive for would-be thieves to target one landowner over the other. A uniform standard would also promote better understanding of laws available for conducting legal proceedings in both civil and criminal actions against timber thieves."

Perhaps a helpful measure, albeit unmentioned in the report, would be for state legislation to require that law enforcers prosecute the thief with a mind to obtaining full reimbursement to the property owner for the value of the timber stolen, plus reasonable punitive damages, rather than the usual mindless "criminal" penalties, which enrich the state on one hand and cause the taxpayers the expense of incarceration of the offender on the other hand.

The report tabulates over forty policy measures to reduce timber theft. Some of the proposals are good, such as increasing penalties for theft and lessening the burden of proof of intent. But the voluminous list of proposed solutions misses the point. It is, in fact, heavily weighted toward registration of loggers and "certification." The authors of the report deny any goal of requiring "licensing," but it seems that "certification" is ultimately the same thing, because it irrevocably evolves toward ever more strict requirements for certification, e.g. licensing.

Timber Harvesting Model Land Use Law

The single largest part of the report by the Legislative Commission on Rural Resources is devoted to the "Timber Harvesting Ordinance Model Local Law." The model local law is basically an environmental law, rather than a law pertaining to theft. The opening sentence of the law makes this clear:

"The purpose of this law is to promote the health and safety of the
residents of the Town of _______ by protecting the natural environment
as affected by timber harvesting."

The model law pertains to erosion control structures, construction of haul roads, landings, logging debris, logging operations, protected streams, skid trails, slash, streams, and aesthetics. Buffer strips at least 100-ft. wide are required along major travel corridors, but "major" is not defined. Buffer strips are also required along boundaries, but standards for these are not given.

Many of the law's requirements are well-established in practice and common sense, but casting the relation between the landowner and the logger and forester into local law creates another impediment to the practice of logging on small parcels, and adds another regulatory hurdle and financial burden to logging practiced on any size tract of land.

The law would require registration of landowners who plan to have their property logged. The landowner would have to insure compliance with the environmental logging standards.

The model law also requires that the local town provide certain sources of information for the landowner. Predictably, these include the "DEC Foresters, Cooperating Consultant Foresters, New York Institute of Consulting Foresters and Cooperating Timber Harvester lists."

The model law would open up private property to further physical intrusion by government. Landowners would have to provide for access to their property by the enforcement officer and his inspectors. Property owners are to be the ones prosecuted for violations of provisions of the local timber harvesting law.

It is ironic that the Legislative Commission on Rural Resources, which is supposed to be an advocacy group for rural landowners, would propose more regulation of private property owners as a solution to the problem of timber theft faced by these same property owners.

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