Call to Order and Roll Call
The 4th meeting of the Interim Joint Committee on Natural Resources and Environment was held on Thursday, October 1, 2015, at 1:00 PM, in Room 149 of the Capitol Annex. Representative Jim Gooch Jr., Chair, called the meeting to order, and the secretary called the roll.
Present were:
Members: Senator Jared Carpenter, Co-Chair; Representative Jim Gooch Jr., Co-Chair; Senators C.B. Embry Jr., Chris Girdler, Ernie Harris, Paul Hornback, Ray S. Jones II, John Schickel, Brandon Smith, Johnny Ray Turner, Robin L. Webb, and Whitney Westerfield; Representatives Hubert Collins, Tim Couch, Jim DuPlessis, Chris Harris, Reginald Meeks, Tim Moore, Marie Rader, John Short, Kevin Sinnette, Fitz Steele, and Jim Stewart III.
Guests: Ms. Leah MacSwords, Director, Division of Forestry; Mr. Bob Bauer, Executive Director, Kentucky Forest Industries Association; Mr. Tom FitzGerald, Director, Kentucky Resources Council; Ms. Sandy Gruzesky, Department for Natural Resources; Mr. Clyde Caudill, Impact Government Relations; and Ms. Arnita Gadson, Environmental Quality Commission.
LRC Staff: Tanya Monsanto, Stefan Kasacavage, and Kelly Blevins.
A quorum being present, the minutes from the September 3, 2015 meeting were approved.
Ongoing Efforts and Recommendations to Combat Timber Theft
Leah MacSwords, Director, Division of Forestry, gave an overview of timber harvesting operations in the Commonwealth. Kentucky is 47 percent forested, with forest industries in 109 counties and merchantable timber in all 120 counties. Kentucky forest industries contribute over $8 billion annually to the state’s economy with a $12.8 billion total economic impact per year. Kentucky has 1,500 logging firms whose timber harvesting operations are inspected by the Division of Forestry. The division also works with private forest landowners, who own 88 percent of Kentucky’s forested land, to help them manage their property to ensure sustainable harvests, maintain wildlife habitats, and provide recreational opportunities.
Private landowners are particularly vulnerable to the problem of timber theft, not only because they own such a large percentage of Kentucky’s forested land, but also because timber can likely only be harvested once during their ownership of the property. Timber theft also takes money away from reputable loggers who would be lawfully harvesting the timber that is being stolen by the timber thieves. Although the division inspects commercial logging operations, it has no authority to investigate or enforce any laws directly relating to timber theft.
Bob Bauer, Executive Director, Kentucky Forest Industries Association (KFIA), discussed the impact of timber theft on the sawmills, loggers, and landowners that the association represents. During the 2015 Session, the General Assembly unanimously passed SB 92, which imposed tougher requirements and restrictions on repeat “bad actors” with unpaid fines and uncompleted reclamation plans. He hopes this bill will help curtail timber theft, because many of the repeat bad actors are also suspected to be timber thieves.
Current timber theft and trespass laws in Kentucky are already strong. Victims are entitled to legal costs and triple damages for the stumpage value of stolen timber and damage to property. The problem is that criminal prosecutions are often not pursued, and recovery in civil suits can lead to inconsistent results. Representative Combs has sponsored legislation for several years to establish a timber theft and trespass reduction task force that has not yet passed the General Assembly. Last year, KFIA assembled representatives of many of the stakeholder groups named in that legislation to try to find consensus recommendations to address the problem. One widely agreed-upon recommendation was to pursue more criminal prosecutions for timber theft. Already scarce prosecutorial resources are more likely to be dedicated to higher-priority crimes, and it is often more difficult to track and value stolen timber than other stolen goods that have more easily verifiable identifying characteristics. It is important to continue to educate state and local prosecutors on the seriousness of timber theft. One possible proposal to increase awareness of the crime and increase criminal prosecutions is to assemble a timber theft task force through the Attorney General’s office, much like the arson task force. Other state agencies, like the Department of Fish and Wildlife Resources, could be engaged to help identify and report timber theft in the field. Additional laws and regulations should be considered only after the current laws are better enforced.
Tom FitzGerald, Director, Kentucky Resources Council, discussed the impact of timber theft and trespass on private timberland owners in Kentucky. Timber theft is estimated to cost $1 billion per year nationally and results in financial loss and property damage to landowners that often goes uncompensated. Timber theft negatively impacts the legitimate timber harvesting industry. Victims rarely see justice served for the crime because of the difficulty with engaging law enforcement and prosecutorial resources. This difficulty can be attributed at least in part to poor training and lack of resources to investigate and prosecute timber theft and the indefinite, unmarked, and disputed property boundaries often found in rural areas. Victims also must overcome financial burdens to pursue claims of timber theft, including hiring experts to survey the property, estimate the cost of repairing any damage to the property, and value the stolen timber. Total compensation for the loss is difficult to ascertain because of the difference between the stumpage value that used to calculate damages by statute and the actual value of the timber at sale, which may have been greater.
Because the General Assembly has not yet passed Representative Combs’s resolution to establish a timber theft and trespass reduction task force, it may be beneficial to establish an informal working group with many of the named members of that task force and members of the General Assembly to address these issues. The working group could engage state agencies and stakeholders to mobilize the resources available to address these persistent issues, much like the arson task force was able to do.
Chair Gooch recognized Representative Combs’s hard work on this issue and underscored the difficulty in establishing intent to trespass when so many boundary lines for rural properties are poorly marked.
In response to a question from Senator Webb, Mr. FitzGerald agreed that it is difficult to pursue perpetrators of timber theft and trespass in civil court because the thief often has few financial assets from which to satisfy a judgment. Other states, like South Carolina, allow seizure of timber harvesting equipment.
Representative Stewart commented that where the timber is sold would perhaps be a good place to impose some documentation requirements for timber harvesters to ensure that the correct amount of timber has been harvested from the correct place.
In response to a question from Senator Jones, Mr. FitzGerald said that commercial logging operations are required to have a master logger on site to minimize the impact on water quality, but there is no bonding requirement, no requirement for a reclamation plan, and no reforestation requirement. The General Assembly may be interested in requiring signed reclamation plans for commercial loggers.
In response to a question from Representative Harris, Mr. FitzGerald said that South Carolina and Georgia have both increased their interagency cooperation to help respond to timber theft and trespass. Those states have also increased criminal penalties. Other states have notification, reclamation, and survey requirements for all timber harvesting operations. Mr. Bauer said that some southern states have hired dedicated law enforcement to investigate timber theft, but that Kentucky has the most stringent notice requirements of any southern state.
Chair Gooch noted how cooperative the timber harvesting industry had been with addressing logging issues.
In response to a question from Representative Meeks, Ms. MacSwords said that the division maintains a list of bad actors by county on its web site.
In response to a question from Senator Webb, Ms. MacSwords said that the regulation requiring notification for bad actors just took effect and that violation of the regulation would place the logger in the four-step bad actor process currently in force.
In response to a question from Representative DuPlessis, Mr. FitzGerald said that the water well drillers came to the General Assembly to request a framework for certification in order to weed out their own bad actors. It is worth considering a permitting or certification requirement for responsible timber harvesters to be able to separate themselves from the bad actors. Mr. Bauer said that the industry favors increasing communication as long as it is not onerous on the majority of loggers who are already abiding by the rules.
There being no further business, the meeting was adjourned.