Into the woods

Most who own forested land have never dealt with trespassers who willingly go onto private property and cut trees, but it happens often enough that states have strict laws to handle the problem.

Ross Pifer, professor of law and director of Penn State’s Center for Ag & Shale Law, recently presented information on timber trespass.

Pifer explained that timber trespass statutes address the issue of someone going on land that is not theirs and removing timber, or in some cases, other property items.

“With property law, there’s the concept of trespass,” Pifer said. “When you own property, you determine who comes onto your property. If someone comes onto your property and they are not authorized, that’s a trespass and you have recourse based on damages that occur.”

Pifer recounted an incident in Nantucket, MA, where 16 trees were cut by a non-property owner because the non-property owner wanted to advertise their property as having “sweeping views of the Atlantic Ocean.” The estimate to replace the mature trees was $486,000, and while the timber wasn’t worth that amount, the property owner claimed emotional distress and the loss of privacy, value and character of the property.

The Nantucket case isn’t typical of most timber trespass issues and application of statutes. However, similar issues can occur when a landowner plants trees that have value not measured in board feet. Policymakers say timber statutes are necessary because such statutes offer protection that isn’t provided through general legal principles.

“These statutes have been around for a long time,” Pifer said. “Many state statutes date back to the 1800s, some earlier. The majority of the law being applied today originates from a statute enacted in the 19th century. A number of states’ timber trespass laws are older than the states themselves.”

Although many timber statutes are old, some have been amended within the last 10 to 20 years. States take different approaches regarding covered items. While some include all trees and shrubs, other statutes apply to all forest products or specifically described forest products.

Major provisions in state timber trespass statues include the definition of trespass and covered products/actions, the multiplier on base stumpage (the value of uncut timber) and the impact of a trespasser’s state of mind, valuation of base stumpage, available damages beyond enhanced base stumpage and availability of criminal sanctions.

Some states include shrubs to protect landowners who have a variety of vegetation types. Connecticut covers “trees, timber or shrubbery, standing or lying.” Delaware states “tree or trees.” Virginia considers “timber or trees,” while Maryland defines “merchantable trees or timber.”

Massachusetts law considers “trees, timber, wood or underwood.” New York says “underwood, trees or timber.” North Carolina states “wood, timber, shrub or trees.” New Hampshire is more specific and dictates “tree, timber, log, wood, pole, underwood or bark.”

Pennsylvania details timber as “standing trees, logs or parts of trees that are commonly merchandized as wood products.” Vermont uses the terms “timber or forest products.”

Several states include specific forest products beyond timber or include all wood products. Maine created a comprehensive law that covers “forest product, ornamentals or fruit trees, agricultural product, stones, gravel or goods or property of any kind.”

For forest product valuation, the focus is primarily on market value of board feet. Enhanced damages, which means twice, thrice or more of the basic damage, are the core of most state statutes. The norm is for triple, or treble, damage. In most cases, damages are based on the mill price of the timber and reasonable expenses incurred.

“The multiplier is a big benefit for timber trespass statues,” Pifer said. “If someone cuts down trees or other products and removes them, they must provide, in many cases, triple damages. It provides a real disincentive for action, which reduces the incidence.” If the event occurs, the landowner whose trees were cut down will benefit.

Some states differentiate loss based on the product. Connecticut allows five times damages for Christmas trees and three times for wood or underwood. Rhode Island distinguishes between trees and wood or underwood, allowing two times for trees and three times for wood or underwood. New York recovery is based on a flat rate of $250/tree in lieu of or in addition to treble damages.

“Flat rate provisions were more common historically but there’s a problem with it,” Pifer said. “New Jersey’s flat rate of $8 may have been acceptable in the 1950s or earlier, but not now. Maine has a minimum, which is three times or $500, whichever is greater.”

The state of mind of the trespasser can impact liability and the multiplier, depending on the location.

“Some states will not impose liability under these actions unless you have a certain measurement,” Pifer said. “States that have strict liability go through the same analysis to figure out how they will look at the multiplier. Some states will say ‘You’re liable for damages but not multiplied.’ Sometimes the multiplier is reduced; sometimes it’s eliminated based on state of mind.”

Costs beyond base stumpage damages and restoration may include expert witness fees, survey and cleanup, erosion and sediment control, forest management plan preparation, reforesting and replanting. Some states authorize injunctions to prevent threatened trespasses.

To prevent timber trespass, Pifer suggested landowners monitor property and use clear signage or paint to indicate boundaries. About 20 states have passed “purple paint” laws that allow landowners to mark property with purple paint as an equivalent to a “No Trespassing” sign. Other states allow blue or orange paint to designate private property. Paint marking should be done according to state law.

“This isn’t a case of us living with vestiges from the 19th century and wondering why we have these statutes,” Pifer said. “They are still being amended and adjusted. The Nantucket case provides an illustration of need. It’s hard to measure damages, and there are damages beyond board feet of timber. The threat of treble damages will cause most people to think before they intentionally cut trees down. In most cases, paying the cost of trees is not a disincentive.”

Landowners should be aware of their state’s laws regarding timber trespass and consult an attorney if they believe timber trespass has occurred.

by Sally Colby