by Kyle Townsley, Senior Associate

I. Introduction[1]

Two neighbors share a property line that is demarcated by a line of trees, bushes, and other foliage. The neighbors live at peace until one day when one neighbor (“Neighbor A”) clears the trees, bushes, and other foliage located on the property line without giving notice or obtaining permission from the other neighbor (“Neighbor B”). As one might imagine, Neighbor B was taken by surprise and upset about the removal of the natural barrier separating his property from that of his neighbor. Neighbor B measures his property and has it surveyed. Neighbor B determines that portions of the natural barrier of trees and bushes that Neighbor A cut were located within the boundaries of his property. Out of Neighbor B’s animosity toward Neighbor A, Neighbor B files a lawsuit against Neighbor A for the clearing of the natural property barrier. Unbeknownst to Neighbor A, he may be liable for triple the amount of damages typically associated with cutting such foliage and attorneys’ fees because of the Louisiana Timber Trespass Statute (“Timber Statute” or “the statute”).[2] At the conclusion of the lawsuit, Neighbor A is held liable for treble damages for the foliage that he destroyed.[3]

The result of the above situation could have gone very differently. For instance, Neighbor A could have filed and won a motion for summary judgment dismissing Neighbor B’s claims under the Timber Statute for Neighbor B’s failure to show that the foliage destroyed was timber.[4] This outcome could have occurred because the jurisprudence in Louisiana indicates that courts have taken varying views on the application of the Timber Statute. These differing views generally revolve around whether the scope of the Timber Statute covers any tree, whether it covers only timber, and, if so, what the definition of timber includes. This post seeks to compare the various Louisiana courts’ interpretations of the Timber Statute and suggest potential solutions for clarifying the scope of the statute.

II. Timber Trespass in Louisiana

Forestry is a significant part of Louisiana’s economy. The Louisiana forestry industry is the second largest manufacturing industry in the state.[5] Forests take up about 13.8 million acres in Louisiana, which is 48% of the state’s land area.[6] The industry provides jobs to thousands of the state’s citizens and provides other social and economic benefits to the state as a whole.[7]

Because of the forestry industry’s vast presence in Louisiana, the Louisiana Legislature regulates the industry in Title 3 of the Louisiana Revised Statutes.[8] Included in these regulations is the Timber Statute. The current version of the Timber Statute was enacted in 1987, but a version of the statute has been part of Louisiana’s law since 1974.[9] The statute changed the law in Louisiana to permit a punitive award of damages against an actor who cuts, falls, or destroys the trees of another.[10] Prior to the 1974 enaction of the Timber Statute, damages for cutting or destroying the trees of another were limited to the value of the timber if the actor was in bad faith or the stumpage value if the actor was in good faith.[11] The statute, however, vastly changed the valuation of damages for cutting or destroying the trees of another by adding the punitive element of treble damage.

The current 1978 version of the Timber Statute makes it unlawful for any person to “cut, fell, destroy, remove, or to divert for sale or use” any trees that are growing or lying on the land of another.[12] If one commits the above stated illegal conduct while in bad faith, having reasonable knowledge that the property and trees thereon belong to another, then the wrongdoer may be liable for treble damages plus reasonable attorneys’ fees.[13] Even if the actor committed the above illegal activity in good faith, believing that the actor has some right to cut or destroy the trees, the penalty may still be three times the market value of the timber, although no attorneys’ fees may be assessed.[14] Because of its nature, the Louisiana Supreme Court has found the statute to be punitive, and, thus, subject to strict construction.[15]

III. Interpretation of the Timber Trespass Statute

Outside of the Louisiana Supreme Courts’ interpretation that the Timber Statute is punitive, other Louisiana courts have taken relatively wide latitude with their interpretation of other aspects of the statute. These differences in interpretation are often based on whether the statute is applicable to any trees or is limited to only timber, and if limited to timber, what the definition of timber includes. The Louisiana Supreme Court has stated in dicta that “the legislative purpose behind La. Rev. Stat. 3:4278.1 is to protect those with interests in trees from loggers who enter their property without permission to harvest timber illegally.”[16] From this statement, one might argue that the statute is applicable to only merchantable timber.[17]

For instance, in Loutre Land & Timber Co. v. Roberts, the Louisiana Second Circuit Court of Appeal reversed the trial court’s award of treble damages for pine seedlings Loutre Land & Timber Company owned that the defendant bush hogged.[18] The court noted that the Timber Statute was intended to award damages that were triple the fair market value of the timber destroyed.[19] The court stated that because the pine seedlings had no merchantable value as timber, the statute was not applicable to the destroyed pine seedlings.[20] Further, in Kahl v. Luster the Louisiana First Circuit Court of Appeal found that the cutting by a neighbor of 33 large camellias that had grown to a “height one does not associate with a shrub” did not give rise to the award of treble damages under the Timber Statute.[21] The First Circuit found that because camellias are typically known as shrubs— not trees —the Timber Statute was inapplicable.[22] The court further stated that regardless of whether camellias were trees or shrubs, camelias were not grown as timber.[23] Thus, according to the court, because the purpose of the statute relates to the harvesting of timber, it is inapplicable to the cutting of camellias.[24]

Courts of Appeal in Louisiana have, however, taken very different positions from finding that the Timber Statute is applicable only to merchantable timber. In one of the more recent and controversial opinions on the issue, the Louisiana First Circuit Court of Appeal found in Matthews v. Steib that the Timber Statute was applicable to non-merchantable trees.[25] In Matthews, two property owners shared a fence line that had trees, bushes, and other foliage growing near it such that it created a natural buffer zone between the two properties.[26] During the course of a boundary dispute between the two neighbors, Mr. Steib cut down 62 trees and other bushes that spanned the property line.[27] Mr. Matthews brought suit against Mr. Steib for the loss of the trees under the Timber Statute along with other damage claims.[28] In ruling on these claims, the court cited the decision of the Louisiana Supreme Court in Sullivan v. Wallace for the position that the statute was intended to apply to merchantable timber, but took a markedly different position from that of the Supreme Court.[29] The court stated that although no merchantable timber was harvested, the statute was nonetheless applicable because the language of the statute does not distinguish between merchantable timber and trees.[30] Thus, the First Circuit found that “the statute as enacted applies to all persons who enter property and remove any trees without consent of the owner.”[31] Courts later relied upon this interpretation to find the scope of the statute broader than merely contemplating merchantable timber.[32]

In 2018, the United States District Court for the Western District of Louisiana used the holding from Matthews to find that a non-merchantable group of trees killed would give rise to the treble damages penalties of the Timber Statute if not for the fact that the claims had prescribed.[33] In Daigle v. Cimarex Energy Co., the plaintiffs alleged—among other claims—timber trespass, because of a 1.8-acre area of trees that a chemical spill killed.[34] The court ultimately determined that the claims had prescribed, but noted that the statute would be applicable to the trees killed, even though they were not merchantable timber.[35] Likewise in Corley v. Gary, the Louisiana First Circuit Court of Appeal found defense counsel’s argument—that the Timber Statute was inapplicable to a large water oak because a singular tree was not timber—to be without merit.[36] In Corley, Mr. Gary cut a large water oak that stood behind his house because the tree had developed a split in it.[37] Unbeknownst to him, the tree was actually located on the Corleys’ property near the property line.[38] Mr. Corley sued Mr. Gary for damages for the loss of the tree under the statute.[39] Although the court found that treble damages were not appropriate for other reasons, the court reached the conclusion that the single water oak was contemplated within the language of the statute as interpreted in Matthews.[40] Thus, courts have vastly broadened the scope of the Timber Statute following the Matthews decision.

IV. Reconciling the Issue

Recent interpretations of the Timber Statute have given rise to some ambiguity in the law. Ambiguity in the statute is not new, however, because Louisiana courts, including the Louisiana Supreme Court, have taken the opportunity on multiple occasions to state that the statute is “inartfully drafted.”[41] One method of remedying the ambiguity in the statute is for the Louisiana Legislature to undertake a revision of the article. Such a revision should state the clear intent of the legislature by either using the word “tree” or “timber” to consistently describe the object of the statute. Further, it may be prudent for the Legislature or legislative commenters to indicate whether the newly enacted version of the statute takes a similar position to that of Matthews v. Steib[42] or that of Sullivan v. Wallace.[43] Matthews and it progeny indicate courts’ desire to broaden the application of the statute; therefore, the legislature should seriously contemplate the broadening of the statute in any effort to revise the statute. Nonetheless, clarity from the legislature is necessary for the Timber Statute to continue to have a practical use in Louisiana law.

Another method that the legislature may undertake to clarify the statute is to repeal the current version of the statute and make its punitive nature a regulatory function of the Louisiana Department of Agriculture and Forestry (“LDAF”).[44] The legislature could enforce a penalty for the same illegal activity of cutting or destroying the trees of another by providing the LDAF with the authority to bring an enforcement action against the cutter or destroyer of trees. Thus, the legislature could do away with the punitive damages portion of the statute without removing the teeth from the prohibition on cutting the trees of another. Plaintiffs, whose trees were cut, would still have an action against the wrongdoer for damages in the amount of the fair market value of the trees under the tort of conversion. The state would be able to collect penalties against the wrongdoer, which would provide a financial benefit to the state. Finally, changing the Timber Statute into a regulatory enforcement action would empower the LDAF—the state’s expert in plants and trees—to interpret the breadth of the statute and its applicability to timber, trees, or something between. Thus, a regulatory scheme for the statute may be a viable option for the legislature to undertake to repair the ambiguity in the statute.

V. Conclusion

Judicial gloss of the Timber Statute, Louisiana Revised Statute § 3:4278.1, has created a great deal of ambiguity in the statute. Most of this ambiguity exists in determining whether the statute is applicable to trees, timber, or some other degree of foliage. The legislature can solve the ambiguity in the Timber Statute by revising the statute or by transforming it into a regulatory scheme that the LDAF enforces.

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[1] “I am the Lorax. I speak for the trees. I speak for the trees for the trees have no tongues.” Dr. Seuss, The Lorax (1971).

[2] La. Rev. Stat. § 3:4278.1 (2019), which states:

1. (1) It shall be unlawful for any person to cut, fell, destroy, remove, or to divert for sale or use, any trees, or to authorize or direct his agent or employee to cut, fell, destroy, remove, or to divert for sale or use, any trees, growing or lying on the land of another, without the consent of, or in accordance with the direction of, the owner or legal possessor, or in accordance with specific terms of a legal contract or agreement.

(2) It shall be unlawful for any co-owner or co-heir to cut, fell, destroy, remove, or to divert for sale or use, any trees, or to authorize or direct his agent or employee to cut, fell, destroy, remove, or to divert for sale or use, any trees, growing or lying on co-owned land, without the consent of, or in accordance with the direction of, the other co-owners or co-heirs, or in accordance with specific terms of a legal contract or agreement. The provisions of this Paragraph shall not apply to the sale of an undivided timber interest pursuant to R.S. 3:4278.2.

1. Whoever willfully and intentionally violates the provisions of Subsection A of this Section shall be liable to the owner, co-owner, co-heir, or legal possessor of the trees for civil damages in the amount of three times the fair market value of the trees cut, felled, destroyed, removed, or diverted, plus reasonable attorney fees and costs.
2. Whoever violates the provisions of Subsection A of this Section in good faith shall be liable to the owner, co-owner, co-heir, or legal possessor of the trees for three times the fair market value of the trees cut, felled, destroyed, removed, or diverted, if circumstances prove that the violator should have been aware that his actions were without the consent or direction of the owner, co-owner, co-heir, or legal possessor of the trees.
3. If a good faith violator of Subsection A of this Section fails to make payment under the requirements of this Section within thirty days after notification and demand by the owner, co-owner, co-heir, or legal possessor, the violator shall also be responsible for the reasonable attorney fees and costs of the owner, co-owner, co-heir, or legal possessor.
4. The provisions of this Section shall not apply to the clearing and maintenance of rights of way or to utility service situations where a utility is acting in good faith to minimize the damage or harm occasioned by an act of God. The provisions of this Section shall not apply to land surveying by or under the direction of a registered professional land surveyor, duly registered under the laws of the state of Louisiana.
5. Whoever violates the provisions of Subsection A as they relate to the cutting of standing cypress trees on water bottoms owned by the state of Louisiana shall, in addition to the penalties otherwise provided in this Section, be subject to a fine not to exceed five thousand dollars, imprisonment not to exceed six months, or both.
6. Notwithstanding any other provision of law to the contrary, a civil action pursuant to provisions of this Section shall be subject to a liberative prescriptive period of five years.

[3] These facts are taken from Mathews v. Steib, 82 So. 3d 483 (La. Ct. App. 2011).

[4] See, e.g., Kahl v. Luster, 110 So. 3d 1101, 1105 (La. Ct. App. 2012); Loutre Land & Timber Co. v. Roberts, 72 So. 3d 403, 408 (La. Ct. App. 2011).

[5] Forestry, La. Dep’t Agric. & Forestry, http://www.ldaf.state.la.us/forestry/ [https://perma.cc/8R29-R9F8] (last visited Feb. 18, 2018).

[6] Id.

[7] Id.

[8] La. Rev. Stat. § 3:4278.1 (2019).

[9] Louisiana Revised Statutes § 3:4278.1 was previously Louisiana Revised Statutes § 56:1478.1. See Hornsby v. Guillot, 902 So. 2d 361, 369 (La. 2005).

[10] See Hornsby, 902 So. 2d at 369.

[11] Morgan v. Fuller, 441 So. 2d 290, 296 (La. Ct. App. 1983) (citing Kennedy v. Perry Timber Co., 52 So. 2d 847 (La. 1951)).

[12] La. Rev. Stat. § 3:4278.1 (2019).

[13] Id.

[14] Id.

[15] See Hornsby, 902 So. 2d at 369.

[16] Sullivan v. Wallace, 51 So. 3d 702, 709 (La. 2010). See also Hornsby, 902 So. 2d at 369 (stating that the Timber Statute “was enacted by the legislature to impose a penalty upon those who disregard the property rights of timber owners”).

[17] See, e.g., Daigle v. Cimarex Energy Co., 333 F. Supp. 3d 604, 630 (W.D. La. 2018) (defendants argued that the statute did not apply in this case because the trees destroyed were not merchantable timber).

[18] Loutre Land & Timber Co. v. Roberts, 72 So. 3d 403, 408 (La. Ct. App. 2011).

[19] Id.

[20] Id.

[21] Kahl v. Luster, 110 So. 3d 1101, 1105 (La. Ct. App. 2012).

[22] Id.

[23] Id.

[24] Id. (“The purpose for which the legislature enacted La. R.S. 3:4278.1 relates to loggers and harvesting of timber, none of which is at issue here.”).

[25] Mathews v. Steib, 82 So. 3d 483, 486–87 (La. Ct. App. 2011).

[26] Id. at 485.

[27] Id.

[28] Id.

[29] Id. at 486–87.

[30] Id.

[31] Id. (emphasis added).

[32] See Daigle v. Cimarex Energy Co., 333 F. Supp. 3d 604, 630 (W.D. La. 2018); Corley v. Gary, No. 13-1014, 2014 WL 3555964, at *5 (La. Ct. App. May 2, 2014). But see Kahl v. Luster, 110 So. 3d 1101, 1105 (La. Ct. App. 2012) (First Circuit finding only one year after Matthews that the TIMBER STATUTE was applicable only to merchantable timber).

[33] Daigle, 333 F. Supp. 3d at 630.

[34] Id.

[35] Id. (citing Mathews, 82 So. 3d at 486–87).

[36] Corley, 2014 WL 3555964, at *5.

[37] Id.

[38] Id.

[39] Id.

[40] Id.

[41] Sullivan v. Wallace, 51 So. 3d 702, 708 (La. 2010); Morgan v. Fuller, 441 So. 2d 290, 296 (La. Ct. App. 1983).

[42] Matthews v. Steib, 82 So. 3d 483 (La. Ct. App. 2012).

[43] Sullivan, 51 So. 3d 702.

[44] The Louisiana Department of Agriculture and Forestry is endowed by the legislature to “exercise all functions of the state relating to the promotion, protection, and advancement of agriculture and forestry, except research and educational functions expressly allocated by the constitution or by law to other state agencies.” La. Rev. Stat. § 3:2 (2019). The LDAF, in determining the punitive liability of a party in a timber trespass case, would be bound to decide the matter according to the Louisiana Administrative Procedures Act. La. Rev. Stat. § 49:950 et seq.