The opinion of the court was delivered by: Gilbert, District Judge
FINDINGS OF FACT AND CONCLUSIONS OF LAW
This case was tried in front of the Court on June 25, 2007. At the conclusion of the evidence and arguments, the Court ruled in favor of the United States and against the defendant, Ronald Kosydor, on Count IV under the Illinois Wrongful Tree Cutting Act (hereafter the "WTCA"). The Court ruled in favor of the defendant, Ronald Kosydor, and against the United States on Count III for unjust enrichment.
1. Terry Foster has resided at 170 Burchyett Lane, Jonesboro, Illinois, since 1991, and his property, consisting of approximately eighty (80) acres, is adjacent to the Shawnee National Forest (hereafter "the Shawnee") on the north, south, and west sides. (Trial transcript, p. 5-6).
2. Larry Griffin, at the time relevant to this cause of action, was a conservation officer for the State of Illinois, Department of Natural Resources. (Griffin transcript, p. 4-5).
3. In late November 1999, Mr. Griffin went to the Foster property to investigate a deer hunting complaint and noticed timber cut off of what appeared to be the Shawnee. (Griffin transcript, p. 22). At the time, the boundary line between Mr. Foster's property and the Shawnee was not marked, and no survey had ever been conducted to establish the boundary line.
4. Mr. Griffin contacted Forest Service law enforcement some time in December 1999 about the apparent timber trespass. (Griffin transcript, p. 9-10). Griffin was not able to recall the exact date when he contacted the Forest Service.
5. The following spring, the Forest Service initiated a survey to establish the actual boundary line between Mr. Foster's property and the Shawnee. David Hills, at the time relevant to this cause of action, was a licensed professional surveyor in the State of Illinois and was employed as a forest land surveyor for the Shawnee. One of his duties was to survey boundaries between the Shawnee and private land. (Hills transcript, p. 8-9).
6. At the direction of the Forest Service, Mr. Hills conducted a survey and marked the boundary lines between national forest land and lands owned by Mr. Foster from approximately April of 2000 to February or March 2001. (Hills transcript, p. 11, 24).
7. Once Mr. Hills had located the boundary lines and marked them with temporary markers, the Forest Service initiated a timber cruise. Roy Street, at the time relevant to this cause of action, had been a certified timber technician with the Forest Service for approximately 20 years. He conducted a timber cruise, along with two other team members, on December 7, 2000; January 18, 2001; and January 23, 2001, related to the apparent timber trespass onto the Shawnee. (Trial transcript, p. 34, 36).
8. Timber cruising includes identifying a tree species, taking stump diameter measurements, taking measurements from the stump to the top of the tree left on the ground, taking measurements of any logs left on the ground, and recording measurements on a tally sheet. (Trial transcript, p. 37-38, 41).
9. The timber cruising team used a grid-type method to find and identify stumps. (Trial transcript, p. 39). Once a stump was found and identified, it was marked with marking paint to show that the stump had been counted.
10. A total of 231 tree stumps were counted on the Shawnee property in the area adjacent to Mr. Foster's property. (Trial transcript, p. 41-42). Information regarding each stump was recorded, including its species, its diameter, and the distance from the stump to the corresponding tree top left in the woods. (Plaintiff's Ex. 7).
11. The key issue of fact is whether the defendant, Mr. Kosydor, cut the government's 231 trees. The Court finds that he did. More particularly, the Court finds that Mr. Kosydor and an employee taking his direction entered onto the Shawnee in the summer and early fall of 1998, without permission, and intentionally cut or caused to be cut 231 of the government's trees and that Mr. Kosydor did not have any legal right to do so.
12. Mr. Kosydor owned and operated a timber logging business in 1998. (Trial transcript, p. 141).
13. Mr. Foster entered into a contract with Mr. Kosydor in June 1998 for Mr. Kosydor to harvest timber from Mr. Foster's property. (Plaintiff's Ex. 3; Trial transcript, p. 6-7, 141). The agreement provided for a 50/50 split of proceeds generally, with a 70/30 split on walnut veneer in favor of Mr. Foster. (Plaintiff's Ex. 3). Logging took place during the summer and possibly into the early fall of 1998.
14. Mr. Kosydor was in charge of the logging operation on Mr. Foster's property and was aware that Mr. Foster's property bordered the Shawnee. (Trial transcript, p. 152, 155).
15. Bruce Pitts was an employee of Mr. Kosydor and was the tree cutter primarily responsible for operating the chain saw during the logging operation. (Trial transcript, p. 115-116, 152-153).
16. Having been made aware of the location of the boundary lines subsequent to the logging operation, Mr. Pitts testified unequivocally at trial that he had cut trees from the Shawnee and that he had done so under the direction of Mr. Kosydor. (Trial transcript, p. 137). Based on Mr. Pitts's demeanor while testifying and the general ...