IC 25-36.5-1
Chapter 1. Regulation of Timber Buyers by Department of
Natural Resources
IC 25-36.5-1-1 Definitions
Sec. 1. As used in this chapter:
"Person" means an individual, partnership, firm, association,
business trust, limited liability company, or corporation.
"Timber" means trees, standing or felled, and logs which can be
used for sawing or processing into lumber for building or structural
purposes or for the manufacture of any article. "Timber" does not
include firewood, Christmas trees, fruit or ornamental trees, or wood
products not used or to be used for building, structural,
manufacturing, or processing purposes.
"Timber buyer" means a person engaged in the business of buying
timber from timber growers for sawing into lumber, processing, or
resale, but does not include a person who occasionally purchases
timber for sawing or processing for his own use and not for resale.
"Timber grower" means the owner, tenant, or operator of land in
this state who has an interest in, or is entitled to receive any part of
the proceeds from, the sale of timber grown in this state and includes
persons exercising lawful authority to sell timber for a timber
grower.
"Department" means the department of natural resources.
"Director" means the director of the department of natural
resources.
"Agent" means an individual who represents a timber buyer in
effecting or attempting to effect purchases of timber.
"Buying" means acquiring an interest in property by the payment
of a price, value, or other consideration. (Formerly: Acts 1972, P.L.190, SEC.1; Acts 1975, P.L.274, SEC.1.)
As amended by P.L.253-1983, SEC.1; P.L.158-1988, SEC.1;
P.L.8-1993, SEC.397.
IC 25-36.5-1-2 Application for registration; contents; filing; prior registration
Sec. 2. (a) On and after July 28, 1972, no person shall engage in
the business of timber buying in the state of Indiana without a
registration certificate issued by the department. Application for
Indiana registration to engage in the business of timber buying shall
be filed with the department. Such application shall set forth the
name of the applicant, its principal officers if the applicant is a
corporation, its managers and members if the applicant is a limited
liability company, or the partners if the applicant is a partnership, the
location of any principal office or place of business of the applicant,
the counties in this state from which the applicant proposes to engage
in the business of timber buying and such additional information as
the department by regulation may require.
(b) The application shall set forth the aggregate dollar amount
paid to timber growers for timber purchased in this state during the
applicant's last completed fiscal or calendar year. In the event the
applicant has been engaged as a timber buyer for less than one (1)
year, his application shall set forth the dollar amount paid to timber
growers for the number of completed months during which the
applicant has been so engaged. If the applicant has not been
previously engaged in buying timber in this state, the application
shall set forth the estimated aggregate dollar amount to be paid by
the applicant to timber growers for timber to be purchased from them
during the next succeeding year.
(c) The registrations of any persons registered as timber buyers
under any prior law in this state shall remain valid until the
expiration date of that certificate, unless suspended or revoked. After
the expiration of such registrations, all persons engaged in the
business of timber buying must be registered under this chapter. (Formerly: Acts 1972, P.L.190, SEC.1.) As amended by Acts 1982,
P.L.154, SEC.128; P.L.8-1993, SEC.398.
IC 25-36.5-1-3 Bond or certificate of deposit; requisites; cancellation; forfeiture
proceedings; preliminary injunction or restraining order
Sec. 3. (a) Every person registered as a timber buyer shall file
with the department an effective surety bond issued by a corporate
surety authorized to engage in the business of executing surety bonds
in Indiana.
(b) Instead of the bond required by subsection (a), the department
may accept security in cash or a certificate of deposit under terms
established by rule.
(c) The security required under subsection (a) or (b) shall be made
payable upon demand to the director, subject to this chapter, for the
use and benefit of the people of Indiana and for the use and benefit
of any timber grower from whom the applicant purchased and who
is not paid by the applicant or for the use and benefit of any timber
grower whose timber has been cut by the applicant or registrant or
his agents, and who has not been paid therefor.
(d) The security required under subsection (a) or (b) shall be in
the principal amount of two thousand dollars ($2,000) for an
applicant who paid timber growers five thousand dollars ($5,000) or
less for timber during the immediate preceding year, and an
additional one hundred dollars ($100) for each additional one
thousand dollars ($1,000) or fraction thereof paid to timber growers
for timber purchased during the preceding year, but shall not be more
than twenty thousand dollars ($20,000). In the case of an applicant
not previously engaged in business as a timber buyer, the amount of
such bond shall be based on the estimated dollar amount to be paid
by such timber buyer to timber growers for timber purchased during
the next succeeding year, as set forth in the application.
(e) The security required under subsection (a) or (b) shall not be
cancelled or altered during the period for which the certificate to the
applicant was issued except upon at least sixty (60) days notice in
writing to the department.
(f) Security shall be in such form, contain such terms and
conditions as may be approved from time to time by the director, be
conditioned to secure an honest cutting and accounting for timber
purchased by the registrant, secure payment to the timber growers,
and insure the timber growers against all fraudulent acts of the
registrant in the purchase and cutting of the timber of this state.
(g) If a timber buyer fails to pay when due any amount due a
timber grower for timber purchased, or fails to pay legally
determined damages for timber wrongfully cut by a timber buyer or
his agent, or commits any violation of this chapter, an adjudicative
proceeding on the bond for forfeiture may be commenced, and notice
of the proceeding shall be provided, under IC 4-21.5-3-6. A surety or
person in possession of the security provided under subsection (a) or
(b) is entitled to notification of the proceeding. If a final agency
action is entered by the department under this subsection against the
timber buyer, the surety or other person in possession of the security
shall deliver the amount of the security identified in the order. A
proceeding for forfeiture of a timber buyer's bond under IC 4-21.5 is
the exclusive remedy under law for the forfeiture of the bond.
(h) An owner of property seeking a preliminary injunction or
restraining order against a person, corporation, or other entity to
prevent or stop the wrongful cutting of timber on the owner's
property is relieved of the requirement to post a bond or other
security with the court as a prerequisite to the issuance of the
preliminary injunction or restraining order. However, this subsection
does not apply to a property owner who seeks a preliminary
injunction or restraining order to prevent or stop alleged wrongful
cutting by a timber cutter or timber buyer with whom the property
owner had contracted for the cutting or sale of timber. (Formerly: Acts 1972, P.L.190, SEC.1.) As amended by
P.L.253-1983, SEC.2; P.L.158-1988, SEC.2; P.L.220-1993, SEC.1;
P.L.98-2001, SEC.3.
IC 25-36.5-1-3.1 Notice of violation of chapter or rules
Sec. 3.1. The department may under IC 4-21.5-3-6 issue a notice
of violation against a person who has violated this chapter or the
rules adopted under this chapter. The notice of violation shall be
issued to the registrant and the registrant's sureties stating in general
terms:
(1) the nature of the violation; and
(2) that a proceeding seeking forfeiture of the bond may be
commenced twenty (20) days after service of the notice on the
registrant if at the end of that period the violation still remains
and neither the registrant nor the surety has asked for judicial
review of the notice.
As added by P.L.220-1993, SEC.2.
IC 25-36.5-1-3.2 Adjudicative proceeding against timber buyer or cutter
Sec. 3.2. (a) This section refers to an adjudicative proceeding
against:
(1) a timber buyer; or
(2) a person who cuts timber but is not a timber buyer (referred
to as a "timber cutter" in this section).
(b) The department may under IC 4-21.5-3-8 commence a
proceeding against a timber buyer or a timber cutter if there is reason
to believe that:
(1) the timber buyer or timber cutter has acquired timber from
a timber grower under a written contract for the sale of the
timber without payment having been made to the timber grower
as specified in the contract; or
(2) if:
(A) there is no written contract for the sale of the timber; or
(B) there is a written contract for the sale of the timber but
the contract does not set forth the purchase price for the
timber;
the timber buyer or timber cutter has cut timber or acquired
timber from the timber grower without payment having been
made to the timber grower equal to the value of the timber as
determined under IC 26-1-2.
(c) A proceeding may be commenced under this section at the
request of a timber grower.
(d) The necessary parties to a proceeding initiated under this
section are:
(1) the timber grower; and
(2) the timber buyer or timber cutter.
(e) After the commencement of a proceeding under this section
through the service of a complaint under IC 4-21.5-3-8, a party to the
proceeding may move for the joinder of any of the following persons
having a relationship to the site or subject of the complaint:
(1) The surety of the timber buyer.
(2) A timber buyer.
(3) A timber cutter.
(4) A landowner.
(5) An owner of land adjacent to the land from which the timber
was cut.
(6) A consultant receiving a fee for services related to the
timber.
(7) A land surveyor performing a minimum standard detail
survey in Indiana under the requirements of the Indiana Society
of Professional Land Surveyors and Indiana Land Association.
(8) The department of natural resources, if the department has
a relationship to the site or subject of the complaint as a
landowner or owner of adjacent land.
(f) The complaint served under IC 4-21.5-3-8 to commence a
proceeding under this section may seek the following:
(1) Damages in compensation for damage actually resulting
from the wrongful activities of a timber buyer or timber cutter.
(2) Damages equal to three (3) times the stumpage value of any
timber that is wrongfully cut or appropriated without payment.
(g) Notwithstanding subsection (f), the liability on the surety bond
of a timber cutter is limited to the value of any timber wrongfully cut
or appropriated.
(h) A proceeding under this section is governed by IC 4-21.5.
Before a hearing is convened in the proceeding, a prehearing
conference shall be conducted to provide the parties with an
opportunity for settlement, including an opportunity for mediation.
(i) In determining the site for a hearing in a proceeding under this
section, the administrative law judge shall consider the convenience
of the parties.
(j) A final agency action in a proceeding under this section must
address all issues of damage and responsibility and, after the
completion of the opportunity for judicial review, may be enforced
in a civil proceeding as a judgment. As added by P.L.220-1993, SEC.3.
IC 25-36.5-1-3.3 Bond or security forfeiture proceeds; overage and shortage; effect
Sec. 3.3. (a) If the amount realized by the department from a bond
or security forfeited under section 3(g) of this chapter, after
deducting expenses incurred by the department in converting the
bond or security into money, is greater than the amount of the
liability of the timber buyer as determined under this chapter, the
department shall pay the excess to the timber buyer who furnished
the bond or security.
(b) If the amount realized by the department from a bond or
security forfeited under section 3(g) of this chapter, after deducting
expenses incurred by the department in converting the bond or
security into money, is less than the amount of liability of the timber
buyer as determined under this chapter, the timber buyer's
registration may be revoked. As added by P.L.220-1993, SEC.4.
IC 25-36.5-1-3.5 Cessation of business; requirements for return of deposit
Sec. 3.5. (a) A timber buyer who intends to cease doing business
as a timber buyer in Indiana and who seeks the return of a deposit of
cash or a certificate of deposit that the timber buyer submitted to the
department under section 3(b) of this chapter must submit the
following to the department:
(1) A written request for the return of the cash or certificate of
deposit.
(2) An affidavit meeting the requirements set forth in subsection
(b).
(b) To obtain the return of a deposit of cash or a certificate of
deposit under this section, a timber buyer must execute an affidavit
stating under the penalty for perjury set forth in IC 35-44-2-1 that the
timber buyer:
(1) has ceased doing business as a timber buyer in Indiana;
(2) will not resume business as a timber buyer in Indiana after
the date of the affidavit without filing a surety bond or
submitting a new deposit of cash or certificate of deposit to the
department;
(3) has not purchased, taken, or cut any timber for which the
timber grower has not been paid; and
(4) is not a party to an executory contract for the purchase of
timber under which the timber buyer has one (1) or more duties
that have not been performed.
(c) Upon receiving a written request described in subsection (a)(1)
and an affidavit meeting the requirements of subsection (b), the
department shall publish a notice of the request in at least one (1)
publication commonly read by persons active in forestry in Indiana.
The notice must do the following:
(1) Identify the timber buyer requesting the release of the cash
or certificate of deposit.
(2) Indicate the date of the request.
(3) State that the cash or certificate of deposit will be released
to the timber buyer on a particular date, which must be at least
sixty (60) days after the date of publication of the notice, unless
the department is informed of a reason why the cash or
certificate of deposit should not be released.
(d) On the date set forth under subsection (c)(3) in the notice
given by the department, the department shall return the cash or
certificate of deposit to the timber buyer unless the department has
obtained information indicating that a statement set forth in the
timber buyer's affidavit is false. As added by P.L.220-1993, SEC.5.
IC 25-36.5-1-4 Violations
Sec. 4. It shall be unlawful and a violation of this chapter.
(a) For any timber buyer to fail to pay, as agreed, for any timber
purchased.
(b) For any timber buyer to cut or cause to be cut or appropriate
any timber not purchased.
(c) For a timber buyer to willfully make any false statement in
connection with the application, bond or other information required
to be given to the department or a timber grower.
(d) To fail to honestly account to the timber grower or the
department for timber purchased or cut if the buyer is under a duty
to do so, and
(e) For a timber buyer to commit any fraudulent act in connection
with the purchase or cutting of timber. (Formerly: Acts 1972, P.L.190, SEC.1.) IC 25-36.5-1-4.9 Refusal to issue timber buyer registration certificate; grounds
Sec. 4.9. The director may refuse to issue a timber buyer
registration certificate to an applicant that has:
(1) been convicted of a felony;
(2) violated a provision of this chapter; or
(3) violated a rule adopted by the department under this chapter. As added by P.L.220-1993, SEC.6.
IC 25-36.5-1-5
Repealed
(Repealed by P.L.220-1993, SEC.10.)
IC 25-36.5-1-6 Issuance of registration certificates; renewal
Sec. 6. (a) If:
(1) the department is satisfied that the applicant has fulfilled the
requirements of this chapter for the issuance of a registration
certificate;
(2) the bond and sureties or bank certificate of deposit filed by
the applicant under section 3 of this chapter is approved; and
(3) the director does not refuse to issue the registration
certificate to the applicant under section 4.9 of this chapter;
the department shall issue a registration certificate to the applicant.
(b) The registrations issued shall be valid for a calendar year and
may be renewed annually. A copy of the registration certificate
issued by the department shall be posted in the principal office of the
registrant in this state.
(c) Upon request for a certificate and payment of the fee, the
department shall issue to the registrant a certificate that a certificate
of registration has been granted and a bond filed as required by this
chapter. (Formerly: Acts 1972, P.L.190, SEC.1.) As amended by
P.L.220-1993, SEC.7.
IC 25-36.5-1-7 Fees; use by department
Sec. 7. The application fee or renewal fee for a registration
certificate to operate as a timber buyer, is one hundred five dollars
($105). The fee for a certificate stating that a registration certificate
has been issued and security filed is twenty dollars ($20). All fees
collected by the department accrue to the use of the department for
its administrative purposes. (Formerly: Acts 1972, P.L.190, SEC.1.) As amended by Acts 1981,
P.L.230, SEC.1; P.L.158-1988, SEC.3; P.L.186-2003, SEC.79.
IC 25-36.5-1-8 Inspection of premises, records, and papers
Sec. 8. The department may inspect the premises used by any
timber buyer in the conduct of his business at any reasonable time
and the books, accounts, records and papers of every such timber
buyer shall at all times during business hours be subject to inspection
by the department. (Formerly: Acts 1972, P.L.190, SEC.1.)
IC 25-36.5-1-9 Rules and regulations
Sec. 9. The department may make such rules and regulations as
may be necessary to carry out the provisions of this chapter. (Formerly: Acts 1972, P.L.190, SEC.1.)
IC 25-36.5-1-10 Violations
Sec. 10. A person who:
(1) engages in business as a timber buyer without securing a
registration or in violation of this chapter; or
(2) refuses to permit inspection of the person's premises, books,
accounts, or records as provided in this chapter;
commits a Class A misdemeanor. However, the offense is a Class D
felony if the person has a prior unrelated conviction for an offense
under this section. (Formerly: Acts 1972, P.L.190, SEC.1.) As amended by Acts 1978,
P.L.2, SEC.2563; P.L.98-2001, SEC.4.
IC 25-36.5-1-11 Denial of registration for default
Sec. 11. No certificate of registration shall be issued to any person
who is in default to the people of the State of Indiana for moneys due
under this chapter. (Formerly: Acts 1972, P.L.190, SEC.1.)
IC 25-36.5-1-12 Revocation of license; proceedings
Sec. 12. The department may, after notice and a hearing, revoke
the registration certificate or license of any person who violates any
of the provisions of this chapter. All proceedings under this chapter
to revoke a license shall be conducted in the manner prescribed by
IC 4-21.5-3. (Formerly: Acts 1972, P.L.190, SEC.1.) As amended by
P.L.253-1983, SEC.3; P.L.7-1987, SEC.132.
IC 25-36.5-1-13 Injunction; contempt proceedings
Sec. 13. The department may, by application to any circuit court
or to a judge thereof, obtain an injunction restraining any person who
engages in the business of timber buying in this state without a
certificate of registration (either because his certificate has been
revoked or because of a failure to obtain a certificate of registration
in the first instance) from engaging in such business until such
person complies with this chapter and qualifies for and obtains a
certificate of registration. Upon refusal or neglect to obey the order
of the court or judge, said court or judge may compel obedience
thereof by proceedings for contempt. (Formerly: Acts 1972, P.L.190, SEC.1.)
IC 25-36.5-1-13.5 Civil penalties
Sec. 13.5. In addition to the other penalties prescribed by this
chapter, the director may, under IC 4-21.5, impose a civil penalty on
a person who violates this chapter. A civil penalty imposed under
this section may not exceed the following limits:
(1) For engaging in business as a timber buyer without securing
a registration certificate under this chapter, ten thousand dollars
($10,000).
(2) For acting as the agent of a timber buyer without holding an
agent's license under this chapter, ten thousand dollars
($10,000).
(3) For other violations of this chapter, one thousand dollars
($1,000). As added by P.L.220-1993, SEC.8.
IC 25-36.5-1-14 Judicial review
Sec. 14. All final administrative decisions under this chapter shall
be subject to judicial review under IC 4-21.5-5. (Formerly: Acts 1972, P.L.190, SEC.1.) As amended by P.L.7-1987,
SEC.133.
IC 25-36.5-1-15 Agents; license; requirements; revocation; termination of agency
relationship; misdemeanor
Sec. 15. (a) An individual who acts as the agent of a timber buyer
must have an agent's license and carry the agent's card that verifies
the license.
(b) An agent's license may be granted only:
(1) to qualified individuals;
(2) at the written application of the timber buyer who the agent
is to represent; and
(3) under that timber buyer's registration certificate.
(c) The application for an agent's license must contain the agent's
full name, address, and other information as required by the
department on forms supplied by the department. Each timber buyer
is responsible for all of the agent's activities performed while acting
under the timber buyer's registration certificate as they pertain to this
chapter.
(d) An application fee of ten dollars ($10) for each agent shall be
charged for the license and agent's card. However, each timber buyer
shall designate a qualified individual to be licensed as its principal
agent at no additional charge.
(e) An agent's license may be revoked by the department under
IC 4-21.5 if the agent does not comply with this section.
(f) An agent may have a license to represent only one (1) timber
buyer; however, upon surrendering the agent's card and license under
one (1) timber buyer, an individual may be licensed as an agent of
another timber buyer.
(g) A timber buyer may not be licensed as an agent except as the
principal agent of that timber buyer.
(h) A timber buyer may not effect or attempt to effect a purchase
except through an agent.
(i) A timber buyer may terminate an agency relationship by
notifying in writing the agent and the department. Termination of an
agency relationship revokes the agent's license.
(j) A person who acts as an agent without a license commits a
Class B misdemeanor. (Formerly: Acts 1975, P.L.274, SEC.2.) As amended by Acts 1981,
P.L.230, SEC.2; P.L.253-1983, SEC.4; P.L.158-1988, SEC.4;
P.L.186-2003, SEC.80.
IC 25-36.5-1-16 Denial, suspension, or revocation of license or registration;
grounds; hearing
Sec. 16. The director may revoke or suspend or refuse to issue any
license or agent's registration under that license if the applicant or
holder of that license has:
(1) been convicted of a felony;
(2) violated any provision of this chapter; or
(3) violated any rule or regulation of the department promulgated
under this chapter.
Revocation or suspension of a license or an agent's registration
shall be determined by the director after an administrative hearing as
provided in section 12 of this chapter. (Formerly: Acts 1975, P.L.274, SEC.3.)
IC 25-36.5-1-17
Repealed
(Repealed by P.L.220-1993, SEC.10.)
IC 25-36.5-1-18 Criminal history of applicants for registration certificate or license
Sec. 18. (a) The definitions set forth in IC 10-13-3 apply
throughout this section.
(b) The department shall under IC 10-13-3-27(b) request and
obtain the release of a limited criminal history from the state police
department on each person who applies to the department under this
chapter for the issuance of either of the following:
(1) A timber buyer registration certificate.
(2) A timber buyer agent's license. As added by P.L.220-1993, SEC.9. Amended by P.L.2-2003, SEC.68.
IC 25-36.5-1
Chapter 1. Regulation of Timber Buyers by Department of
Natural Resources
IC 25-36.5-1-1 Definitions
Sec. 1. As used in this chapter:
"Person" means an individual, partnership, firm, association,
business trust, limited liability company, or corporation.
"Timber" means trees, standing or felled, and logs which can be
used for sawing or processing into lumber for building or structural
purposes or for the manufacture of any article. "Timber" does not
include firewood, Christmas trees, fruit or ornamental trees, or wood
products not used or to be used for building, structural,
manufacturing, or processing purposes.
"Timber buyer" means a person engaged in the business of buying
timber from timber growers for sawing into lumber, processing, or
resale, but does not include a person who occasionally purchases
timber for sawing or processing for his own use and not for resale.
"Timber grower" means the owner, tenant, or operator of land in
this state who has an interest in, or is entitled to receive any part of
the proceeds from, the sale of timber grown in this state and includes
persons exercising lawful authority to sell timber for a timber
grower.
"Department" means the department of natural resources.
"Director" means the director of the department of natural
resources.
"Agent" means an individual who represents a timber buyer in
effecting or attempting to effect purchases of timber.
"Buying" means acquiring an interest in property by the payment
of a price, value, or other consideration. (Formerly: Acts 1972, P.L.190, SEC.1; Acts 1975, P.L.274, SEC.1.)
As amended by P.L.253-1983, SEC.1; P.L.158-1988, SEC.1;
P.L.8-1993, SEC.397.
IC 25-36.5-1-2 Application for registration; contents; filing; prior registration
Sec. 2. (a) On and after July 28, 1972, no person shall engage in
the business of timber buying in the state of Indiana without a
registration certificate issued by the department. Application for
Indiana registration to engage in the business of timber buying shall
be filed with the department. Such application shall set forth the
name of the applicant, its principal officers if the applicant is a
corporation, its managers and members if the applicant is a limited
liability company, or the partners if the applicant is a partnership, the
location of any principal office or place of business of the applicant,
the counties in this state from which the applicant proposes to engage
in the business of timber buying and such additional information as
the department by regulation may require.
(b) The application shall set forth the aggregate dollar amount
paid to timber growers for timber purchased in this state during the
applicant's last completed fiscal or calendar year. In the event the
applicant has been engaged as a timber buyer for less than one (1)
year, his application shall set forth the dollar amount paid to timber
growers for the number of completed months during which the
applicant has been so engaged. If the applicant has not been
previously engaged in buying timber in this state, the application
shall set forth the estimated aggregate dollar amount to be paid by
the applicant to timber growers for timber to be purchased from them
during the next succeeding year.
(c) The registrations of any persons registered as timber buyers
under any prior law in this state shall remain valid until the
expiration date of that certificate, unless suspended or revoked. After
the expiration of such registrations, all persons engaged in the
business of timber buying must be registered under this chapter. (Formerly: Acts 1972, P.L.190, SEC.1.) As amended by Acts 1982,
P.L.154, SEC.128; P.L.8-1993, SEC.398.
IC 25-36.5-1-3 Bond or certificate of deposit; requisites; cancellation; forfeiture
proceedings; preliminary injunction or restraining order
Sec. 3. (a) Every person registered as a timber buyer shall file
with the department an effective surety bond issued by a corporate
surety authorized to engage in the business of executing surety bonds
in Indiana.
(b) Instead of the bond required by subsection (a), the department
may accept security in cash or a certificate of deposit under terms
established by rule.
(c) The security required under subsection (a) or (b) shall be made
payable upon demand to the director, subject to this chapter, for the
use and benefit of the people of Indiana and for the use and benefit
of any timber grower from whom the applicant purchased and who
is not paid by the applicant or for the use and benefit of any timber
grower whose timber has been cut by the applicant or registrant or
his agents, and who has not been paid therefor.
(d) The security required under subsection (a) or (b) shall be in
the principal amount of two thousand dollars ($2,000) for an
applicant who paid timber growers five thousand dollars ($5,000) or
less for timber during the immediate preceding year, and an
additional one hundred dollars ($100) for each additional one
thousand dollars ($1,000) or fraction thereof paid to timber growers
for timber purchased during the preceding year, but shall not be more
than twenty thousand dollars ($20,000). In the case of an applicant
not previously engaged in business as a timber buyer, the amount of
such bond shall be based on the estimated dollar amount to be paid
by such timber buyer to timber growers for timber purchased during
the next succeeding year, as set forth in the application.
(e) The security required under subsection (a) or (b) shall not be
cancelled or altered during the period for which the certificate to the
applicant was issued except upon at least sixty (60) days notice in
writing to the department.
(f) Security shall be in such form, contain such terms and
conditions as may be approved from time to time by the director, be
conditioned to secure an honest cutting and accounting for timber
purchased by the registrant, secure payment to the timber growers,
and insure the timber growers against all fraudulent acts of the
registrant in the purchase and cutting of the timber of this state.
(g) If a timber buyer fails to pay when due any amount due a
timber grower for timber purchased, or fails to pay legally
determined damages for timber wrongfully cut by a timber buyer or
his agent, or commits any violation of this chapter, an adjudicative
proceeding on the bond for forfeiture may be commenced, and notice
of the proceeding shall be provided, under IC 4-21.5-3-6. A surety or
person in possession of the security provided under subsection (a) or
(b) is entitled to notification of the proceeding. If a final agency
action is entered by the department under this subsection against the
timber buyer, the surety or other person in possession of the security
shall deliver the amount of the security identified in the order. A
proceeding for forfeiture of a timber buyer's bond under IC 4-21.5 is
the exclusive remedy under law for the forfeiture of the bond.
(h) An owner of property seeking a preliminary injunction or
restraining order against a person, corporation, or other entity to
prevent or stop the wrongful cutting of timber on the owner's
property is relieved of the requirement to post a bond or other
security with the court as a prerequisite to the issuance of the
preliminary injunction or restraining order. However, this subsection
does not apply to a property owner who seeks a preliminary
injunction or restraining order to prevent or stop alleged wrongful
cutting by a timber cutter or timber buyer with whom the property
owner had contracted for the cutting or sale of timber. (Formerly: Acts 1972, P.L.190, SEC.1.) As amended by
P.L.253-1983, SEC.2; P.L.158-1988, SEC.2; P.L.220-1993, SEC.1;
P.L.98-2001, SEC.3.
IC 25-36.5-1-3.1 Notice of violation of chapter or rules
Sec. 3.1. The department may under IC 4-21.5-3-6 issue a notice
of violation against a person who has violated this chapter or the
rules adopted under this chapter. The notice of violation shall be
issued to the registrant and the registrant's sureties stating in general
terms:
(1) the nature of the violation; and
(2) that a proceeding seeking forfeiture of the bond may be
commenced twenty (20) days after service of the notice on the
registrant if at the end of that period the violation still remains
and neither the registrant nor the surety has asked for judicial
review of the notice.
As added by P.L.220-1993, SEC.2.
IC 25-36.5-1-3.2 Adjudicative proceeding against timber buyer or cutter
Sec. 3.2. (a) This section refers to an adjudicative proceeding
against:
(1) a timber buyer; or
(2) a person who cuts timber but is not a timber buyer (referred
to as a "timber cutter" in this section).
(b) The department may under IC 4-21.5-3-8 commence a
proceeding against a timber buyer or a timber cutter if there is reason
to believe that:
(1) the timber buyer or timber cutter has acquired timber from
a timber grower under a written contract for the sale of the
timber without payment having been made to the timber grower
as specified in the contract; or
(2) if:
(A) there is no written contract for the sale of the timber; or
(B) there is a written contract for the sale of the timber but
the contract does not set forth the purchase price for the
timber;
the timber buyer or timber cutter has cut timber or acquired
timber from the timber grower without payment having been
made to the timber grower equal to the value of the timber as
determined under IC 26-1-2.
(c) A proceeding may be commenced under this section at the
request of a timber grower.
(d) The necessary parties to a proceeding initiated under this
section are:
(1) the timber grower; and
(2) the timber buyer or timber cutter.
(e) After the commencement of a proceeding under this section
through the service of a complaint under IC 4-21.5-3-8, a party to the
proceeding may move for the joinder of any of the following persons
having a relationship to the site or subject of the complaint:
(1) The surety of the timber buyer.
(2) A timber buyer.
(3) A timber cutter.
(4) A landowner.
(5) An owner of land adjacent to the land from which the timber
was cut.
(6) A consultant receiving a fee for services related to the
timber.
(7) A land surveyor performing a minimum standard detail
survey in Indiana under the requirements of the Indiana Society
of Professional Land Surveyors and Indiana Land Association.
(8) The department of natural resources, if the department has
a relationship to the site or subject of the complaint as a
landowner or owner of adjacent land.
(f) The complaint served under IC 4-21.5-3-8 to commence a
proceeding under this section may seek the following:
(1) Damages in compensation for damage actually resulting
from the wrongful activities of a timber buyer or timber cutter.
(2) Damages equal to three (3) times the stumpage value of any
timber that is wrongfully cut or appropriated without payment.
(g) Notwithstanding subsection (f), the liability on the surety bond
of a timber cutter is limited to the value of any timber wrongfully cut
or appropriated.
(h) A proceeding under this section is governed by IC 4-21.5.
Before a hearing is convened in the proceeding, a prehearing
conference shall be conducted to provide the parties with an
opportunity for settlement, including an opportunity for mediation.
(i) In determining the site for a hearing in a proceeding under this
section, the administrative law judge shall consider the convenience
of the parties.
(j) A final agency action in a proceeding under this section must
address all issues of damage and responsibility and, after the
completion of the opportunity for judicial review, may be enforced
in a civil proceeding as a judgment. As added by P.L.220-1993, SEC.3.
IC 25-36.5-1-3.3 Bond or security forfeiture proceeds; overage and shortage; effect
Sec. 3.3. (a) If the amount realized by the department from a bond
or security forfeited under section 3(g) of this chapter, after
deducting expenses incurred by the department in converting the
bond or security into money, is greater than the amount of the
liability of the timber buyer as determined under this chapter, the
department shall pay the excess to the timber buyer who furnished
the bond or security.
(b) If the amount realized by the department from a bond or
security forfeited under section 3(g) of this chapter, after deducting
expenses incurred by the department in converting the bond or
security into money, is less than the amount of liability of the timber
buyer as determined under this chapter, the timber buyer's
registration may be revoked. As added by P.L.220-1993, SEC.4.
IC 25-36.5-1-3.5 Cessation of business; requirements for return of deposit
Sec. 3.5. (a) A timber buyer who intends to cease doing business
as a timber buyer in Indiana and who seeks the return of a deposit of
cash or a certificate of deposit that the timber buyer submitted to the
department under section 3(b) of this chapter must submit the
following to the department:
(1) A written request for the return of the cash or certificate of
deposit.
(2) An affidavit meeting the requirements set forth in subsection
(b).
(b) To obtain the return of a deposit of cash or a certificate of
deposit under this section, a timber buyer must execute an affidavit
stating under the penalty for perjury set forth in IC 35-44-2-1 that the
timber buyer:
(1) has ceased doing business as a timber buyer in Indiana;
(2) will not resume business as a timber buyer in Indiana after
the date of the affidavit without filing a surety bond or
submitting a new deposit of cash or certificate of deposit to the
department;
(3) has not purchased, taken, or cut any timber for which the
timber grower has not been paid; and
(4) is not a party to an executory contract for the purchase of
timber under which the timber buyer has one (1) or more duties
that have not been performed.
(c) Upon receiving a written request described in subsection (a)(1)
and an affidavit meeting the requirements of subsection (b), the
department shall publish a notice of the request in at least one (1)
publication commonly read by persons active in forestry in Indiana.
The notice must do the following:
(1) Identify the timber buyer requesting the release of the cash
or certificate of deposit.
(2) Indicate the date of the request.
(3) State that the cash or certificate of deposit will be released
to the timber buyer on a particular date, which must be at least
sixty (60) days after the date of publication of the notice, unless
the department is informed of a reason why the cash or
certificate of deposit should not be released.
(d) On the date set forth under subsection (c)(3) in the notice
given by the department, the department shall return the cash or
certificate of deposit to the timber buyer unless the department has
obtained information indicating that a statement set forth in the
timber buyer's affidavit is false. As added by P.L.220-1993, SEC.5.
IC 25-36.5-1-4 Violations
Sec. 4. It shall be unlawful and a violation of this chapter.
(a) For any timber buyer to fail to pay, as agreed, for any timber
purchased.
(b) For any timber buyer to cut or cause to be cut or appropriate
any timber not purchased.
(c) For a timber buyer to willfully make any false statement in
connection with the application, bond or other information required
to be given to the department or a timber grower.
(d) To fail to honestly account to the timber grower or the
department for timber purchased or cut if the buyer is under a duty
to do so, and
(e) For a timber buyer to commit any fraudulent act in connection
with the purchase or cutting of timber. (Formerly: Acts 1972, P.L.190, SEC.1.) IC 25-36.5-1-4.9 Refusal to issue timber buyer registration certificate; grounds
Sec. 4.9. The director may refuse to issue a timber buyer
registration certificate to an applicant that has:
(1) been convicted of a felony;
(2) violated a provision of this chapter; or
(3) violated a rule adopted by the department under this chapter. As added by P.L.220-1993, SEC.6.
IC 25-36.5-1-5
Repealed
(Repealed by P.L.220-1993, SEC.10.)
IC 25-36.5-1-6 Issuance of registration certificates; renewal
Sec. 6. (a) If:
(1) the department is satisfied that the applicant has fulfilled the
requirements of this chapter for the issuance of a registration
certificate;
(2) the bond and sureties or bank certificate of deposit filed by
the applicant under section 3 of this chapter is approved; and
(3) the director does not refuse to issue the registration
certificate to the applicant under section 4.9 of this chapter;
the department shall issue a registration certificate to the applicant.
(b) The registrations issued shall be valid for a calendar year and
may be renewed annually. A copy of the registration certificate
issued by the department shall be posted in the principal office of the
registrant in this state.
(c) Upon request for a certificate and payment of the fee, the
department shall issue to the registrant a certificate that a certificate
of registration has been granted and a bond filed as required by this
chapter. (Formerly: Acts 1972, P.L.190, SEC.1.) As amended by
P.L.220-1993, SEC.7.
IC 25-36.5-1-7 Fees; use by department
Sec. 7. The application fee or renewal fee for a registration
certificate to operate as a timber buyer, is one hundred five dollars
($105). The fee for a certificate stating that a registration certificate
has been issued and security filed is twenty dollars ($20). All fees
collected by the department accrue to the use of the department for
its administrative purposes. (Formerly: Acts 1972, P.L.190, SEC.1.) As amended by Acts 1981,
P.L.230, SEC.1; P.L.158-1988, SEC.3; P.L.186-2003, SEC.79.
IC 25-36.5-1-8 Inspection of premises, records, and papers
Sec. 8. The department may inspect the premises used by any
timber buyer in the conduct of his business at any reasonable time
and the books, accounts, records and papers of every such timber
buyer shall at all times during business hours be subject to inspection
by the department. (Formerly: Acts 1972, P.L.190, SEC.1.)
IC 25-36.5-1-9 Rules and regulations
Sec. 9. The department may make such rules and regulations as
may be necessary to carry out the provisions of this chapter. (Formerly: Acts 1972, P.L.190, SEC.1.)
IC 25-36.5-1-10 Violations
Sec. 10. A person who:
(1) engages in business as a timber buyer without securing a
registration or in violation of this chapter; or
(2) refuses to permit inspection of the person's premises, books,
accounts, or records as provided in this chapter;
commits a Class A misdemeanor. However, the offense is a Class D
felony if the person has a prior unrelated conviction for an offense
under this section. (Formerly: Acts 1972, P.L.190, SEC.1.) As amended by Acts 1978,
P.L.2, SEC.2563; P.L.98-2001, SEC.4.
IC 25-36.5-1-11 Denial of registration for default
Sec. 11. No certificate of registration shall be issued to any person
who is in default to the people of the State of Indiana for moneys due
under this chapter. (Formerly: Acts 1972, P.L.190, SEC.1.)
IC 25-36.5-1-12 Revocation of license; proceedings
Sec. 12. The department may, after notice and a hearing, revoke
the registration certificate or license of any person who violates any
of the provisions of this chapter. All proceedings under this chapter
to revoke a license shall be conducted in the manner prescribed by
IC 4-21.5-3. (Formerly: Acts 1972, P.L.190, SEC.1.) As amended by
P.L.253-1983, SEC.3; P.L.7-1987, SEC.132.
IC 25-36.5-1-13 Injunction; contempt proceedings
Sec. 13. The department may, by application to any circuit court
or to a judge thereof, obtain an injunction restraining any person who
engages in the business of timber buying in this state without a
certificate of registration (either because his certificate has been
revoked or because of a failure to obtain a certificate of registration
in the first instance) from engaging in such business until such
person complies with this chapter and qualifies for and obtains a
certificate of registration. Upon refusal or neglect to obey the order
of the court or judge, said court or judge may compel obedience
thereof by proceedings for contempt. (Formerly: Acts 1972, P.L.190, SEC.1.)
IC 25-36.5-1-13.5 Civil penalties
Sec. 13.5. In addition to the other penalties prescribed by this
chapter, the director may, under IC 4-21.5, impose a civil penalty on
a person who violates this chapter. A civil penalty imposed under
this section may not exceed the following limits:
(1) For engaging in business as a timber buyer without securing
a registration certificate under this chapter, ten thousand dollars
($10,000).
(2) For acting as the agent of a timber buyer without holding an
agent's license under this chapter, ten thousand dollars
($10,000).
(3) For other violations of this chapter, one thousand dollars
($1,000). As added by P.L.220-1993, SEC.8.
IC 25-36.5-1-14 Judicial review
Sec. 14. All final administrative decisions under this chapter shall
be subject to judicial review under IC 4-21.5-5. (Formerly: Acts 1972, P.L.190, SEC.1.) As amended by P.L.7-1987,
SEC.133.
IC 25-36.5-1-15 Agents; license; requirements; revocation; termination of agency
relationship; misdemeanor
Sec. 15. (a) An individual who acts as the agent of a timber buyer
must have an agent's license and carry the agent's card that verifies
the license.
(b) An agent's license may be granted only:
(1) to qualified individuals;
(2) at the written application of the timber buyer who the agent
is to represent; and
(3) under that timber buyer's registration certificate.
(c) The application for an agent's license must contain the agent's
full name, address, and other information as required by the
department on forms supplied by the department. Each timber buyer
is responsible for all of the agent's activities performed while acting
under the timber buyer's registration certificate as they pertain to this
chapter.
(d) An application fee of ten dollars ($10) for each agent shall be
charged for the license and agent's card. However, each timber buyer
shall designate a qualified individual to be licensed as its principal
agent at no additional charge.
(e) An agent's license may be revoked by the department under
IC 4-21.5 if the agent does not comply with this section.
(f) An agent may have a license to represent only one (1) timber
buyer; however, upon surrendering the agent's card and license under
one (1) timber buyer, an individual may be licensed as an agent of
another timber buyer.
(g) A timber buyer may not be licensed as an agent except as the
principal agent of that timber buyer.
(h) A timber buyer may not effect or attempt to effect a purchase
except through an agent.
(i) A timber buyer may terminate an agency relationship by
notifying in writing the agent and the department. Termination of an
agency relationship revokes the agent's license.
(j) A person who acts as an agent without a license commits a
Class B misdemeanor. (Formerly: Acts 1975, P.L.274, SEC.2.) As amended by Acts 1981,
P.L.230, SEC.2; P.L.253-1983, SEC.4; P.L.158-1988, SEC.4;
P.L.186-2003, SEC.80.
IC 25-36.5-1-16 Denial, suspension, or revocation of license or registration;
grounds; hearing
Sec. 16. The director may revoke or suspend or refuse to issue any
license or agent's registration under that license if the applicant or
holder of that license has:
(1) been convicted of a felony;
(2) violated any provision of this chapter; or
(3) violated any rule or regulation of the department promulgated
under this chapter.
Revocation or suspension of a license or an agent's registration
shall be determined by the director after an administrative hearing as
provided in section 12 of this chapter. (Formerly: Acts 1975, P.L.274, SEC.3.)
IC 25-36.5-1-17
Repealed
(Repealed by P.L.220-1993, SEC.10.)
IC 25-36.5-1-18 Criminal history of applicants for registration certificate or license
Sec. 18. (a) The definitions set forth in IC 10-13-3 apply
throughout this section.
(b) The department shall under IC 10-13-3-27(b) request and
obtain the release of a limited criminal history from the state police
department on each person who applies to the department under this
chapter for the issuance of either of the following:
(1) A timber buyer registration certificate.
(2) A timber buyer agent's license. As added by P.L.220-1993, SEC.9. Amended by P.L.2-2003, SEC.68.
IC 25-36.5-1
Chapter 1. Regulation of Timber Buyers by Department of
Natural Resources
IC 25-36.5-1-1 Definitions
Sec. 1. As used in this chapter:
"Person" means an individual, partnership, firm, association,
business trust, limited liability company, or corporation.
"Timber" means trees, standing or felled, and logs which can be
used for sawing or processing into lumber for building or structural
purposes or for the manufacture of any article. "Timber" does not
include firewood, Christmas trees, fruit or ornamental trees, or wood
products not used or to be used for building, structural,
manufacturing, or processing purposes.
"Timber buyer" means a person engaged in the business of buying
timber from timber growers for sawing into lumber, processing, or
resale, but does not include a person who occasionally purchases
timber for sawing or processing for his own use and not for resale.
"Timber grower" means the owner, tenant, or operator of land in
this state who has an interest in, or is entitled to receive any part of
the proceeds from, the sale of timber grown in this state and includes
persons exercising lawful authority to sell timber for a timber
grower.
"Department" means the department of natural resources.
"Director" means the director of the department of natural
resources.
"Agent" means an individual who represents a timber buyer in
effecting or attempting to effect purchases of timber.
"Buying" means acquiring an interest in property by the payment
of a price, value, or other consideration. (Formerly: Acts 1972, P.L.190, SEC.1; Acts 1975, P.L.274, SEC.1.)
As amended by P.L.253-1983, SEC.1; P.L.158-1988, SEC.1;
P.L.8-1993, SEC.397.
IC 25-36.5-1-2 Application for registration; contents; filing; prior registration
Sec. 2. (a) On and after July 28, 1972, no person shall engage in
the business of timber buying in the state of Indiana without a
registration certificate issued by the department. Application for
Indiana registration to engage in the business of timber buying shall
be filed with the department. Such application shall set forth the
name of the applicant, its principal officers if the applicant is a
corporation, its managers and members if the applicant is a limited
liability company, or the partners if the applicant is a partnership, the
location of any principal office or place of business of the applicant,
the counties in this state from which the applicant proposes to engage
in the business of timber buying and such additional information as
the department by regulation may require.
(b) The application shall set forth the aggregate dollar amount
paid to timber growers for timber purchased in this state during the
applicant's last completed fiscal or calendar year. In the event the
applicant has been engaged as a timber buyer for less than one (1)
year, his application shall set forth the dollar amount paid to timber
growers for the number of completed months during which the
applicant has been so engaged. If the applicant has not been
previously engaged in buying timber in this state, the application
shall set forth the estimated aggregate dollar amount to be paid by
the applicant to timber growers for timber to be purchased from them
during the next succeeding year.
(c) The registrations of any persons registered as timber buyers
under any prior law in this state shall remain valid until the
expiration date of that certificate, unless suspended or revoked. After
the expiration of such registrations, all persons engaged in the
business of timber buying must be registered under this chapter. (Formerly: Acts 1972, P.L.190, SEC.1.) As amended by Acts 1982,
P.L.154, SEC.128; P.L.8-1993, SEC.398.
IC 25-36.5-1-3 Bond or certificate of deposit; requisites; cancellation; forfeiture
proceedings; preliminary injunction or restraining order
Sec. 3. (a) Every person registered as a timber buyer shall file
with the department an effective surety bond issued by a corporate
surety authorized to engage in the business of executing surety bonds
in Indiana.
(b) Instead of the bond required by subsection (a), the department
may accept security in cash or a certificate of deposit under terms
established by rule.
(c) The security required under subsection (a) or (b) shall be made
payable upon demand to the director, subject to this chapter, for the
use and benefit of the people of Indiana and for the use and benefit
of any timber grower from whom the applicant purchased and who
is not paid by the applicant or for the use and benefit of any timber
grower whose timber has been cut by the applicant or registrant or
his agents, and who has not been paid therefor.
(d) The security required under subsection (a) or (b) shall be in
the principal amount of two thousand dollars ($2,000) for an
applicant who paid timber growers five thousand dollars ($5,000) or
less for timber during the immediate preceding year, and an
additional one hundred dollars ($100) for each additional one
thousand dollars ($1,000) or fraction thereof paid to timber growers
for timber purchased during the preceding year, but shall not be more
than twenty thousand dollars ($20,000). In the case of an applicant
not previously engaged in business as a timber buyer, the amount of
such bond shall be based on the estimated dollar amount to be paid
by such timber buyer to timber growers for timber purchased during
the next succeeding year, as set forth in the application.
(e) The security required under subsection (a) or (b) shall not be
cancelled or altered during the period for which the certificate to the
applicant was issued except upon at least sixty (60) days notice in
writing to the department.
(f) Security shall be in such form, contain such terms and
conditions as may be approved from time to time by the director, be
conditioned to secure an honest cutting and accounting for timber
purchased by the registrant, secure payment to the timber growers,
and insure the timber growers against all fraudulent acts of the
registrant in the purchase and cutting of the timber of this state.
(g) If a timber buyer fails to pay when due any amount due a
timber grower for timber purchased, or fails to pay legally
determined damages for timber wrongfully cut by a timber buyer or
his agent, or commits any violation of this chapter, an adjudicative
proceeding on the bond for forfeiture may be commenced, and notice
of the proceeding shall be provided, under IC 4-21.5-3-6. A surety or
person in possession of the security provided under subsection (a) or
(b) is entitled to notification of the proceeding. If a final agency
action is entered by the department under this subsection against the
timber buyer, the surety or other person in possession of the security
shall deliver the amount of the security identified in the order. A
proceeding for forfeiture of a timber buyer's bond under IC 4-21.5 is
the exclusive remedy under law for the forfeiture of the bond.
(h) An owner of property seeking a preliminary injunction or
restraining order against a person, corporation, or other entity to
prevent or stop the wrongful cutting of timber on the owner's
property is relieved of the requirement to post a bond or other
security with the court as a prerequisite to the issuance of the
preliminary injunction or restraining order. However, this subsection
does not apply to a property owner who seeks a preliminary
injunction or restraining order to prevent or stop alleged wrongful
cutting by a timber cutter or timber buyer with whom the property
owner had contracted for the cutting or sale of timber. (Formerly: Acts 1972, P.L.190, SEC.1.) As amended by
P.L.253-1983, SEC.2; P.L.158-1988, SEC.2; P.L.220-1993, SEC.1;
P.L.98-2001, SEC.3.
IC 25-36.5-1-3.1 Notice of violation of chapter or rules
Sec. 3.1. The department may under IC 4-21.5-3-6 issue a notice
of violation against a person who has violated this chapter or the
rules adopted under this chapter. The notice of violation shall be
issued to the registrant and the registrant's sureties stating in general
terms:
(1) the nature of the violation; and
(2) that a proceeding seeking forfeiture of the bond may be
commenced twenty (20) days after service of the notice on the
registrant if at the end of that period the violation still remains
and neither the registrant nor the surety has asked for judicial
review of the notice.
As added by P.L.220-1993, SEC.2.
IC 25-36.5-1-3.2 Adjudicative proceeding against timber buyer or cutter
Sec. 3.2. (a) This section refers to an adjudicative proceeding
against:
(1) a timber buyer; or
(2) a person who cuts timber but is not a timber buyer (referred
to as a "timber cutter" in this section).
(b) The department may under IC 4-21.5-3-8 commence a
proceeding against a timber buyer or a timber cutter if there is reason
to believe that:
(1) the timber buyer or timber cutter has acquired timber from
a timber grower under a written contract for the sale of the
timber without payment having been made to the timber grower
as specified in the contract; or
(2) if:
(A) there is no written contract for the sale of the timber; or
(B) there is a written contract for the sale of the timber but
the contract does not set forth the purchase price for the
timber;
the timber buyer or timber cutter has cut timber or acquired
timber from the timber grower without payment having been
made to the timber grower equal to the value of the timber as
determined under IC 26-1-2.
(c) A proceeding may be commenced under this section at the
request of a timber grower.
(d) The necessary parties to a proceeding initiated under this
section are:
(1) the timber grower; and
(2) the timber buyer or timber cutter.
(e) After the commencement of a proceeding under this section
through the service of a complaint under IC 4-21.5-3-8, a party to the
proceeding may move for the joinder of any of the following persons
having a relationship to the site or subject of the complaint:
(1) The surety of the timber buyer.
(2) A timber buyer.
(3) A timber cutter.
(4) A landowner.
(5) An owner of land adjacent to the land from which the timber
was cut.
(6) A consultant receiving a fee for services related to the
timber.
(7) A land surveyor performing a minimum standard detail
survey in Indiana under the requirements of the Indiana Society
of Professional Land Surveyors and Indiana Land Association.
(8) The department of natural resources, if the department has
a relationship to the site or subject of the complaint as a
landowner or owner of adjacent land.
(f) The complaint served under IC 4-21.5-3-8 to commence a
proceeding under this section may seek the following:
(1) Damages in compensation for damage actually resulting
from the wrongful activities of a timber buyer or timber cutter.
(2) Damages equal to three (3) times the stumpage value of any
timber that is wrongfully cut or appropriated without payment.
(g) Notwithstanding subsection (f), the liability on the surety bond
of a timber cutter is limited to the value of any timber wrongfully cut
or appropriated.
(h) A proceeding under this section is governed by IC 4-21.5.
Before a hearing is convened in the proceeding, a prehearing
conference shall be conducted to provide the parties with an
opportunity for settlement, including an opportunity for mediation.
(i) In determining the site for a hearing in a proceeding under this
section, the administrative law judge shall consider the convenience
of the parties.
(j) A final agency action in a proceeding under this section must
address all issues of damage and responsibility and, after the
completion of the opportunity for judicial review, may be enforced
in a civil proceeding as a judgment. As added by P.L.220-1993, SEC.3.
IC 25-36.5-1-3.3 Bond or security forfeiture proceeds; overage and shortage; effect
Sec. 3.3. (a) If the amount realized by the department from a bond
or security forfeited under section 3(g) of this chapter, after
deducting expenses incurred by the department in converting the
bond or security into money, is greater than the amount of the
liability of the timber buyer as determined under this chapter, the
department shall pay the excess to the timber buyer who furnished
the bond or security.
(b) If the amount realized by the department from a bond or
security forfeited under section 3(g) of this chapter, after deducting
expenses incurred by the department in converting the bond or
security into money, is less than the amount of liability of the timber
buyer as determined under this chapter, the timber buyer's
registration may be revoked. As added by P.L.220-1993, SEC.4.
IC 25-36.5-1-3.5 Cessation of business; requirements for return of deposit
Sec. 3.5. (a) A timber buyer who intends to cease doing business
as a timber buyer in Indiana and who seeks the return of a deposit of
cash or a certificate of deposit that the timber buyer submitted to the
department under section 3(b) of this chapter must submit the
following to the department:
(1) A written request for the return of the cash or certificate of
deposit.
(2) An affidavit meeting the requirements set forth in subsection
(b).
(b) To obtain the return of a deposit of cash or a certificate of
deposit under this section, a timber buyer must execute an affidavit
stating under the penalty for perjury set forth in IC 35-44-2-1 that the
timber buyer:
(1) has ceased doing business as a timber buyer in Indiana;
(2) will not resume business as a timber buyer in Indiana after
the date of the affidavit without filing a surety bond or
submitting a new deposit of cash or certificate of deposit to the
department;
(3) has not purchased, taken, or cut any timber for which the
timber grower has not been paid; and
(4) is not a party to an executory contract for the purchase of
timber under which the timber buyer has one (1) or more duties
that have not been performed.
(c) Upon receiving a written request described in subsection (a)(1)
and an affidavit meeting the requirements of subsection (b), the
department shall publish a notice of the request in at least one (1)
publication commonly read by persons active in forestry in Indiana.
The notice must do the following:
(1) Identify the timber buyer requesting the release of the cash
or certificate of deposit.
(2) Indicate the date of the request.
(3) State that the cash or certificate of deposit will be released
to the timber buyer on a particular date, which must be at least
sixty (60) days after the date of publication of the notice, unless
the department is informed of a reason why the cash or
certificate of deposit should not be released.
(d) On the date set forth under subsection (c)(3) in the notice
given by the department, the department shall return the cash or
certificate of deposit to the timber buyer unless the department has
obtained information indicating that a statement set forth in the
timber buyer's affidavit is false. As added by P.L.220-1993, SEC.5.
IC 25-36.5-1-4 Violations
Sec. 4. It shall be unlawful and a violation of this chapter.
(a) For any timber buyer to fail to pay, as agreed, for any timber
purchased.
(b) For any timber buyer to cut or cause to be cut or appropriate
any timber not purchased.
(c) For a timber buyer to willfully make any false statement in
connection with the application, bond or other information required
to be given to the department or a timber grower.
(d) To fail to honestly account to the timber grower or the
department for timber purchased or cut if the buyer is under a duty
to do so, and
(e) For a timber buyer to commit any fraudulent act in connection
with the purchase or cutting of timber. (Formerly: Acts 1972, P.L.190, SEC.1.) IC 25-36.5-1-4.9 Refusal to issue timber buyer registration certificate; grounds
Sec. 4.9. The director may refuse to issue a timber buyer
registration certificate to an applicant that has:
(1) been convicted of a felony;
(2) violated a provision of this chapter; or
(3) violated a rule adopted by the department under this chapter. As added by P.L.220-1993, SEC.6.
IC 25-36.5-1-5
Repealed
(Repealed by P.L.220-1993, SEC.10.)
IC 25-36.5-1-6 Issuance of registration certificates; renewal
Sec. 6. (a) If:
(1) the department is satisfied that the applicant has fulfilled the
requirements of this chapter for the issuance of a registration
certificate;
(2) the bond and sureties or bank certificate of deposit filed by
the applicant under section 3 of this chapter is approved; and
(3) the director does not refuse to issue the registration
certificate to the applicant under section 4.9 of this chapter;
the department shall issue a registration certificate to the applicant.
(b) The registrations issued shall be valid for a calendar year and
may be renewed annually. A copy of the registration certificate
issued by the department shall be posted in the principal office of the
registrant in this state.
(c) Upon request for a certificate and payment of the fee, the
department shall issue to the registrant a certificate that a certificate
of registration has been granted and a bond filed as required by this
chapter. (Formerly: Acts 1972, P.L.190, SEC.1.) As amended by
P.L.220-1993, SEC.7.
IC 25-36.5-1-7 Fees; use by department
Sec. 7. The application fee or renewal fee for a registration
certificate to operate as a timber buyer, is one hundred five dollars
($105). The fee for a certificate stating that a registration certificate
has been issued and security filed is twenty dollars ($20). All fees
collected by the department accrue to the use of the department for
its administrative purposes. (Formerly: Acts 1972, P.L.190, SEC.1.) As amended by Acts 1981,
P.L.230, SEC.1; P.L.158-1988, SEC.3; P.L.186-2003, SEC.79.
IC 25-36.5-1-8 Inspection of premises, records, and papers
Sec. 8. The department may inspect the premises used by any
timber buyer in the conduct of his business at any reasonable time
and the books, accounts, records and papers of every such timber
buyer shall at all times during business hours be subject to inspection
by the department. (Formerly: Acts 1972, P.L.190, SEC.1.)
IC 25-36.5-1-9 Rules and regulations
Sec. 9. The department may make such rules and regulations as
may be necessary to carry out the provisions of this chapter. (Formerly: Acts 1972, P.L.190, SEC.1.)
IC 25-36.5-1-10 Violations
Sec. 10. A person who:
(1) engages in business as a timber buyer without securing a
registration or in violation of this chapter; or
(2) refuses to permit inspection of the person's premises, books,
accounts, or records as provided in this chapter;
commits a Class A misdemeanor. However, the offense is a Class D
felony if the person has a prior unrelated conviction for an offense
under this section. (Formerly: Acts 1972, P.L.190, SEC.1.) As amended by Acts 1978,
P.L.2, SEC.2563; P.L.98-2001, SEC.4.
IC 25-36.5-1-11 Denial of registration for default
Sec. 11. No certificate of registration shall be issued to any person
who is in default to the people of the State of Indiana for moneys due
under this chapter. (Formerly: Acts 1972, P.L.190, SEC.1.)
IC 25-36.5-1-12 Revocation of license; proceedings
Sec. 12. The department may, after notice and a hearing, revoke
the registration certificate or license of any person who violates any
of the provisions of this chapter. All proceedings under this chapter
to revoke a license shall be conducted in the manner prescribed by
IC 4-21.5-3. (Formerly: Acts 1972, P.L.190, SEC.1.) As amended by
P.L.253-1983, SEC.3; P.L.7-1987, SEC.132.
IC 25-36.5-1-13 Injunction; contempt proceedings
Sec. 13. The department may, by application to any circuit court
or to a judge thereof, obtain an injunction restraining any person who
engages in the business of timber buying in this state without a
certificate of registration (either because his certificate has been
revoked or because of a failure to obtain a certificate of registration
in the first instance) from engaging in such business until such
person complies with this chapter and qualifies for and obtains a
certificate of registration. Upon refusal or neglect to obey the order
of the court or judge, said court or judge may compel obedience
thereof by proceedings for contempt. (Formerly: Acts 1972, P.L.190, SEC.1.)
IC 25-36.5-1-13.5 Civil penalties
Sec. 13.5. In addition to the other penalties prescribed by this
chapter, the director may, under IC 4-21.5, impose a civil penalty on
a person who violates this chapter. A civil penalty imposed under
this section may not exceed the following limits:
(1) For engaging in business as a timber buyer without securing
a registration certificate under this chapter, ten thousand dollars
($10,000).
(2) For acting as the agent of a timber buyer without holding an
agent's license under this chapter, ten thousand dollars
($10,000).
(3) For other violations of this chapter, one thousand dollars
($1,000). As added by P.L.220-1993, SEC.8.
IC 25-36.5-1-14 Judicial review
Sec. 14. All final administrative decisions under this chapter shall
be subject to judicial review under IC 4-21.5-5. (Formerly: Acts 1972, P.L.190, SEC.1.) As amended by P.L.7-1987,
SEC.133.
IC 25-36.5-1-15 Agents; license; requirements; revocation; termination of agency
relationship; misdemeanor
Sec. 15. (a) An individual who acts as the agent of a timber buyer
must have an agent's license and carry the agent's card that verifies
the license.
(b) An agent's license may be granted only:
(1) to qualified individuals;
(2) at the written application of the timber buyer who the agent
is to represent; and
(3) under that timber buyer's registration certificate.
(c) The application for an agent's license must contain the agent's
full name, address, and other information as required by the
department on forms supplied by the department. Each timber buyer
is responsible for all of the agent's activities performed while acting
under the timber buyer's registration certificate as they pertain to this
chapter.
(d) An application fee of ten dollars ($10) for each agent shall be
charged for the license and agent's card. However, each timber buyer
shall designate a qualified individual to be licensed as its principal
agent at no additional charge.
(e) An agent's license may be revoked by the department under
IC 4-21.5 if the agent does not comply with this section.
(f) An agent may have a license to represent only one (1) timber
buyer; however, upon surrendering the agent's card and license under
one (1) timber buyer, an individual may be licensed as an agent of
another timber buyer.
(g) A timber buyer may not be licensed as an agent except as the
principal agent of that timber buyer.
(h) A timber buyer may not effect or attempt to effect a purchase
except through an agent.
(i) A timber buyer may terminate an agency relationship by
notifying in writing the agent and the department. Termination of an
agency relationship revokes the agent's license.
(j) A person who acts as an agent without a license commits a
Class B misdemeanor. (Formerly: Acts 1975, P.L.274, SEC.2.) As amended by Acts 1981,
P.L.230, SEC.2; P.L.253-1983, SEC.4; P.L.158-1988, SEC.4;
P.L.186-2003, SEC.80.
IC 25-36.5-1-16 Denial, suspension, or revocation of license or registration;
grounds; hearing
Sec. 16. The director may revoke or suspend or refuse to issue any
license or agent's registration under that license if the applicant or
holder of that license has:
(1) been convicted of a felony;
(2) violated any provision of this chapter; or
(3) violated any rule or regulation of the department promulgated
under this chapter.
Revocation or suspension of a license or an agent's registration
shall be determined by the director after an administrative hearing as
provided in section 12 of this chapter. (Formerly: Acts 1975, P.L.274, SEC.3.)
IC 25-36.5-1-17
Repealed
(Repealed by P.L.220-1993, SEC.10.)
IC 25-36.5-1-18 Criminal history of applicants for registration certificate or license
Sec. 18. (a) The definitions set forth in IC 10-13-3 apply
throughout this section.
(b) The department shall under IC 10-13-3-27(b) request and
obtain the release of a limited criminal history from the state police
department on each person who applies to the department under this
chapter for the issuance of either of the following:
(1) A timber buyer registration certificate.
(2) A timber buyer agent's license. As added by P.L.220-1993, SEC.9. Amended by P.L.2-2003, SEC.68.
