Toolkit · Natural Resources

The Timber Sale Contract, Trespass Damages, and Wildfire Claim Toolkit

16 U.S.C. § 3372

Type
Toolkit
Jurisdiction
National
Date
2024-04-25
Topic
Natural Resources

This toolkit supplies the documents that decide timber and wildfire matters, most of which must exist before anyone knows there will be a dispute. It provides a timber sale contract with the boundary marking, residual damage, and insurance provisions that prevent the field's most expensive and most catastrophic failures, and a boundary marking protocol that creates the dated record serving as the defense to any later trespass claim. It includes a stump documentation record built for the week-one window in which volume evidence still exists, and a damages worksheet that forces selection among the five competing measures before experts are retained. On the wildfire side it supplies a discretionary function screen that identifies whether a case against a government defendant exists at all, a burn plan and prescription records request, a utility records request naming the specific documents, and a wildfire loss inventory. Authority tables close it.

The Timber Sale Contract, Trespass Damages, and Wildfire Claim Toolkit

Natural Resources > Timber, Forestry, and Wildfire Liability | Published 25 April 2024 - Updated 11 March 2025 | UpLaw - uplaw.us

How to use these tools

⚠️ State law governs the substance throughout — the measure of trespass damages and its multiplier, forest practices requirements, prescribed fire standards, and the availability of inverse condemnation against utilities. Conform every tool to the governing State.

Tools 1 through 3 are for timber transactions. Tools 4 and 5 are for trespass. Tools 6 through 9 are for wildfire.

Tool 1 — Timber sale contract

TIMBER SALE AGREEMENT

1. Parties. Seller: ______ Buyer: ______ Date: ______ 2. Property. ______ acres in ______ County, described in Exhibit A with a map. 3. Timber sold. ☐ Marked trees only, marked with ______ paint at breast height and at the stump ☐ All merchantable ______ above ______ inches DBH ☐ Defined area shown on Exhibit A ⚠️ "Trees not marked or not within the described class are NOT sold. Cutting any such tree is unauthorized." 4. ⚠️ BOUNDARY. "The Property boundary has been surveyed and marked with ______ by ______ on ______. Buyer acknowledges walking the boundary with Seller on ______. Buyer shall not cut, damage, or remove any tree outside the marked boundary. Buyer shall satisfy itself of the boundary location and shall halt operations and contact Seller if the marking is unclear at any point." 5. Structure and price. ☐ Lump sum: $______ payable ______ ☐ Pay-as-cut: $______ per ______ by species/grade, scaled at , with load tickets provided to Seller weekly 6. Performance security. $ ☐ cash ☐ letter of credit ☐ bond — released per paragraph 14 7. Term. From ______ to . ⚠️ "Timber not removed by expiration reverts to Seller without compensation." 8. Title and risk. "Title to and risk of loss of timber passes to Buyer upon severance." 9. Utilization. Maximum stump height ______ Minimum top diameter ______ "Buyer shall not leave merchantable material felled and unremoved." 10. ⚠️ RESIDUAL DAMAGE. *"Buyer shall exercise care to avoid damage to trees not sold. Buyer shall pay $ per inch DBH for each unsold tree destroyed or damaged beyond recovery, as determined by Seller's forester."* 11. Roads and skid trails. Locations subject to Seller's approval. Water bars at ______ intervals. Closure and seeding at completion. 12. Compliance. "Buyer shall comply with all forest practices, water quality, wetland, endangered species, and safety requirements and shall obtain all permits. Buyer shall provide copies of all notifications and permits to Seller." 13. ⚠️ INSURANCE AND WORKERS' COMPENSATION. "Before entry, Buyer shall deliver certificates evidencing: general liability of not less than $______ naming Seller as additional insured; automobile liability; and WORKERS' COMPENSATION coverage for all persons performing work. Buyer shall not permit any person to enter who is not covered. Buyer shall indemnify, defend, and hold harmless Seller from all claims arising from the operations, including claims by Buyer's employees and contractors." 14. Completion. Site condition standards; Seller's inspection; security released upon acceptance. 15. Weather. "Buyer shall suspend operations when ground conditions would cause rutting or sediment delivery, and during fire danger levels of ______ or above." 16. Default and termination. ⚠️ "Cutting outside the marked boundary or outside the described class is a material breach permitting immediate termination and forfeiture of security, without limiting Seller's statutory remedies."

Seller ______ Buyer ______

Drafting notes. ⚠️ Paragraphs 4 and 13 are the two that matter most, and they address the field's two characteristic disasters.

Paragraph 4 exists because the most expensive dispute in timber practice is a cut over an unmarked line. The acknowledgment that the buyer walked the boundary is the provision that converts a later trespass from an accident into a breach — and marking at the stump as well as breast height in paragraph 3 is what makes post-harvest verification possible.

Paragraph 13's workers' compensation requirement is not boilerplate. ⚠️ An uninsured logging injury on the seller's property is a catastrophic and largely uninsurable exposure — general liability, homeowner, and farm policies all exclude employee injury, and several States treat an uninsured contractor's crew as the landowner's statutory employees. Verify the certificate before entry, not after.

Tool 2 — Boundary marking protocol

BOUNDARY MARKING RECORD — [PROPERTY] ⚠️ This record is the defense to any later trespass claim, from either side.

Survey. Surveyor: ______ License no.: ______ Date: ______ Plat recorded at: ______ ☐ Corners located and monumented ☐ Monument types and conditions noted

Marking. | Segment | From corner | To corner | Length | Method (paint color / flagging / blazes) | Interval | Marked by | Date | Photographed | |---|---|---|---|---|---|---|---|---| | | | | | | | | | ☐ |

Physical boundary evidence encountered ⚠️ (reconcile every one against the survey — an ignored indicator defeats good faith) | Feature (fence, blazed line, stand-age change, road, stone row) | Location | Consistent with survey? | If not, resolution | |---|---|---|---| | | | ☐ Y ☐ N | |

Walk-through. Date: ______ Present: ______ (Seller, Buyer, forester, crew supervisor) ☐ Full boundary walked ☐ Corners identified on the ground ☐ Ambiguous segments identified and resolved Signed acknowledgment of boundary by Buyer/operator: ______ Date: ______

Photographic record. ☐ Each corner photographed with date ☐ Marked line photographed at intervals ☐ GPS coordinates recorded ☐ Images archived at ______

Drafting notes. ⚠️ The physical-evidence table is the part that decides trespass cases, and it does so in both directions.

For a landowner: an old fence, a blazed line, or a visible change in stand age that the crew ignored defeats a good-faith defense and preserves the full multiplier. For an operator: a documented reconciliation showing that the fence was thirty feet inside the surveyed line, that the discrepancy was identified, and that the survey was followed is the strongest good-faith showing available.

The signed boundary acknowledgment costs one signature and converts a later crossing from a mistake into a documented breach of an acknowledged line.

Tool 3 — Pre-harvest condition record

[PROPERTY] — CONDITION BEFORE HARVEST (prepared by Seller, ideally with the consulting forester)

Cruise summary. Date: ______ Forester: ______ Method: ______ | Species | Trees per acre | Avg. DBH | Volume | Grade distribution | Estimated stumpage value | |---|---|---|---|---|---|

Photographic record. ☐ Fixed photo points established and mapped: ______ ☐ Photographs taken from each, dated ☐ Access roads photographed ☐ Stream crossings photographed ☐ Landings and staging areas photographed ☐ Adjacent and residual stand condition documented

Existing conditions noted: road grades and surfacing ______ · culverts and crossings ______ · existing rutting or erosion ______ · wet areas and seeps ______ · known sensitive features ______

Reservations and encumbrances verified: ☐ timber reservations searched ☐ conservation easement ☐ carbon or conservation agreement ☐ mortgage restrictions ☐ life estate / co-tenancy interests resolved

Drafting notes. ⚠️ This record answers two later questions that are otherwise unanswerable: what was standing before, and what condition the roads and site were in when the operator arrived.

The second matters more than sellers expect. Disputes about road damage, rutting, and stream crossing condition at completion are common, and the operator's usual defense is that the condition pre-existed. Fixed photo points taken before entry resolve it in one exchange.

The reservations line belongs here because ⚠️ a timber reservation discovered after harvest is a catastrophic problem — the seller may have conveyed what they did not own, and the buyer may have cut trees belonging to a stranger.

Tool 4 — Stump documentation record

⚠️ COMPLETE IN THE FIRST WEEK. Stumps weather, are ground out, are buried under slash, and are obscured by regrowth. This record is the foundation of the two most valuable damages measures.

[PROPERTY] — UNAUTHORIZED CUT DOCUMENTATION Date discovered: ______ Documented by: ______ Dates of documentation: ______ Weather since cut: ______ Estimated date of cut: ______ Basis: ______

Stump # GPS / location Species Stump diameter (in.) Stump height Cut surface condition Photo # (with scale) Notes

Totals by species: ______

Site documentation ☐ Overview photographs from fixed points ☐ Skid trails and landings ☐ Road damage and rutting ☐ Residual stand damage — trees scarred or destroyed but not removed ☐ Slash and tops left ☐ Any equipment, markings, or debris left ☐ Point of entry

Boundary evidence ☐ Surveyed line located? ☐ Marked? ☐ Fence, blazes, or other indicators present — describe and photograph: ______ ⚠️ Distance from the cut to the nearest boundary indicator: ______

Preservation ⚠️ ☐ NO cleanup, salvage, or replanting until documentation is complete ☐ Pre-cut imagery located (aerial, listing photos, prior cruise) ☐ Communications preserved ☐ Preservation letter sent to all potential defendants

Chain: Photographs archived at ______ GPS file ______ Field notes retained by ______

Drafting notes. ⚠️ Stump diameter is the single most important field in this toolkit, because it converts — through species-specific tables — to diameter at breast height and then to volume, which is what stumpage and converted value both rest on. Measure it, do not estimate it, and photograph each stump with a scale in frame.

The distance-to-boundary-indicator line does double duty: it establishes how far the cut extended and it establishes what the cutter could see. A cut that begins forty feet past a visible blazed line is a very different case from one that begins two hundred feet from any marker on unsurveyed ground.

The no-cleanup instruction is the one clients violate, usually from an entirely reasonable impulse to tidy the property.

Tool 5 — Timber damages worksheet

⚠️ SELECT THE MEASURE BEFORE RETAINING EXPERTS. A case worked up on the wrong measure with the wrong expert is frequently unsalvageable.

State's applicable measure(s): ______ Statute: ______ Multiplier: ☐ treble ☐ double ☐ single Good-faith exception: ______

Measure Amount Expert required Available here?
Stumpage (standing value) $ Consulting forester ☐
Converted value (logs/products after removal) $ Forester + mill records ☐ usually willful only
Diminution in market value $ Appraiser ☐
Restoration cost $ Arborist / landscape professional ☐ reasonableness limit?
Aesthetic / amenity value $ Certified arborist, standardized method ☐ minority rule

SELECTED MEASURE: ______ Base amount: $______

Plus: ☐ Residual stand damage $______ ☐ Soil, road, and site damage $______ ☐ Survey cost $______ ☐ Reforestation $______ ☐ Lost future growth $______

Subtotal: $______ × multiplier ______ = $______ ☐ ⚠️ Attorney's fees and costs (check the statute — this frequently determines viability) $______ TOTAL CLAIM: $______

Willfulness analysis (determines the multiplier) | Fact | Supports willful | Supports good faith | |---|---|---| | Survey obtained and followed? | | ☐ | | Line marked? | | ☐ | | Landowner representation relied on? | | ☐ | | Visible fence / blazes / stand-age change ignored? | ☐ | | | Prior notice of a dispute? | ☐ | | | Continued after being told to stop? | ☐ | | | Distance past the boundary | | |

Federal exposure: ☐ Timber transported or sold across a state line → 16 U.S.C. § 3372 Defendants: ☐ cutter ☐ crew ☐ contractor ☐ buyer ☐ mill Limitations period: ______ ⚠️ sometimes shorter than for ordinary property claims

Drafting notes. ⚠️ The measure selection at the top governs everything below it, and the spread among the candidates is frequently an order of magnitude. Treble stumpage on a woodlot cut can be less than single restoration cost on a residential lot with mature ornamentals — which is why the measure question precedes the multiplier question in every well-worked case.

The willfulness table is worth completing from both sides at intake. It tells a plaintiff whether the full multiplier is realistic and tells a defendant whether the good-faith provision is available — and it does so from facts that are known in the first week.

Tool 6 — Discretionary function screen

⚠️ RUN THIS BEFORE INVESTING IN A CLAIM AGAINST A GOVERNMENT DEFENDANT. It determines whether a case exists.

Sovereign: ☐ United States — 28 U.S.C. § 1346, exception at ⚠️ 28 U.S.C. § 2680 ☐ State — analogue: ______ ☐ Local

1. ⚠️ NOTICE OF CLAIM Deadline: ______ (often 60–180 days, jurisdictional, running from injury) Filed: ______ Method: ______

2. THE CONDUCT AT ISSUE: ______

3. STEP ONE — Berkovitz v. United States: was there judgment or choice? ⚠️ Is there a statute, regulation, policy, plan, or prescription that SPECIFICALLY PRESCRIBED a course of action? ☐ Yes — cite it: ______ Was it followed? ☐ Yes → exception likely applies ☐ No → NO DISCRETION; the exception does not apply. THIS IS THE CASE. ☐ No prescription found → continue to step two

4. STEP TWO — is the judgment grounded in social, economic, or political policy? Under United States v. Gaubert, ⚠️ where a regulation allows discretion, it is PRESUMED the acts are grounded in policy. Under United States v. S.A. Empresa de Viacao Aerea Rio Grandense, the nature of the conduct controls, not the actor's rank. Dalehite v. United States established the breadth. ☐ Policy-grounded → exception applies; claim likely barred ☐ Not policy-grounded → continue

5. MANDATORY PRESCRIPTIONS TO TEST (the whole case) ☐ Wind speed above the burn plan maximum? Plan: ______ Actual: ______ ☐ Relative humidity below the plan minimum? Plan: ______ Actual: ______ ☐ Fuel moisture outside prescription? ☐ Temperature outside prescription? ☐ Holding resources below the required number? Required: ______ Present: ______ ☐ Required weather observation not taken? ☐ Contingency step in the plan omitted? ☐ Inspection interval skipped? ☐ Qualification requirement unmet for the burn boss or key personnel?

6. State-specific additions: ☐ design immunity ☐ damages cap ☐ fire-specific immunity ☐ other: ______

7. Alternative theory: ☐ Inverse condemnation against the public entity, which may proceed on a different footing — see the eminent domain guide

ASSESSMENT: ☐ Viable — mandatory prescription violated: ______ ☐ Likely barred

Drafting notes. ⚠️ Item 3 is the entire screen. The decision to conduct a burn, the allocation of suppression resources, the evacuation timing, and the landscape-scale fuel strategy are all protected policy judgments. What is not protected is a plan that said "do not ignite above twelve miles per hour" when the wind was eighteen.

Run this before the client spends money. A wildfire matter against an agency that survives this screen is worth developing; one that does not will be dismissed on the pleadings, and it is far better to say so in week two than in month nine.

Tool 7 — Burn plan and agency records request

PUBLIC RECORDS REQUEST — [AGENCY] — Re: [FIRE NAME], ignition [DATE], [LOCATION]

☐ The prescribed burn plan for the unit, with all amendments and the approval signatures ☐ ⚠️ The PRESCRIPTION parameters — wind speed and direction, temperature, relative humidity, fuel moisture by class, mixing height, transport winds ☐ Spot weather forecasts requested and received, with times ☐ Observed on-site weather readings, with times and instrument records ☐ ⚠️ Go/no-go checklist as completed, with the decision-maker identified ☐ Resource order and actual resources on site, by type and time ☐ Qualification records for the burn boss, holding boss, and ignition specialist ☐ Test fire documentation ☐ Ignition log with times, patterns, and personnel ☐ Contingency plan and whether and when it was activated ☐ Incident action plans for each operational period after escape ☐ Agency manual and handbook provisions applicable to this burn (identify which are mandatory) ☐ After-action review, escaped fire review, and any investigation report ☐ Communications — radio logs, dispatch records, and email regarding the decision to ignite and the escape

Format: electronic. Statutory deadline: ______ See the public records guide.

Drafting notes. ⚠️ Request the prescription and the go/no-go checklist by name in the first request. Those two documents, compared against the observed weather, answer the Berkovitz v. United States question — and everything else in the list is development.

The manual-provisions item matters because step one requires identifying a specific mandatory directive. A general policy of prudence is discretion; a handbook provision stating that ignition "shall not" occur outside prescription is the mandatory prescription the case needs.

Tool 8 — Utility records request

REQUEST / DISCOVERY — [UTILITY] — Re: [FIRE NAME], ignition [DATE], circuit [ID]

☐ Vegetation management — cycle length for this circuit; last three cycles with dates; achieved clearances by span; work orders, inspection reports, and any deferred work ☐ Inspection history for the specific pole, conductor, and hardware — dates, method (ground, aerial, climbing), findings, and corrective actions ☐ Asset records — installation date, type, and manufacturer of the implicated hardware; maintenance and replacement history; known failure modes ☐ ⚠️ Reclosing device settings on this circuit during the period, and any protocol governing reclosing in elevated fire conditions ☐ ⚠️ De-energization — criteria, the decision made, who made it, when, and the basis; any weather thresholds and whether they were met ☐ Wildfire mitigation plan in effect, and compliance records ☐ Outage and fault records — SCADA, relay targets, and fault location data ☐ Prior ignitions or near-misses on this circuit ☐ Weather data relied upon and any red flag notifications received ☐ Internal communications regarding fire risk on this circuit ☐ Origin-and-cause materials — the utility's own investigation, photographs, and evidence collected

Drafting notes. ⚠️ The reclosing and de-energization items are frequently the most productive. A reclosing device that re-energized a faulted line during red flag conditions, or a de-energization protocol whose thresholds were met and not acted on, converts a general negligence theory into a specific one. Ask for the protocol and the decision, not just the outcome.

Vegetation management records should be requested by circuit and by span, because system-wide averages conceal the deferred work on the specific span where the contact occurred.

Tool 9 — Wildfire loss inventory

[PROPERTY] — LOSS DOCUMENTATION ⚠️ Complete before debris removal.

Structures — dwelling ______ sq ft, year built ______ · outbuildings ______ · fencing ______ linear ft · wells, septic, and utilities ______ Contents — room-by-room inventory ☐ pre-loss photographs located ☐ receipts and appraisals for high-value items ☐ Vehicles and equipment — ______ Landscaping and trees ⚠️ (policy sublimits are typically small; standing timber may support a separate claim under the Tool 5 framework) — ______ Standing timber destroyed — acres ______ species ______ estimated volume ______ forester engaged? ☐ Business and income loss — ______ Additional living expense — dates displaced ______ lodging ______ meals ______ mileage ______

Coverage review ⚠️ (underinsurance after a total loss is the NORM) | Coverage | Limit | Estimated actual need | Gap | |---|---|---|---| | Dwelling | $ | $ (current rebuild cost incl. demand surge) | $ | | Code upgrade / ordinance and law | $ | $ | $ | | Debris removal | $ | $ | $ | | Other structures | $ | $ | $ | | Contents | $ | $ | $ | | Additional living expense | $ / ___ months | $ / ___ months | $ | | Landscaping / trees | $ | $ | $ |

Claim steps ☐ Notice given ______ ☐ Proof of loss deadline ______ ☐ Adjuster inspection ______ ☐ Estimates obtained (reflecting current cost and code upgrades) ☐ Appraisal or dispute process considered — see the property insurance guide Disaster assistance — 42 U.S.C. § 5121; see the disaster recovery guide Subrogation posture — carrier pursuing the ignition source? ☐ Coordination with the third-party claim: ______

Drafting notes. ⚠️ The gap column is the point of this tool, and it should be completed with real rebuild estimates rather than the insurer's replacement cost estimator. After a large fire, rebuild costs rise sharply — contractors are scarce, materials are in demand, current codes apply to the reconstruction, and site access and debris conditions add cost. Underinsurance is the norm rather than the exception, and identifying the gap early determines whether the third-party claim needs to carry it.

The standing timber line is here because policy sublimits for trees and landscaping are typically small, while destroyed merchantable timber may support a substantially larger claim against the ignition source using the Tool 5 measures.

Authority tables

Timber and forestry

Authority What it supplies
16 U.S.C. § 3372 Lacey Act — timber taken in violation of state law becomes a federal offense on transport or sale
16 U.S.C. § 472a; 36 C.F.R. Part 223 Federal timber sales and contracts
16 U.S.C. § 1604; 36 C.F.R. Part 219 Forest planning
16 U.S.C. § 528; 16 U.S.C. § 551; 36 C.F.R. Part 261 Multiple use; administration; prohibitions
16 U.S.C. § 2101 Cooperative forestry assistance
Kleppe v. New Mexico Federal power over public lands
42 U.S.C. § 4332 Environmental review of federal timber sales

Environmental overlays

Authority What it supplies
33 U.S.C. § 1342; 40 C.F.R. Part 122 Construction stormwater
33 U.S.C. § 1344 Wetlands and stream crossings
Sackett v. EPA Narrowed federal jurisdiction — check state law
16 U.S.C. § 1538; 16 U.S.C. § 1536 Take prohibition; consultation
Babbitt v. Sweet Home Chapter ⚠️ Habitat modification killing or injuring wildlife is "take"
Tennessee Valley Authority v. Hill No cost-based exception
29 U.S.C. § 654; 29 C.F.R. Part 1910 Logging safety

Wildfire and government defendants

Authority What it supplies
28 U.S.C. § 1346 Federal tort claims jurisdiction
28 U.S.C. § 2680 ⚠️ Discretionary function exception
Berkovitz v. United States The two-step test — a specific prescription eliminates discretion
United States v. Gaubert Presumption that discretion allowed by regulation is policy-grounded
United States v. S.A. Empresa de Viacao Aerea Rio Grandense Nature of the conduct, not the actor's rank
Dalehite v. United States Breadth of the exception
42 U.S.C. § 5121 Disaster assistance

Sequencing the tools

Before a sale: Tools 2 and 3, then Tool 1. Before any crew enters: Tool 1's paragraph 13 certificate verification and Tool 2's signed boundary acknowledgment. On discovering a cut: Tool 4 in week one, then Tool 5. On a wildfire: Tool 9 before debris removal, Tool 8 for a utility defendant, and ⚠️ Tool 6 FIRST for any government defendant, followed by Tool 7.

⚠️ Three items produce most of the value and none is legal work. Tool 2's marked boundary and signed acknowledgment prevents the most expensive dispute in timber practice, from both sides. Tool 4's week-one stump documentation preserves the evidence on which every damages measure depends. Tool 6's screen tells a client in two weeks whether a wildfire claim against an agency exists, rather than in month nine.

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