Does the RCW mandate attorney’s fees awards in timber trespass cases? Appeals court in Bassani Farms v. Maddox says “no.”
One of Washington State’s greatest natural resources is its trees and forests. Given the abundance of this natural resource, Washington has enacted several statutes which govern accidental or intentional damage to and/or removal of timber on someone else’s property (without permission of course). These laws are set forth in RCW 4.24.630 and RCW 64.12.030.
Although both RCW 4.24.630 and RCW 64.12.030 deal with damage to and removal of trees, there has always been a conflict between these statutes. Namely, how does the court award damages to a prevailing party in an action when the trespasser damaged and/or removed trees, but did not injured the property? (Both RCW 4.24.630 and 64.12.030 discuss damages for timber trespass, yet 4.24.630 includes a provision for attorney’s fees).
RCW 4.24.630 says that if a person goes onto another’s property without permission and removes or damages timber, that person is liable for treble damages and attorney fees. RCW 64.12.030, however, says that if a person goes onto another’s property without permission and removes or damages any tree, timber, or shrub, that person is liable only for treble damages—no attorney fees may be awarded.
Recently, in Bassani Farms, LLC v. Maddox, the Washington Appellate Court (Division III) offered some guidance on this conflict. For one, the Bassani Court asserted that RCW 64.12.030 requires no mental state and applies equally to intentional and negligent takings and damages to trees and shrubs. Second, the Bassani Court reiterated that RCW 4.24.630(2) expressly exempts any claims that fall under RCW 64.12.030’s language from being applied to RCW 4.24.630. The result is therefore, that prevailing claims pertaining ONLY to damage and/or removal of trees from a landowner’s property can only be awarded treble damages—no attorney fees can be awarded.
Ultimately, Bassani’s outcome may negatively impact on landowners whose trees have been damaged and/or removed and seek redress in court. In such cases, attorney fees may be substantial. Consequently, the possibility of recovering attorney fees may be equally, if not more, important to a landowner as is recovering treble damages. If courts are finding that a landowner’s claims apply under RCW 64.12.030 (which does not allow attorney fees), not RCW 4.24.630, landowners may be less likely to sue because they will not be awarded attorney fees and any other litigation-related costs.