Decision Date: October 28, 2005

Panel: Alan Andison

Keywords: Forest Practices Code of British Columbia Act – ss. 74(1) (a) and (b); Forest and Range Practices Act – ss. 71(1), (2) (a) (i) and (ii) and (b), (5) (a)-(g), 72 (a)-(c);  due diligence; officially induced error; range use plans; over-grazing.

Beau West Ranches Ltd. (“Beau West”) and McDonald Ranch and Lumber Ltd. (“McDonald”) (collectively referred to as the “Appellants”) appealed two determinations issued by the District Manager, that the Appellants had contravened section 74(1) of the Forest Practices Code of British Columbia Act.  A penalty of $500 was levied against each of the Appellants for incidents of exceeding a safe degree of use of certain pastures and having cattle out of rotation, contrary to an approved range use plan (“RUP”).

The Appellants hold separate grazing licences, which allow them to graze livestock on Crown range in the Grasmere North Range Unit of the Rocky Mountain Forest District (the “Range”).  As a condition of their respective licences, the Appellants signed RUPs, which set the terms and conditions of their use of the Range.  These included: scheduling the order in which animals must be grazed in each pasture of the Range throughout the grazing season; specifications for the amount of use to which each pasture may be put; the number and types of animals that may be turned out on the Range; and, the total Animal Unit Months the rancher may utilize over the grazing season.

Beau West requested that the Commission find that there was no contravention; rescind the penalty imposed by the District Manager; issue an order to the District Manager that this proceeding should not effect future operational interaction between the Ministry and Beau West; and, make a recommendation to the Minister of Agriculture to initiate a formal review of this matter.  The Commission did not consider the latter two requests, as it has no jurisdiction to do so under the Forest and Range Practices Act (“FRPA”).  Further, Beau West submitted that the allegations of non-compliance were frivolous and vexatious, and that the District Manager was in a conflict of interest because he made the decision at the “Opportunity to be Heard” hearing (the “OHH”), while he was also the supervisor of the compliance and enforcement Ministry staff.

McDonald requested that the Commission rescind both the finding of non-compliance and the penalty.

The Commission found that the District Manager was not in a conflict of interest, because there was no evidence that the Appellants’ evidence and submissions were not fairly considered by the District Manager at the OHH.  Further, the Commission found that a difference in views between Ministry staff and Beau West was insufficient to conclude that the Ministry’s allegations of non-compliance were vexatious or frivolous.

The Commission found that the Appellants’ cattle were out of rotation, contrary to the Appellants’ RUPs, that they were aware of inherent range management difficulties such as wildlife and recreational use, and that they should have adjusted their grazing operations accordingly.  As a result, the Commission found that the safe degree of use that was set out in the Appellants’ RUPs was exceeded.  Further, the Commission found that two agrologists’ reports that Ministry staff relied on to make their assessments of the Range provided reliable evidence regarding the condition of the Ranges, and that the Appellants should have been able to distinguish between safe and unsafe levels of Range use.

The Appellants submitted that actions taken on their part satisfied the requirements for of the defence of due diligence, which is provided by section 72(a) of the FRPA.  The Commission found that hot, dry conditions during the 2003 grazing season, along with the difficulties related to wildlife grazing and recreational users made it difficult for ranchers to adhere to their RUP conditions.  Nonetheless, the Commission found that there was little evidence that reasonable efforts to prevent overgrazing around water bodies, or to ensure that fencing was in proper repair were made.  Thus, the Appellants did not make every reasonable effort to prevent cattle from being out of rotation, or to prevent the safe degree of use from being exceeded in 2003.  Accordingly, the defence of due diligence did not apply.

The Commission also found that the defence of officially induced error did not apply because Ministry staff did not provide erroneous legal advice to the Appellants regarding their legal obligations as licencees.

In light of previous decisions involving comparable circumstances, the Commission found that the penalties were appropriate.

Accordingly, the Commission denied the appeals.