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 plan; over-grazing.

Evelyn, Frank, and Joy McIntyre, Cam McDonald, and Tom Hallbauer, (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 $3,000 was levied against the McIntyres, and a penalty of $500 was levied against Mr. Hallbauer and Mr. McDonald 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 McIntyres hold a grazing licence, which allows them to graze livestock on Crown range in the Grasmere North Range Unit of the Rocky Mountain Forest District (the “Range”).  At the time of the alleged contraventions, Mr. Hallbauer and Mr. McDonald jointly held a range permit, which is similar to a grazing licence, with the exception that it was limited to a term of five years.  As a condition of their respective licence and permit, 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 Unit 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 (“AUMs”) the rancher may utilize over the grazing season.

The McIntyres requested that the determination of the District Manager be rescinded, or in the alternative, that the penalty be reduced.  The McIntyres further requested that the Commission order the Government to invest the value of any monetary penalty levied against them in a range enhancement fund.

Mr. Hallbauer and Mr. McDonald requested that the Commission find that there were no contraventions and rescind the penalties imposed by the District Manager.

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.

The Appellants submitted that actions taken on their part satisfied the requirements for the defence of due diligence, which is provided by section 72(a) of the Forest and Range Practices Act.  Actions taken by the Appellants included: seeding of one of the pastures, providing “protein licks” to draw cattle away from primary range into secondary range, patrolling gates, repairing fences, and not making full use of their allotment of AUMs.

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 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, because certain areas of the range were not used efficiently, and the Appellants could have ensured that fences were in proper repair.  Thus, 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 licensees.

In light of previous decisions in comparable circumstances, the Commission found that the penalties were appropriate.  Further, the Commission noted that it had no jurisdiction to make an order to the Government with respect to the allocation of the penalty.

Accordingly, the Commission denied the appeals.