Decision Date: November 21, 2006

Panel: Alan Andison, Cindy Derkaz, Stephen Willett

Keywords: Forest Practices Code of British Columbia Act – s. 96(1); Forest and Range Practices Act – s. 71; reserve trees; blowdown.

Edward William Reierson (the “Appellant”) appealed a determination made by the District Manager, Okanagan Shuswap Forest District, that the Appellant had contravened section 96(1) of the Forest Practices Code of British Columbia Act (the “Code”) by cutting and removing timber from Crown land without authority.  The District Manager levied administrative penalties totalling $20,000 against the Appellant.

The Appellant had entered into a Timber Sale Licence (the “Licence”) with the Government to conduct a logging operation on 7 cutblocks near Vernon.  The Harvest Plan provided that all Douglas fir trees of greater than 50 cm diameter at breast height (dbh) were reserved from harvest unless they were Danger trees, infested with bark beetle, or required to be removed to create access to trees required to be removed.

Shortly before the logging operation was completed, a severe windstorm hit the cutblocks and blew down a large number of trees that had not been harvested.  A Ministry of Forests and Range Forest Technician (the “Forest Technician”), gave verbal approval to the Appellant to harvest reserve trees that had been blown down.  On a later inspection, a Ministry of Forests and Range Compliance and Enforcement Technician (the “Enforcement Technician”) and the Forest Technician concluded that 50 reserve trees had been harvested without authority.

After an opportunity to be heard meeting was held, the District Manager concluded that 2 of the 50 reserve trees in question were either dead or beetle attacked and, therefore, were harvested with authority.  He determined that the remaining 48 reserve trees were harvested without authority, and he imposed a penalty of $11,000.

The Appellant appealed the District Manager’s determination on the grounds that he erred in concluding that the Appellant did not have the authority to harvest the 48 reserve trees, he erred in his interpretation of “blow down”, and the penalty was excessive in the circumstances.

The Appellant submitted that he had verbal authorization to harvest all reserve trees within one and one-half tree lengths of any road in a cutblock.    The Commission did not make a finding in respect of this issue because it found there was insufficient evidence to conclude on a balance of probabilities that any of the reserve trees in issue were within one and one-half tree lengths from any road.

The parties also disputed what constituted “blowdown”.  The Appellant submitted that the authority to harvest blowdown included the authority to harvest leaning trees whether or not they exhibit signs of root damage.  The Government submitted that leaning trees are not blowdown if there is no sign of root wad lifting or a disturbance of the soil near the tree.  The Commission found that not all leaning trees are blowdown, and that the Appellant did not have the authority to harvest leaning trees without obvious root wad lifting.  Based on the parties’ evidence, the Commission found that 47 of the 48 reserve trees at issue were not blowdown.

The Appellant also argued that he had authority to harvest some of the trees because they were infested with bark beetles.  However, the Commission found that there was no credible evidence that the trees had been infested with beetles before they were felled.

Based on the evidence of the parties, the Commission found that one tree that had been harvested was not a reserve tree because its dbh was less than 50 cm.

Regarding the penalty, the Commission noted that $7,000 of the $11,000 penalty was intended to compensate the Crown for the loss of 48 reserve trees, at $146 per tree.  An additional $4000 was levied by the District Manager to serve as a deterrent.  Given the importance of the reserve trees for wildlife habitat, the Commission found that the penalty assessed by the District Manager was not excessive.  It reduced the penalty by $292 for the 2 trees which it found had been harvested with authority.

Accordingly, the Commission varied the determination to reflect that 2 of the 48 reserve trees had been harvested with authority, and to reduce the penalty by $296.  In all other respects, the Commission confirmed the determination.  The appeal was allowed, in part.