Decision Date: March 16, 2011

Panel: Alan Andison

Keywords: Range Act – s. 49; non-use order; Crown range land; grazing permit; preliminary application; moot appeal; jurisdiction

Jason Horst raises cattle near Grasmere, BC. He held a grazing permit that allowed him to graze his cattle on Crown range in the Grasmere Range Unit (the “Range Unit”) from June 1 to August 31, for a 4-year term commencing on June 1, 2006. In 2009, the water system operated by the Ministry of Forest and Range (the “Ministry”) for cattle in the Range Unit was tampered with, and the Ministry decided to stop grazing on the Range Unit due to a lack of alternate secure water sources. In October 2009, the District Manager of the Ministry’s Rocky Mountain Forest District issued a temporary “directed non-use order” to Mr. Horst and the other tenure holders in the Range Unit.

Mr. Horst requested an administrative review of that order, which led to the District Manager issuing a revised order in April 2010. The revised order allowed Mr. Horst a limited amount of grazing in the Range Unit during July 1 to August 31, 2010, based on Mr. Horst’s offer to provide water from his private land. The revised order indicated that non-use of the Range Unit would remain in place for 2011, subject to the Ministry’s water system being restored.

Mr. Horst appealed the revised order to the Commission. He requested that he be allowed to graze some of his cattle in the Range Unit from August 1 to October 2, 2011, and he offered to supply water from his private land.

In January 2011, before the appeal was heard, the Regional Manager applied to the Commission to dismiss the appeal on the basis that the issues raised by the appeal were moot. The Regional Manager advised that Mr. Horst’s grazing permit had expired at the end of 2010, and the Ministry would not be offering him a replacement permit because the Ministry had decided not to replace its water delivery infrastructure in the Range Unit.

Mr. Horst opposed the application and requested that the appeal proceed to a hearing.

The Commission held that the issues raised by the appeal were moot, because Mr. Horst’s grazing permit had expired and he had no grazing rights on the Range Unit in 2011. Mr. Horst was no longer a grazing permit holder, and there must be a valid grazing permit for the Ministry to issue an order specifying non-use of a grazing permit. Consequently, the Commission found that the District Manager’s order for “non-use for 2011” was in error. The Commission concluded that it had no jurisdiction over the remedy sought by Mr. Horst in relation to the 2011 season, without there being a replacement grazing permit for that period.

Accordingly, the application for dismissal of the appeal was granted, and the appeal was dismissed for lack of jurisdiction.