Forest Appeals Commission

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1 Forest Appeals Commission Fourth Floor 747 Fort Street Victoria British Columbia Telephone: (250) Facsimile: (250) Mailing Address: PO Box 9425 Stn Prov Govt Victoria BC V8W 9V1 DECISION NO FOR-010(a) In the matter of an appeal under section 82 of the Forest and Range Practices Act, R.S.B.C. 2002, c. 69. BETWEEN: Allan Neville APPELLANT AND: Government of British Columbia RESPONDENT BEFORE: PLACE: APPEARING: A Panel of the Forest Appeals Commission David Ormerod, Panel Chair Conducted by way of written submissions concluding on November 7, 2006 For the Appellant: Allan Neville For the Respondent: Gareth Morley, Counsel APPEAL This appeal is brought by Allan Neville against an April 27, 2006, determination by David Raven, R.P.F., District Manager of the Columbia Forest District (the District Manager ), Southern Interior Forest Region, Ministry of Forests and Range (the Ministry ). The District Manager found that Mr. Neville had contravened sections 70(3) and 70(4)(e) of the Forest Practices Code of British Columbia Act (the Code ), R.S.B.C. 1996, c. 159, by failing to establish a free growing stand on Block 1, Cutting Permit B ( CP B ) of Woodlot Licence 451 ( W0451 ). 1 The District Manager assessed a penalty of $3,000 for the contravention of section 70(3) of the Code and a penalty of $2,000 for the contravention of section 70(4)(e) of the Code, for a total penalty of $5,000. This appeal is heard pursuant to Division 4 of the Forest and Range Practices Act. The powers of the Commission on an appeal are set out in section 84 of that Act, which states: 84 (1) On an appeal 1 As the Code was in force at the time of the alleged contravention, sections of the Code are cited in the determination. However, at the time of the determination and the appeal, the Forest and Range Practices Act was in force and is the legislation that applies to the powers of the District Manager and the appeal provisions to, and powers of, the Commission.

2 DECISION NO FOR-010(a) Page 2 (a) by a person under section 82(1), or (b) by the board under section 83(1), the commission may (c) consider the findings of the person who made the determination or decision, and (d) either (i) confirm, vary or rescind the determination or decision, or (ii) with or without directions, refer the matter back to the person who made the determination or decision, for reconsideration. Mr. Neville appeals to the Commission on the following grounds: 1. The District Manager erred in determining that Mr. Neville contravened sections 70(3) and 70(4)(e) of the Code. Mr. Neville states that he selectively logged 12.7 hectares of timber from Block 1, CP B prior to December 31, At that time, silvicultural obligations were the responsibility of the Crown. 2. If he was required to bring Block 1, CP B to free to grow status, in fact, he did so. Mr. Neville states that the evidence shows that he exercised due diligence and that he complied with his obligations. He submits that his free to grow survey better reflects the actual volume of acceptable trees that are free to grow than the Ministry s survey. 3. If free to grow status has not been achieved, Mr. Neville submits that the penalty that has been imposed is excessive and unwarranted. Mr. Neville asks that the District Manager s determination be rescinded. BACKGROUND The background to this appeal spans many years and many legislative changes. W0451 was granted to the Appellant in August of 1985 for a term of 15 years. The licence area was made up of 68.8 hectares of private land and 360 hectares of adjacent Crown land, situated a little north of the town of Golden. At that time, this area was part of the Golden Forest District. The Allowable Annual Cut of W0451 was set at 870 cubic metres per year for the 5- year cut control period starting January 1, 1986, of which 724 cubic metres was to come from the Crown land area of the woodlot. CP B was issued on March 1, 1986, which gave the Appellant the authority to harvest trees from Block 1 (23.4 hectares). At this time, there were no legislated silviculture obligations on a woodlot licensee, and the concept of reforestation to bring a stand to free to grow status did not exist in the legislation. The management of woodlots was conducted according to an approved management and working plan. The 1985 management and working plan for W0451 was not provided to the Commission but, according to the terms of the licence, it would have set out the harvesting and any reforestation methods

3 DECISION NO FOR-010(a) Page 3 that were to be followed, among other things. This situation changed when Bill 70, the Forest Amendment Act (No.2), 1987, was passed into law. On December 17, 1987, Forest Amendment Act (No.2), 1987, S.B.C. 1987, c. 54 came into force (the Amendment Act ). It made substantial changes to the Forest Act, including changes to the rights and obligations of woodlot licensees, especially with respect to silviculture. Specifically, it transferred responsibility from the Crown to the licensee. The then District Manager, Dave Parsons, wrote to the Appellant on March 25, 1988 outlining these changes: Recent changes to the Forest Act Bill 70 defines a woodlot licence as a major licence. As a result, the financial responsibility for regeneration to the free-to-grow stage rests with the woodlot licensee. Therefore, the Ministry of Forests and Lands cannot provide seedlings free of charge for areas logged on or after October 1, As part of this transfer of responsibility for silviculture from the Crown to the woodlot licensees, the licensees were required to obtain approval of a pre-harvest silviculture prescription ( PHSP ) which addressed basic silviculture. According to the Appellant, he selectively logged approximately 1631 cubic metres of timber from Block 1 and that most of it was logged prior to the new obligations under the Amendment Act came into force. However, the Respondent s Results Based Code Silviculture and Land Status Tracking System (RESULTS) shows that Block 1 was harvested between May 1988 and December 1988 after the amendments had come into force. The District Manager s decision was based on this understanding. This factual dispute will be addressed in the Discussion and Analysis, below. A PHSP for Block 1 of CP B was approved by the District Manager on June 8, 1989 (the original PHSP ). The prescription details for the block were as follows: Statement of Management Objective: To produce by natural regeneration a stand of Douglas fir (lodgepole pine) sawlogs and peelers at rotation of years [emphasis added]. The stated means of achieving this objective included leaving a minimum 40 to 100 Douglas-fir trees per hectare, of good form and greater than 20 cm dbh (diameter at breast height). Silviculture: Area = 23.4 hectares Target stocking standard = 900 stems per hectare for Fir, with 1,100 including Lodgepole Pine. Minimum stocking standard = 600 stems per hectare for a Fir leading stand, or 800 for a Pine leading stand. Regeneration Delay = 7 years

4 DECISION NO FOR-010(a) Page 4 Free Growing Assessment: Brush/Conifer Ratio = 1.0 Early = 9 years (May, 1998) Late = 15 years (May, 2003) The PHSP also noted that brush was not considered a problem on the site. According to the original PHSP, the approved means of regenerating Block 1 was naturally, i.e., by leaving mature seed trees in the block to grow new trees as opposed to planting seedlings. According to the Appellant he left approximately mature fir seed trees per hectare as leave trees for natural regeneration during harvesting. Approximately 3 hectares of site preparation was performed using a small cat (tracked dozer). Although the Appellant could have harvested more under his licence, he chose not to do so. In October of 1990, he wrote to the District Manager outlining several concerns about the administration of W0451, and concluded by stating that he was surrendering the licence. In this letter, the Appellant stated that the combination of new management obligations and restrictions in the Forest Act, as well as the tenfold increase in stumpage rates, rendered the woodlot financially unviable. The Ministry initially refused to cancel the licence as the Appellant had not completed certain contractual obligations on the block. After additional correspondence and the completion of those contractual items, the Ministry accepted the surrender of the licence in Both prior to and following 1993, the Ministry repeatedly advised the Appellant that his silviculture obligations under the original PHSP remained in place, regardless of whether the licence was cancelled. In particular, in letters dated October 1st, and November 3, 1993, the Ministry reminded the Appellant that the basic silviculture obligations in the original PHSP continue even when the licence is surrendered and cancelled. The Appellant states that in 1994, he walked the block and found it to be sufficiently stocked with natural regeneration and that the brushing problem was not impeding the seedlings at that point. However, in May of 1994, Kevin Edquist, Woodlot Forester with the Ministry, walked the block. He found the areas that were subject to the PHSP were not satisfactorily stocked with trees that met acceptable regeneration standards. In letters dated July 20, 1994 and May 16, 1995, the Ministry again wrote to the Appellant about his silviculture obligations and requested further information. The Appellant inspected the area in 1995 and informed the Ministry that natural regeneration appeared to be adequate. Communication took place between the Ministry and the Appellant in 1995 and 1996 over the regeneration delay and the free growing timeframes of the original PHSP.

5 DECISION NO FOR-010(a) Page 5 In the meantime, on June 15, 1995, the Code had come into effect. Section 224 of the Code stated that its provisions applied to a PHSP approved prior to the June 15, Section 224(4) of the Code provided that such PHSPs are deemed to be a PHSP under the Code and remain in effect until a free growing stand is produced on the area under the prescription or the prescription is replaced with a PHSP prepared in accordance with the Code. Free growing stand was defined in section 1(1) of the Code as Free growing stand means a stand of healthy trees of a commercially valuable species, the growth of which is not impeded by competition from plants, shrubs or other trees. The Ministry wrote to the Appellant again on January 21, It notes that when Kevin Edquist walked through Block 1 in 1994, he found the areas under prescription were not satisfactorily stocked with acceptable regeneration, and there was very little natural regeneration occurring. The Ministry stated that a stocking survey is necessary to confirm this. It advised the Appellant that if the areas are found to be insufficiently stocked, a prescription is required to ensure that the stand will reach free growing status by In the winter of 1997, the Appellant retained Valley Enterprises to conduct a regeneration survey of Block 1. The survey was performed on September 24, 1997 (the 1997 Survey ). It found a total of 746 well-spaced coniferous stems per hectare ( SPH ), of which 164 were free to grow. The Appellant submits that this survey showed that Block 1 was sufficiently stocked according to the original PHSP and the 1985 management and working plan. Following the 1997 Survey, the PHSP was amended (the amended PHSP ). 2 It changed the management objective to multi-layered stand development to reflect management intent to manage a multi-layered stand, reserving mature timber until the next rotation. It set out different minimum stocking and free growing standards based on layers. Layer (height/diameter class) Target Stocking Standard (well-spaced stems per hectare) Minimum Stocking Standard (preferred and acceptable) (well-spaced stems per hectare) Minimum Stocking Standard (preferred only) (well-spaced stems per hectare) 1 (Mature) (Pole) (Sapling) (Regeneration) The RPF prepared the amended PHSP on October 16, Mr. Neville signed the amended PHSP on November 17, 1997 and the District Manager approved it on December 17, 1997.

6 DECISION NO FOR-010(a) Page 6 The amended PHSP also reduced the net block area to reforest from 23.4 hectares to 12.7 hectares to reflect what had actually been harvested. In a letter dated June 13, 2002, the Ministry advised the Appellant of his obligation to establish a free growing stand under section 70 of the Code. The letter states, Given the harvest commencement date of May, 1988, and a late free-growing assessment period of 15 years, the date by which this block must achieve free growing is May 31, The Appellant states that he was told by the Ministry in 2004 that he needed to do a brushing treatment to bring the block into compliance. Accordingly, in April of 2005 he brushed approximately 3 hectares. At that time he noted, the pine was breaking through and doing very well and that it is sufficiently stocked and those trees [sic] so close to being above the competing vegetation it looked to me like it would pass a free growing survey. As a result, he concentrated on the area he felt was most in need of brushing until his machine broke down. In his view, it seemed to me at the time that there was a lot more than half free to grow. A Free Growing Survey was conducted in September 2005 by Barb Wadey, Compliance and Enforcement Forester, and Kevin Lavelle, Stewardship Officer, both with the Ministry (the 2005 Survey ). Twelve plots were used to estimate 283 free-growing SPH in the understory layers (Layers 3 (sapling) and 4 (regeneration)), and 133 SPH in the overstory seed tree layer, of which 83 are mature coniferous (Layer 1). No Layer 2 preferred and acceptable free growing stems were found. The surveyors concluded that The block is stocked but not free growing. Based on the 2005 Survey, the District Manager notified the Appellant that he may be in contravention of the Code for failing to meet his silviculture obligations. He provided the Appellant with an opportunity to be heard. This was conducted by way of teleconference on December 12, The Determination and Appeal On April 27, 2006, the District Manager issued the determination that is the subject of this appeal. He found that the Appellant contravened sections 70(3) and 70(4)(e) of the Code: 70. (3) If the holder of a major licence or woodlot licence is required to submit a silviculture prescription and the commencement date has occurred, the holder must establish, in accordance with the regulations and standards and the prescription, a free growing stand on those portions of the area under the prescription that are within the net area to be reforested. (4) Without limiting subsection (2) or (3), the person who is required to establish the free growing stand under the prescription must do all of the following: (e) within the free growing assessment period specified in the prescription, establish a free growing stand that meets the stocking requirements as defined in the regulations and specified in the prescription;

7 DECISION NO FOR-010(a) Page 7 The District Manager states: 1. The survey conducted by Ministry staff in September 2005, included the overstory (seed trees), 83 coniferous/hectare. However the total free to grow stems of 366 [from Layers 3 & 4 combined] fell short of the minimum requirement of 700 stems/hectares. 2. The survey also identified an additional 200 stems/hectares that would benefit if the competing deciduous cover was treated or removed. This would bring the total free to grown stems to 566, still short of the minimum requirement. It appears that your brushing efforts in April 2005 have come too late to provide any benefit to the cut block. Brushing/treatment efforts for deciduous should have been conducted much earlier and monitored to evaluate the benefit to achieving your free to grow target. The District Manager considered the factors set out in section 71(5) of the Forest and Range Practices Act and assessed a penalty of $3,000 for the contravention of section 70(3) and $2,000 for the contravention of section 70(4)(e). In a Notice of Appeal dated May 17, 2006, the Appellant appealed the findings of contravention and the penalties to the Commission. At the request of the Respondent and with the consent of the Appellant, the hearing was conducted in writing. ISSUES The issues raised in this appeal are as follows: 1. When did the Appellant harvest the timber from Block 1? 2. Whether the Appellant has discharged his silviculture obligations, if any. 3. If there has been a contravention, is the penalty appropriate in the circumstances. RELEVANT LEGISLATION The sections of the Forest and Range Practices Act that are relevant to the District Manager s decision-making powers are set out below. Other relevant legislation is set out in the Discussion portion of this decision, as needed. Forest and Range Practices Act Applicability of certain provisions of Part 6 of this Act for the Forest Practices Code of British Columbia Act 58.2(1) Sections 71 (1), (2), (5) and (6), of this Act apply to and in respect of (a) the Forest Practices Code of British Columbia Act, and (b) the regulations or standards under that Act

8 DECISION NO FOR-010(a) Page 8 in relation to the period that ended at midnight on January 30, Administrative penalties 71 (1) The minister, after giving a person who is alleged to have contravened a provision of the Acts an opportunity to be heard, may determine whether the person has contravened the provision. (2) After giving a person an opportunity to be heard under subsection (1), or after one month has elapsed after the date on which the person was given the opportunity, the minister, (a) if he or she determines that the person has contravened the provision, (i) may levy an administrative penalty against the person in an amount that does not exceed a prescribed amount, or (ii) may refrain from levying an administrative penalty against the person if the minister considers that the contravention is trifling and that it is not in the public interest to levy the administrative penalty, or (b) may determine that the person has not contravened the provision. (3) Subject to section 72, if a person's contractor, employee or agent contravenes a provision of the Acts in the course of carrying out the contract, employment or agency, the person also contravenes the provision. (4) If a corporation contravenes a provision of the Acts, a director or an officer of the corporation who authorized, permitted or acquiesced in the contravention also contravenes the provision. (5) Before the minister levies an administrative penalty under subsection (2), he or she must consider the following: (a) previous contraventions of a similar nature by the person; (b) the gravity and magnitude of the contravention; (c) whether the contravention was repeated or continuous; (d) whether the contravention was deliberate; (e) any economic benefit derived by the person from the contravention; (f) the person's cooperativeness and efforts to correct the contravention; (g) any other considerations that the Lieutenant Governor in Council may prescribe. DISCUSSION AND ANALYSIS 1. When did the Appellant harvest the timber from Block 1? In order to determine whether there is any contravention at all, the first issue to be determined is when the Appellant harvested Block 1. This is because the nature of the Appellant s silviculture obligations depend upon when the harvesting occurred.

9 DECISION NO FOR-010(a) Page 9 The Amendment Act came into force on December 17, As noted above, it did a number of things. It created an obligation for woodlot licensees to perform basic silviculture, it established an obligation to create a free growing (or free-to-grow) stand, and it established a requirement for woodlot licensees to prepare, prior to harvesting, a PHSP. This Act was intended to change the way forests were being managed and regenerated. The relevant changes set out in the Amendment Act are as follows: 1. Section 1 of the Forest Act, R.S.B.C. 1979, c. 140, is amended (a) by adding the following definitions: basic silviculture means such harvesting methods and silviculture operations including seed collecting, site preparation, artificial and natural regeneration, brushing, spacing and stand tending and other operations as are prescribed to be required for the purpose of establishing a free growing crop of trees of a commercially valuable species; free growing crop means a crop of healthy trees, the growth of which is not impeded by competition from plants, shrubs or other trees; major licence means (c) a woodlot licence, 11. The following Part is added immediately after section 129: Part 10.1 Silviculture Duty of major licence holders respecting basic silviculture (1) A holder of a major licence who harvests timber under the licence shall, at his own expense and in accordance with (a) the regulations, and (b) a pre-harvest silviculture prescription approved under this section, carry out during harvesting, and continue without interruption after harvesting, basic silviculture on the land from which the timber is harvested. Transitional basic silviculture 18. (2) Where the district manager determines that harvesting of timber from an area authorized for harvesting under a major licence was completed after

10 DECISION NO FOR-010(a) Page 10 September 30, 1987 but before section of the Forest Act came into force, the holder of the licence shall, at his own expense and in accordance with directions of the chief forester, carry out basic silviculture on the land from which the timber was harvested. [emphasis added] The Commission has carefully reviewed the changes made by the Amendment Act and finds that there are three relevant time frames to be considered in this appeal: Time #1: Harvesting completed up to September 30, Any obligations for silviculture are set out in management and working plans approved for the woodlot. Time #2: Harvesting completed between October 1, 1987 and December 16, 1987 basic silviculture to be carried out by the holder of the licence at his own expense and in accordance with directions of the chief forester. Time #3: Harvesting completed from December 17, 1987, onward. Carry out basic silviculture (ensure a free growing crop of trees) in accordance with an approved PHSP. The correspondence in this case indicates that there is a misunderstanding or disagreement about when the timber was harvested in Block 1. As noted above, the Ministry s RESULTS system shows that Block 1 was harvested between May 1988 and December In Barb Wadey s summary of the 2005 Survey, she states that the logging was around The District Manager also based his determination on this understanding. However, the 1997 Survey stated that the harvesting was done by the Appellant in The Appellant says that he started logging with the issuance of his timbermark on March 1, 1986, and that he completed the logging prior to December 31, The Commission was provided with a record of annual timber harvest volume before 1988 for the Appellant s operation. This document was sent to the Appellant by the Office of the District Manager on June 6, It shows that the total volume logged from the block is 1631 cubic metres. Of that, 564 cubic metres was cut in 1986, and 1067 cubic metres was cut and billed between January 1 and December 31 of This is the most reliable evidence of harvesting dates that is before the Commission. In light of this evidence, it appears that the 564 cubic metres would clearly fall within Time #1, and is subject to the requirements of the 1985 management and working plan. Of the remainder, 1067 cubic metres, the Commission only knows that it was cut in the 1987 calendar year the actual dates are unknown. It could be that the entire amount was harvested in Time #1 (January 1 to September 30). Or it could be that some was harvested within Time #2 (October 1 December 16, 1987), and into Time #3 (December 17 to December 31). In this circumstance, the Commission has decided to prorate the harvesting volume over the 365 day year to get a daily volume. This daily volume can then be attributed to the relevant time

11 DECISION NO FOR-010(a) Page 11 periods in order to get a percentage of timber harvested in the various timeframes. In the absence of evidence, this seems to be the most reasonable way to proceed. There are 92 days from October 1, 1987 to December 31, This amounts to 25% of the year (92/365 = 25%). Twenty five percent of the 1067 cubic metres harvested in the year 1987 is 267 cubic metres. Accordingly to this calculation, 267 cubic metres would fall within the period of time after September 30, Of the total volume harvested from Block 1 (1631 cubic metres) the volume harvested after Time #1 amounts to 16% (267 cubic metres/ total cut of 1631 cubic metres = 16%). This amount was harvested within the Time #2, or Time #2 with a short overlap into Time #3 (December 17-31, 1987). Put another way, the Commission finds that 84% of the total volume harvested from Block 1 (1631 cubic metres) occurred during Time #1. During this time frame, section 145 of the Forest Act applied. Under this section, a woodlot licence only required that a management and working plan be approved and, therefore, the Code contraventions at issue in this case (failure to comply with prescriptions) do not apply to the area harvested during this time frame. The Commission finds that the efficacy of the natural regeneration is not an issue for areas from which timber was harvested in Time #1. During the Time #2 and Time #3 periods, the woodlot licensees were to carry out basic silviculture, at their expense, on lands logged after September 30, The definition of basic silviculture set out in the Amendment Act includes the free growing requirement. Based on the Commission s calculations above, the portion of the 1987 harvest that falls within these time periods is 267 cubic metres which is 16% of the total volume harvested from Block 1, not the entire amount as found by the District Manager. Of this, only the portion harvested between December 17 and December 31, 1987 would be subject to the requirements in an approved PHSP. Accordingly, the Commission finds that, based on the evidence, the requirements of basic silviculture and obligations under the PHSPs, original and amended, only apply to 16% of the free-to-grow regeneration requirement for the areas harvested on Block Whether the Appellant has discharged his silviculture obligations, if any. First, what are the relevant silviculture obligations? The obligations are basic silviculture for areas harvested within Time #2 (transition period), and basic silviculture in accordance with an approved PHSP for harvesting within the Time #3 period. In either case, the requirement for a free growing stand must be met. The evidence before the Commission conflicts on a number of matters relevant to this issue. First, there is the matter of who prepared and submitted the original PHSP. The Appellant states that he hired an RPF to prepare it, but elsewhere says that the PHSP was prepared by Ministry staff. The 1989 document itself does not

12 DECISION NO FOR-010(a) Page 12 record who prepared it, but the original PHSP was approved by Brett Salmon, R.P.F., with the Ministry, and was signed by the District Manager. The 1997 amended PHSP was prepared by Brian Amies, R.P.F. There is no dispute that this amended PHSP was prepared by the Ministry. The original PHSP contains a well-spaced coniferous stocking target of 900 SPH for leading Douglas-fir or 1,100 SPH for lodgepole pine, with minimum acceptable levels of 600 and 800 respectively. It set a natural regeneration delay of 7 years. The amended PHSP changed the stocking standards to reflect multi-layer stand development, but also increased the target and minimum levels substantially. The Ministry changed to a target of 2200 and minimum of 1000 for Layers 3 and 4 (the understory) combined, and a target of 1,400 and a minimum of 550 for Layers 1 and 2, combined. The amendment also introduced a window of 12 to 15 years for free growing assessment. These prescriptions were made pursuant to the 1988 Silviculture Regulation, B.C. Reg. 147/88. There has also been dispute over the boundaries of the harvested area. Ms. Wadey notes in her September 8, 2005 free-growing survey report that The block boundaries are difficult to determine in places as the original block boundaries were not followed and the logging kind of weaved in and out of the mature type. In rebuttal, the Appellant states that he paid for the block boundaries to be established by traverse survey in The District Manager in his Determination resolved the uncertainty in the Appellant s favour, stating: In reviewing this file including technical review with Ministry staff I am satisfied that the entire block does not comply with the free to grow and stocking standard requirements prescribed. However, some uncertainty has been raised with respect to the actual area of the logged portion of the block. This uncertainty has been raised with respect to the actual area of the logged portion of the block. This uncertainty does not negate the contravention, but does challenge the magnitude and I have accepted that a smaller area may be in non compliance. The Commission also notes that there is some dispute over what was actually done on the block. The Ministry relied upon its RESULTS data base for information about the silvicultural status of the block. The Appellant provided information, which the Commission accepts, that shows the data entered for W0451 contains substantial errors, such as the date of harvest (shown as 1988). The Appellant states that the RESULTS data base also shows that he planted 4.8 hectares in May of 1998 whereas, in fact, all trees in Block 1 are there by natural regeneration, or left from the original stand for seed trees, as specified in the 1985 management and working plan. None were planted. The Commission finds that, except for the date of harvest which the Commission has addressed earlier in this decision, this incorrect information in this system does not affect the outcome of this issue. The most significant dispute to be resolved in this case relates to the results of the two surveys. The Appellant maintains that if he had any obligation to bring Block 1 to free to grow status, in fact, he met this obligation. He submits that the 1997

13 DECISION NO FOR-010(a) Page 13 Survey more accurately reflects the actual volume of acceptable trees that are free to grow than does the Ministry s 2005 Survey. The Commission was provided with the plot cards and the detailed summarization of the 1997 Survey, the 2005 Survey summary and the 2005 Survey plot cards. The District Manager based his determination on the results of the 2005 Survey. There are significant differences in the results of the two surveys. The Appellant notes that the 2005 Survey states that there were fewer trees in the free growing Layer 1 (83 per hectare) than were found 8 years earlier in the 1997 Survey (164 per hectare). In an attempt to explain these differences, the Appellant retained Barb Marshall, a consulting silviculture surveyor, to review the Ministry s 2005 Survey and to compare the 2005 Survey data with the 1997 Survey data. Ms. Marshall s findings were provided to the Commission. Ms. Marshall identified a number of problems with the 2005 Survey. Some of the errors she notes in her review of the 2005 Survey are summarized as follows: The Ministry says that of the 6350 total samples, 3833 are coniferous SPH = 60% deciduous. In fact, the correct math is 60% are coniferous. The written report contains unsubstantiated assumptions. Survey parameters are not established. The PHSP contains no minimum free growing height requirement, yet the survey states that the smaller coniferous trees do not meet free growing heights yet. The PHSP identifies the Brush/Conifer [height] ratio as 1:1 (100%). However, the Ministry surveyor used 150% [1:1.5] which reduces the tally of free growing stems reported [found] by the Ministry. There are numerous errors made in the survey summary, e.g., 67 free growing Layer 2 conifers are not mentioned, but are recorded on the four pages of plot cards. Survey confidence limits were not established. The Ministry survey sample plot locations are biased. The need for uniform plot location increases with stand variability. Sample plot locations eliminate the areas of advanced regeneration and seed trees left by the Appellant during harvest. Decreased stocking and free growing numbers result. Conversely, Ms. Marshall is of the view that the 1997 Survey exemplifies accurate data collection and reporting. She estimates that the block is now producing conifers at 88.5% of its capacity. In her view, there is a need for the stand to be re-evaluated. She also states that the potential to increase volume productivity by cutting deciduous is low. In her letter summarizing her findings for the purposes of the appeal, Ms. Marshall points out that if one steps back from the trees and looks at the

14 DECISION NO FOR-010(a) Page 14 forest, the area is producing conifers and meeting visual, recreational and wildlife objectives. Ms. Marshall s conclusions were also set out in a December 13, 2005 letter to the District Manager written after the opportunity to be heard teleconference, and confirmed in a letter for the Commission. 3 She states: My intent is to emphasize that we do not know if the area in question is free growing or not. The free growing survey procedures as they were originally derived were not created for complex stand structures. The Sept survey does not accurately reflect stocking as foremost it does not consider for the size of the seed trees. The Ministry has developed a more appropriate method to assess the stocking in stands with multiple layers [Deviation from Potential]. The Commission s findings The Commission agrees with the Ministry that silviculture obligations continue long after harvesting has been completed. Unfortunately, the silviculture obligations placed on the Appellant in this case kept changing. The Appellant s obligations first changed when he was required to obtain an approved PHSP. The original PHSP was approved in Then the obligations changed again in 1997 when the amended PHSP was approved. In addition, there were numerous legislative changes to the requirements for forest regeneration, and the definition of free growing became a legislated parameter of silvicultural performance. The Amendment Act came into force in 1987 along with changes to the regulations [which haven t been discussed in this decision]. In 1995, the Code came into force and with it further new regulations dealing with silviculture. There is no question that the silviculture world was a different place by the time the District Manager s determination was made, than it was when the Appellant first obtained his licence and harvested Block 1. In addition to these changes, the Ministry was operating under incorrect assumptions or information about when the harvesting actually occurred. The Appellant was clearly facing a number of difficulties in relation to a licence which he had surrendered in the first place because it was not financially viable. Although the Commission is sympathetic to the Appellant, the Commission finds that he retained some silviculture obligations which had to be met. The Commission now turns to the evidence. The 1997 Survey was completed shortly before the amended PHSP was approved. That survey used lower stocking standards than those set out in the amended PHSP. Reviewing the survey and the plot cards, the Commission notes that the 1997 Survey showed a combined target of 1800 and combined minimum of 900 for Layers 3 and 4. For Layers 1 and 2, it showed a combined target of 1000 and combined minimum of Ms. Marshall joined in the opportunity to be heard teleconference to assist the Appellant.

15 DECISION NO FOR-010(a) Page 15 The results of the 1997 Survey show 564 well spaced coniferous in Layers 3 and 4, and 182 in Layers 1 and 2. These results are well below the standards of the amended PHSP, but the 746 SPH total is slightly better than the original PHSP s minimum for leading Douglas-fir. However, it is not clear whether the original stocking standards allowed for the inclusion of the seed trees with the count of regeneration, in determining the required stocking. The 1997 Survey results also show only 164 SPH free to grow trees, all in Layer 1, and in total there are 5218 SPH of which only 1890 SPH are coniferous. In Layers 3 and 4, the understory, the total tree count is 4782 SPH of which 1544 SPH are coniferous. Overall, the results indicate to the Commission that, in the first 10 years after logging, the site suffered from deciduous competition and a well-spaced free-to-grow coniferous stand was far from being established. The 2005 Survey, 18 years after logging, showed that Layers 3 and 4 contained 6350 SPH of which 3833 are coniferous. Further, in these understory layers, 900 SPH were well spaced and 283 SPH were free growing. For the overstory, the survey found only 83 SPH well spaced free to grow coniferous. While these results show that understory regeneration is on-going, the stand is far from satisfying the well-spaced free-to-grow objectives stated in the amended PHSP. Ms. Marshall s position that the 2005 Survey cannot be conclusively read as showing that the site is not satisfactorily free-growing, and that further evaluation is necessary, is not helpful. The Commission finds that, on a balance of probabilities, the site does not meet the present standards for satisfactory free-to-grow regeneration, either under the relevant definitions or under the PHSPs. However, natural regeneration is ongoing. The Commission acknowledges that the Appellant has been put through considerable strain over the issue of adequate regeneration on Block 1, and has had to expend a great deal of time and energy defending his position in the face of several misunderstandings or errors of fact made by the Ministry. The greatest of these was the belief on the part of the Ministry that the logging took place in 1988 and 1989 and, therefore, the Appellant was wholly responsible for regeneration to a satisfactory free-to-grow stage. The second difficulty faced by the Appellant was the rapidly shifting goal posts for determination of satisfactory regeneration, all while he was trying to surrender the licence area and wrap up his obligations. The silvicultural fate of this site was likely determined in the approval of the original logging plan in 1985 to selectively harvest and rely on natural regeneration. The management concept of free to grow was introduced after the logging was all but completed. The Commission is not aware of an obligation in the original management and working plan to achieve satisfactory regeneration within a specific period of time, or even what the stocking standard was. Presuming that the standard of the original plan was that articulated in the original PHSP, in 2005, the 900 well spaced SPH in the understory met the standard; however, on the free-togrow basis, the site is not yet adequately regenerated.

16 DECISION NO FOR-010(a) Page 16 Therefore, the Commission finds that the Appellant contravened the Code by failing to discharge his basic silviculture obligations for the 16% of the timber harvested for which he was responsible to bring to free to grow. The Commission has considered the Appellant s submissions regarding the defence of due diligence and finds that the steps he took to re-establish an adequately stocked free-to-grow stand in the required timeframe were deficient. While the Commission has found that the Appellant s responsibilities under the 1989 PHSP and its 1997 Amendment were limited to only that portion of the block harvested after September 30, 1987, his actions were late and fell short of what has ultimately been shown to have been necessary in the particular circumstances of the site. The block had been harvested in 1986 and 1987, but it wasn t until 10 years later, in 1997, that the Appellant had a proper regeneration survey completed, and this survey showed that treatment was necessary. The survey had only been done after the Ministry inspected the site in 1993 and 1994, and wrote numerous times to Mr. Neville about his regeneration obligations from 1993 onward. In 1994 the Ministry also provided Mr. Neville with its estimates of the costs required to achieve satisfactory regeneration. The Appellant s walk-throughs in 1994 and 1995, survey in 1997, and 3 hectares of brushing in 2005 were inadequate efforts to address the regeneration needs that had been identified as a concern since at least If there has been a contravention, is the penalty appropriate in the circumstances. As noted at various times by the Commission, the purposes of administrative penalties are to compensate the Crown for any losses caused by the contravention, as well as to deter people from future contraventions. When assessing the penalty of $3,000 for the contravention of section 70(3) and $2,000 for the contravention of section 70(4)(e), the District Manager considered the factors set out in section 71(5) of the Forest and Range Practices Act. He noted that there were no previous contraventions of a similar nature; however, the gravity and magnitude of the contravention was significant. The Appellant s failure to comply with a legal requirement and his [PHSP] has effectively resulted in a significant area of forest land remaining unproductive for the growth of commercial trees for an extended period of time. Further, the contravention was not repeated or continuous, although the Appellant did not respond to some precautionary letters from the Ministry of Forests and Range. The contravention was not deliberate, but there was, over a long period of time, a failure to take appropriate corrective action. As Mr. Neville did not expend the time resources or money required to meet the legal obligation he reaped an economic benefit. In mitigation, the District Manager found that Mr. Neville had been cooperative throughout the investigation. The Commission has also considered the factors set out in section 71(5) of the Forest and Range Practices Act and agrees with the District Manager s findings, with the exception of those in relation to the gravity and magnitude of the contravention. The Commission disagrees with the Ministry s assessment and has found that only 16% of the silviculture obligation belonged to the Appellant.

17 DECISION NO FOR-010(a) Page 17 The District Manager arrived at a total penalty of $5,000. Presumably this was to compensate the Crown for its loss. The Appellant surrendered his licence so there is no need for specific deterrence in this case. The Commission notes that, in 1994, the Ministry estimated that achieving satisfactory regeneration would require the expenditure of $16,200 in silviculture survey and work. The Appellant has strongly disputed the details of this estimate, and the Commission finds his evidence both compelling and credible. Perhaps the reason that the District Manager levied a penalty of $5,000 instead of the full 1994 estimate is because the Appellant provided valid objections during the opportunity to be heard. A further 12 years have passed since that Ministry cost estimate. Given the trends evident from the 1997 Survey and the 2005 Survey, it is most likely that intervention to achieve satisfactory free-to-grow regeneration, in a period of time less than nature is taking, can be achieved at much lower cost than the Ministry s 1994 estimate. Considering the cost assessments used to arrive at the $16,200 figure, the Commission finds that, for the purpose of this decision, $5,000 would be the maximum appropriate penalty if the Appellant was wholly responsible. However, as the Commission finds that he is only 16% responsible, it assesses a total penalty of $800. DECISION In making this decision, this Panel of the Commission has considered all of the evidence and arguments provided, whether or not they have been specifically reiterated here. For the reasons provided above, the Commission upholds the contravention of section 70(3) and section 70(4)(e) of the Code, but the penalty is varied to $800. The appeal is allowed, in part. David Ormerod David Ormerod, Panel Chair Forest Appeals Commission February 22, 2007