Fourth Floor 747 Fort Street Victoria British Columbia Telephone: (250) 387-3464 Forest Appeals Facsimile: (250) 356-9923 Mailing Address: PO Box 9425 Stn Prov Govt Commission Victoria BC V8W 9V1 DECISION NO. 2011-FOR-003(a) In the matter of an appeal under section 82 of the Forest and Range Practices Act, S.B.C. 2002, c. 69. BETWEEN: Greg Schacher APPELLANT AND: Government of British Columbia RESPONDENT BEFORE: A Panel of the Forest Appeals Commission Alan Andison, Panel Chair DATE: November 23 -25, 2011. Concluded by written closing arguments on January 6, 2012. PLACE: Nelson, BC APPEARING: For the Appellant: Greg Schacher For the Respondent: Darcie Suntjens, Counsel APPEAL [1] This appeal is brought by Greg Schacher against a February 25, 2011 Contravention Determination and Notice of Penalty (the “Determination”) issued by Dave Hails, RPF, District Manager (the “District Manager”), Okanagan Shuswap Forest District, Ministry of Forests, Lands and Natural Resource Operations (the “Ministry”). [2] The Determination relates to timber harvesting activities conducted under Forestry Licence to Cut A83099 (the “Licence”), issued to Ian Franklin in September of 2007. The District Manager found that Mr. Franklin and Mr. Schacher, who conducted the harvesting on Mr. Franklin’s behalf, contravened section 52 of the Forest and Range Practices Act (the “Act”) which states: Unauthorized timber harvesting 52 (1) A person must not cut, damage or destroy Crown timber unless authorized to do so (a) under this Act, the Forest Act or an agreement under the Forest Act, … (4) If a person, at the direction of or on behalf of another person, (a) cuts, damages or destroys Crown timber contrary to subsection (1), or DECISION NO. 2011-FOR-003(a) Page 2 (b) removes Crown timber contrary to subsection (3), that other person also contravenes subsection (1) or (3). [3] The District Manager found that more timber was harvested than authorized by the Licence, some of which was cut in an unauthorized area, and that useable timber was left at the site. He found that some reserve trees had been cut and some standing trees had been damaged by a debris pile burn. [4] Based upon the Ministry’s scaling of the unauthorized cut, damaged and destroyed timber at the site, the District Manager levied an administrative penalty of $3,994.93 pursuant to section 71 of the Act. He also determined that Mr. Schacher was 75% responsible for the contravention and ordered him to pay 75% of the assessed penalty, which amounted to $2,996.20. [5] Only Mr. Schacher appealed the Determination and is the Appellant in this case. [6] The powers of the Commission on this appeal are set out in section 84 of the Act, which states: 84 (1) On an appeal … 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. [7] The Appellant alleges that the District Manager made mistakes and that there were errors in the scaling process. His main objections to the Determination are summarized as follows: 1. It was never his intention to harvest and use the entire log. The Ministry was always aware that the purpose of the Licence application was to harvest cedar for shake blocks. 2. The application asked for an “estimate” of the volume to be harvested. He should not be held accountable to a harvest volume derived from an “estimate”. 3. The term “harvest” is not defined in the Licence and it should be interpreted to reflect what everyone knew his intention to be: to obtain the wood for cedar shake blocks. His intended harvest volume was 30 cubic metres (“m3”) of processed shake blocks from dead standing cedar. 4. The Ministry’s scaler failed to conduct the scale of the timber in question in accordance with “well-established, precisely defined, widely known standards”. In particular, the Ministry’s scaler failed to expose the top face of each or any log measured to evaluate the extent of the defects present, in DECISION NO. 2011-FOR-003(a) Page 3 particular, the amount of rot. Thus, her calculation of volume and her assessment of the log grades were “vastly over estimated”. 5. The District Manager erred when he preferred the Ministry’s scale assessment over the more accurate scale completed by his scaler. 6. The District Manager implicitly acknowledged that the Ministry’s scaling results were inaccurate and attempted to address this by applying an arbitrary “fudge factor” reduction of 33%. Instead, the Ministry’s scale results should be ignored because “any amount of ‘massaging’ cannot ensure the level of accuracy has been improved”. 7. The District Manager also incorrectly applied the penalty formula from the legislation. [8] The Appellant did not assert or present any evidence in support of any of the statutory defences of due diligence, mistake of fact or officially induced error found in section 72 of the Act. Rather, he submits that, if there was a contravention, the volume assessed is excessive and the penalty is based upon incorrect assumptions and analysis. He submits that there should be no penalty. [9] In his closing argument, the Appellant submits that the Government should compensate him for the additional expenses that he incurred during the investigation and appeal in order to bring the District Manager’s errors to light. BACKGROUND [10] This appeal stems from a small scale salvage operation that took place in the Fall of 2007 on the west side of Duncan Lake, adjacent to Puddingbowl Creek in the Kootenay Lake Forest District. At the time, the Appellant was a Silviculture Technician employed by the Ministry, and had been working for the Ministry for approximately 20 years. He also owned and operated a cedar shake business and continues to do so. The Appellant makes shakes by cutting cedar logs into blocks and then hand splitting the blocks into shakes that are ultimately used for roofing. [11] In approximately 2004 or 2005, the Appellant went to the Puddingbowl Creek area to check its cedar supply. He walked to the location of the proposed harvest and saw dead standing cedar. As the site was in a relatively remote area with limited vehicle access, he knew that the harvested timber would have to be removed by helicopter. [12] Although the Appellant’s intention was to obtain wood solely for processing into shakes, the Licence that was ultimately issued was not this specific. The disconnect between the Appellant’s intention and the wording of the Licence is the basis for many of the Appellant’s arguments in this appeal. To fully understand these arguments, the Panel will begin by describing the licensing process. THE APPLICATION [13] The licensing process in this case began with the application for a cash sale from the Kootenay Lake Forest District office in Nelson, BC. As the Appellant was employed by the Ministry and was working out of that same District office at the DECISION NO. 2011-FOR-003(a) Page 4 time, he asked his brother-in-law, Mr. Franklin, to submit the application.1 There is no dispute that the Appellant provided Mr. Franklin with instructions on how to fill out the application form. [14] On June 13, 2007, Mr. Franklin submitted an “Application to Purchase Crown Timber, Cash Sale – 0-50 meters, Small Scale Salvage Program” to the District office. The application is a two-page standard form document, with blank spaces for the insertion of information. The relevant portions of the form and Mr. Franklin’s responses (in bold) are as follows: I … Ian Franklin do hereby request to purchase Crown salvage timber on the following described area: Pudding Bowl Fire 60 km Duncan distributed over approximately .5 hectares. No openings over 1.0 ha shall be created: Yes /No I have examined this timber and estimate the approximate volume on the above-described area to be 30 (cubic metres). The type of salvage timber (indicate by mark X): Windthrow Logging residue Landslide Salvage Insect/Disease/Fire X Other (e.g., special forest product) Nature of access: Road X [15] Under the heading “Detailed estimate of type and volume (in cubic metres) to be removed”, Mr. Franklin identified 30 m3 under the heading “cedar”. No other species or volumes were indicated under any of the other categories, including “access/danger trees”, or “Other (eg. Special Forest Products).” [16] Also of note, under the heading “riparian” the form states “are there any estuaries, streams, lakes, or wet areas in the identified area”. Mr. Franklin answered “No” to this question. [17] He also said there were no wildlife trees, no nesting sites and no animal dens. [18] The proposed logging method was identified as “helicopter/handlog”. THE LICENCE AND HARVEST [19] Amy Jaarsma, Small Scale Salvage Coordinator in the Ministry’s District office, processed the application and prepared a draft of the Licence which she gave to Mr. Franklin. [20] Ms. Jaarsma prepared a licence for a “Forestry Licence to Cut” rather than the ‘cash sale’ that was applied for because a cash sale is for pre-harvested wood. In this case the trees were still standing and had not yet been harvested. Therefore, a Forestry Licence to cut was the appropriate licence. 1 At the time this appeal was heard, the Appellant had resigned from the Ministry and was working full-time in the cedar shake business. DECISION NO. 2011-FOR-003(a) Page 5 [21] On or about September 21, 2007, both Mr.