Decision Date: August 11, 2010

Panel: Alan Andison

Keywords:  Forest and Range Practices Act – ss. 52(1), 52(3); unauthorized timber harvesting; unauthorized removal of Crown timber; fish habitat; penalty

Rick Bullen appealed a determination issued by the District Manager, South Island Forest District, Ministry of Forests and Range.  The District Manager determined that Mr. Bullen contravened sections 52(1) and 52(3) of the Forest and Range Practices Act (the “FRPA”) by cutting and removing Crown timber without authority.  The District Manager levied administrative penalties of $1250 per contravention, for a total penalty of $2,500.  A review decision issued by a Ministry official confirmed the District Manager’s determination and the penalties.

The Ministry’s investigation into the matter began after it received an anonymous tip alleging that Mr. Bullen had cut Crown timber adjacent to a power line behind Fanny Bay, BC, and had used his skidder to transport the log to a private property owned by an acquaintance of Mr. Bullen.  Ministry officials had attended at the site and found a bucked windfall tree on Crown land, signs of machine entry into the forest, and drag marks leading down a Forest Service road to a trail, across a fish-bearing stream, and further down the trail to a bucked Douglas Fir log matching the bucked windfall.  Investigators also found that a cedar log embedded in the stream bank had been cut, and there were drag marks leading down a trail to the property owned by Mr. Bullen’s acquaintance.  A cedar log matching the log embedded in the stream was found lying adjacent to the acquaintance’s property, and Mr. Bullen’s skidder was parked on or adjacent to the property.  Ministry investigators interviewed several neighbours, who asked to remain anonymous, that claimed to have heard a chainsaw and skidder operating, and seen Mr. Bullen’s truck and skidder parked on the acquaintance’s property, on the day of the contraventions.  The Ministry also interviewed Mr. Bullen, but he ended the interview shortly after being asking about the vehicle he was driving on the day of the contraventions.

Mr. Bullen appealed to the Commission on the basis that he did not commit the contraventions.  He requested that the Commission overturn the decision.  At the appeal hearing, Mr. Bullen submitted that the allegations made by the anonymous informants were false.  He also provided letters from several people stating that they had asked Mr. Bullen to cut trees on their private property prior to the date of the contraventions, and that he was out of town the day after the contraventions occurred.

The Commission reviewed the evidence provided by the parties regarding the circumstances of the contraventions, and whether there was sufficient evidence to establish that Mr. Bullen committed the contraventions.   The Commission found, on a balance of probabilities, that Mr. Bullen was responsible for the contraventions.  In particular, the Commission held that it was very unlikely that someone other than Mr. Bullen cut the logs and used his skidder, or another skidder, to move the logs.  The Commission found that, on or about one day after the contraventions occurred, Ministry investigators observed distinct and recent drag marks leading from the unauthorized harvesting sites to the site where Mr. Bullen’s skidder was parked.  No others skidders were observed in the area during that time, and Mr. Bullen testified that he removes the battery from his skidder when he is not using it.  Mr. Bullen testified that he is an experienced logger, and he owns the skidder that was observed parked near his acquaintance’s property.  Further, the sawdust and cuts observed by the investigators were very recent, and the logs found near the property of Mr. Bullen’s acquaintance matched the timber that was cut without authority.  In addition, Mr. Bullen was vague as to his whereabouts on or shortly before date of the contraventions, despite clearly recalling other events that occurred around that time.  Further, he provided no useful evidence, in the form of documents or corroboration from other persons, regarding his whereabouts or activities on the date of the contraventions.  The Commission put little weight on the allegations made by anonymous informants, as it was impossible to assess the credibility or reliability of their evidence.  However, the Commission concluded that the other evidence was sufficient to establish that it was more likely than not that Mr. Bullen committed the contraventions.

Next, the Commission reviewed each of the factors set out under section 71(5) of the FRPA, and concluded that the penalties were appropriate in the circumstances.  In particular, the Commission found that the evidence established that removing the cedar log from the stream bank and dragging logs through the stream channel had caused serious damage to fish habitat in the stream.

Consequently, the Commission held that the determination and the penalties should be confirmed.  The appeal was dismissed.