Bb Environmental Law and Procedural Rules

ENVIRONMENTAL LAW AND PROCEDURAL RULES

ENVIRONMENTAL LAW AND PROCEDURAL RULES Anto An to nio ni o G.M. La L a Viña and an d J osef os ef Lero L eroii L. L . Garcia Garc ia

A. Defin Def init it io n

Environmental law covers all laws that relate to the preservation, protection, conservation, exploitation, utilization, development, and management of the environment environment and its natural natural resources. resources. Major Philippine P hilippine environm environmental ental laws laws can be divided into three categories, viz: Thos Those e that primari arily deal with ith: 1) the regulation of exploitation, utilization and development of natural resources; 2) the preservation, preservation, protection, protection, and conservation conservation of flora flora and fauna; and 3) pollution and environmental environmental management management.. category include the following: Thos Those e that belon long to the first category following:

1) P residential residential Decree No. 705, Revised Forest F orestry ry Code, as am amended by Pres. Decree No. 1559, Executive Order No. 277, and Republic Act No. 7161; 2) Rep. Act No. 8550, 8550, P hilippine hilippine F isheries Code; 3) Rep. Act No. 7076, 7076, People’ P eople’s s Sm S mall-Scale all-S cale Mining Mining Act; and 4) Rep. Act. No. 7942 7942,, Philipp P hilippine ine Mining Mining Act. Act. Thos Those e that belon long to the second category include the following: 1) Rep. Act No. 7586, 7586, National Integrated Integrated Protected rotected Areas System S ystem Act; 2) Rep. Act No. 9147, 9147, Wildlife Wildlife Conservation and P rotection rotection Act; and 3) Rep. Act No. 9072, National Caves and Cave Resources Management Act. Thos Those e that belon long to the third category include the following: 1) P res. Decree No. 979, 979, Marine Marine Pollut Pollution ion Decree; Decree; 2) Pres. Decree No. 1586, Establishing an Environmental Impact Statement System; 3) Rep. Act No. 8749, 8749, Clean Clean Air Act; Act; 4) Rep. Act No. 9275, 9275, Clean Clean Water Act; 5) Rep. Act No. 9003, Ecological Solid S olid Waste Was te Management Management Act; and 6) Rep. Act No. 6969 6969,, Toxic Toxic Substances Substances and Hazardous Hazardous Waste Act.

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B. Rules of Procedure for Environm ental Cases Cases

Supreme Court Administrative Matter No. 09-6-8-SC dated April 13, 2010 lays down the Rules of Procedure for Environmental Cases 1. Thes These e Rule Rules s gov govern ern th the pr proce ocedure in in civ civiil, cr crimina inal, an and spec specia iall civ civil act actio ion ns before the Regional Trial Courts (RTC), Metropolitan Trial Courts (MTC), Municipal Trial Courts in Cities (MTCC), Municipal Trial Courts (MTC), and Municipal Circuit Trial Courts (MCTC) involving enforcement or violations of environmental and other related laws, rules, and regulations.2 C. Enviro Enviro nmental Laws Covered Covered by the Rules

It is important to note that Section 2 on the Scope thereof gives an enumeration of said laws and rules that the case be involved in but inferentially states that the listing is not exhaustive by using the phrase “such as but not limited to the following:”

1) Act No. 3572, Prohibit Prohibition ion Against Cutting Cutting of Tindalo, Akli, and Molave Tree Trees; s; 2) P res. Decree No. 705, 705, Revised evised Forest Forestry ry Code; 3) P res. Decree No. 856, 856, Sanitat anitation ion Code; 4) P res. Decree No. 979, 979, Marine Marine Pollut Pollution ion Decree; Decree; 5) P res. Decree No. 1067 1067,, Water Water Code; Code; 6) P res. Decree No. 115 1151, 1, P hilippine Environmental P olicy of 1977; 1977; 7) P res. Decree No. 143 1433, 3, P lant Quarantine Law of 1978; 1978; 8) Pres. Decree No. 1586, Establishing an Environmental Impact Statement System Including Other Environmental Management Related Measures and for Other Purposes; 9) Rep. Act No. 3571, Prohibition Against the Cutting, Destroying or Injuring of Planted or Growing Trees, Flowering Plants and Shrubs or Plants of Scenic Value along Public Roads, in Plazas, Parks, School Premises or in any Other Public Ground; 10) Rep. Act No. 4850, Laguna Lake Development Authority Act; 11) Rep. Act No. 6969, Toxic Substances and Hazardous Waste Act; 12) Rep. Act No. 7076, People’s Small-Scale Mining Act; 13) Rep. Act No. 7586, National Integrated Protected Areas System Act including all laws, decrees, orders, proclamations and issuances establishing protected areas; 14) Rep. Act No. 7611, Strategic Environmental Plan for Palawan Act; 15) Rep. Rep. Act No. 7942, 7942, Philipp P hilippine ine Mining Act; 16) Rep. Act No. 8371, Indigenous Peoples Rights Act; 17) Rep. Act No. 8550, Philippine Fisheries Code; 1 2

AM. No. 09-6-8-SC, 09-6-8-S C, Effect E ffective ive April 29, 29, 2010 2010.. RULES OF P ROCEDURE FOR E NVIRONMENTAL CASES, Rule 1, Sec. 2. K-2


18) Rep. Act No. 8749, Clean Air Act; 19) Rep. Act No. 9003, Ecological Solid Waste Management Act; 20) Rep. Act No. 9072, National Caves and Cave Resource Management Act; 21) Rep. Act No. 9147, Wildlife Conservation and Protection Act; 22) Rep. Act No. 9175, Chainsaw Act; 23) Rep. Act No. 9275, Clean Water Act; 24) Rep. Act No. 9483, Oil Spill Compensation Act of 2007; and 25) Provisions in Commonwealth Act No. 141, The Public Land Act; Rep. Act No. 6657, Comprehensive Agrarian Reform Law of 1988; Rep. Act No. 7160, Local Government Code of 1991; Rep. Act No. 7161, Tax Laws Incorporated in the Revised Forestry Code and Other Environmental Laws (Amending the NIRC); Rep. Act No. 7308, Seed Industry Development Act of 1992; Rep. Act No. 7900, High-Value Crops Development Act; Rep. Act No. 8048, Coconut Preservation Act; Rep. Act No. 8435, Agriculture and Fisheries Modernization Act of 1997; Rep. Act No. 9522, The Philippine Archipelagic Baselines Law; Rep. Act No. 9593, Renewable Energy Act of 2008; Rep. Act No. 9637, 9637, P hilippine Biofuels Act; and oth other er existing laws that relate relate to the the conservation, development, preservation, protection, and utilization of the environment and natural resources.3 D. Precautionary Precautionary Princip le

This This is one one of the dist istinct inctiv ive e features of this Rule Rule.. 1. Definiti Definiti on

When human activities have an environmental effect that may lead to (1) threats to human life or health; (2) inequity to present or future generations; or (3) prejudice to the environment without legal consideration of the environmental rights of those affected, although there is a lack of full scientific certainty in establishing a causal link thereto, the court shall apply the precautionary principle in resolving the action to avoid or diminish that threat, inequity or prejudice. The benefit of any doubt shall be given to the constitutional right of the people to a balanced and healthful ecology.4

3 4

Id. Id, Rule 20, Secs. 1 and 2.

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2. Appli cation as a Rule of Evidence

Under the Rules of Procedure for Environmental Cases, the courts in civil, criminal, and special civil actions shall apply the precautionary principle as a rule of evidence. 3. Standards for App licatio n

In applying the precautionary principle, the following factors, among others, may be considered: 1) threats to human life or health; 2) inequity to present or future generations; or 3) prejudice to the environment without legal consideration of the environmental rights of those affected.5

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Id., Sec. 2.

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I. CRIMINAL CASES

A. Ori gi nal and Exclusi ve Juris di ct io n of First Level Courts 1. Violatio n of Forestry Laws

1.1. All the criminal offenses punished under Pres. Decree No. 705 or the Revised Forestry Code, as follows: 1) Cutting, gathering, collecting, possessing timber or other forest products without license or permit (Sec. 77); 2) Unlawful occupation or destruction of forest and grazing lands and kaingin (Sec. 78); 3) Pasturing livestock in public lands without authority (Sec. 79); 4) Illegal occupation of national parks and vandalism (Sec. 80); 5) Destruction of wildlife resources (Sec. 81); 6) Survey by unauthorized persons (Sec. 82); 7) Misclassification and survey of forest land as alienable and disposable land by public official or employee (Sec. 83); 8) Issuance of tax declaration without DENR certification (Sec. 84); 9) Coercion and influence of public official (Sec. 85); 10) Unlawful possession of implements and devices used by forest officers (Sec. 86); 11) Failure to pay, collect, or remit forest charges (Sec. 87); and 12) Sale of wood products without complying with grading rules (Sec. 88). 1.2 Criminal offenses under the Chain Saw Act (Rep. Act No. 9175): 1) Selling, purchasing, re-selling, transferring, distributing or possessing a chainsaw without permit; 2) Unlawful importation or manufacture of chainsaw; and 3) Tampering of engine serial number. 2. Violatio n of Fishery Laws

Offenses punished under the Philippine Fisheries Code (Rep. Act No. 8550): 1) Unauthorized fishing (Sec. 86); 2) Poaching (Sec. 87); 3) Possession of explosives, noxious or poisonous substance, or electrofishing devices (Sec. 88); 4) Dealing in, selling, disposing of, for profit, illegally caught fish (Sec. 88); 5) Use of fine mesh net (Sec. 89);

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6) Use of active gear in municipal waters and bays (Sec. 90); 7) Coral exploitation and exportation (Sec. 91); 8) Illegal use of superlights (Sec. 93); 9) Fishing in overfished and closed season areas (Sec. 95); 10) Fishing in fishery reserves, refuge and sanctuaries (Sec. 96); 11) Violation of catch ceilings (Sec. 101); 12) Illegal gathering and marketing of shell fishes (Sec. 103 [c]); 13) Obstruction to navigation or flow and ebb of tide (Sec. 103 [d]); 14) Illegal construction and operation of fish traps, fish pens and fish cages (Sec. 103 [e]); and 15) Obstruction of fishery law enforcer (Sec. 106). 3. Violation of Mining Laws

3.1.Criminal offenses punished under the Philippine Mining Act (Rep. Act No. 7942): 1) 2) 3) 4) 5) 6)

Illegal exploration (Sec. 102); Theft of minerals (Sec. 103); Destruction of mining structures (Sec. 104); Willful damage to mine (Sec. 106); Obstruction of permittees or contractors (Sec. 107); Violation of terms of Environmental Compliance Certificate (ECC) (Sec. 108); and 7) Obstruction of government officials (Sec. 109); 3.2 All Violations of the Small-Scale Mining Act (Rep. Act No. 7076). 4. Violatio n of NIPAS Law

All criminal offenses punished under Sec. 20 of the National Integrated Protected Areas Law (Rep. Act No. 7586), as follows: 1) Hunting, destroying, disturbing, or mere possession of any plant or animal or product derived therefrom without a permit from the Management Board; 2) Dumping of any waste product detrimental to the protected area, or to the plants and animals or inhabitants therein; 3) Use of any motorized equipment without a permit from the Management Board; 4) Mutilating, defacing or destroying objects of natural beauty or objects of interest to cultural communities; 5) Damaging and leaving roads and trails in a damaged condition; 6) Squatting, mineral locating, or otherwise occupying any land; 7) Constructing or maintaining any kind of structure, fences or enclosures, conducting any business enterprise without a permit;

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8) Leaving in exposed or unsanitary conditions refuse or debris, or depositing in ground or in bodies of water; and 9) Altering, removing, destroying or defacing boundary marks or signs. 5. Violatio n of Wildlife Law

Criminal offenses punished under Sec. 27 of the Wildlife Conservation and Protection Act (Rep. Act No. 9147): 1) Killing and destroying wildlife species, except in the following instances; a) when it is done as part of the religious rituals of established tribal groups or indigenous cultural communities; b) when the wildlife is afflicted with an incurable communicable disease; c) when it is deemed necessary to put an end to the misery suffered by the wildlife; d) when it is done to prevent an imminent danger to the life or limb of a human being; and e) when the wildlife is killed or destroyed after it has been used in authorized research or experiments. 2) Inflicting injury which cripples and/or impairs the reproductive system of wildlife species; 3) Trading of wildlife; 4) Collecting, hunting or possessing wildlife, their by-products and derivatives; 5) Gathering or destroying of active nests, nest trees, host plants and the like; 6) Maltreating and/or inflicting other injuries not covered by the preceding paragraph; and 8) Transporting of wildlife. 6. Violation of Cave Laws

Criminal offenses punished under Secs. 7 and 8 of the National Caves and Cave Resources Management Act (Rep. Act No. 9072): 1) Knowingly destroying, disturbing, defacing, marring, altering, removing, or harming the speleogem or speleothem of any cave or altering the free movement of any animal or plant life into or out of any cave; 2) Gathering, collecting, possessing, consuming, selling, bartering or exchanging or offering for sale without authority any cave resource; and 3) Counseling, procuring, soliciting or employing any other person to commit any of the above acts.

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7. Violation of Polluti on Laws

7.1 Criminal offenses punished under Sec. 4 of the Marine Pollution Decree (Pres. Decree No. 979): 1) Discharge or dumping of oil, noxious gaseous and liquid substances and other harmful substances from or out of any ship, vessel, barge, or any other floating craft, or other man-made structures at sea; 2) Discharge or dumping of any refuse matter other than that flowing from streets and sewers out of any ship, barge, or other floating craft of vessel, or from the shore, wharf, manufacturing establishment, or mill into tributary of any navigable water; and 3) Depositing of material of any kind on the bank of a navigable water or its tributary. 7.2 Criminal offense of failure to undertake clean-up operations 6, willfully or through gross negligence, as punished under Sec. 28 of the Clean Water Act (Rep. Act No. 9275). 7.3 All criminal offenses of violations of provisions of the Clean Air Act (Rep. Act No. 8749) other than those administratively penalized under Secs. 45 and 46 and those considered as gross violations under Sec. 48 thereof. 7.4 Criminal offenses punished under Secs. 48 and 49 of the Ecological Solid Waste Management Act (Rep. Act No. 9003): 1) Littering, throwing, dumping of waste matters in public places; 2) Operating, collecting or transporting equipment in violation of sanitation requirements or permits; 3) Open burning of solid waste; 4) Causing or permitting the collection of non-segregated or unsorted wastes; 5) Squatting in open dumps and landfills; 6) Open dumping, burying of biodegradable or non-biodegradable materials in flood prone areas; 7) Unauthorized removal of recyclable material intended for collection by authorized persons;

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Republic Act No. 9275 [2004], Sec. 4 (g): Clean-up operations means activities involving the removal of pollutants discharged or spilled into a water body and its surrounding areas, and the restoration of the affected areas to their former physical, chemical and biological state or conditions.

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8) Mixing of source-separated recyclable material with other solid waste in any vehicle, box, container or receptacle used in solid waste collection or disposal; 9) Establishment or operation of open dumps as enjoined in this Act, or closure of said dumps in violation of Sec. 37; 10) Manufacture, distribution or use of non-environmentally acceptable packaging materials; 11) Importation of consumer products packaged in nonenvironmentally acceptable materials; 12) Importation of toxic wastes misrepresented as "recyclable" or "with recyclable content"; 13) Transport and dumping in bulk of collected domestic, industrial, commercial, and institutional wastes in areas other than prescribed centers or facilities; 14) Site preparation, construction, expansion or operation of waste management facilities without an Environmental Compliance Certificate and conforming with the land use plan of the LGU; 15) Construction of any establishment within two hundred (200) meters from open dumps or controlled dumps, or sanitary landfill; and 16) Construction or operation of landfills or any waste disposal facility on any aquifer, groundwater reservoir, or watershed area and or any portions thereof. 7.5 Criminal offenses punished under Sec. 13 of the Toxic Substances and Hazardous Waste Act (Rep. Act No. 6969): 1) Use of chemical substance or mixture which is imported, manufactured, processed or distributed in violation of the Act or its implementing rules and regulations or orders; 2) Failure or refusal to submit reports, notices or other information, access to records, as required by the Act, or to permit inspection of establishment where chemicals are manufactured, processed, stored or otherwise held; and 3) Failure or refusal to comply with pre-manufacture and preimportation requirements. B. Original and Exclus ive Jurisd icti on of Second Level Courts 1. Violatio n of Forestry Laws

Crime of actual unlawful use of chain saws under Sec. 7 (4) of the Chain Saw Act (Rep. Act No. 9175).

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2. Violatio n of Fishery Laws

Criminal offenses punished under the Philippine Fisheries Code (Rep. Act No. 8550): 1) Actual use of explosives, noxious or poisonous substance, or electro-fishing devices (Sec. 88 [3]); 2) Muro-ami (Sec. 92); 3) Conversion of mangroves (Sec. 94); 4) Fishing or taking rare, threatened or endangered species (Sec. 97); 5) Capture of sabalo or other breeders/spawners (Sec. 98); 6) Importation or exportation of fish or fishery species (Sec. 100); 7) Aquatic pollution (Sec. 102); and 8) Obstruction of defined migration paths (Sec. 105). 3. Violation of Mining Laws

Criminal offense of mines arson punished under Sec. 105 of the Philippine Mining Act (Rep. Act No. 7942). 4. Violation of Wildlife Laws

Criminal offenses punished under the Wildlife Conservation and Protection Act (Rep. Act No. 9147): 1) Effecting any of the following acts in critical habitats: a) Dumping of waste products detrimental to wildlife; b) Squatting or otherwise occupying any portion of the critical habitat; c) Mineral exploration and/or extraction; d) Burning; e) Logging; and f) Quarrying. 2) Introduction, reintroduction or restocking of wildlife resources. 5. Violation of Cave Laws

Criminal offenses when committed by persons furnishing the capital to accomplish the same, as penalized under Secs. 7 and 8 of the National Caves and Cave Resources Management Act (Rep. Act No. 9072): 1) Knowingly destroying, disturbing, defacing, marring, altering, removing, or harming the speleogem or speleothem of any cave or altering the free movement of any animal or plant life into or out of any cave;

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2) Gathering, collecting, possessing, consuming, selling, bartering or exchanging or offering for sale without authority any cave resource; and 3) Counseling, procuring, soliciting or employing any other person to commit any of the above acts. 6. Violation of Polluti on Laws

6.1 Criminal offenses punished under Sec. 28 of the Clean Water Act (Rep. Act No. 9275): 1) Failure or refusal to undertake clean-up operations, willfully, or through gross negligence resulting in serious injury or loss of life and/or irreversible contamination of surface, ground, coastal and marine water; 2) Deliberate discharge of toxic pollutants identified pursuant to Rep. Act No. 6969 in toxic amounts; 3) Five (5) or more violations of the Clean Water Act within a period of two (2) years; and 4) Blatant disregard of the orders of the Pollution Adjudication Board (PAB), such as the non-payment of fines, breaking of seals, or operating despite the existence of an order for closure, discontinuance or cessation of operation. 6.2 All criminal offenses considered as gross violations of the Clean Air Act (Rep. Act No. 8749), as enumerated under Sec. 48 thereof: 1) Three (3) or more specific offenses within a period of one (1) year; 2) Three (3) or more specific offenses with three (3) consecutive years; 3) Blatant disregard of the orders of the PAB, such as, but not limited to the breaking of seal, padlocks and other similar devices, or operation despite the existence of an order for closure, discontinuance or cessation of operation; and 4) Irreparable or grave damage to the environment as a consequence of any violation of the provisions of the Clean Air Act. 6.3 Criminal offense of causing, aiding or facilitating, directly or indirectly, in the storage, importation, or bringing into Philippine territory, including its maritime economic zones, even in transit, either by means of land, air or sea transportation, or otherwise keeping in storage any amount of hazardous and nuclear wastes in any part of the Philippines, as punished under Sec. 13 of the Toxic Substances and Hazardous Waste Act (Rep. Act No. 6969).

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C. Arrest 1. Warrantless Arrest

A peace officer or an individual deputized by the proper government agency may, without a warrant, arrest a person: 1) When, in his presence, the person to be arrested has committed, is actually committing or is attempting to commit an offense; or 2) When an offense has just been committed, and he has probable cause to believe, based on personal knowledge of facts or circumstances that the person to be arrested has committed it.7 2. Appli cation of Presumpti on of Regularity to Deputized Individuals

A peace officer or an individual deputized by the proper government agency may effect a warrantless arrest. Individuals deputized by the proper government agency who are enforcing environmental laws shall enjoy the presumption of regularity, under Sec. 3(m), Rule 131 of the Rules of Court, when effecting arrests for violations of environmental laws.8 3. Arrest Warrant

All warrants of arrest issued by the court shall be accompanied by a certified true copy of the information filed with the issuing court.9 D. Custod y and Disposi tion of Seized Items 1. Appli cability o f Rules of Government Agency

The custody and disposition of seized items shall be in accordance with the applicable laws or rules promulgated by the concerned government agency.10

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RULES OF P ROCEDURE FOR ENVIRONMENTAL CASES, Rule 11, Sec. 1; See section on FORESTRY: Authority to Deputize Environment and Natural Resources Officers and FISHERIES: Authority over Municipal Waters and Jurisdiction of the DA-BFAR, subsections on Law Enforcement. 8 Id., Rule 11, Sec. 1(b). 9 Id., Sec. 2. 10 Id., Rule 12, Sec. 1; See Appendices for DENR and DA-BFAR rules on seizure and custody of forest products, fish catch, vehicles, boats, and logging and fishing paraphernalia. K-12


2. Appli cability of Rules of Procedure for Environm ental Cases

In the absence of applicable laws or rules promulgated by the concerned government agency, Rule 12, Sec. 2 of the Rules of Procedure for Environmental Cases shall apply.11 3. Documentation of Seized Items

The apprehending officer having initial custody and control of the seized items, equipment, paraphernalia, conveyances and instruments shall physically inventory and, whenever practicable, photograph the same in the presence of the person from whom such items were seized.12 4. Return of Search Warrant or Submissio n of Report

The apprehending officer shall submit to the issuing court the return of the search warrant within five (5) days from date of seizure or, in case of warrantless arrest, submit within five (5) days from date of seizure the inventory report, compliance report, photographs, representative samples and other pertinent documents to the public prosecutor for appropriate action.13 5. Auction of Seized Items

Upon motion by any interested party, the court may direct the auction sale of seized items, equipment, paraphernalia, tools or instruments of the crime. The court shall, after hearing, fix the minimum bid price based on the recommendation of the concerned government agency. The sheriff shall conduct the auction.14 The auction sale shall be with notice to the accused, the person from whom the items were seized, or the owner thereof and the concerned government agency. The notice of auction shall be posted in three conspicuous places in the city or municipality where the items, equipment, paraphernalia, tools or instruments of the crime were seized. The proceeds shall be held in trust and deposited with the government depository bank for disposition according to the judgment. 15

11

Id., Rule 12, Sec. 2. Id.,Sec.2 (a). 13 Id., Sec.2 (b). 14 Id., Rule 12, Sec.2(c). 15 Id., Sec.2 (d,e, and f). 12

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E. Complaint and Inform ation 1. Who May Initi ate

Any offended party, peace officer or any public officer charged with the enforcement of an environmental law may file a complaint before the proper officer in accordance with the Rules of Court.16 2. Filing of Information

The information charging a person with a violation of an environmental law and subscribed by the prosecutor shall be filed with the court. 17 3. Special Prosecutor

Where there is no private offended party, a counsel whose services are offered by any person or organization may be allowed by the court as special prosecutor, with the consent of and subject to the control and supervision of the public prosecutor.18 F. Bail 1. Where Filed; Hol d Departure Ord er

Bail in the amount fixed may be filed with the court where the case is pending, or in the absence or unavailability of the judge thereof, with any regional trial judge, metropolitan trial judge, municipal trial judge or municipal circuit trial judge in the province, city or municipality. If the accused is arrested in a province, city or municipality other than where the case is pending, bail may also be filed with any Regional Trial Court of said place, or if no judge thereof is available, with any metropolitan trial judge, municipal trial judge or municipal circuit trial judge therein. If the court grants bail, the court may issue a hold-departure order in appropriate cases.19

16

Id., Rule 9, Sec. 1. Id., Sec. 2. 18 Id., Sec. 3. 19 Id., Rule 14, Sec. 1. 17

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2. Conditio ns for Grant of Bail

Before granting the application for bail, the judge must read the information in a language known to and understood by the accused and require the accused to sign a written undertaking, as follows: 1) To appear before the court that issued the warrant of arrest for arraignment purposes on the date scheduled, and if the accused fails to appear without justification on the date of arraignment, accused waives the reading of the information and authorizes the court to enter a plea of not guilty on behalf of the accused and to set the case for trial; 2) To appear whenever required by the court where the case is pending; and 3) To waive the right of the accused to be present at the trial, and upon failure of the accused to appear without justification and despite due notice, the trial may proceed in absentia.20 G. Arraignment and Plea-Bargaining 1. Setting of Arraignm ent; Noti ces

The court shall set the arraignment of the accused within fifteen (15) days from the time it acquires jurisdiction over the accused, with notice to the public prosecutor and offended party or concerned government agency that it will entertain plea-bargaining on the date of the arraignment. 21 2. Procedure in Plea-Bargaining

On the scheduled date of arraignment, the court shall consider pleabargaining arrangements. Where the prosecution and offended party or concerned government agency agree to the plea offered by the accused, the court shall: 1) Issue an order which contains the plea-bargaining arrived at; 2) Proceed to receive evidence on the civil aspect of the case, if any; and 3) Render and promulgate judgment of conviction, including the civil liability for damages.22

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Id., Sec. 2. Id., Rule 15, Sec. 1. 22 Id., Sec. 2. 21

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H. Pre-Trial 1. Preliminary Conference; Purpo se

After the arraignment, the court shall set the pre-trial conference within thirty (30) days. It may refer the case to the branch clerk of court, if warranted, for a preliminary conference to be set at least three (3) days prior to the pre-trial.23 The preliminary conference shall be for the following purposes: 1) To assist the parties in reaching a settlement of the civil aspect of the case; 2) To mark the documents to be presented as exhibits; 3) To attach copies of the documents to the records after comparison with the originals; 4) To ascertain from the parties the undisputed facts and admissions on the genuineness and due execution of documents marked as exhibits; 5) To consider such other matters as may aid in the prompt disposition of the case; 6) To record the proceedings during the preliminary conference in the Minutes of Preliminary Conference to be signed by the parties and counsel; 7) To mark the affidavits of witnesses which shall be in question and answer form and shall constitute the direct examination of the witnesses; and 8) To attach the Minutes and marked exhibits to the case record before the pre-trial proper.24 The parties or their counsel must submit to the branch clerk of court the names, addresses and contact numbers of the affiants.25 2. How Conducted by t he Court

During the pre-trial, the court shall: 1) Place the parties and their counsels under oath; 2) Adopt the minutes of the preliminary conference as part of the pretrial proceedings, confirm markings of exhibits or substituted photocopies and admissions on the genuineness and due execution of documents, and list object and testimonial evidence; 3) Scrutinize the information and the statements in the affidavits and other documents which form part of the record of the preliminary 23

Id., Rule 16, Sec. 1. Id. 25 Id. 24

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4) 5)

6) 7)

investigation, together with other documents identified and marked as exhibits, to determine further admissions of facts as to: a) The court’s territorial jurisdiction relative to the offense(s) charged; b) Qualification of expert witnesses; and c) Amount of damages; Define factual and legal issues; Ask parties to agree on the specific trial dates and adhere to the flow chart determined by the court, which shall contain the time frames for the different stages of the proceeding up to promulgation of decision; Require the parties to submit to the branch clerk of court the names, addresses and contact numbers of witnesses that need to be summoned by subpoena; and Consider modification of order of trial if the accused admits the charge but interposes a lawful defense.26

3. Manner of Directing Questions, Admissions and Agreements, and Documentation

All questions or statements must be directed to the court. 27 All agreements or admissions made or entered during the pre-trial conference shall be reduced in writing and signed by the accused and counsel; otherwise, they cannot be used against the accused. The agreements covering the matters referred to in Section 1, Rule 118 of the Rules of Court shall be approved by the court.28 All proceedings during the pre-trial shall be recorded, the transcripts prepared, and the minutes signed by the parties or their counsels.29 4. Pre-Trial Order

The court shall issue a pre-trial order within ten (10) days after the termination of the pre-trial, setting forth the actions taken during the pretrial conference, the facts stipulated, the admissions made, evidence marked, the number of witnesses to be presented, and the schedule of trial. The order shall bind the parties and control the course of action during the trial.30

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Id., Sec. 3. Id., Sec. 4. 28 Id., Sec. 5. 29 Id., Sec. 6. 30 Id., Sec. 7. 27

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I. Trial 1. Continuous Trial; Affi davits In Direct Examination

The court shall endeavor to conduct continuous trial which shall not exceed three (3) months from the date of the issuance of the pre-trial order.31 For this purpose, affidavits in lieu of direct examination shall be used, subject to cross-examination and the right to object to inadmissible portions of the affidavit.32 2. Submis sion of Memoranda

The court may require the parties to submit their respective memoranda and if possible, in electronic form, within a non-extendible period of thirty (30) days from the date the case is submitted for decision.33 3. Period to Decide and Dispose of the Case

With or without any memoranda filed, the court shall have a period of sixty (60) days to decide the case counted from the last day of the 30-day period to file the memoranda.34 The court shall dispose the case within a period of ten (10) months from the date of arraignment. 35 4. Pro-bono Lawyers

If the accused cannot afford the services of counsel or there is no available public attorney, the court shall require the Integrated Bar of the Philippines to provide pro bono lawyers for the accused. 36 J. Civil Action and Liability 1. Institution of Civil Action

When a criminal action is instituted, the civil action for the recovery of civil liability arising from the offense charged shall be deemed instituted with the criminal action, unless the complainant waives the civil action, reserves the right to institute it separately or institutes the civil action prior to the criminal action. 37 31

Id., Rule 17, Sec. 1. Id., Sec. 2. 33 Id., Sec. 3. 34 Id. 35 Id., Sec. 4. 36 Id., Sec. 5. 37 Id, Rule 10, Sec. 1. 32

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Unless the civil action has been instituted prior to the criminal action, the reservation of the right to institute separately the civil action shall be made during arraignment.38 2. Award of Damages to Agency fo r Restoration and Rehabilit ation

In case civil liability is imposed or damages are awarded, the filing and other legal fees shall be imposed on said award in accordance with Rule 141 of the Rules of Court, and the fees shall constitute a first lien on the judgment award. The damages awarded in cases where there is no private offended party, less the filing fees, shall accrue to the funds of the agency charged with the implementation of the environmental law violated. The award shall be used for the restoration and rehabilitation of the environment adversely affected.39 3. Subsidiary Liabil ity

In case of conviction of the accused and subsidiary liability is allowed by law, the court may, by motion of the person entitled to recover under judgment, enforce such subsidiary liability against a person or corporation subsidiarily liable under Article 102 and Article 103 of the Revised Penal Code.40 K. Provisio nal Remedies 1. Attachment

The provisional remedy of attachment under Rule 127 of the Rules of Court may be availed of in environmental cases.41 2. EPO and TEPO in Criminal Cases

The procedure for the issuance of Environmental Protection Orders (EPO) and Temporary Environmental Protection Orders (TEPO) shall be governed by Rule 2 of the Rules of Procedure for Environmental Cases.42

38

Id., second paragraph. Id., Rule 10, Sec. 1. 40 Id., Rule 18, Sec. 1. 41 Id., Rule 13, Sec. 1. 42 Id., Sec. 2; See Section on Civil Cases: Environmental Protection Order. 39

K-19


L. Criminal SLAPP Suits 1. Defined

Strategic lawsuit against public participation (SLAPP) refers to an action whether civil, criminal or administrative, brought against any person, institution or any government agency or local government unit or its officials and employees, with the intent to harass, vex, exert undue pressure or stifle any legal recourse that such person, institution or government agency has taken or may take in the enforcement of environmental laws, protection of the environment or assertion of environmental rights.43 2. SLAPP Suit; Ground for a Moti on to Dismiss in a Criminal Case

Upon the filing of an information in court and before arraignment, the accused may file a motion to dismiss on the ground that the criminal action is a Strategic Lawsuit Against Public Participation or a SLAPP suit.44 3. Summary Hearing; Prosecution’s and Accused Quantum of Evidence Distingu ished

The hearing on the defense of a SLAPP shall be summary in nature. The parties must submit all the available evidence in support of their respective positions. The party seeking the dismissal of the case must prove by substantial evidence that his acts for the enforcement of environmental law are a legitimate action for the protection, preservation and rehabilitation of the environment. The party filing the action assailed as a SLAPP shall prove by preponderance of evidence that the action is not a SLAPP.45 4. Determination by the Court

The court shall grant the motion if the accused establishes in the summary hearing that the criminal case has been filed with intent to harass, vex, exert undue pressure or stifle any legal recourse that any person, institution or the government has taken or may take in the enforcement of environmental laws, protection of the environment or assertion of environmental rights. If the court denies the motion, it shall immediately proceed with the arraignment of the accused. 46

43

Id., Rule 1, Sec. 4 (g); Rule 6, Sec. 1 . Id., Rule 19, Sec. 1; See Section on Civil Cases: SLAPP Suits. 45 Id., Sec. 2. 46 Id., Sec. 3. 44

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II. Civil Cases

Limits on the J urisdiction of First and Second Level Courts in Ordinary Civil Actions involving Environmental Laws 1. Primary Jurisdi ctio n of t he DENR

The jurisdiction of the DENR over matters which are addressed to its sound discretion as the government agency entrusted with the regulation of activities coming under its special technical knowledge and training will not be interfered with by the courts. 47 The DENR possesses wide latitude of discretion in determining the appropriate actions to be taken to preserve and manage natural resources, and the proper parties who should enjoy the privilege of utilizing these resources.48 As the law confines in the DENR the power to determine these particular questions or matters, its jurisdiction prevails over the courts.49 Settled is the rule that the courts will defer to the decisions of the administrative offices and agencies by reason of their expertise and experience in the matters assigned to them pursuant to the doctrine of primary jurisdiction. Administrative decisions on matters within the jurisdiction of administrative bodies are to be respected and can only be set aside on proof of grave abuse of discretion, fraud, or error of law.50 2. Doctrine of Primary Jurisdiction L imits Court Jurisdict ion

The enforcement of forestry laws, rules and regulations, and the protection, development, and management of forest lands fall within the primary and special responsibilities of the DENR. By the very nature of its function, the DENR should be given a free hand unperturbed by judicial intrusion to determine a controversy which is well within its jurisdiction. The doctrine of primary jurisdiction does not warrant a court to arrogate unto itself the authority to resolve a controversy, the jurisdiction over which is initially lodged with an administrative body of special competence. 51

47

Lianga Bay Logging Co., Inc. v. Enage , G.R. No. 30637, J uly 16, 1987, 152 SCRA 80; Ganitano v. Secretary of Agriculture and Natural Resources , G.R. No. 21167, March 31,1966, 16

SCRA 543. 48

Lim v.The Secretary of Agriculture and Natural Resources, G.R. No. 26990, August 31, 1970, 34 SCRA 751; Director of Forestry v. Muñoz, G.R. No. 24796, J une 28, 1968, 23 SCRA 1183. 49 Lianga Bay Logging Co., Inc. v. Enage, supra note 47. 50 Celestial Nickel Mining Exploration v. Macroasia, G.R. No. 169080, December 19, 2007, 541 SCRA 166. 51 Dagudag v. Paderanga, A.M. No. RTJ -06-2017, J une 19, 2008, 555 SCRA 217; Euro-Med Laboratories v. Province of Batangas, G.R. No. 148106, J uly 17, 2006, 495 SCRA 301; Tabao v. Lilagan, A.M. No. RTJ - 01-1651, September 4, 2001, 364 SCRA 322; Paat v. Court of Appeals, G.R. No. 111107, J anuary 10, 1997, 266 SCRA 167;

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3. Exhaustion of Adminis trative Remedies; Conditi on Precedent

The principle of exhaustion of administrative remedies applies insofar as the review of the decisions of the Secretary of the DENR and his subordinates is concerned. The doctrine of exhaustion of administrative remedies is basic. Courts should not entertain suits unless the available administrative remedies have first been resorted to and the proper authorities have been given an appropriate opportunity to act and correct their alleged errors, if any, committed in the administrative forum. 52 Exhaustion of the remedies in the administrative forum, being a condition precedent prior to recourse to the courts and, more importantly, being an element of one’s right of action, is too significant to be waylaid by the courts.53 It is a pre-condition that all the means afforded by the administrative processes should first be availed of before a court's judicial power can be sought. The premature judicial action is fatal to one's cause of action.54 Accordingly, absent any finding of waiver or estoppel, the case is susceptible to dismissal for lack of cause of action. 55 In the case of the Secretary of the DENR, failure to appeal his decision to the Office of the President is a failure to exhaust administrative remedies. 56 4. Failure to Exhaust Administrative Remedies May Constitute Forum-Shopping

If agreements of sale pertain to shares of stock which represent ownership of mining rights or interest in mining agreements, the power of the MGB to rule on the validity of the questioned agreements of sale is inextricably linked to the very nature of such agreements over which the MGB has jurisdiction under the law. Unavoidably, there is identity of reliefs if the same issue is brought to the RTC. Forum shopping exists when both actions involve the same transactions, same essential facts and circumstances and raise identical causes of actions, subject matter, and issues. The case instituted with the RTC is correctly ordered dismissed on the ground of forum shopping. Not only is there forumshopping, but also failure to exhaust administrative remedies, by opting to go ahead in seeking reliefs from the court even while those same reliefs were appropriately awaiting resolution by the MGB. 57 A complaint in environmental cases is required to include a certification against forum-shopping.58 52

Factoran v. Court of Appeals, G.R. No. 93540, December 13, 1999, 320 SCRA 530; Tabao v. Lilagan, supra note 51; Dagudag v. Paderanga, supra note 51. 53 Paat v. Court of Appeals , supra note 51. 54 Bangus Fisherfolk v. Lanzanas, G.R. No. 131442, J uly 10, 2003, 405 SCRA 530. 55 Dy v. Court of Appeals , G.R. No. 121587, March 9, 1999, 304 SCRA 331. 56 Tan v. Director of Forestry, G.R. No. 24548, October 27, 1983, 125 SCRA 302 . 57 Lepanto Consolidated Mining v. WMC Resources International, G.R. Nos. 153885 and 156214,

September 24, 2003, 412 SCRA 101. 58 RULES OF P ROCEDURE IN E NVIRONMENTAL CASES , Rule 2, Sec. 3. K-22


5. Exceptions to Exhaustio n of Adminis trative Remedies

The doctrine does not apply in the following cases: 59 1) Where the issue is purely a legal one, and nothing of an administrative nature is to be and can be done 60 2) Where insistence on its observance would result in nullification of the claim being asserted61 3) Where the controverted act is patently illegal or was performed without jurisdiction or in excess of jurisdiction; 4) Where the respondent is a department secretary, whose acts as an alter ego of the President bear the implied or assumed approval of the latter, unless actually disapproved by him; 5) Where there are circumstances indicating the urgency of judicial intervention;62 and 6) When the rule does not provide a plaintiff speedy and adequate remedy63. 7) In an action for damages with preliminary mandatory injunction filed before the Regional Trial Court alleging that a timber licensee and IFMA holder has no authority to keep custody of confiscated timber and conveyances because it is a private entity and mere depository of the timber and conveyances, not a deputized enforcement officer, it was held that there was no need for exhaustion of administrative remedies. Despite the fact that there were ongoing administrative confiscation proceedings being conducted by the DENR, filing the action with the trial court did not violate the doctrine of exhaustion of remedies because it was for the purpose of transferring the custody of the confiscated products to the CENRO and the Office of the Government Prosecution and for resolving the cases with dispatch.64 8) A petition for mandamus filed with the Regional Trial Court to compel the DENR and its Environmental Management Bureau (EMB) to issue a Certificate of Non-Coverage under the Environmental Impact Assessment System is a proper remedy where the project is not an environmentally critical project or 59

Cuevas v. Pineda, G.R. No. 47617, August 29, 1986, 143 SCRA 674. Dauan v. Secretary of Agriculture and Natural Resources, et. al. , G.R. No. 19547, J anuary 31, 1967, 19 SCRA 223; Del Mar v. Philippine Veterans Administration, G.R. No. 27299, J une 27, 1973, 51 SCRA 340; Bagatsing v. Ramirez, G.R. No. 41631, December 17, 1976, 74 SCRA 306; Aguilar v. Valencia, G.R. No. 30396, J uly 30, 1971, 40 SCRA 210, and Commissioner of Immigration v. Vamenta, G.R. No. 34030, May 31, 1972, 45 SCRA 342. 61 Gravador v. Mamigo, G.R. No. 24989, J uly 21, 1967, 20 SCRA 742. 62 Gonzales v. Hechanova, G.R. No. 21897, October 22, 1963, 9 SCRA 230; Abaya v. Villegas, G.R. No. 25641, December 17, 1966, 18 SCRA 1034; Mitra v. Subido, G.R. No. 21691, 60

September 15, 1967, 21 SCRA 127. 63 Cipriano v. Marcelino, G.R. No. 27793, February 28, 1972, 43 SCRA 291. 64 PICOP Resources v. Calo, G.R. No. 161798, October 20, 2004, 441 SCRA 46. K-23


located in an environmentally critical area. It is the ministerial duty of the EMB to issue the Certificate of Non-Coverage and said agency can be compelled to perform its duty through a petition for mandamus filed with the Regional Trial Court even without exhausting administrative remedies by first appealing the EMB decision to the DENR Secretary.65 6. Environmental Licenses and Permits are Not Contracts Protected by the Non-Impairment and Due Process Clauses

Timber licenses, permits, and license agreements are the principal instruments by which the State regulates the utilization and disposition of forest resources to the end that public welfare is promoted. They merely evidence a privilege granted by the State to qualified entities, and do not vest in the latter a permanent or irrevocable right to the particular concession area and the forest products therein. They may be validly amended, modified, replaced or rescinded by the Chief Executive when national interest so requires. They are not deemed contracts within the purview of the due process of law clause.66 This holds true as well for mining exploration permits under Rep. Act No. 7942. Exploration permits merely evidence a privilege granted by the State, which may be amended, modified or rescinded when the national interest so requires. This is necessarily so since the exploration, development and utilization of the country’s natural mineral resources are matters impressed with great public interest. Like timber permits, mining exploration permits do not vest in the grantee any permanent or irrevocable right within the purview of the non-impairment of contract and due process clauses of the Constitution, since the State, under its allencompassing police power, may alter, modify or amend the same, in accordance with the demands of the general welfare. 67 The determination of what is in the public interest is necessarily vested in the State as owner of all mineral resources. Even if a license is valid, it can still be validly revoked by the State in the exercise of police power. The exercise of such power through a presidential proclamation is in accord with jura regalia, which reserves to the State ownership of all natural resources. This Regalian doctrine is an exercise of its sovereign 65

Republic v. City of Davao, G.R. No. 148622, September 12, 2002, 388 SCRA 691. PICOP Resources v. Base Metals Mineral Resources , G.R. No. 163509, December 6, 2006, 510 SCRA 400; Oposa v. Factoran, G.R. No. 101083, J uly 30, 1993, 190 SCRA 673; Ysmael v. Deputy Executive Secretary, G.R. No. 79538, October 18, 1990, 224 SCRA 992; Tan v. Director of Forestry, supra note 56. 67 Southeast Mindanao Gold Mining v. Balite Portal Mining Cooperative, G.R. No. 135190, April 3, 2002; Sta. Ines Melale Forest Products Corporation v. Macaraig, Jr. , G.R. No. 80849, December 2, 1998, 299 SCRA 491, citing Tan v. Director of Forestry , supra note 56, and Oposa v. Factoran, supra note 66. 66

K-24


power as owner of lands of the public domain and of the patrimony of the nation, the mineral deposits of which are a valuable asset. A license is not a contract to which the protection accorded by the non-impairment clause may extend. Even if the license were, it is settled that provisions of existing laws and a reservation of police power are deemed read into it, because it concerns a subject impressed with public welfare. The nonimpairment clause must yield to the police power of the state.68 6.1. Exception to the Rule

However, Sec. 40 of the Philippine Mining Act of 1995 requiring the approval of the President with respect to assignment or transfer of FTAAs, if made applicable retroactively, would be tantamount to an impairment of the obligations under said contract as it would effectively restrict the right of the parties thereto to assign or transfer their interests in the said FTAA. By imposing a new condition apart from those already contained in the agreement, before the parties to the FTAA may assign or transfer their rights and interest in the said agreement, Sec. 40 of the Philippine Mining Act of 1995, if made to apply to said FTAA, will effectively modify the terms of the original contract and thus impair the obligations of the parties thereto and restrict the exercise of their vested rights under the original agreement. Such modification to the FTAA, particularly in the conditions imposed for its valid transfer, is equivalent to an impairment of said contract in violation of the Constitution.69 7. Revocation of License or Franchise as an Exercise of Police Power

The grant of license does not create irrevocable rights, neither is it property or property rights. No franchise or right can be availed of to defeat the proper exercise of police power. The State has inherent power enabling it to prohibit all things hurtful to comfort, safety, and welfare of society. Pursuant to these principles, the Secretary of the DENR has the authority to revoke, on valid grounds, timber licenses issued by the Director of Forestry. Where there is supporting evidence, the revocation of a timber license is a valid exercise of this power. 70

68

Republic of the Philippines v. Rosemoor Mining and Development Corporation, G. R. No.

149927, March 30, 2004, 426 SCRA 517. 69

Lepanto Consolidated Mining v. WMC Resources International, G.R. No. 162331, November

20, 2006, 507 SCRA 315. 70

Tan v. Director of Forestry, supra note 56.

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8. Courts should stand Clear from Public Policy Activity of Granting Environmental Li censes, Permits and Franchises

The courts recognize the wide latitude of discretion possessed by the government in determining the appropriate actions to be taken to preserve and manage natural resources, and the proper parties who should enjoy the privilege of utilizing these resources, more so where the interests of a private logging company are pitted against that of the public at large on the pressing public policy issue of forest conservation. The judiciary will stand clear from a public policy activity where the government is undertaking an assessment and evaluation of all timber license agreements entered into, and permits or licenses issued.71 A. Replevin Suits 1. Courts should dismiss Replevin Suits over Property Seized by DENR under its Adminis trative Confisc ation Powers

The assumption by a trial court of a replevin suit filed by owners of items apprehended or seized constitutes an unjustified encroachment into the DENR’s prerogative to undertake administrative confiscation proceedings. The doctrine of primary jurisdiction does not warrant a court to arrogate unto itself the authority to resolve a controversy, the jurisdiction over which is initially lodged with an administrative body of special competence.72 Dismissal of a replevin suit for lack of cause of action in view of the owner’s failure to exhaust administrative remedies is the proper course of action for a court, not to assume jurisdiction over the case and, consequently, issue the writ ordering the return of the seized items.73 2. Judge demonst rates Ignorance of t he Law in Entertaining Replevin Suits

A judge's act of taking cognizance of a replevin suit over property under DENR administrative confiscation proceedings or under custodia legis, if the case is already with the public prosecutor or another court, demonstrates ignorance of the law.74

71

Lim, Sr. v. The Secretary of Agriculture and Natural Resources , G.R. No. 26990, August 31, 1970, 34 SCRA 751; Director of Forestry v. Muñoz, G.R. No. 24796, J une 28, 1968, 23 SCRA 1183; Ysmael v. Deputy Executive Secretary , supra note 66. 72 Paat v. Court of Appeals , supra note 51; Tabao v. Lilagan, supra note 51. 73 Paat v. Court of Appeals , supra note 51; Dy v. Court of Appeals, supra note 55. 74 Tabao v. Lilagan, supra note 51.

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3. Seized and Apprehended property is in beyond reach of Replevin

Custodia Legis and

Property apprehended and seized by DENR officials pursuant to administrative confiscation proceedings is held in custodia legis and, hence, beyond the reach of replevin . When a thing is in official custody of a judicial or executive officer in pursuance of his execution of a legal writ, replevin will not lie to recover it.75 4. Court cannot hold DENR officials in Contempt for Failure to follow Replevin Order; Duty of Sheriff executing Replevin Order

There can be no contempt against DENR officials who fail to follow a replevin order that was issued with grave abuse of discretion. 76 The prudent recourse for a sheriff enforcing a writ of replevin , upon being informed that the property involved is in the custody of the DENR by virtue of administrative seizure and confiscation, is to desist from executing the warrant and to make a partial return by conveying the information to the court for further instructions.77 5. Consent to be sued needed in Replevin Suits against DENR Officials

Actions before the courts contesting custody over forest products, implements and conveyances seized and confiscated by forest officials under Pres. Decree No. 705, as amended by Exec. Order No. 277 are considered suits against the State. In implementing and enforcing Secs. 77-A and 89 of the Forestry Code, forest officers performing duties and functions within the limits of their authority represent the DENR and may not be proceeded against without the State's consent.78 B. Complaint 1. Who May File

Any real party in interest, including the government and juridical entities authorized by law, may file a civil action involving the enforcement or violation of any environmental law.79 75

Factoran v. Court of Appeals, supra note 52; Calub v. Court of Appeals, G.R. No. 115634, April 27, 2000, 331 SCRA 55; Mamanteo, et. al. v. Deputy Sheriff Magumun, A.M. No. P-98-1264, J uly

28, 1999, 331 SCRA 55. 76 77

Factoran v. Court of Appeals, supra note 52. Mamanteo, et. al. v. Deputy Sheriff Magumun, supra note 75; Calub v. Court of Appeals, supra

note 75. 78 79

Calub v. Court of Appeals, supra note 75.

RULES OF P ROCEDURE FOR ENVIRONMENTAL CASES , Rule 2, Sec. 4. K-27


2. Verified Complaint

The complaint shall be verified and contain the names of the parties, their addresses, the cause of action, and the reliefs prayed for.80 3. Evidence to be attached to the Complaint; Form of Affid avits

The plaintiff shall attach to the verified complaint all evidence proving or supporting the cause of action consisting of the affidavits of witnesses, documentary evidence and, if possible, object evidence. The affidavits shall be in question and answer form and shall comply with the rules of admissibility of evidence.81 4. Other Requir ements

The complaint shall state that it is an environmental case and the law involved. The complaint shall also include a certification against forum shopping. If the complaint is not an environmental complaint, the presiding judge shall refer it to the executive judge for re-raffle.82 5. Filing Fees

The payment of filing and other legal fees by the plaintiff shall be deferred until after judgment unless the plaintiff is allowed to litigate as an indigent. It shall constitute a first lien on the judgment award. 83 6. Assignm ent by Raffle

If there is only one (1) designated branch in a multiple-sala court, the executive judge shall immediately refer the case to said branch. If there are two (2) or more designated branches, the executive judge shall conduct a special raffle on the day the complaint is filed. 84 7. Agency Concerned to be Furnished Complaint

Upon the filing of the complaint in environmental cases, the plaintiff is required to furnish the government or the appropriate agency, although not a party, a copy of the complaint. Proof of service upon the government or the appropriate agency shall be attached to the complaint. 85 80

Id., Sec. 3. Id. 82 Id. 83 Id., Sec. 12. 84 Id., Sec. 7. 85 Id., Sec. 6. 81

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C. Environ mental Protection Order 1. Definiti on

Environmental protection order (EPO) refers to an order issued by the court directing or enjoining any person or government agency to perform or desist from performing an act in order to protect, preserve or rehabilitate the environment.86 2. Temporary Environmental Protection Order (TEPO)

If it appears from the verified complaint with a prayer for the issuance of an Environmental Protection Order (EPO) that the matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury, the executive judge of the multiple-sala court before raffle or the presiding judge of a single-sala court, as the case may be, may issue ex parte a Temporary Environmental Protection Order (TEPO) effective for only seventy-two (72) hours from date of the receipt of the TEPO by the party or person enjoined. Within said period, the court where the case is assigned, shall conduct a summary hearing to determine whether the TEPO may be extended until the termination of the case.87 The issuance of a TEP O may also be prayed for in a petition for the writ of kalikasan .88 It may also be granted in a petition for the writ of continuing mandamus.89 3. Monitoring, Lifting, Exemption from Bond Requirement, and Conversion to Permanent EPO

The court where the case is assigned shall periodically monitor the existence of acts that are the subject matter of the TEPO, even if issued by the executive judge, and may lift the same at any time as circumstances may warrant. The applicant shall be exempted from the posting of a bond for the issuance of a TEPO.90 The grounds for motion to dissolve a TEPO shall be supported by affidavits of the party or person enjoined which the applicant may oppose, also by affidavits. The TEPO may be dissolved if it appears after hearing that its issuance or continuance would cause irreparable damage to the party or person enjoined, while the applicant may be fully compensated for 86

Id., Rule 1, Sec. 3. Id., Rule 2, Sec. 8. 88 Id., Rule 7, Sec. 2. 89 Id., Rule 8, Sec. 5. 90 Id., Rule 2, Sec. 8. 87

K-29


such damages as he may suffer and subject to the posting of a sufficient bond by the party or person enjoined. 91 In the judgment, the court may convert the TEPO to a permanent EPO.92 4. Report to the Supreme Court

The judge shall report any action taken on a TEPO, EPO, TRO or a preliminary injunction, including its modification and dissolution, to the Supreme Court, through the Office of the Court Administrator, within ten (10) days from the action taken.93 5. Prohibiti on against Injunct ion

Except the Supreme Court, no court can issue a TRO or writ of preliminary injunction against lawful actions of government agencies that enforce environmental laws or prevent violations thereof.94 D. Summons and Court Processes 1. Who may Eff ect Service

The summons, orders, and other court processes may be served by the sheriff, his deputy or other proper court officer, or for justifiable reasons, by the counsel or representative of the plaintiff or any suitable person authorized or deputized by the court issuing the summons. Any private person who is authorized or deputized by the court to serve summons, orders, and other court processes shall, for that purpose, be considered an officer of the court.95 2. Service of Summons; How Effected

The summons shall be served on the defendant, together with a copy of an order informing all parties that they have fifteen (15) days from the filing of an answer, within which to avail of interrogatories to parties under Rule 25 of the Rules of Court and request for admission by adverse party under Rule 26, or at their discretion, make use of depositions under Rule 23 or other measures under Rules 27 and 28. Should personal and substituted service fail, summons by publication shall be allowed. In the 91

Id., Sec. 9. Id., Rule 5, Sec. 3. 93 Id., Rule 2, Sec. 11. 94 Id., Sec. 10. 95 Id., Sec. 13. 92

K-30


case of juridical entities, summons by publication shall be done by indicating the names of the officers or their duly authorized representatives.96 E. Answ er 1. Verified Answer

Within fifteen (15) days from receipt of summons, the defendant shall file a verified answer to the complaint and serve a copy thereof on the plaintiff.97 2. Evidence to be Attached to Answer

The defendant shall attach affidavits of witnesses, reports, studies of experts, and all evidence in support of the defense. 98 3. Defenses and Claims

Affirmative and special defenses not pleaded shall be deemed waived, except lack of jurisdiction. Cross-claims and compulsory counterclaims not asserted shall be considered barred. The answer to counterclaims or cross-claims shall be filed and served within ten (10) days from service of the answer in which they are pleaded. 99 4. Failure to Answer

Should the defendant fail to answer the complaint within the period provided, the court shall declare defendant in default and upon motion of the plaintiff, shall receive evidence ex parte and render judgment based thereon and the reliefs prayed for.100 F. Pleadings Allo wed and Prohibit ed 1. Allow ed Pleading s and Motions

The pleadings and motions that may be filed are complaint, answer which may include compulsory counterclaim and cross-claim, motion for

96

Id. Id., Sec. 14. 98 Id. 99 Id. 100 Id., Sec. 15. 97

K-31


intervention, motion for discovery and motion for reconsideration of the judgment.101 Motion for postponement, motion for new trial, and petition for relief from judgment shall be allowed in highly meritorious cases or to prevent a manifest miscarriage of justice.102 2. Prohib ited Pleadings and Motions

1) Motion to dismiss the complaint; 2) Motion for a bill of particulars; 3) Motion for extension of time to file pleadings, except to file answer, the extension not to exceed fifteen (15) days; 4) Motion to declare the defendant in default; 5) Reply and rejoinder; and 6) Third party complaint.103 G. Enviro nmental Class Actions 1. Right to Balanced and Healthful Ecolo gy is an Actionable Right

An action for the revocation of all timber licenses on the ground of the violation of the right to a balanced and healthful ecology may be brought as a class action suit and by parties representing future generations on the principle of inter-generational responsibility. The constitutional right to a balanced and healthful ecology constitutes an actionable right as basis for a cause of action. A denial or violation of that right by the other who has the correlative duty or obligation to respect or protect the same gives rise to a cause of action.104 As a constitutionally guaranteed right of every person, it carries the correlative duty of non-impairment. This is but in consonance with the declared policy of the state "to protect and promote the right to health of the people and instill health consciousness among them."105 This right implies, among other things, the judicious management and conservation of the country’s resources, which duty is reposed in the DENR.106

101

Id., Sec. 1. Id. 103 Id., Sec. 2. 104 Oposa v. Factoran, supra note 66. 105 Laguna Lake Development Authority v. Court of Appeals , G.R. No. 110120, March 16, 1994, 102

231 SCRA 292. 106

Province of Rizal v. Executive Secretary , G.R. No. 129546, December 13, 2005, 477 SCRA

436. K-32


The right to a balanced and healthful ecology need not even be in the Constitution for it is assumed to exist from the inception of mankind and it is an issue of transcendental importance with intergenerational implications. The State cannot escape its obligation to future generations of Filipinos to keep the waters clean and clear as humanly possible. 107 2. Class Action in Representation of Future Generations Allowed under the Princip le of Inter-Generational Respons ibili ty

The personality to sue on behalf of succeeding generations is based on the concept of intergenerational responsibility insofar as the right to a balanced and healthful ecology is concerned. Such a right considers the "rhythm and harmony of nature." Nature means the created world in its entirety. Such rhythm and harmony indispensably include, inter alia, the judicious disposition, utilization, management, renewal and conservation of the country's forest, mineral, land, waters, fisheries, wildlife, off-shore areas, and other natural resources to the end that their exploration, development, and utilization be equitably accessible to the present, as well as future generations. Every generation has a responsibility to the next to preserve the rhythm and harmony of nature for the full enjoyment of a balanced and healthful ecology. The minors' assertion of their right to a sound environment constitutes the performance of their obligation to ensure the protection of that right for the generations to come.108 3. Real Parties in Interest and Legal Standing Distinguished; Legal Standing Sufficient in Constitutional Questions Involving Public Interest

A farmers’ and indigenous peoples’ cooperative organized under Philippine laws representing a community actually affected by the mining activities, members of said cooperative, as well as other residents of areas also affected by mining activities, have standing to raise the constitutionality of a questioned FTAA by alleging a personal and substantial injury. When a case involves constitutional questions, the courts are not concerned with whether petitioners are real parties in interest, but with whether they have legal standing. Because of its constitutional and public policy underpinnings, standing is very different from questions relating to whether a particular plaintiff is the real party in interest or has capacity to sue. Standing is a special concern in constitutional law because, in some cases, suits are brought not by parties who have been personally injured by the operation of a law or by official action taken, but by concerned citizens, taxpayers or voters who actually sue in the public interest. Hence, the question in standing is whether such parties have "alleged such a personal stake in the outcome of the 107

Metropolitan Manila Development Authority v. Concerned Residents of Manila Bay, G.R. Nos.

171947-48, December 18, 2008, 524 SCRA 661. 108 Oposa v. Factoran, supra note 66. K-33


controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions”.109 H. Citizen Suit 1. Who May File

Any Filipino citizen in representation of others, including minors or generations yet unborn, may file an action to enforce rights or obligations under environmental laws.110 2. Order to Intervene; Publication

Upon the filing of a citizen suit, the court shall issue an order which shall contain a brief description of the cause of action and the reliefs prayed for, requiring all interested parties to manifest their interest to intervene in the case within fifteen (15) days from notice thereof. The plaintiff may publish the order once in a newspaper of a general circulation in the Philippines or furnish all affected barangays copies of said order. 111 3. Citi zen Suits under Specific L aws

Citizen suits filed under Rep. Act No. 8749 (Clean Air Act) and Rep. Act No. 9003 (Solid Waste Management Act) shall be governed by their respective provisions.112 4. Deferment o n Fili ng and L egal Fees

The court shall defer the payment of filing and other legal fees until after judgment that shall serve as first lien on the judgment award. 113 5. Relief in Citi zen Suit

If warranted, the court may grant to the plaintiff proper reliefs, which shall include the protection, preservation or rehabilitation of the environment and the payment of attorney’s fees, costs of suit and other litigation expenses. It may also require the violator to submit a program of rehabilitation or restoration of the environment, the costs of which shall be borne by the violator, or to contribute to a special trust fund for that purpose subject to the control of the court.114 109

La Bugal-B’laan Tribal Association v. Ramos, G.R. No. 127882, J anuary 27, 2004, 421 SCRA 148. 110 RULES OF P ROCEDURE FOR E NVIRONMENTAL CASES, Rule 2, Sec. 5. 111

Id. Id. 113 Id., Sec. 12. 114 Id., Rule 5, Sec. 1. 112

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6. Citizen Suits under the Clean Air Act (Rep. Act No. 8749) and the Solid Waste Management Act (Rep. Act No. 9003)

Any citizen may file an appropriate civil, criminal or administrative action in the proper courts against: 1) Any person who violates or fails to comply with the provisions of the Act or its implementing rules and regulations; 2) The Department or other implementing agencies with respect to orders, rules and regulations issued inconsistent with the Act; and 3) Any public officer who willfully or grossly neglects the performance of an act specifically enjoined as a duty under the Act or its implementing rules and regulations; or abuses his authority in the performance of his duty; or, in any manner, improperly performs his duties under the Act or its implementing rules and regulations. No suit can be filed until a thirty-day (30) notice has been taken thereon. The court shall exempt such action from the payment of filing fees, except fees for actions not capable of pecuniary estimations, and shall likewise, upon prima facie showing of the non-enforcement or violation complained of, exempt the plaintiff from the filing of an injunction bond for the issuance of a preliminary injunction.115 Within thirty (30) days, the court shall make a determination if the complaint is malicious and/or baseless and shall accordingly dismiss the action and award attorney’s fees and damages. 116 7. Citi zen Suit t o Enforc e Right to Clean Air

Petitioners in a citizen suit to enforce their fundamental legal right to clean air have legal standing in a petition for mandamus brought against the State. A party’s standing is a procedural technicality which may be set aside, in view of the importance of the issue raised, if it involves one of transcendental importance to the public. The right to clean air is an issue of paramount importance and is impressed with public interest. The consequences of the counter-productive and retrogressive effects of a neglected environment due to emissions of motor vehicles immeasurably affect the well-being of the public.117

115 116 117

Rep. Act No. 8749 [1999], Sec. 41; Rep. Act No. 9003 [2001], Sec. 52. Id. Henares v. Land Transportation Franchising and Regulatory Board, GR No. 158290, October

23, 2006, 505 SCRA 104. This case, however, was dismissed as the relief sought for, requiring the use of natural gas in public utility vehicles, is not covered under the law and, hence, not subject to mandamus. Although dismissed, the case took note of the legal standing of the petitioners. K-35


I. Pre-Trial 1. Notice and Schedule

Within two (2) days from the filing of the answer to the counterclaim or cross-claim, if any, the branch clerk of court shall issue a notice of pre-trial to be held not later than one (1) month from the filing of the last pleading. The court shall schedule the pre-trial and set as many pre-trial conferences as may be necessary within a period of two (2) months, counted from the date of the first pre-trial conference.118 2. Pre-trial Brief

At least three (3) days before the pretrial, the parties shall submit pre-trial briefs containing the following: 1) A statement of their willingness to enter into an amicable settlement, indicating the desired terms thereof or to submit the case to any of the alternative modes of dispute resolution; 2) A summary of admitted facts and proposed stipulation of facts; 3) The legal and factual issues to be tried or resolved. For each factual issue, the parties shall state all evidence to support their positions thereon. For each legal issue, the parties shall state the applicable law and jurisprudence supporting their respective positions thereon; 4) The documents or exhibits to be presented, including depositions, answers to interrogatories and answers to written request for admission by adverse party, stating the purpose thereof; 5) A manifestation of their having availed of discovery procedures or their intention to avail themselves of referral to a commissioner or panel of experts; 6) The number and names of the witnesses and the substance of their affidavits; 7) Clarificatory questions from the parties; and 8) List of cases arising out of the same facts pending before other courts or administrative agencies.119 3. Effect o f Failure to Compl y or Fil e Brief

Failure to comply with the required contents of a pre-trial brief may be a ground for contempt. Failure to file the pre-trial brief shall have the same effect as failure to appear at the pre-trial. 120 118 119 120

RULES OF COURT FOR E NVIRONMENTAL CASES, Rule 3, Sec. 1. Id., Sec. 2. Id.

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4. Mediatio n

At the start of the pre-trial conference, the court shall inquire from the parties if they have settled the dispute; otherwise, the court shall immediately refer the parties or their counsel, if authorized by their clients, to the Philippine Mediation Center (PMC) unit for purposes of mediation. If not available, the court shall refer the case to the clerk of court or legal researcher for mediation.121 Mediation must be conducted within a non-extendible period of thirty (30) days from receipt of notice of referral to mediation. The mediation report must be submitted within ten (10) days from the expiration of the 30-day period.122 5. Preliminary Conference

If mediation fails, the court will schedule the continuance of the pretrial. Before the scheduled date of continuance, the court may refer the case to the branch clerk of court for a preliminary conference for the following purposes: 1) To assist the parties in reaching a settlement; 2) To mark the documents or exhibits to be presented by the parties and copies thereof to be attached to the records after comparison with the originals; 3) To ascertain from the parties the undisputed facts and admissions on the genuineness and due execution of the documents marked as exhibits; 4) To require the parties to submit the depositions taken under Rule 23 of the Rules of Court, the answers to written interrogatories under Rule 25, and the answers to request for admissions by the adverse party under Rule 26; 5) To require the production of documents or things requested by a party under Rule 27 and the results of the physical and mental examination of persons under Rule 28; 6) To consider such other matters as may aid in its prompt disposition; 7) To record the proceedings in the “Minutes of Preliminary Conference” to be signed by both parties or their counsels; 8) To mark the affidavits of witnesses, which shall be in question and answer form, and shall constitute the direct examination of the witnesses; and 9) To attach the minutes, together with the marked exhibits before the pre-trial proper.123 121

Id., Sec. 3. Id. 123 Id., Sec. 4. 122

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The parties or their counsel must submit to the branch clerk of court the names, addresses and contact numbers of the affiants.124 During the preliminary conference, the branch clerk of court shall also require the parties to submit the depositions taken under Rule 23 of the Rules of Court, the answers to written interrogatories under Rule 25 and the answers to request for admissions by the adverse party under Rule 26. The branch clerk of court may also require the production of documents or things requested by a party under Rule 27 and the results of the physical and mental examination of persons under Rule 28.125 The judge shall put the parties and their counsels under oath, and they shall remain under oath in all pre-trial conferences.126 6. Failure to present Evidence

Evidence not presented during the pre-trial, except newly-discovered evidence, shall be deemed waived. 127 7. How Conducted

The court shall endeavor to make the parties agree to compromise or settle in accordance with law at any stage of the proceedings before rendition of judgment.128 If there is no full settlement, the judge shall: 1) Adopt the minutes of the preliminary conference as part of the pretrial proceedings and confirm the markings of exhibits or substituted photocopies and admissions on the genuineness and due execution of documents; 2) Determine if there are cases arising out of the same facts pending before other courts and order its consolidation, if warranted; 3) Determine if the pleadings are in order and, if not, order the amendments if necessary; 4) Determine if interlocutory issues are involved and resolve the same; 5) Consider the adding or dropping of parties; 6) Scrutinize every single allegation of the complaint, answer and other pleadings and attachments thereto, and the contents of

124

Id. Id. 126 Id., Sec. 5. 127 Id. 128 Id., Sec. 10. 125

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documents and all other evidence identified and pre-marked during pre-trial in determining further admissions; 7) Obtain admissions based on the affidavits of witnesses and evidence attached to the pleadings or submitted during pre-trial; 8) Define and simplify the factual and legal issues arising from the pleadings and evidence. Uncontroverted issues and frivolous claims or defenses should be eliminated; 9) Discuss the propriety of rendering a summary judgment or a judgment based on the pleadings, evidence, and admissions made during pre-trial; 10) Observe the Most Important Witness Rule in limiting the number of witnesses, determining the facts to be proved by each witness, and fixing the approximate number of hours per witness; 11) Encourage referral of the case to a trial by commissioner under Rule 32 of the Rules of Court or to a mediator or arbitrator, under any of the alternative modes of dispute resolution governed by the Special Rules of Court on Alternative Dispute Resolution; 12) Determine the necessity of engaging the services of a qualified expert as a friend of the court (amicus curiae); and 13) Ask parties to agree on the specific trial dates for continuous trial, comply with the one-day examination of witness rule, adhere to the case flow chart determined by the court, which shall contain the different stages of the proceedings up to the promulgation of the decision, and use the time frame for each stage in setting the trial dates.129 8. Effect of Plaintiff’s and Defendant’s Failure to Appear at Pre-Trial Distinguished

The court shall not dismiss the complaint, except upon repeated and unjustified failure of the plaintiff to appear. The dismissal shall be without prejudice, and the court may proceed with the counterclaim. If the defendant fails to appear at the pre-trial, the court shall receive evidence ex parte. 130 9. Minut es

The minutes of each pre-trial conference shall contain matters taken up therein, more particularly admissions of facts and exhibits, and shall be signed by the parties and their counsel.131

129

Id., Sec. 6. Id., Sec. 7. 131 Id., Sec. 8. 130

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10. Pre-Trial Order

Within ten (10) days after the termination of the pre-trial, the court shall issue a pre-trial order setting forth the actions taken during the pre-trial conference, the facts stipulated, the admissions made, the evidence marked, the number of witnesses to be presented, and the schedule of trial. Said order shall bind the parties, limit the trial to matters not disposed of, and control the course of action during the trial.132 J. Consent Decree 1. Definiti on

Consent decree refers to a judicially-approved settlement between concerned parties based on public interest and public policy to protect and preserve the environment.133 2. Appli cation du ring Pre-Trial

The judge shall exert best efforts to persuade the parties to arrive at a settlement of the dispute. The judge may issue a consent decree approving the agreement between the parties in accordance with law, morals, public order, and public policy to protect the right of the people to a balanced and healthful ecology.134 K. Trial 1. Conti nuous Trial

The judge shall conduct continuous trial which shall not exceed two (2) months from the date of the issuance of the pre-trial order. Before the expiration of the two-month period, the judge may ask the Supreme Court for the extension of the trial period for justifiable cause. 135 2. Affid avits in Direct Examination

In lieu of direct examination, affidavits marked during the pre-trial shall be presented as direct examination of affiants, subject to crossexamination by the adverse party.136 132

Id., Sec. 9. Id., Rule 1, Sec. 4 (b) . 134 Id., Rule 3, Sec. 5; See Chapter on Mediation. 135 Id., Rule 4, Sec. 1. 136 Id., Sec. 2. 133

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3. One-Day Examination of Witness; Only Oral Offer of Evidence is Allo wed

The court shall strictly adhere to the rule that a witness has to be fully examined in one (1) day, subject to the court’s discretion of extending the examination for justifiable reason. After the presentation of the last witness, only oral offer of evidence shall be allowed, and the opposing party shall immediately interpose his objections. The judge shall forthwith rule on the offer of evidence in open court.137 4. Submissio n for Resolutio n; Memoranda

After the last party has rested its case, the court shall issue an order submitting the case for decision. The court may require the parties to submit their respective memoranda, if possible in electronic form, within a non-extendible period of thirty (30) days from the date the case is submitted for decision.138 5. Period t o Try and Decide; Priori ty o f Enviro nmental Cases

The court shall have a period of one (1) year from the filing of the complaint to try and decide the case. Before the expiration of the one-year period, the court may petition the Supreme Court for the extension of the period for justifiable cause.139 The court shall have a period of sixty (60) days to decide the case from the date the case is submitted for decision.140 The court shall prioritize the adjudication of environmental cases.141 L. Civil SLAPP Suits 1. Definiti on

Strategic lawsuit against public participation (SLAPP) refers to an action whether civil, criminal or administrative, brought against any person, institution or any government agency or local government unit or its officials and employees, with the intent to harass, vex, exert undue pressure or stifle any legal recourse that such person, institution or government agency has taken or may take in the enforcement of environmental laws, protection of the environment or assertion of environmental rights.142 137

Id., Sec. 3. Id., Sec. 4. 139 Id., Sec. 5. 140 Id., Sec. 4. 141 Id., Sec. 5. 142 Id., Rule 1, Sec. 4 (g) and Rule 6, Sec. 1 . 138

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2. SLAPP as Defense in Answ er; Not Ground for Motion to Dismiss

In a SLAPP filed against a person involved in the enforcement of environmental laws, protection of the environment, or assertion of environmental rights, the defendant may file an answer interposing as a defense that the case is a SLAPP and shall be supported by documents, affidavits, papers and other evidence; and, by way of counterclaim, pray for damages, attorney’s fees and costs of suit.143 The court shall direct the plaintiff or adverse party to file an opposition showing the suit is not a SLAPP, attaching evidence in support thereof, within a non-extendible period of five (5) days from receipt of notice that an answer has been filed.144 Unlike its counterpart in criminal SLAPP suits, the fact that the case is a civil SLAPP suit is not a ground for a Motion to Dismiss, but merely a defense to be raised in the Answer. 145 3. Summary Hearing

The defense of a SLAPP shall be set for hearing by the court after issuance of the order to file an opposition within fifteen (15) days from filing of the comment or the lapse of the period. The hearing on the defense of a SLAPP shall be summary in nature. The parties must submit all available evidence in support of their respective positions.146 4. Defendant’s and Plaintiff’s Quantum of Evidence on SLAPP Cases Distinguished

The party seeking the dismissal of the case must prove by substantial evidence that his acts for the enforcement of environmental law are legitimate actions for the protection, preservation, and rehabilitation of the environment. The party filing the action assailed as a SLAPP shall prove by preponderance of evidence that the action is not a SLAPP and is a valid claim.147 5. Relief and Remedy after Determinati on

The affirmative defense of a SLAPP shall be resolved within thirty (30) days after the summary hearing. If the court dismisses the action, the court may award damages, attorney’s fees, and costs of suit under a 143

Id., Rule 6, Sec. 2. Id. 145 Id., Rule 19, Sec. 1. 146 Id., Rule 6, Sec. 3. 147 Id., Sec. 3. 144

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counterclaim if such has been filed. The dismissal shall be with prejudice.148 If the court rejects the defense of a SLAPP, the evidence adduced during the summary hearing shall be treated as evidence of the parties on the merits of the case. The action shall proceed in accordance with the Rules of Court.149 6. SLAPP Suits under the Clean Air Act (Rep. Act No. 8749) and the Solid Waste Management Act (Rep. Act No. 9003)

Where a case (SLAPP suit) is filed against a person who filed a citizen suit, the investigating prosecutor or the court shall immediately make a determination within thirty (30) days whether said legal action has been filed to harass, vex, exert undue pressure or stifle such legal recourse of the person filing the citizen suit. Upon determination thereof, the court shall dismiss the case and award attorney’s fees and double damages. Court actions against SLAPP suits also apply to benefit public officers who are sued for enforcing the Act without grave abuse of authority.150 M. Judgm ent and Executi on 1. Judgm ents in favor o f Environment no t Stayed by Ap peal

Any judgment directing the performance of acts for the protection, preservation, or rehabilitation of the environment shall be executory pending appeal, unless restrained by the appellate court. 151 2. Permanent EPO and Continuing Mandamus in Judgment

In the judgment, the court may convert the TEPO to a permanent EPO or issue a writ of continuing mandamus directing the performance of acts which shall be effective until the judgment is fully satisfied. The court may, by itself or through the appropriate government agency, monitor the execution of the judgment and require the party concerned to submit written reports on a quarterly basis, or sooner as may be necessary, detailing the progress of the execution and satisfaction of the judgment. The other party may, at its option, submit its comments or observations on the execution of the judgment.152

148 149 150

Id., Sec. 4. Id.

Rep. Act No. 8749, Sec. 43; Rep. Act No. 9003, Sec. 53. Id., Rule 5, Sec. 2. 152 Id., Sec. 3. 151

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3. Referral to a Commissi oner

The court may motu proprio, or upon motion of the prevailing party, order that the enforcement of the judgment or order be referred to a commissioner to be appointed by the court. The commissioner shall file with the court written progress reports on a quarterly basis or more frequently when necessary.153 4. Return of Writ of Execution

The process of execution shall terminate upon a sufficient showing that the decision or order has been implemented to the satisfaction of the court in accordance with Sec. 14, Rule 39 of the Rules of Court.154 N. Judicial Review of DENR Decisions via Special Civil Actions under Rule 65 1. Review only in Cases of Grave Abuse of Discr etion

The courts will only encroach upon the discretion and jurisdiction of the DENR in cases of grave abuse of discretion. It is only upon a showing of a clear grave abuse of discretion on the part of officials in the DENR and related bureaus that the courts may step in, in the exercise of their judicial powers under the Constitution.155 2. Instances of Grave Abuse of Discretion in Environmental Admi nist rative Decisi ons

The grant of licenses or permits to exploit the country's natural resources, if done in contravention of the procedure outlined in the law, or as a result of fraud and undue influence exerted on department officials, is indicative of an arbitrary and whimsical exercise of the State's power to regulate the use and exploitation of these resources. The alleged practice of bestowing "special favors" to preferred individuals, regardless of merit, would be an abuse of this power. Should the appropriate case be brought showing a clear grave abuse of discretion on the part of officials in the DENR and related bureaus with respect to the implementation of this public policy, the courts will step in and wield authority, when invoked, in the exercise of judicial powers under the Constitution.156

153

Id., Sec. 4. Id., Sec. 5. 155 Ysmael v. Deputy Executive Secretary, supra note 66. 156 Id. 154

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III. SPECIAL CIVIL ACTIONS

A. Writ of Kalikasan 1. Nature of the Writ; Who May File

The writ is a remedy available to a natural or juridical person, entity authorized by law, people’s organization, non-governmental organization, or any public interest group accredited by or registered with any government agency, on behalf of persons whose constitutional right to a balanced and healthful ecology is violated, or threatened with violation by an unlawful act or omission of a public official or employee, or private individual or entity, involving environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces.157 2. Contents of Petition

The petition shall be verified and contain the following: 1) The personal circumstances of the petitioner; 2) The name and personal circumstances of the respondent, or if the name and personal circumstances are unknown and uncertain, the respondent may be described by an assumed appellation; 3) The environmental law, rule or regulation violated or threatened to be violated, the act or omission complained of, and the environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces; 4) All relevant and material evidence consisting of the affidavits of witnesses, documentary evidence, scientific or other expert studies, and, if possible, object evidence; 5) The certification of petitioner under oath that: (1) petitioner has not commenced any action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency, and no such other action or claim is pending therein; (2) if there is such other pending action or claim, a complete statement of its present status; (3) if petitioner should learn that the same or similar action or claim has been filed or is pending, petitioner shall report to the court that fact within five (5) days therefrom; and 6) The reliefs prayed for which may include a prayer for the issuance of a TEPO.158

157 158

RULES OF P ROCEDURE FOR E NVIRONMENTAL CASES, Rule 7, Sec. 1. Id., Sec. 2. K-45


3. Where to Fi le

The writ may only be filed with the Supreme Court or the Court of Appeals.159 4. Exemptio n f rom Docket Fees

The petitioner for a Writ of Kalikasan shall be exempt from the payment of docket fees.160 5. Issuance of the Writ; Service; Return

Within three (3) days from the date of filing of the petition, if the petition is sufficient in form and substance, the court shall give an order: (a) issuing the writ; and (b) requiring the respondent to file a verified return as provided in Sec. 8 of Rule 7 of the Rules of Procedure for Environmental Cases. The clerk of court shall forthwith issue the writ under the seal of the court, including the issuance of a cease and desist order and other temporary reliefs effective until further order. 161 The writ shall be served upon the respondent by a court officer or any person deputized by the court, who shall retain a copy on which to make a return of service. In case the writ cannot be served personally, the rule on substituted service shall apply.162 A clerk of court who unduly delays or refuses to issue the writ after its allowance, or a court officer or deputized person who unduly delays or refuses to serve the same shall be punished by the court for contempt, without prejudice to other civil, criminal or administrative actions. 163 Within a non-extendible period of ten (10) days after service of the writ, the respondent shall file a verified return which shall contain all defenses to show that respondent did not violate or threaten to violate, or allow the violation of any environmental law, rule or regulation or commit any act resulting to environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces. All defenses not raised in the return shall be deemed waived.164 The return shall include affidavits of witnesses, documentary evidence, scientific or other expert studies, and, if possible, object evidence, in 159

Id., Sec. 3. Id., Sec. 4. 161 Id., Sec. 5. 162 Id., Sec. 6. 163 Id., Sec. 7. 164 Id., Sec. 8. 160

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support of the defense of the respondent. A general denial of allegations in the petition shall be considered an admission thereof.165 In case the respondent fails to file a return, the court shall proceed to hear the petition ex parte .166 6. Preliminary Conference and Hearing

Upon receipt of the return of the respondent, the court may call a preliminary conference to simplify the issues, determine the possibility of obtaining stipulations or admissions from the parties, and set the petition for hearing.167 The hearing, including the preliminary conference shall not extend beyond sixty (60) days and shall be given the same priority as petitions for the writs of habeas corpus , amparo and habeas data.168 7. Prohib ited Pleadings and Motions

The following pleadings and motions are prohibited: 1) 2) 3) 4) 5) 6) 7) 8)

Motion to dismiss; Motion for extension of time to file return; Motion for postponement; Motion for a bill of particulars; Counterclaim or cross-claim; Third-party complaint; Reply; and Motion to declare respondent in default.169

8. Discovery Measures

A party may file a verified motion for the following reliefs: 1) Ocular Inspection Order - The motion must show that an ocular inspection order is necessary to establish the magnitude of the violation or the threat as to prejudice the life, health or property of inhabitants in two or more cities or provinces. It shall state in detail the place or places to be inspected. It shall be supported by affidavits of witnesses having personal knowledge of the violation or threatened violation of environmental law. After hearing, the court may order any person in possession or control of a 165

Id. Id., Sec. 10. 167 Id., Sec. 11. 168 Id. 169 Id., Sec. 9. 166

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designated land or other property to permit entry for the purpose of inspecting or photographing the property or any relevant object or operation thereon. The order shall specify the person or persons authorized to make the inspection and the date, time, place and manner of making the inspection, and may prescribe other conditions to protect the constitutional rights of all parties. 2) Production or inspection of documents or things - The motion must show that a production order is necessary to establish the magnitude of the violation or the threat as to prejudice the life, health or property of inhabitants in two or more cities or provinces. After hearing, the court may order any person in possession, custody or control of any designated documents, papers, books, accounts, letters, photographs, objects or tangible things, or objects in digitized or electronic form, which constitute or contain evidence relevant to the petition or the return, to produce and permit their inspection, copying or photographing by or on behalf of the movant. The production order shall specify the person or persons authorized to make the production and the date, time, place and manner of making the inspection or production, and may prescribe other conditions to protect the constitutional rights of all parties.170 9. Contempt

The court may, after hearing, punish the respondent who refuses or unduly delays the filing of a return, or who makes a false return, or any person who disobeys or resists a lawful process or order of the court for indirect contempt under Rule 71 of the Rules of Court.171 10. Submis sion for Decisio n; Memoranda

After hearing, the court shall issue an order submitting the case for decision. The court may require the filing of memoranda and, if possible, in its electronic form, within a non-extendible period of thirty (30) days from the date the petition is submitted for decision.172 11. Reliefs upon Judgm ent

Within sixty (60) days from the time the petition is submitted for decision, the court shall render judgment granting or denying the privilege of the writ of kalikasan .173

170

Id., Sec. 12. Id., Sec. 13. 172 Id., Sec. 14. 173 Id., Sec. 15. 171

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The reliefs that may be granted under the writ are the following: 1) Directing respondent to permanently cease and desist from committing acts or neglecting the performance of a duty in violation of environmental laws resulting in environmental destruction or damage; 2) Directing the respondent public official, government agency, private person or entity to protect, preserve, rehabilitate or restore the environment; 3) Directing the respondent public official, government agency, private person or entity to monitor strict compliance with the decision and orders of the court; 4) Directing the respondent public official, government agency, or private person or entity to make periodic reports on the execution of the final judgment; and 5) Such other reliefs which relate to the right of the people to a balanced and healthful ecology or to the protection, preservation, rehabilitation or restoration of the environment, except the award of damages to individual petitioners.174 B. Writ of Conti nuing Mandamus 1. Nature of the Writ

Described as “continuing mandamus” under other judicial disciplines, the court may, under extraordinary circumstances, issue directives with the end in view of ensuring that its decision would not be set to naught by administrative inaction or indifference. In the light of ongoing environmental degradation, the courts can emphasize the extreme necessity for executive agencies to immediately act and set the timetable for the performance and completion of tasks as defined for them in the law.175 2. Definiti on

Continuing Mandamus is a writ issued by a court in an environmental case directing any agency or instrumentality of the government or officer thereof to perform an act or series of acts decreed by final judgment which shall remain effective until judgment is fully satisfied.176

174 175

Id. Metropolitan Manila Development Authority vs. Concerned Residents of Manila Bay , supra

note 107. 176 RULES OF P ROCEDURE FOR E NVIRONMENTAL CASES, Rule 1, Sec. 3 (c). K-49


3. Who may File

A petition for the writ may be filed when any agency or instrumentality of the government or officer thereof unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust or station in connection with the enforcement or violation of an environmental law, rule or regulation or a right therein, or unlawfully excludes another from the use or enjoyment of such right and there is no other plain, speedy, and adequate remedy in the ordinary course of law. The petition should specify that it concerns an environmental law, rule or regulation, and that judgment be rendered commanding the respondent to do an act or series of acts until the judgment is fully satisfied, and to pay damages sustained by the petitioner by reason of the malicious neglect to perform the duties of the respondent, under the law, rules or regulations.177 The petition may be filed by one who is personally aggrieved by the unlawful omission.178 4. Where to Fi le

The petition shall be filed with the Regional Trial Court exercising jurisdiction over the territory where the actionable neglect or omission occurred or with the Court of Appeals or the Supreme Court.179 5. Exemptio n f rom Docket Fees

The petitioner for a writ of continuing mandamus shall be exempt from the payment of docket fees.180 6. Issuance of the Writ; Service; Comment

If the petition is sufficient in form and substance, the court shall issue the writ and require the respondent to comment on the petition within ten (10) days from receipt of a copy thereof. Such order shall be served on the respondents in such manner as the court may direct, together with a copy of the petition and any annexes thereto.181

177

Id., Rule 8, Sec. 1. Id. 179 Id., Sec. 2. 180 Id., Sec. 3. 181 Id., Sec. 4. 178

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7. Summary Hearing or Submis sion of Memoranda

After the comment is filed or the time for the filing thereof has expired, the court may hear the case summarily or require the parties to submit memoranda. The petition shall be resolved without delay within sixty (60) days from the date of the submission of the petition for resolution.182 8. Issuance of Temporary Environment Protection Order (TEPO)

The court in which the petition is filed may issue such orders to expedite the proceedings, and it may also grant a TEPO for the preservation of the rights of the parties pending such proceedings. 183 9. Judgm ent on the Writ

If warranted, the court shall grant the privilege of the writ requiring respondent to perform an act or series of acts until the judgment is fully satisfied and to grant such other reliefs as may be warranted resulting from the wrongful or illegal acts of the respondent. The court shall require the respondent to submit periodic reports detailing the progress and execution of the judgment, and the court may, by itself or through a commissioner or the appropriate government agency, evaluate and monitor compliance.184 10. Return of the Writ

The periodic reports submitted by the respondent detailing compliance with the judgment shall be contained in partial returns of the writ. Upon full satisfaction of the judgment, a final return of the writ shall be made to the court by the respondent. If the court finds that the judgment has been fully implemented, satisfaction of judgment shall be entered in the court docket.185

182


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IV. FORESTRY

A. Juris di ct io n of t he DENR

Under Pres. Decree No. 705, or the Revised Forestry Code, as amended by Exec. Order No. 277, the Bureau of Forestry, now the Forest Management Bureau (FMB) under the Department of Environment and Natural Resources (DENR), has jurisdiction over all forest lands186, grazing lands187, and forest reservations, including watershed reservations 188. This jurisdiction covers the protection, development, management, regeneration, and reforestation of forest lands; the regulation and supervision of the operation of licensees, lessees and permitees for the taking or use of forest products189 and the occupancy of forest lands; and the enforcement of forestry laws, rules and regulations.190 1. FMB under Direct Control and Supervision of DENR Secretary

The FMB is directly under the control and supervision of the Secretary of the DENR.191 As a subordinate officer, the Director of the FMB is subject to the control of the Secretary of the DENR who may impose reasonable regulations in the exercise of the powers of the subordinate officer.192 The power of control of the Secretary of the DENR over the FMB includes the power to modify, reverse or set aside acts of his subordinate officials.193 All actions and decisions of the Director of the 186

Pres. Decree No. 705 [1975], Sec. 3: Forest lands include the public forest, the permanent forest or forest reserves, and forest reservations. Public forest is the mass of lands of the public domain which has not been the subject of the present system of classification for the determination of which lands are needed for forest purposes and which are not. Permanent forest or forest reserves refer to those lands of the public domain which have been the subject of the present system of classification and determined to be needed for forest purposes. Forest reservations refer to forest lands which have been reserved by the President of the Philippines for any specific purpose or purposes. 187 Id.: Grazing land refers to that portion of the public domain which has been set aside, in view of the suitability of its topography and vegetation, for the raising of livestock. 188 Id., Sec. 3: Watershed reservation is a forest land reservation established to protect or improve the conditions of the water yield thereof or reduce sedimentation. Watershed is a land area drained by a stream or fixed body of water and its tributaries having a common outlet for surface run-off. 189 Id.: Forest product means timber, pulpwood, firewood, bark, tree top, resin, gum, wood, oil, honey, beeswax, nipa, rattan, or other forest growth, such as grass, shrub, and flowering plant, the associated water, fish, game, scenic, historical, recreational and geologic resources in forest lands. 190 Id., Sec. 5: J urisdiction over national parks, marine parks, game refuges and wildlife has been largely transferred to the Protected Areas and Wildlife Bureau of the DENR, pursuant to Book IV, Title XIV, Section 19 of Executive Order No. 292 or the Revised Administrative Code of 1987 and Republic Act No. 7586 or the National Integrated Protected Areas System Act of 1992. 191 Id., Sec. 7. 192 Director of Forestry v. Benedicto , G.R. No. 29956, May 5, 1981, 104 SCRA 305. 193 Tan v. Director of Forestry, supra note 56. K-52


FMB are subject to the review of the Secretary of the DENR, either motu proprio or upon appeal of any person aggrieved thereby. 194 2. Court Review of Decisi ons of the DENR Secretary bro ught o nly b y Special Civil Action for Certiorari or Prohibition

The decision of the DENR Secretary in forestry cases is final and executory after the lapse of thirty (30) days from receipt by the aggrieved party of said decision, unless appealed to the Office of the President. The decision of the Secretary may not be reviewed by the courts, except through a special civil action for certiorari or prohibition.195 3. Authority of DENR Officers to Examine Books and to Access Areas Covered b y Lic enses and Permits

The Secretary of the DENR, by himself or thru the FMB Director or any qualified person duly designated by him, may investigate, inspect and examine records, books and other documents relating to the operation of any holder of a license agreement, license, lease, or permit, and its subsidiary or affiliated companies.196 Forest officers197, or other government officials or employees duly authorized by the Secretary of the DENR or Director of the FMB, have free entry into areas covered by a license agreement, license, lease or permit. 198 4. Authority of DENR Officers to Administer Oaths and Take Testimony

DENR officers are likewise authorized to administer oath and take acknowledgment in official matters connected with the functions of their office, and to take testimony in official investigations conducted under the authority of the Revised Forestry Code and its implementing rules and regulations.199

194 195 196

Pres. Decree No. 705, Sec. 8; Paat v. Court of Appeals, supra note 51. Id.

Pres. Decree No. 705, Sec. 44. Id., Sec. 3: Forest officer means any official or employee of the Bureau who, by the nature of his appointment or the function of the position to which he is appointed, is delegated by law or by competent authority to execute, implement or enforce the provisions of this Code, other related laws, as well as their implementing regulations. 198 Id., Sec. 45. 199 Id. 197

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5. Authori ty to Deputize Offi cials or Other Qualifi ed Persons to Assist in Protection of Environm ent

The Secretary of the DENR may deputize any agency, barangay or barrio official, or any qualified person to protect the forest and exercise said powers or authority.200 Under Department Administrative Order (DAO) No. 2008-22, the DENR deputizes environment and natural resources officers, or individuals or groups who are authorized to assist in the enforcement of laws, rules and regulations governing environment, forest lands, mineral lands, protected areas and other lands of the public domain under the jurisdiction of the DENR; assist in the issuance of apprehension receipts, seizure orders and notices of administrative hearings including the proceedings necessary for the conduct of the administrative adjudication of illegally procured, transported, possessed or utilized forest products, wildlife (flora and fauna), minerals and other natural resources; and arrest, even without warrant, any person who has committed or is committing any of the offenses provided in environmental and natural resources laws, rules and regulations.201 A peace officer or an individual deputized by the proper government agency may effect a warrantless arrest. Individuals deputized by the proper government agency who are enforcing environmental laws shall enjoy the presumption of regularity under Section 3(m), Rule 131 of the Rules of Court when effecting arrests for violations of environmental laws.202 B. Criminal Off enses 1. Illegal Log ging

Pres. Decree No. 705 penalizes several acts as criminal offenses, the act most regularly committed being the cutting, gathering, collecting and removing of timber or other forest products from any forest land, or timber from alienable or disposable public or private land, without any authority, or the possession of timber or other forest products without legal documents as required under existing forest laws and regulations. 203

200 201

Id., Sec. 89.

DENR DEPARTMENT ADMINISTRATIVE ORDER 2008-22, September 30, 2008. Rules of Procedure for Environmental Cases, Rule 11, Sec. 1. 203 Pres. Decree No. 705, Sec. 77. 202

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2. Other Off enses

Other criminal offenses include the unlawful occupation or destruction of forest and grazing lands; pasturing livestock in forest, grazing and alienable and disposable lands without permit; illegal occupation of national parks and recreation areas and vandalism therein; destruction of wildlife resources; survey by unauthorized persons; misclassification and survey by government official and employee; issuance of tax declaration on real property without the proper DENR certification; coercion and influence of public officer or employee; unlawful possession of implements and devices used by forest officers; failure to pay, collect or remit forest charges; and failure to adhere to grading rules in the sale of wood products.204 3. Judic ial and Admini strative Confiscatio n and Forfeiture

In most of these criminal offenses, the penalty after judgment includes the confiscation and forfeiture in favor of the government of the fruits of, and the tools and implements used in the commission of the crime. However, in all cases of violations of Pres. Decree No. 705 or other forest laws, rules and regulations, the Secretary of the DENR may, before judgment, order the apprehension and seizure of any forest products illegally cut, gathered, removed, or possessed or abandoned, and all conveyances used in the commission of the offense for purposes of administrative proceedings for confiscation or judicial prosecution. 205 C. Illegal Cutti ng, Gathering and Possession 1. Three Categories of Acts Punished

Section 77 penalizes three categories of acts: 1) The cutting, gathering, collecting, or removing of timber or other forest products from any forest land without any authority; 2) The cutting, gathering, collecting, or removing of timber from alienable or disposable public land, or from private land without any authority; and 3) The possession of timber or other forest products without the legal documents as required under existing forest laws and regulations.206

204

Id., Secs. 78-88. Id., Sec. 77-A. 206 Merida v. People, G.R. No. 158182, J une 12, 2008, 554 SCRA 366. 205

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The phrase “existing forest laws and regulations” in the third category is interpreted to mean as those existing at the time of the commission of the offense, and not those existing at the time of the enactment of Exec. Order No. 277, which amends Pres. Decree No. 705 to penalize mere possession of timber and other forest products without legal documents.207 2. Two Distinct and Separate Offenses Punished

Section 77 of Pres. Decree No. 705, therefore, criminalizes two distinct and separate offenses, namely: 1) Cutting, gathering, collecting and removing of timber or other forest products from any forest land, or timber from alienable or disposable public land, or from private land without any authority; and 2) Possession of timber or other forest products without the legal documents required under existing laws and regulations.208 In the first offense, one can raise as a defense the legality of the acts of cutting, gathering, collecting or removing timber or other forest products by presenting the authorization issued by the DENR. In the second offense, it is immaterial whether the cutting, gathering, collecting and removal of the forest products is legal or not because what the law penalizes is the illegal possession, or possession without legal documents, of timber or forest products, whether legally acquired or not. 209 3. Elements of the Crime of Illegal Cutti ng, Gathering, Collecti ng and Removing

The elements of the first two categories of crimes under Sec. 77 are: 1) That the accused cut, gathered, collected or removed timber or other forest products; 2) That the timber or other forest products cut, gathered, collected or removed belongs to the government or to any private individual; and 3) That the cutting, gathering, collecting or removing was without authority under a license agreement, lease, license, or permit granted by the state.210

207

People v. Que, G.R. No. 120365, December 17, 1996, 265 SCRA 721. Monge v. People of the Philippines, G.R. No. 170308, March 7, 2008, 548 SCRA 542. People v. Que, supra note 207; Tigoy v. Court of Appeals, G.R. No. 144640, J une 26, 2006, 492 SCRA 208

539. 209 210

People of the Philippines v. Que, supra note 207. People of the Philippines v. CFI of Quezon, G.R. No. 46772, February 13, 1992, 206 SCRA

187. K-56


4. Ownership not an Essential Element

Ownership is not an essential element of the offense as defined in Sec. 77 of Pres. Decree No. 705. The failure of the information to allege the true owner of the timber or forest products is not material. It is sufficient that it alleges that the taking was without any authority or license from the government.211 At the same time, a person who cuts trees within his own property for his own use, but without the necessary permit from the DENR and without transporting the same outside said property can still be criminally charged for violating Pres. Decree No. 705. The law does not distinguish whether or not the person who commits the illegal acts is the owner of the property. What is material in determining culpability is whether or not the person or entity so charged has acquired the required permit, license or authorization from the DENR at the time he or it cuts, gathers or collects timber or other forest products.212 5. As Compared t o Qualified Theft

The cutting, gathering, collecting, removing, and possession of timber or other forest products without the necessary permit is no longer punished as qualified theft, but the penalty for qualified theft is imposed. 213 The acts of cutting, gathering, collecting, removing or possessing forest products without authority constitute distinct offenses that are now independent of the crime of theft under Arts. 309 and 310 of the Revised Penal Code (RPC), but the penalty to be imposed is that which is provided under these articles.214 The law treats cutting, gathering, collecting and possessing timber or other forest products without license as an offense as grave as and equivalent to the felony of qualified theft.215 The fact that the crime is punished with the same penalty as that of qualified theft does not mean that said penalties cannot be imposed if the accused is the owner of the timber and the land from which they were cut or gathered. Whether or not the legislature was correct in imposing on violators of Pres. Decree No. 705 a penalty equal to that imposable on those guilty of qualified theft is a question beyond the power of courts to resolve.216 211

Id. Roldan, Jr. v. Madrona, et al., G.R. No. 152989, September 4, 2002. 213 Paat v. Court of Appeals, supra note 51. 214 Bon v. People, G.R. No. 152160, J anuary 13, 2004, 419 SCRA 101. 215 Taopa v. People, G.R. No. 184098, November 25, 2008, 571 SCRA 610. 216 Roldan v. Madrona, supra note 212. 212

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6. Illegal Illegal Possession of Forest Products

Mere possession of forest products without the proper documents consummates the crime of illegal possession of forest products. Whether or not the timber or forest product comes from a legal source is immaterial because Pres. Decree No. 705, as amended by Exec. Order No. 277, considers mere possession without the proper legal documents as malum prohibitum .217 The motive or intention underlying the act is immaterial since mere possession of the confiscated pieces of timber without legal documents, as required under existing forest laws and regulations, gives 218 rise to criminal liability.218 7. Documents Required in Possession of Timber and Forest Products

DENR Administrative Order (DAO) No. 59, series of 1993 specifies the documents required for the transport of timber and other forest products. Section 3 thereof requires that the transport of logs, lumber, plywood, veneer, non-timber forest products and wood-based or nonwood-based products / commodities are accompanied by a certificate of origin duly issued by the DENR-Community Environment and Natural Resources Officer (CENRO) or other authorized DENR officials. 219 8. Mere Verbal Authority Cannot Legalize Possession

Mere verbal permission from the DENR CENRO authorized to issue the legal documents is not sufficient to legalize possession. Neither is a DENR regulation (DAO 79-90) which prescribes that no permit is necessary in the cutting of planted trees in titled lands, except for premium species, sufficient justification for the absence of legal documents, since the same regulation requires a certification from the CENRO concerned to the effect that the timber came from a titled land or tax declared alienable and disposable land, and which certification must accompany the 220 shipment or transport.220 9. Acts Constituting Possession

Where the truck carrying the seized illegally-cut lumber was loaded in front of the house of the accused and said accused accompanied the truck up to where the truck and lumber were seized, said facts prove the accused’s exercise of dominion and control over the lumber loaded in the 217 217

Id. People of the Philippines v. Dator , G.R. No. 136142, October 24, 2000, 344 SCRA 222. 219 219 Monge v. People Philippines, supra note 208, People of the Philippines v. Que, supra note 218 218

207. 220 220

People of the Philippines v. Dator , supra note 218.

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truck. The acts constitute possession of timber or other forest products without the required legal documents. Moreover, where the accused ran 221 away at the mere sight of the police is likewise largely indicative of guilt. 221 10. Acts Act s Punis hed u nder Pres. Decree No. 705 705 are Mala Prohibita

Pres. Decree No. 705 is a special penal statute that punishes acts essentially mala prohibita . In prosecutions under its provisions, claims of good faith are not reliable as defenses because the offense is complete 222 and criminal liability attaches once the prohibited acts are committed. 222 In offenses considered as mala prohibita, or when the doing of an act is prohibited by a special law, the commission of the prohibited act is the crime itself. It is sufficient that the offender has the intent to perpetrate the act prohibited by the special law, and that it is done knowingly and 223 consciously.223 11. 11. “Ti mber” Defined Defined

Pres. Decree No. 705 does not define "timber". It only defines "forest product". However, “timber” should be taken in its common acceptation as referring to "wood used for or suitable for building or for carpentry or joi join nery." Tre Tree sap saplin lings or tin tiny y tr tree ste stems that are are too sma small for use use as 224 posts, panelling, beams, tables, or chairs cannot be considered timber. 224 At the same time, the term “timber” includes “lumber” so as to make the possession of lumber without legal documents punishable under the 225 third category of crimes penalized under Sec. 77. 225 Lumber is a processed log or timber. Insofar as possession of timber without the required legal documents is concerned, Sec. 77 of Pres. Decree No. 705, 226 as amended, makes no distinction between raw or processed timber. 226 At any rate, separate certificates of origin for timber and lumber are still required, in the same way that different certificates are needed for different non-timber forest products. The contention that the term "timber" includes lumber and, therefore, the certificates of timber origin and their attachments should have been considered in establishing the legality of the possession of the lumber is a misapplication of the doctrine laid down 227 in jurisprudence that the term “timber” includes lumber. 227 221 221

Taopa v. Philippines, supra note 215. Monge v. People of the Philippines, supra note 208. 223 223 Tigoy v. Court of Appeals , supra note 208; Tan v. People of the Philippines, 352 Phil. 724 222 222

(1998). 224 224

Merida v. People of the Philippines, supra note 206. Tan v. People of the Philippines, supra note 223; Lalican v. Vergara, G.R. G.R . No. 1086 108619 19,, J uly 31, 1997, 276 SCRA 518; Mustang Lumber v. Court of Appeals , G.R. G .R. No. 104998 104998,, J une 18, 1996, 1996, 257 257 SCRA SC RA 430; 430; Merida v. People of the Philippines, supra note 206. 226 226 Tan v. People of the Philippines, supra note 223. 227 227 Pallada v. People of the Philippines, G.R. No. 131270, March 17, 2000, 328 SCRA 494. 225 225

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D. Search and Seizure 1. Warrantless Search of Timber in Moving Vehicles

Apprehension and seizure of transported timber and forest products are valid warrantless searches as they fall under the exception of a warrantless search of a moving vehicle, so long as there is probable cause. Probable cause is defined as the existence of such facts and circumstances which would lead a reasonable, discreet, and prudent man to believe that an offense has been committed and that the objects sought in connection with the offense are in the place to be searched. It must only be based on reasonable ground of suspicion or belief that a crime has been committed or is about to be committed. This includes instances of vehicles speeding away after being flagged down by forest officers or failure to present the proper documents required for the transport of timber 228 and forest products at DENR checkpoints.228 2. Account Account ability of Seizure Officer

Although the usual duties of a barangay captain do not ordinarily include the receipt of confiscated forest products on behalf of the Government, by virtue of Sec. 77 of Pres. Decree No. 705, he may be called on to take custody thereof as the need arises. By affixing his signature in the seizure receipt which clearly enumerates his obligations as a custodian therein, a barangay captain undertakes to safeguard the lumber on behalf of the Government and effectively becomes an accountable officer therefor. Even without signing a seizure receipt, the barangay captain is accountable therefor if he was the one who originally 229 took possession of it on behalf of the government.229 E. Administrative Confiscation

Section 77-A of Pres. Decree No. 705 grants the Secretary of the DENR the power to order the confiscation of any forest products illegally cut, gathered, removed or possessed or abandoned, and all conveyances used either by land, water or air in the commission of the offense, and to dispose of the same in accordance with pertinent laws, regulations or policies on the matter. This power covers all cases of violations of Pres. Decree No. 705 or other forest laws, rules, and regulations. The The Secre Secretary ary of th the DENR and and his his duly duly au authoriz orize ed rep reprresen esenttativ atives es are are given the authority to confiscate and forfeit any conveyances utilized in 228 228

Epie v. Marredo, G.R. No. 148117, March 22, 2007, 518 SCRA 641; People of the Philippines v. Que, supra note 207. 229 229 Arriola v. Sandiganbayan Sandiganbayan, G.R G .R.. No. 165711, 165711, J une 30, 30, 2006 2006,, 494 SCRA SC RA 344. 344.

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violating Pres. Decree No. 705 or other forest laws, rules, and regulations. The phrase "to dispose of the same" is broad enough to cover the act of forfeiting conveyances in favor of the government. The only limitation is that it should be made "in accordance with pertinent laws, regulations or policies on the matter”.230 Because of the need to make forestry laws "more responsive to present situations and realities" and in view of the "urgency to conserve the remaining resources of the country," administrative confiscation under Sec. 77-A of Pres. Decree No. 705, as amended by Exec. Order No. 277, was enacted to supplant the inadequacies that characterize enforcement of forestry laws through criminal actions.231 1. Administrative Confiscation Distinct from J udicial Confiscation

The power of administrative confiscation under Sec. 77-A of Pres. Decree No. 705 is different and distinct from the judicial confiscation of the fruits of, and the tools and implements used in, the commission of the crime. Administrative confiscation proceedings under DENR administrative orders are different from the confiscation under the Revised Penal Code or the Forestry Code, which is an additional penalty imposed in the event of conviction.232 This power of the Secretary of the DENR is an administrative remedy totally separate and distinct from criminal proceedings.233 2. Administrative Confiscation as Remedy in Case of Release of Conveyance by the Court; Duty of the Court

The release of vehicles or conveyances by the court for reasons that the owner was acquitted or that the owner is not among the accused does not render nugatory the administrative authority of the DENR Secretary to undertake other remedies. The released conveyances and vehicles can be seized again either by filing a motion for reinvestigation and motion to include the owner as co-accused in the criminal proceedings or by undertaking administrative confiscation proceedings under DAO 97-32 implementing Sec. 77-A of Pres. Decree No. 705. 234 However, the court releasing the vehicles and conveyances has no obligation to turn over the same to the DENR for purposes of administrative confiscation proceedings. The court has no mandatory duty to do so. The duty to turn over vehicles and conveyances to the nearest DENR field office rests on the officials apprehending the same, not on the court.235

230

Paat v. Court of Appeals, supra note 51; Factoran v. Court of Appeals , supra note 52. Id. 232 Momongan v. Omipon, A.M. No. MTJ -93-874, March 14, 1995, 242 SCRA 332. 233 Paat v. Court of Appeals, supra note 51. 234 Momongan v. Omipon, supra note 232. 235 Id. 231

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3. Due Process Requirements in Ad minis trative Confisc ation

In administrative confiscation, failure to observe procedural rules is justifiable under certain circumstances, as when it would be absurd to require a confiscation order or notice and hearing before seizure could be effected.236 At the same time, due process in administrative confiscation proceedings is served when the offenders are given the opportunity to explain or move for a reconsideration of the decision of the Secretary or Regional Director of the DENR.237 4. Requirement to Deliver the Accused to the Public Prosecutor not Appl ic abl e in Administ rative Confi sc ation

The requirement under Sec. 89 of Pres. Decree No. 705 to deliver to the public prosecutor the offender and the confiscated items within six hours of apprehension does not apply in administrative confiscation proceedings. The same only applies when an arrest is made and there is a need to immediately file the information in court for criminal proceedings.238 On the other hand, should evidence in any administrative seizure and confiscation proceeding warrant, the DENR hearing officer shall initiate the filing of a criminal complaint before the City or Provincial Prosecutor or before the Municipal Trial Court for preliminary investigation and prosecution.239 5. Arrest Procedure in Adminis trative Confiscation

Under DAO 97-32, the Apprehending Officer of the DENR may, whenever circumstances so warrant, effect the arrest and detention of any person(s) apprehended by virtue of administrative seizure and confiscation proceedings, and deliver such person(s) to the proper authorities in accordance with the provisions of Pres. Decree No. 705, as amended.240 Should the evidence in any administrative case arising by virtue of DAO 97-32 so warrant, the Hearing Officer shall initiate the filing of a criminal complaint before the City or Provincial Prosecutor or the before the Municipal Trial Court of appropriate jurisdiction for preliminary investigation and prosecution in accordance with law. 241 In all matters pertaining to arrests and prosecution of any person(s) effected pursuant

236

Calub v. Court of Appeals, supra note 75. Factoran v. Court of Appeals, supra note 52; Paat v. Court of Appeals , supra note 51. 238 Id. 237 239

DEPARTMENT ADMINISTRATIVE ORDER (DAO) No. 97-32 [year], Sec. 10.2. DAO 97-32, Sec. 10 (1). 241 Id., Sec. 10 (2). 240

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thereto, DENR personnel shall coordinate with the Department of J ustice Task Force on Environment and Natural Resources (DOJ -STF-ENR).242 In initiating and prosecuting criminal charges, the DENR Officer shall, in addition to the indictment, file for: (a) actual damages in an amount equivalent to the value of the illegal forest products confiscated by virtue hereof; as well as (b) moral and exemplary damages for prejudice to the environment, in an amount equivalent to ten times (10X) the value of the forest products confiscated.243 Should the evidence so warrant, the DENR Hearing Officer in administrative confiscation proceedings shall, in addition to the foregoing, promptly send a complete set of the records of the case, duly certified by him as faithful reproductions of the original documents thereof, together with written Formal Indorsements to other government agencies for investigation and prosecution in accordance with law. Government agencies to which cases may be indorsed include, but are not limited to the: (a) Bureau of Internal Revenue - for failure to pay forestry charges and taxes; (b) Department of Trade and Industry - for violation of trade and industry laws, and (c) the Securities and Exchange Commission.244 F. Arrest and Prosecution 1. Arrest b y DENR Offi cial or Phili ppi ne National Poli ce

A forest officer or employee of the DENR or any personnel of the Philippine National Police may arrest, even without warrant, any person who has committed or is committing in his presence any of the offenses punished under the Revised Forestry Code. The forest officer may also seize and confiscate, in favor of the Government, the tools and equipment used in committing the offense, and the forest products cut, gathered or taken by the offender in the process of committing the offense.245 2. Delivery o f Arrested Person and Seized Paraphernali a

The arresting forest officer or DENR employee then delivers, within six (6) hours from the time of arrest and seizure, the offender and the confiscated forest products, tools and equipment and files the proper complaint with the appropriate official designated by law to conduct preliminary investigation and file the information in court. 246 The delivery of 242

Id., Sec. 10 (3). Id., Sec. 10 (4). 244 Id., Sec. 10 (5). 243 245 246

Pres. Decree No. 705, Sec. 89. Id., Sec. 89. K-63


the seized forest products, tools and equipment within six (6) hours required under this legal provision applies only to criminal prosecutions provided for in Sec. 77, and not to administrative confiscations provided for in Sec. 77-A.247 If the arrest and seizure are made in the forest, far from the authorities designated by law to conduct preliminary investigations, the delivery to, and filing of the complaint with the latter must be done within a reasonable time. The seized products, materials and equipment are also immediately disposed of in accordance with DENR administrative orders. 248 3. Investigation by Forest Officers and the Philippi ne Natio nal Police

Reports and complaints regarding the commission of any offense not committed in the presence of a forest officer or DENR employee, or any personnel of the Philippine National Police or any of DENR deputized officers or officials, are investigated by forest officers assigned in the area or any personnel of the Philippine National Police where the offense was allegedly committed, and who receives the evidence supporting the report or complaint.249 4. Filing of Complaint by Forest Officer and the Philippine National Police

If there is a prima facie evidence supporting the complaint or report, the investigating forest officer or personnel of the Philippine National Police files the necessary complaint with the appropriate official authorized by law to conduct a preliminary investigation and file the information in Court.250 The phrase "reports and complaints" refers to "reports and complaints as might be brought to the forest officer assigned to the area by other forest officers or employees of the Bureau of Forest Development (now the FMB) or any of the deputized officers or officials, for violations of

forest laws not committed in their presence."251

247 248 249

Factoran v. Court of Appeals, supra note 52.

Pres. Decree No. 705, Sec. 89.

Id. Id. 251 People v. CFI of Quezon, supra note 210. 250

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5. How to Commence Prosecution

Section 89252 of Pres. Decree No. 705 covers two (2) specific instances when a forest officer may commence a prosecution for violation of Pres. Decree No. 705. The first authorizes a forest officer or employee of the DENR to arrest without a warrant any person who has committed or is committing, in his presence, any of the offenses described in the Forestry Code. The second covers a situation when an offense described in the Code is not committed in the presence of the forest officer or employee and the commission is brought to his attention by a report or a complaint. In both cases, the forest officer or employee investigates the offender and files a complaint with the appropriate official authorized by law to conduct a preliminary investigation and file the necessary information in court.253

252

Pres. Decree No. 705, Sec. 89. Arrest; Institution of criminal actions. - A forest officer or employee of the Bureau shall arrest even without warrant any person who has committed or is committing in his presence any of the offenses defined in this Chapter. He shall also seize and confiscate, in favor of the Government, the tools and equipment used in committing the offense, and the forest products cut, gathered or taken by the offender in the process of committing the offense. The arresting forest officer or employee shall thereafter deliver within six (6) hours from the time of arrest and seizure, the offender and the confiscated forest products, tools and equipment to, and file the proper complaint with, the appropriate official designated by law to conduct preliminary investigations and file informations in court. If the arrest and seizure are made in the forests, far from the authorities designated by law to conduct preliminary investigations, the delivery to, and filing of the complaint with, the latter shall be done within a reasonable time sufficient for ordinary travel from the place of arrest to the place of delivery. The seized products, materials and equipment shall be immediately disposed of in accordance with forestry administrative orders promulgated by the Department Head. The Department Head may deputize any agency, barangay or barrio official, or any qualified person to protect the forest and exercise the power or authority provided for in the preceding paragraph. Reports and complaints regarding the commission of any of the offenses defined in this Chapter, not committed in the presence of any forest officer or employee, or any personnel of the Philippine Constabulary/Philippine National Police, or any of the deputized officers or officials, shall immediately be investigated by the forest officer assigned in the area or any personnel of the Philippine Constabulary/Philippine National Police where the offense was allegedly committed, who shall thereupon receive the evidence supporting the report or complaint. If there is prima facie evidence to support the complaint or report, the investigating forest officer and/or members of the Philippine Constabulary/Philippine National Police shall file the necessary complaint with the appropriate official authorized by law to conduct a preliminary investigation of criminal cases and file an information in Court. 253 People v. CFI of Quezon, supra note 210. K-65


6. Preliminary Investigation conducted by Public Prosecutor, not by Forest Officer

Section 89 does not divest public prosecutors of the general authority to conduct preliminary investigation of complaints filed under Pres. Decree No. 705. Neither did the said section grant forest officers the power to conduct preliminary investigation. Under said Section 89, after a forest officer had made the arrest (for offenses committed in his presence) or after conducting an investigation of reports or complaints of violations of the Code (for violations not committed in his presence), he is still required to file the proper complaint with the appropriate official designated by law to conduct preliminary investigations in court.254 7. Private Offended Party may File Complaint Directly with Public Prosecutor

A private complainant as an offended party is not prevented from filing the complaint himself. Sec. 89 of Pres. Decree No. 705, as amended, does not prohibit an interested person from filing a complaint before any officer authorized by law to conduct a preliminary investigation for violation of forestry laws. The Revised Rules of Criminal Procedure list the cases which must be initiated by a complaint filed by specified individuals, noncompliance of which ousts the trial court of jurisdiction from trying such cases. However, these cases concern only defamation and other crimes against chastity and not criminal offenses punished under forestry laws. 255 The phrase in Sec. 89 of P.D. 705 requiring forest officers to investigate reports and complaints of violations of forestry laws and file the necessary complaint for preliminary investigation, therefore, does not preclude the filing of complaints by private parties directly with the public prosecutor for preliminary investigation.256 8. Presidential Decree No. 705 Grants Forest Officers Special, not Exclusive, Authorit y to Ar rest and Investigate Offenses

Section 89 of Pres. Decree No. 705 does not require that a complaint must first be investigated by a forest officer and that only the forest officer may file the case for preliminary investigation. It should not be interpreted to vest exclusive authority upon forest officers to conduct investigations regarding offenses described in the decree. Rather, it should be construed as granting forest officers and employees special authority to arrest and investigate offenses described in Pres. Decree No. 705 to reinforce the exercise of such authority by those upon whom it is vested by general law.257 254

Id. Merida v. People of the Philippines, supra note 206. 256 People of the Philippines v. CFI of Quezon, supra note 210. 257 Merida v. People of the Philippines, supra note 206. 255

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G. Judgm ent and Convicti on 1. Convictio n based on Circumst antial Evidence

Conviction may be based on circumstantial evidence as when the accused admitted to witnesses that he committed the act of cutting the trees thus establishing an extrajudicial admission of guilt. Testimony of what one heard a party say is not necessarily hearsay. It is admissible in evidence, not to show that the statement was true, but that it was in fact made. If credible, it may form part of the circumstantial evidence necessary to convict the accused.258 2. Value of Lumber not Essential Element

The failure of the prosecution to adduce evidence in support of its allegation in the information with respect to the value of the confiscated pieces of lumber is not necessarily fatal to its case and does not merit a judgment of acquittal. The value of the lumber is not an essential element in the crime of illegal cutting and gathering or possession of forest products.259 3. Determination of Penalty

In establishing the value of the timber and forest products illegally acquired or possessed for purposes of determining the appropriate penalty for the accused, more than an estimate made by the DENR official concerned is needed.260 An estimate appearing in the official transmittal letter of the DENR-CENRO addressed to the Office of the Provincial Prosecutor is insufficient.261 To prove the amount of the property taken for fixing the penalty imposable against the accused under Art. 309 of the Revised Penal Code, the prosecution must present more than a mere uncorroborated "estimate" of such fact. In the absence of independent and reliable corroboration of such estimate, courts may either apply the minimum penalty under Art. 309 or fix the value of the property taken based on the attendant circumstances of the case.262

258

Bon v. People of the Philippines, G.R. No. 152160, J anuary 13, 2004, 419 SCRA 101. People of the Philippines v. Dator , supra note 218. 260 Merida v. People of the Philippines, supra note 206; People of the Philippines v. Dator , supra note 218. 261 People of the Philippines v. Dator , supra note 218. 262 Merida v. People of the Philippines, supra 206; People of the Philippines v. Dator , supra note 218. 259

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4. Judicial Confiscation of the Conveyance Allowed if Owner is Found Guilty

According to the Revised Penal Code, Art. 45, first paragraph: "[E]very penalty imposed for the commission of a felony shall carry with it the forfeiture of the proceeds of the crime and the instrument or tools with which it was committed." However, this cannot be done if such proceeds and instruments or tools "be the property of a third person not liable for the offense." In such a case, there is no justification for a court to order forfeiture of a conveyance or vehicle used in violation of forestry laws if the owner thereof is not found guilty of such violation or was not even included as an accused in the criminal case in the first place.263 H. Chain Saw Act

"Chain saw" refers to any portable power saw or similar cutting implement, rendered operative by an electric or internal combustion engine or similar means, that may be used for, but is not limited to, the felling of trees or the cutting of timber.264 All persons who own or are otherwise in possession of chain saws must register the same with the DENR, through any of its Community Environment and Natural Resources Office (CENRO), which shall issue the corresponding registration certificate or permit. 265 The law punishes the acts of: 1) Selling, purchasing, re-selling, transferring, distributing or possessing a chain saw without a proper permit from the DENR; 2) Unlawful importation or manufacturing of chain saw without authorization from the DENR; 3) Tampering of engine serial number; and 4) Actual unlawful use of chain saw.266 For acts committed under Section 7 (1) and (4) of the Chain Saw Act, the penalty includes confiscation of the chain saw.267

263 264

Momongan v. Omipon, supra note 232.

Rep. Act No. 9175, “Chain Saw Act of 2002”, Sec. 3 (a). Id., Sec. 6. 266 Id., Sec. 7. 267 Id., Sec. 7 (1) and (4). 265

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In the Province of Palawan, the Chain Saw Act is implemented by the Palawan Council for Sustainable Development, including the registration and issuance of permits for chain saws.268 Chain saws which are not registered are considered unlawfully sold, purchased, transferred, distributed, disposed or possessed. The CENRO, office where such chain saws are supposed to be registered, shall file the necessary complaint for the conduct of preliminary investigation and filing of the information in court.269 Chain saws possessed and actually used to illegally cut trees and timber in forest land or elsewhere, as penalized under Sec. 77 of Pres. Decree No. 705 and those which are displayed in open view, shall likewise be subject to judicial confiscation and the user or possessor shall be arrested and the chain saw seized. The arresting DENR officer shall deliver the offender and chain saw to the official authorized to conduct the preliminary investigation within thirty-six (36) hours and file the proper complaint. 270 Chain saws, whether properly registered or not, that are used in the illegal cutting, gathering, collecting, removing or possessing of timber or forest products, as penalized under Sec. 77 of Pres. Decree No. 705, may also be subjected to administrative confiscation under Sec. 77-A of Pres. Decree No. 705.271

268

Id., Sec. 9. Id. 270 Id. 271 Id. 269

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V. FISHERIES A. Coverage

Rep. Act No. 8550, or the Philippine Fisheries Code of 1998, covers all Philippine waters272 including other waters over which the Philippines has sovereignty and jurisdiction, and the country's 200-nautical mile Exclusive Economic Zone (EEZ) and continental shelf; all aquatic and fishery resources whether inland, coastal or offshore fishing areas, including but not limited to fishponds, fish pens/cages; and all lands devoted to aquaculture, or businesses and activities relating to fishery, whether private or public lands. 273 The use and exploitation of the fishery and aquatic resources in Philippine waters is reserved exclusively to Filipinos.274 B. Municipal Waters Defined 1. Under the Philip pine Fisheries Cod e Of 1998

Municipal waters include not only streams, lakes, inland bodies of water and tidal waters within the municipality which are not included within the protected areas as defined under Rep. Act No. 7586 (The NIPAS Law), public forest, timber lands, forest reserves or fishery reserves, but also marine waters included between two (2) lines drawn perpendicular to the general coastline from points where the boundary lines of the municipality touch the sea at low tide and a third line parallel with the general coastline, including offshore islands and fifteen (15) kilometers from such coastline. Where two (2) municipalities are so situated on opposite shores that there is less than thirty (30) kilometers of marine waters between them, the third line shall be equally distant from opposite shore of the respective municipalities.275

272

Rep. Act No. 8550, Sec. 4 (64): Philippine waters include all bodies of water within the Philippine territory, such as lakes, rivers, streams, creeks, brooks, ponds, swamps, lagoons, gulfs, bays and seas and other bodies of water now existing or which may hereafter exist in the provinces, cities, municipalities, and barangays and the waters around, between and connecting the islands of the archipelago regardless of their breadth and dimensions, the territorial sea, the sea beds, the insular shelves, and all other waters over which the Philippines has sovereignty and jurisdiction, including the 200-nautical miles Exclusive Economic Zone and the continental shelf. 273 Id., Sec. 3. 274 Id., Sec. 5. 275 Id., Sec. 4. K-70


2. Under the Local Government Code

"Municipal Waters" includes not only streams, lakes, and tidal waters within the municipality, not being the subject of private ownership and not comprised within the national parks, public forest, timber lands, forest reserves or fishery reserves, but also marine waters included between two lines drawn perpendicularly to the general coastline from points where the boundary lines of the municipality or city touch the sea at low tide and a third line parallel with the general coastline and fifteen (15) kilometers from it. Where two (2) municipalities are so situated on the opposite shores that there is less than fifteen (15) kilometers of marine waters between them, the third line shall be equally distant from opposite shores of their respective municipalities. 276 C. Author ity o ver Municipal Waters 1. Municip al and City Governments

Municipal and city governments have authority over municipal waters. They are responsible for the management, conservation, development, protection, utilization, and disposition of all fish and fishery/aquatic resources within their respective municipal waters. They may enact appropriate fishery ordinances in accordance with the Philippine Fisheries Code and other fishery policies. The ordinances enacted by the municipality and component city are reviewed by the sanggunian of the province which has jurisdiction over the same pursuant to Rep. Act No. 7160, or the Local Government Code. They enforce all fishery laws, rules and regulations, as well as valid fishery ordinances that they enact. 277 2. Nature of Autho rity

Municipal waters are ordinarily for public use, open to navigation and fishing by the people. Congress, through the Local Government and Fisheries Code, saw fit to grant the usufruct of said municipal waters for fishery purposes, to the towns and cities bordering said waters. Said towns and cities have no vested rights over said marine waters. The power of the municipalities and cities to grant fishery privileges is not based on or derived from the inherent right of the municipality or city. It is a grant of usufruct, more or less temporary, over fishery resources of the State made by its National Legislature. Congress, for reasons it may deem valid or as a matter of public policy, may, at any time, repeal or modify said Local Government or Fisheries Code and revoke this grant to coastal towns and cities and open these marine waters to the public. Or it may 276 277

Rep. Act No. 7160, Sec. 131 (r). Rep. Act No. 8550, Sec. 16; Rep. Act No. 7160, Sec. 149. K-71


grant the usufruct or right of fishery to the provinces concerned so that said provinces may operate or administer them by leasing them to private parties. As such, the right or usufruct of towns and cities over municipal waters is not subject to execution in a case to enforce a judgment against the town. Municipalities and cities do not hold this usufruct or right of fishery in a permanent or absolute manner so as to enable them to dispose of it or to allow it to be taken away as their property through execution.278 3. Municip al Fishing

Municipal fishing is fishing within municipal waters using fishing vessels of three (3) gross tons or less, or fishing not requiring the use of fishing vessels.279 4. Grant of Fishery Privileges

Municipalities and cities have the exclusive authority to grant fishery privileges in their municipal waters and impose rentals, fees or charges. 280 They grant fishery privileges to erect fish corrals, oysters, mussels or other aquatic beds or bangus fry areas, within a definite zone of the municipal waters, and to gather, take or catch bangus fry, prawn fry or kawag-kawag or fry of other species and fish from the municipal waters by nets, traps or other fishing gears to marginal fishermen free of any rental, fee, charge or any other imposition.281 They also issue licenses for the operation of fishing vessels of three (3) tons or less.282 5. Regulation of Fishery Activities Incidental to Power to Grant Fishery Privileges

By designating the seasons of the year when fishing rights might be exercised and the manner of so doing, that no detriment should thereby result to the development of the fishing industry and occasion a decrease in the number of fish in municipal waters, and by prescribing the form of the fishing weirs or devices which might be constructed in the respective seasons, a municipality merely exercises a grant of fishery privileges by regulating the same, and does not in any way result to an unconstitutional prohibition.283

278 279

Municipality of Paoay v. Manaois, 86 Phil. 629 (1950).

Rep. Act No. 8550, Sec. 4 (57). Rep. Act No. Sec. 149 (a). 281 Id., Sec. 149 (b) (1) and (2). 282 Id., Sec. 149 (b) (3). 283 US v. Garing, 28 Phil. 199 (1914). 280

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6. Municip ality o r City Not Liable for Act s of Licensee/Grantee

The mere grant of a fishery privilege or license, without any other affirmative act on the part of the municipality, does not make the municipality or city liable for damages caused to a third person by wrongful acts committed by the licensee or grantee. The effect of the license or grant is simply to say that so far as the licensor is concerned it will not interfere with the acts of the licensee. 284 7. Local Ordinance Unconstitutional

Banning

Shipment

of

Live

Fish

Not

A local ordinance banning the shipment of live fish from the province to establish a “closed season” for the species of fish or aquatic animals covered therein and to protect the corals of the marine waters from further destruction due to illegal fishing activities is not unconstitutional. The accomplishment of the first objective is well within the devolved power to enforce fishery laws in municipal waters which allows the establishment of “closed seasons.” The realization of the second objective falls within both the general welfare clause of the Local Government Code and the express mandate thereunder to cities and provinces to protect the environment and impose appropriate penalties for acts which endanger the environment. The prohibition against catching live fish stems, in part, from the modern phenomenon of live-fish trade which entails the catching of socalled exotic tropical species of fish by squirting sodium cyanide poison at passing fish directly or onto coral crevices. The nexus between the activities barred by the ordinance and the use of sodium cyanide, on the other, is obvious. The public purpose and reasonableness of the ordinance cannot be controverted.285 8. Classific ation o f Fees

The authority of the municipalities or cities to impose a license for fishing privileges in Sec. 149 of Rep. Act No. 7160 is a general power that does not specify the classification or graduation of such fees. The municipality or city, under this general grant of power, may classify and graduate the license fees for fishing privileges. They are not limited to the imposition of a single license tax, operating on all persons alike, regardless of the apparatus used or the benefits derived from such a privilege. A municipality or city has the right to classify and graduate such fees according to the value of the privilege conferred, so long as such classification is reasonable and does not contravene any constitutional right.286 284

Palma v. Municipality of Binmaley, 7 Phil. 154 (1906). Tano v. Socrates, G.R. No. 110249, August 21, 1997, 278 SCRA 154. 286 US v. Sumulong, 30 Phil. 381 (1915). 285

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9. Law Enforcement

Law enforcement officers of the LGUs and other government enforcement agencies, are authorized to enforce fishery laws, rules and regulations. Other competent government officials and employees, punong barangays and officers and members of fisherfolk associations who have undergone training on law enforcement may also be designated in writing by the DA as deputy fish wardens in the enforcement of fishery laws, rules and regulations.287 D. Juris dict ion of DA-BFAR

The Department of Agriculture (DA), through the Bureau of Fisheries and Aquatic Resources (BFAR), has jurisdiction over all other waters other than municipal waters or those falling under the jurisdiction of the Department of Environment and Natural Resources (DENR) as protected areas under the National Integrated Protected Areas System (NIPAS) Act, or Rep. Act No. 7586. 1. Grant of Fishery Privileges

The DA determines rental rates for fishpond areas covered by fishpond lease agreements and license fees for commercial fishing boat licenses. It also prescribes fees and other fishery charges and issues the corresponding license or permit for fishing gear, fishing accessories, and other fishery activities beyond municipal waters. 288 The DA may prescribe limitations or quota on the total quantity of fish captured, for a specified period of time and specified area. In municipal waters and fishery management areas, and waters under the jurisdiction of special agencies, catch ceilings may be established upon the concurrence and approval or recommendation of such special agency and the concerned LGU.289 It may declare a closed season in any or all Philippine waters outside the boundary of municipal waters and in bays, for conservation and ecological purposes. Closed seasons in municipal waters and other waters under the jurisdiction of other agencies may be declared with the concurrence of the LGU or other agency.290

287

Rep. Act No. 8550, Sec. 124. Id., Sec. 6. 289 Id., Sec. 8. 290 Id., Sec. 9. 288

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2. Law Enforcement

The DA, through the BFAR, has the jurisdiction to enforce all laws and formulate and enforce all rules and regulations governing the conservation and management of fishery resources, except in municipal waters. It has jurisdiction to settle conflicts of resource use and allocation. It also issues licenses for the operation of commercial fishing vessels.291 The DA, in consultation with the LGUs and local FARMCs, issues Fishery Administrative Orders or regulations for the conservation, preservation, management, and sustainable development of fishery and aquatic resources.292 The law enforcement officers of the DA, the Philippine Navy, Philippine Coast Guard, Philippine National Police (PNP), and PNP-Maritime Command are authorized to enforce fishery laws, rules and regulations. 293 3. Authorit y to B oard Fishing Vessels and Examine Record Books

In commercial fishing,294 the owner, licensee, master, or any person-incharge of a fishing vessel keeps record books on board the boat reflecting details of the boat’s fishing activities in the past five years. These record books are kept on board the fishing vessel to be presented upon demand by fishery law enforcers, except when the boat is dry docked or undergoing repairs and, therefore, not in operation.295 The BFAR Director or fishery law enforcement officers also have the power to board fishing vessels, whether licensed or not, for the purpose of inspecting the fish holds or boxes containing fish or fishery/aquatic products and investigating persons found therein.296 They also have the power to take fish samples in quantity of not more than one (1) kilo, or only one (1) fish if it weighs more than a kilo, for an on-the-spot or scientific examination to determine whether the same was caught by means of explosives, or by poisonous or obnoxious substances.297 4. Authori ty t o Pursue and Inspect Foreign Vessels fo r Poaching

When a foreign fishing vessel is reported by any person to be suspected of poaching in Philippine waters, any of the persons authorized 291

Id., Sec. 65. Id., Sec. 107. 293 Id., Sec. 124. 294 Id., Sec. 4 (10): The taking of fishery species by passive or active gear for trade, business and 292

profit beyond subsistence or sports fishing. 295 Fisheries Administrative Order (FAO) No. 198, s. 2000, “Rules and Regulations on Commercial Fishing”, Sec. 22 and 24. 296 Id., Sec. 26. 297 Id., Sec. 27. K-75


to enforce fishery laws shall immediately take action to pursue and conduct an inspection of the foreign fishing vessel to determine whether it is in fact engaged in poaching.298 E. Illegal Act ivit ies

Rep. Act No. 8550 penalizes the following acts 299: 1) Unauthorized Fishing or Engaging in Other Unauthorized Fisheries Activities; 2) Poaching in Philippine Waters300; 3) Fishing Through Explosives, Noxious or Poisonous Substance, and/or Electricity; 4) Possession of explosive, noxious or poisonous substances or electrofishing devices; 5) Possessing, dealing in, selling or disposing fish illegally caught, taken or gathered; 6) Use of Fine Mesh Net301; 7) Use of Active Gear302 in the Municipal Waters and Bays and Other Fishery Management Areas; 8) Coral Exploitation and Exportation; 9) Use of Muro-Ami303 and Other Methods and Gear Destructive to Coral Reefs and Other Marine Habitat; 10) Gathering, Selling or Exporting Sand, Silica, Pebbles; 11) Illegal Use of Superlights304 in Municipal Waters or in Violation of DA Rules; 12) Conversion of Mangroves; 298

Fishery Administrative Order (FAO) No. 200, s. 2000 “ Guidelines and Procedures in Implementing Section 87 of the Philippine Fisheries Code of 1998”. 299 Id., Secs. 86-106. 300 Fishing or operating any fishing vessel in Philippine waters, committed by any foreign person, corporation, or entity. This does not include foreigners engaged in leisure or game fishing as may be defined by the Department pursuant to Section 86.1 of DAO No. 3, Series of 1998. Fishery Administrative Order (FAO) No. 200, s. 2000 “ Guidelines and Procedures in Implementing Sec. 87 of the Philippine Fisheries Code of 1998”. 301 Rep. Act No. 8550, Sec. 4 (21): Net with mesh size of less than three centimeters (3 cm.) measured between two (2) opposite knots of a full mesh when stretched or as otherwise determined by the appropriate government agency. 302 Id., Sec. 4 (40) (a): Fishing device characterized by gear movements, and/or the pursuit of the target species by towing, lifting, and pushing the gears, surrounding, covering, dredging, pumping, and scaring the target species to impoundments; such as, but not limited to, trawl, purse seines, Danish seines, bag nets, paaling, drift gill net, and tuna longline. 303 Id., Sec. 92: Gear and methods that require diving, other physical or mechanical acts to pound the coral reefs and other habitat to entrap, gather or catch fish and other fishery species. 304 Id., Sec. 4 (71): Also called magic light, is a type of light using halogen or metal halide bulb which may be located above the sea surface or submerged in the water. It consists of a ballast, regulator, electric cable, and socket. The source of energy comes from a generator, battery or dynamo coupled with the main engine. K-76

ENVIRONMENTAL LAW AND PROCEDURAL RULES 305 13) Fishing in Overfished Area and During Closed Season305 ; 14) Fishing in Fishery Reserves, Refuge and Sanctuaries; 15) Fishing Or Taking of Rare, Threatened or Endangered Species; 306 16) Capture of Sabalo306 and Other Breeders/Spawners; 17) Exp E xport ortat ation ion of Breed Breeders, ers, Spaw S pawners, ners, Eggs E ggs or Fry F ry;; 18) Importation or Exportation of Fish or Fishery Species; 307 19) Violation of Cat C atch ch Ceiling C eilings s307 ; 308 308 20) Aquatic Pollution ; 309 310 21) Construction and Operation of Fish Corrals/Traps309 , Fish Pens,310 311 and Fish Cages311 without a license/permit; 22) Obstruction of Defined Migration Paths; 23) Obstruction to Fishery Law Enforcement Officer.

No person person is allowed to to engage in any fis fishery hery activity activity in Philippine P hilippine waters waters without a license, lease or permit, except for fishing for daily food sustenance or for leisure and not for commercial, occupation or livelihood purposes. Persons engaging in commercial fishing in municipal waters must be 312 registered in the registry of municipal fisherfolk.312 The The use use of of sub substa stances ces to to er eradicat icate e pr predator ators s in fis fish hpond onds in acco accorrdance with accepted scientific practices is not considered fishing through noxious 313 and poisonous subst s ubstances. ances.313 305 305

Id., Sec. 4 (8): The period during which the taking of specified fishery species by a specified fishing gear is prohibited in a specified area or areas in Philippine P hilippine waters. waters. 306 306 Id., Sec. 98: Mature milkfish. 307 307 Id., Sec. 4 (7): Annual catch limits allowed to be taken, gathered or harvested from any fishing area in consideration of the need to prevent overfishing and harmful depletion of breeding stocks of aquatic organisms. 308 308 Id., Sec. 4 (4): The introduction by human or machine, directly or indirectly, of substances or energy to the aquatic environment which result or is likely to result in such deleterious effects as to harm living and non-living aquatic resources, pose potential and/or real hazard to human health, hindrance to aquatic activities such as fishing and navigation, including dumping/disposal of waste and other marine litters, discharge of petroleum or residual products of petroleum or carbonaceous materials/substances, and other, radioactive, noxious or harmful liquid, gaseous or solid substances, from any water, land or air transport or other human-made structure. Deforestation, unsound agricultural practices, such as the use of banned chemicals and excessive use of chemicals, intensive use of artificial fish feed, and wetland conversion, which cause similar hazards and deleterious effects, shall also constitute aquatic pollution. 309 309 Id., Sec. 4 (24): A stationary weir or trap devised to intercept and capture fish consisting of rows of bamboo stakes, plastic nets, and other materials fenced with split blood mattings or wire mattings with one or more enclosures, usually with easy entrance but difficult exit, and with or without leaders to direct the fish to the catching chambers, purse or bags. 310 310 Id., Sec. 4 (27): An artificial enclosure constructed within a body of water for culturing fish and fishery/aquatic resources made up of poles closely arranged in an enclosure with wooden materials, screen or nylon netting to prevent escape of fish. 311 311 Id., Sec. 4 (23): An enclosure which is either stationary or floating made up of nets or screens sewn or fastened together and installed in the water with opening at the surface or covered and held in a place by wooden/bamboo posts or various types of anchors and floats. 312 312 Id., Sec. 86. 313 313 Id., Sec. 88 (1).

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The The prohib ohibit itio ion n on the use of fine mesh net sha shall not apply to the gathering ing of fry, glass eels, elvers, tabios, and alamang and such species which by their 314 nature are small but already mature to be identified. 314 F. Presumptio Presumptio ns 1. Presence Presence of Fishing Vessel Vessel w ithout Permit Permit

Discovery of any person in an area where he has no permit or registration papers for a fishing vessel constitutes the presumption that the 315 person and/or vessel is engaged in unauthorized fishing. 315 2. Entry Entry o f Foreign Fishing Vessel Vessel

The ent entry of any forei oreig gn fis fish hing ing ves vesse sell in in Phi Philip lippine ine wa waters ers con constit stitu utes prima facie evidence that the vessel is engaged in fishing in Philippine 316 waters316 under the following following circumstances: circumstances: (a) Entry ntry of a foreign fishing vessel vessel into Philippine Philippine waters waters under the following following circumstances: (i) Navigating Navigating with its fishing fishing gear deployed deployed and/or not stowed; (ii) (ii) Navigating Navigating with an irregular track track or route; route; (iii) (iii) Navigating Navigating through through Philippin P hilippine e territorial territorial waters without prior notice to, clearance of, of, or permis permissio sion n from the the appropriate appropriate P hilippine authority; authority; (iv) Navigating in a manner that does not qualify as innocent passage nor navigating outside traditional routes or in identified fishing grounds; (v) Navigating Navigating without flying its nation national al flag. (b) When a foreign fis fishing hing vessel vessel is found within within P hilippine waters: waters: (i) Under Under the circum circumstanc stances es enumerated enumerated in the previous paragraph; (ii) Lying-to or anchoring without any valid reasons or circumstances that may indicate the existence of force majeure, distress, or for the purpose of rendering assistance to persons, ships or any sea craft that is endangered or in distress; (iii) Lying-to, anchoring at, or anchoring near to or within known fishing grounds or marine protected areas.

314 314

Id., Sec. 89. Id., Sec. 86. 316 316 Id., Sec. 87. 315 315

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(c) When a foreign fishing vessel, vessel, after having having been inspected within within Philippine Philippine waters, in accordance with the procedures set forth in Fishery Administrative Order 200, s. 2000 (Guidelines and Procedures in Implementing Section 87 of the Philippine Fisheries Code of 1998), is found to contain freshly caught 317 fish on deck or in storage, corals, mollusks.317 3. Presence of Explosives, Poisonous Substances, Electro-Fishing Devices Devices and Fish Caught wit h their Use

The disc iscover overy y of dynamite ite, ot other explosi losiv ves an and chem chemica ical com compoun ounds which contain combustible elements, or noxious or poisonous substances, or equipment or device for electro-fishing in any fishing vessel or in the possession of any fisherfolk, operator, fishing boat official or fishworker constitutes prima facie evidence that the same was used for illegal fishing. The The disc discov ove ery in any any fish ishing ing vesse essell of fish ish ca caught or killed lled with ith the use use of of explosive, noxious or poisonous substances or by electricity likewise constitutes prima facie evidence that the fisherfolk, operator, boat official 318 or fishworker is fishing with the use thereof.318 The law law crea creattes a pr presum sumption ion th that ille illeg gal fis fish hing ing has bee been n com committ itted when: (a) explosives, obnoxious or poisonous substances or equipment or device for electric fishing are found in a fishing boat or in the possession of a fisherman; or (b) when fish caught or killed with the use of explosives, obnoxious or poisonous substances or by electricity are found in a fishing boat. Under these instances, the boat owner, operator or fishermen are 319 presumed to have engaged in illegal fishing. 319 4. Presumpt Presumpt ions Not Unconst ituti onal

These These leg legal presum sumption ions are not not con consti stitution ionally ally im imperm ermissib issible le.. The The law makes the discovery of obnoxious or poisonous substances, explosives, or devices for electric fishing, or of fish caught or killed with the use of obnoxious and poisonous substances, explosives or electricity in any fishing boat or in the possession of a fisherman evidence that the owner and operator of the fishing boat or the fisherman had used such substances in catching fish. The ultimate fact presumed is that the owner and operator of the boat or the fisherman were engaged in illegal fishing and this presumption was made to arise from the discovery of the substances and the contaminated fish in the possession of the fisherman in the fishing boat. The fact presumed is a natural inference from the fact proved. At the same time, the statutory presumption is merely prima facie. It does not preclude the accused from presenting his defense to rebut the 320 main fact presumed.320 317 317

Fishery Administrative Order (FAO) No. 200, s. 2000 “ Guidelines and Procedu P rocedures res in Implementing Section 87 of the Philippine Fisheries Code of 1998”. 318 318 Rep. Act No. 8550, Sec. 88 (1). 319 319 Hizon v. Court of Appeals, G.R. No. 119619, December 13, 1996, 265 SCRA 517. 320 320

Id.

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5. Presumptio ns can be Rebutted by Contradic tory Evidence

However, despite these legal presumptions, where the facts show contradictory laboratory findings in two separate tests of two different sets of fish samples taken from the same boat, one test on one set showing positive results and the other test on the other set showing negative results, and this contradiction is not explained by the prosecution, the presumption is rebutted, specially when the integrity of the specimens showing positive results has not been properly safeguarded and nothing of the poisonous substance was found in the boat upon apprehension.321 G. Confi scation and Forfeiture

Poaching entails confiscation of the catch, fishing equipment and fishing vessel.322 In fishing with explosives, noxious and poisonous substances, and electrofishing, the explosives, noxious or poisonous substances and/or electrical devices, as well as the fishing vessels, fishing equipment and catch, shall be forfeited.323 In fishing with active gear in municipal waters, bays and fishery management areas, the catch shall be confiscated and forfeited. 324 In fishing with superlights, the superlight, fishing gears and vessel shall be confiscated.325 In coral exploitation and exportation, the collected corals and the vessel used are forfeited.326 In muro-ami, the catch and gear used is confiscated. In the gathering of sand, silica and pebbles, the substance taken shall be confiscated.327 In the conversion of mangroves, if the area requires rehabilitation or restoration as determined by the court, the offender shall also be required to restore or compensate for the restoration of the damage. 328 Fishing in overfished areas or during closed season or in fishery reserves, refuge, and sanctuaries, or the taking of rare, threatened, and endangered species entail forfeiture of the catch.329 Fishing in violation of catch ceilings entails forfeiture of the catch and fishing equipment used.330 321 322

Id.

Rep. Act No. 8550, Sec. 87. Id., Sec. 88 (5). 324 Id., Sec. 90. 325 Id., Sec. 93. 326 Id., Sec. 91. 327 Id., Sec. 92. 328 Id., Sec. 94. 329 Id., Sec. 95, 96, and 97. 330 Id., Sec. 101. 323

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The capture and export of sabalo and other breeders or spawners entail forfeiture of the catch and fishing equipment.331 In general, every penalty imposed for the commission of an offense carries with it the forfeiture of the proceeds of such offense and the instruments or tools with which it was committed. Such proceeds and instruments or tools are confiscated and forfeited in favor of the Government, unless they be the property of a third person not liable for the offense, but those articles which are not the subject of lawful commerce shall be destroyed.332 H. Seizure of Vessels and Equi pment 1. “ Fishing Vessel” Defined

For purposes of search and seizure, a fishing vessel is any boat, ship or other watercraft equipped to be used for taking of fishery species or aiding or assisting one or more vessels in the performance of any activity relating to fishing, including, but not limited to, preservation, supply, storage, refrigeration, transportation, and/or processing.333 Fishing vessels also fall under the term fishing equipment because a fishing equipment is never complete and cannot be effectively used in off-shore or deep-sea fishing without the fishing boat or fishing vessel itself. No useful purpose can be served in trying to distinguish between boat and vessel. The accepted definition of vessel includes "every description of water craft, large or small, used or capable of being used as a means of transportation on water" and the word boat in its ordinary sense, means any water craft.334 2. Warrantless Search and Seizure of Fishing Vessels

Search and seizure without a search warrant of vessels and aircrafts for violations of customs laws have been the traditional exception to the constitutional requirement of a search warrant. It is rooted on the recognition that a vessel and an aircraft, like motor vehicles, can be quickly moved out of the locality or jurisdiction in which the search warrant must be sought and secured. Yielding to this reality, judicial authorities have not required a search warrant of vessels and aircrafts before their search and seizure can be constitutionally effected. The same exception applies to seizures of fishing vessels and boats breaching fishery laws. As such, the fish and other evidence seized in the course of a warrantless search are properly admitted by the trial court. 335 331

Id., Sec. 98 and 99. Id., Sec. 103. 333 Id., Sec. 4 (41). 334 Roldan v. Arca, G.R. No. 25434, J uly 25, 1975, 65 SCRA 336. 335 Hizon v. Court of Appeals, supra note 319; Roldan v. Arca, supra note 334. 332

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3. Warrantl ess Search and Seizure Inci dental to a Lawful Ar rest Valid

Where the members of the crew of fishing vessels are caught in flagrante illegally fishing with dynamite and without the requisite license, their apprehension without a warrant of arrest while committing a crime is lawful. Consequently, the search and seizure of the vessel, its equipment and explosives, noxious or poisonous substances, and electro-fishing devices found therein is equally valid as an incident to a lawful arrest. 336 Notice of seizure of the fishing vessel is also not required for the legality of said seizure.337 4. Court Cannot Order Release of Fishing Vessel in Custodia Legis of Co-Equal Court

A court of concurrent and equal jurisdiction cannot order the release of fishing vessels already in custodia legis of the court exercising territorial jurisdiction for trial of the criminal case. The Regional Trial Court of Manila cannot legally issue a writ of preliminary mandatory injunction for the release of fishing vessels against the Regional Trial Court of Palawan which ordered the seizure of the same fishing vessels for illegal fishing committed in the waters off Palawan. It is immaterial if the vessels were kept by the Navy in the Philippine Navy basin in Manila as this in no way impugns the jurisdiction already vested in the Palawan court, which has custody thereof through the Philippine Navy. In an analogous case, where the illegal fishing was committed in the town where the court sits, the fact that the fishing vessels and equipment were confiscated in another town does not affect the jurisdiction of said court.338 5. Court Cannot Order Release of Seized Fishing Paraphernalia upon the Justification that Confiscation follows only after Conviction and that the Witnesses are Sufficient for Conviction even without the Seized Evidenc e

The court cannot order the release of seized fishing paraphernalia based on the justification that the same can only be ordered confiscated upon conviction by final judgment and that the prosecution still could prove the guilt of the accused beyond reasonable doubt even without the seized items being presented since it has sufficient witnesses for the purpose. 339 The outcome of the criminal action will dictate the disposition of the seized property. If found to be contraband, i.e., articles the possession of which constitutes a crime and the repossession of which would subject defendant to criminal penalties and frustrate the express policy against the possession of such objects, they will not be returned, but shall be 336

Roldan v. Arca, supra note 334; Senson v. Pangilinan, A.M. No. MTJ -02-1430, September 8, 2003, 410 SCRA 394. 337 Roldan v. Arca, supra note 334. 338 339

Id. Senson v. Pangilinan, supra note 336.

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confiscated in favor of the State or destroyed, as the case may be. If not contraband, the property shall be returned without undue delay to the person who appears from the evidence to be the owner or rightful possessor.340 6. Seized Fishing Items Not Yet Offered in Evidence Remain under Custody and Responsibility of the Prosecution

All criminal actions commenced by complaint or information are prosecuted under the direction and control of the prosecutor. Seized fishing paraphernalia and items not yet offered in evidence remain in the legal custody and under the responsibility of the prosecution, not the court.341 I. Seizure of Fish Catch 1. Warrantless Seizure of Paraphernalia Mere Possession of which is Illegal

Dynamited or poisoned fish is subject to seizure without warrant in accordance with the rule that the subject of an offense and the proceeds thereof are proper objects of seizure, particularly when the mere possession of the objects seized constitutes a crime. The holder of said objects is then committing a crime in the presence of the officer effecting the seizure, and the same is valid, despite the absence of a search warrant.342 2. Disso lutio n of Seizure Warrant b y the Court

The court where the criminal case for illegal possession of dynamited or poisoned fish is eventually filed cannot legally dissolve the seizure warrant of the fishery officer on the ground that what should have been taken was only a sample. While the Fishery Administrative Order 343 states that only a sample must be taken, this is only for purposes of determining if the fish was caught illegally. Once it is already determined, the entire catch must be seized.344 Conversely, seizure of the entire catch, instead of a mere sample, even before the determination that the fish was indeed caught by means of explosives or noxious and poisonous substances is illegal and the court may properly dissolve the seizure.345 340

Vlasons Enterprises Corporation v. Court of Appeals, G.R. No. 61688, October 28, 1987, 155

SCRA 186. 341 342 343

Senson v. Pangilinan, supra note 336. RP v. Cansino, G.R. No. 17923, May 26, 1962, 5 SCRA 103.

Fishery Administrative Order (FAO) No. 206, Series of 2001, on “ Disposal of Confiscated Fish and Other Items in Fishing Through Explosives and Noxious or Poisonous Substances”. 344 RP v. Cansino, supra note 342. 345 Manlavi v. Gacott, A.M. No. RTJ -95-1293, May 9, 1995, 244 SCRA 50. K-83


J. Prosecutio n 1. Fishing with Explosives and Possession of Explosives Separate and Distinct Offenses

Fishing with the use of explosives and possession of explosives without license are two distinct offenses penalized by different statutes. A person fishing with the use of explosives may be guilty of illegal fishing, without being guilty of illegal possession of explosives, if he has a permit for possession. Hence, prosecution for the first offense does not bar prosecution for the second offense.346 2. Information which does not state Explosives was for Fishing not Fatal

Failure to allege in the information that the use of explosives was for the purpose of fishing is not fatal to the efficacy of the charge for illegal fishing resulting into a substantial defect in the information. The information alleging that the accused willfully, unlawfully and feloniously exploded one stick of dynamite, which explosion resulted in disabling, stupefying and killing a certain kind of fish, comes under the offense of illegal fishing with explosives, although the information fails to state that the act was for the purpose of fishing. The intent may be rightly presumed from the result of the act. Moreover, where the information is entitled "Illegal Fishing with Explosive," there could be no doubt to the accused that the charge is for exploding dynamite for purposes of fishing illegally.347 3. Failure to State “For Profi t” in Information Fatal

Failure to allege in the information that the accused was possessing, dealing in, selling, or in any manner disposing of illegally caught or gathered fishery species “for profit” is fatal to the sufficiency of the information. The law (Sec. 88 [4] of Rep. Act No. 8850) prohibits the separate acts of possessing, dealing in, selling or disposing of illegally caught fish and aquatic products, but said acts must not only be done "knowingly" but also "for profit," an essential element of the offense.348 4. Municipal Fish Wardens as Private Offended Party

For purpose of arraignment, which requires the presence of the private offended party, the deputized municipal fish wardens should be notified and be present to represent the State as the offended party. 349 346

People of the Philippines v. Anito, 95 Phil. 865 (1954). People of the Philippines v. Cubelo, G.R. No. 13678, November 20, 1959, 106 Phil. 496. 348 Manlavi v. Gacott, supra note 345. 349 Sangguniang Bayan of Guindulman, Bohol v. De Castro, AM No. MTJ -03-1487, December 1, 347

2003, 417 SCRA 1. K-84


5. Ignorance of Poisonous Nature of Substance not a Valid Defense

The defense of the accused that he was not aware that the substance used in catching fish was poison is not a sufficient defense for his discharge as a state witness in the illegal fishing trial, especially if it is admitted that he himself took his share of the fish caught through the poisonous substance he was asked to pour into the water.350 6. Imposition of Mere Fine on Boat Captain Constitutes Gross Ignorance of the Law

Section 90 of Rep. Act No. 8550 enumerates the penalties that should be imposed on violators thereof. It specifically imposes a penalty of imprisonment from two years to six years on the boat captain and master fisherman of the vessel, a fine ranging from P2,000.00 to P20,000.00 on the boat owner/operator, and confiscation and forfeiture of the catch. The trial court may only exercise its discretion as to the amount of fine to be meted out on the boat owner, but it is not within the discretion of the court whether or not to impose the penalty of imprisonment on boat captain. Upon a finding of guilt, it is mandatory for the court to impose the penalty of imprisonment on the accused boat captain. Imposing only a fine for both the boat owner and boat captain constitutes gross ignorance of the law.351 7. Conviction by Final Judgment includes Removal of Illegal Fishing Structure

Where the accused was convicted by final judgment for violation of a municipal ordinance relative to fish traps, in that he built one without the consent of the fish-warden and outside of the place specified in the permit issued to him, a separate action is not needed for the removal of the illegal fishing structure, even if said removal was not specifically provided for in the judgment of the court. Otherwise, the offender will be allowed to continue violating the law after paying the fine and serving his sentence resulting into an absurdity that administrative officials lack all executive powers of enforcing the law which the offender was already found guilty of violating.352

350

De Castro v. Castaneda, G.R. No. 15139, April 28, 1961, 1 SCRA 1131. Sangguniang Bayan of Guindulman, Bohol v. De Castro, supra note 349. 352 Bautista v. Angeles, 34 Phil. 580 (1916). 351

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VI. MINING A. Coverage

All mineral resources in public and private lands within the territory and exclusive economic zone of the Rep. of the Philippines are owned by the State.353 The exploration, development, utilization, and processing thereof shall be under its full control and supervision. The State may directly undertake such activities or it may enter into mineral agreements with contractors.354 1. Areas Open to Mini ng

Mining is allowed in: 1) Mineral reservations355; 2) Ancestral lands, with the consent of the concerned indigenous people356; 3) Public or private lands, including timber or forest lands357; 4) Military and other government reservations, with written clearance of the concerned government agency358; and 5) Near or under public or private buildings, cemeteries, archeological and historic sites, bridges, highways, waterways, railroads, reservoirs, dams, or other infrastructure projects, public or private works including plantations or valuable crops, upon written consent of the government agency or private entity concerned.359 2. Areas Closed to Mining

Mining is prohibited in: 1) Areas expressly prohibited by law360; and 2) Old growth or virgin forests, proclaimed watershed forest reserves, wilderness areas, mangrove forests, mossy forests, national parks, provincial/municipal forests, parks, greenbelts, game refuge and bird sanctuaries as defined by law and in areas expressly prohibited under the National Integrated Protected Areas System (NIPAS) under Rep. Act No. 7586, DENR Department Administrative Order No. 25, series of 1992 and other laws. 361 353

Rep. Act No. 7942, Sec. 2. Id., Sec. 4. 355 Id., Sec. 5. 356 Id., Sec. 16. 357 Id., Sec. 18. 358 Id., Sec. 19 (a). 359 Id., Sec. 19 (b). 360 Id., Sec. 19 (d). 361 Id., Sec. 19 (f); Rep. Act No. 7586, Sec. 20 (f): “Except as may be allowed by the nature of their categories and pursuant to rules and regulations governing the same.” 354

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3. Mining in Government Reservations, Forest Reserves, Forest Lands, Protected Areas

Sec. 15(b) of DENR Department Administrative Order (DAO) 96-40 provides that government reservations may be opened for mining applications upon prior written clearance by the government agency having jurisdiction over such reservation. Sec. 6 of Rep. Act No. 7942 also provides that mining operations in reserved lands other than mineral reservations may be undertaken by the DENR, subject to certain limitations. Rep. Act No. 7942 does not disallow mining applications in all forest reserves but only those proclaimed as watershed forest reserves. Sec. 18 of Rep. Act No. 7942 allows mining even in timberland or forest lands subject to existing rights and reservations. Sec. 47 of Pres. Decree No. 705 permits mining operations in forest lands which include the public forest, the permanent forest or forest reserves, and forest reservations. Significantly, Sec. 47, Pres. Decree No. 705 does not require that the consent of existing forest licensees be obtained but that they be notified before mining activities may be commenced inside forest concessions. DENR Memorandum Order No. 03-98, which provides the guidelines in the issuance of area status and clearance or consent for mining applications pursuant to Rep. Act No. 7942, provides that timber or forest lands, military and other government reservations, forest reservations, forest reserves other than critical watershed forest reserves, and existing DENR Project Areas within timber or forest lands, reservations and reserves, among others, are open to mining applications subject to area status and clearance. Finally, with regard to the application of the prohibition on mineral location in protected areas under the NIPAS Law, or Rep. Act No. 7586, it is only when the area has been so designated that Sec. 20 of Rep. Act No. 7586, which prohibits mineral locating within protected areas, becomes operational.362 B. Authorit y of t he DENR 1. DENR Secretary

The DENR is the primary government agency responsible for the conservation, management, development, and proper use of the State's mineral resources, including those in reservations, watershed areas, and lands of the public domain. The Secretary of the DENR has the authority to enter into mineral agreements on behalf of the Government upon the recommendation of the Director of the Mines and Geo-Sciences Bureau (MGB), and promulgate such rules and regulations as may be necessary to implement the provisions of the Philippine Mining Act of 1995, or Rep. Act No. 7942.363 362

PICOP Resources v. Base Metals Mineral Resources , G.R. No. 163509, December 6, 2006,

510 SCRA 400. 363 Rep. Act No. 7942, Sec. 8. K-87


2. MGB Director

The Mines and Geo-Sciences Bureau (MGB) shall have direct charge in the administration and disposition of mineral lands and mineral resources. The MGB Director recommends to the DENR Secretary the granting of mineral agreements to duly qualified persons and monitors the compliance by the contractor of the terms and conditions of the mineral agreements.364 3. Deputi zation t o Police Mining Acti viti es

The MGB Director may deputize, when necessary, any member or unit of the Philippine National Police, barangay, duly registered nongovernmental organization (NGO) or any qualified person to police all mining activities.365 4. Power and Duties of Mines Regional Director

The mines regional director may, in consultation with the Environmental Management Bureau, require the contractor to remedy any practice connected with mining or quarrying operations which is not in accordance with safety and anti-pollution laws and regulations. In case of imminent danger to life or property, the mines regional director may summarily suspend the mining or quarrying operations until the danger is removed, or appropriate measures are taken by the contractor or permittee.366 The regional director shall have exclusive jurisdiction over the safety inspection of all installations, surface or underground, in mining operations at reasonable hours of the day or night in a manner that will not impede or obstruct work in progress of a contractor or permittee.367 5. Role of Mines Regional Director in Mine Pollut ion

When it comes to mine pollution, the authority of the mines regional director is complementary to that of the Pollution Adjudication Board. Sec. 66 of Rep. Act No. 7942 gives the mines regional director exclusive jurisdiction over the safety inspection of all installations, surface or underground in mining operations. Sec. 67 thereof vests upon the regional director power to issue orders requiring a contractor to remedy any practice connected with mining or quarrying operations which is not in accordance with safety and anti-pollution laws and regulations and to 364


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summarily suspend mining or quarrying operations in case of imminent danger to life or property. The law likewise requires every contractor to undertake an environmental protection and enhancement program, which shall be incorporated in the work program which the contractor shall submit as an accompanying document to the application for a mineral agreement or permit. In addition, an environmental clearance certificate is required based on an environment impact assessment. The law also requires contractors and permittees to rehabilitate the mined-out areas, and set up a mine rehabilitation fund. Significantly, the law allows and encourages people’s organizations and non-governmental organizations to participate in ensuring that contractors/permittees shall observe all the requirements of environmental protection.368 6. Pollution Adjudication Board (PAB) Retains Authority over Mine Pollution; Mines Regional Director has no Adjudicative Powers over Pollution Complaints

The power of the mines regional director does not foreclose PAB’s authority to determine and act on complaints filed before it. The power granted to the mines regional director to issue orders requiring the contractor to remedy any practice connected with mining or quarrying operations or to summarily suspend the same in cases of violation of pollution laws is for purposes of effectively regulating and monitoring activities within mining operations and installations pursuant to the environmental protection and enhancement program undertaken by contractors and permittees in procuring their mining permit. While the mines regional director has express administrative and regulatory powers over mining operations and installations, it has no adjudicative powers over complaints for violation of pollution control statutes and regulations.369 C. DENR-POA-MAB Ju risdi ctio n o ver Mining Disputes and Issues 1. Panel of Arbi trators and Mines Adjud ication Bo ard

The Panel of Arbitrators (POA) in the regional offices of the DENR has exclusive and original jurisdiction to hear and decide on the following: 1) Disputes involving rights to mining areas; 2) Disputes involving mineral agreements or permits; 3) Disputes involving surface owners, occupants and claimholders / concessionaires; and 368

Republic of the Philippines v. Marcopper Mining Corporation, G.R. No. 137174, J uly 10, 2000,

335 SCRA 386. 369

Id.

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4) Disputes pending before the Bureau and the Department at the date of the effectivity of Rep. Act No. 7942.370 The decision or order of the panel of arbitrators is appealable to the Mines Adjudication Board (MAB).371 The Mines Adjudication Board (MAB) is composed of the DENR Secretary, the MGB Director and the DENR Undersecretary for Operations. The rules of evidence prevailing in courts of law or equity are not controlling in the proceedings of the Board. The findings of fact of the Board are conclusive and binding and its decisions or orders are final and executory.372 2. POA-MAB and DENR Secretary Jurisdiction Distinguished

The power of the POA to resolve any adverse claim, opposition, or protest relative to mining rights under Sec. 77(a) of Rep. Act No. 7942 is confined only to adverse claims, conflicts and oppositions relating to applications for the grant of mineral rights. POA’s jurisdiction is confined only to resolutions of such adverse claims, conflicts and oppositions and it has no authority to approve or reject said applications. Such power is vested in the DENR Secretary upon recommendation of the MGB Director.373 A petition for the cancellation of an existing mineral agreement covering an area applied for by an applicant based on the alleged violation of any of the terms thereof, is not a “dispute” involving a mineral agreement under Sec. 77 (b) of Rep. Act No. 7942. It does not pertain to a violation by a party of the right of another. The applicant is not a real party-in-interest as he does not have a material or substantial interest in the mineral agreement but only a prospective or expectant right or interest in the mining area. He has no legal right to such mining claim and hence no dispute can arise between the applicant and the parties to the mineral agreement. A petition for cancellation of a mineral agreement anchored on the breach thereof, even if filed by an applicant to a mining claim, falls within the jurisdiction of the DENR Secretary, and not POA. Such petition is excluded from the coverage of the POA’s jurisdiction over disputes involving mineral agreements under Sec. 77 (b) of Rep. Act No. 7942. 374

370

Rep. Act No. 7942, Sec. 77. Id., Sec. 78. 372 Id., Sec. 79. 371 373 374

Celestial Nickel Mining Corporation v. Macroasia Corporation, supra note 50. Id.

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3. DENR Secretary, not POA-MAB, has Autho rit y to Cancel Cont racts

A scrutiny of the provisions of Pres. Decree No. 463, Exec. Order No. 211, Exec. Order No. 279, Rep. Act No. 7942 and its implementing rules and regulations, executive issuances, and case law shows that the DENR Secretary, not the POA, has the jurisdiction to cancel existing mineral lease contracts or mineral agreements. The power of the DENR Secretary to cancel mineral agreements emanates from his administrative authority, supervision, management, and control over mineral resources under Chapter I, Title XIV of Book IV of the Revised Administrative Code of 1987. P OA’s jurisdiction over “disputes involving rights to mining areas” has nothing to do with the cancellation of existing mineral agreements. The DENR Secretary, by virtue of his powers as administrative head of his department in charge of the management and supervision of the natural resources of the country under the 1987 Administrative Code, Rep. Act No. 7942, and other laws, rules, and regulations, can cancel a mineral agreement for violation of its terms, even without a petition or request filed for its cancellation, provided there is compliance with due process.375 4. Voluntary Arbit ration Suspends POA-MAB Juris dict ion

Availment of voluntary arbitration before resort is made to the courts or quasi-judicial agencies of the government is a valid contractual stipulation that must be adhered to by the parties. The POA is a quasi-judicial body which forms part of the DENR, an administrative agency. A provision on mandatory resort to arbitration, freely entered into by the parties, must be held binding on them. As such, POA has yet no jurisdiction over a dispute which is governed by Rep. Act No. 876, the Arbitration Law.376 5. Appeal from the MAB

Rep. Act No. 7942 provides that a petition for review by certiorari on questions of law may be filed by the aggrieved party with the Supreme Court within thirty (30) days from receipt of the order or decision of the Mines Adjudication Board.377 However, this provision has been invalidated by the Supreme Court. A decision of the MAB must now first be appealed to the Court of Appeals under Rule 43 of the Rules of Court before recourse to the Supreme Court.378

375 376

Id.

Benguet Corporation v. DENR-MAB, G.R. No. 163101, February 13, 2008, 545 SCRA 196. Rep. Act No. 7942, Sec. 79. 378 Benguet Corporation v. DENR-MAB , supra note 376; Carpio v. Sulu Resources Development Corporation, G.R. No. 148267, August 8, 2002, 387 SCRA 128. 377

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6. Appeal from the MAB to Court Of Appeals and Appeal from the DENR Secretary to the Office of the President Dist ingui shed

Since the cancellation of the mineral agreement is approved by the DENR Secretary, then the recourse of the contractor is to elevate the matter to the Office of the President, pursuant to Administrative Order 18, Series of 1987, not with the POA-MAB, then to the Court of Appeals.379 D. Jurisdiction of Trial Courts 1. Courts Retain Juri sdic tion o ver Civil Mini ng Disputes

The trend at present is to make the adjudication of mining cases a purely administrative matter. However, this does not mean that administrative bodies have complete rein over mining disputes. Questions and controversies that are judicial, not administrative, in nature can be resolved only by the regular courts in whom is vested the judicial power to resolve and adjudicate such civil disputes and controversies between litigants in accordance with the established norms of law and justice. 380 2. Adminis trative and Civil Mining Disputes Disting uished

Decisions of the Supreme Court on mining disputes have recognized a distinction between (1) the primary powers granted by pertinent provisions of law to the then Secretary of Agriculture and Natural Resources (and the bureau directors) of an executive or administrative nature, such as "granting of license, permits, lease contracts, or approving, rejecting, reinstating or cancelling applications, or deciding conflicting applications," and (2) controversies or disagreements of civil or contractual nature between litigants which are questions of a judicial nature that may be adjudicated only by the courts of justice. This distinction is carried over even under the present law, Rep. Act No. 7942. 381 3. Cases Where Trial Courts Have Jurisd ictio n

Where the basic issue is entitlement to surface rights and right of way, the dispute is not a mining conflict. It is essentially judicial. Where the suit is not merely for a determination of the amount to be paid for surface rights but the very validity of those surface rights, the trial courts have jurisdiction.382 379

Celestial Nickel Mining Corporation v. Macroasia Corporation, supra note 50; Benguet Corporation v. DENR-MAB, supra note 376; Carpio v. Sulu Resources Development Corporation, supra note 378. 380 PNOC-Energy Development Corp. v. Veneracion, G.R. No. 129820, November 30, 2006, 509 SCRA 93. 381 382

Id. Standard Mineral Products v. Court of Appeals, G.R. No. L-43277, April 26, 1990.

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Where the adverse claim is not one grounded on overlapping of claims nor a mining conflict arising out of mining locations (there being only one involved) but one originating from the alleged fiduciary or contractual relationship between the mining corporation and the locator and his transferees, the adverse claim is not within the executive or administrative authority of the mining director to resolve, but in the courts.383 4. Cases where Trial Courts have no Juri sdic tion

A trial court has no jurisdiction over a case involving mining contracts where the issue involved is the validity of the transfer of mining rights executed by a company representative whose agency was denied by the company. The issue of whether the contracts are valid falls within the exclusive competence of the Bureau of Mines (now the POA-MAB). The trend is to make the adjudication of mining cases a purely administrative matter.384 The Bureau of Mines and Geo-Sciences (now POA-MAB)385 has jurisdiction to determine the compensation payable to the surface owners. The Regional Trial Court has no authority to make that determination in the first instance.386 E. Licenses and Permits Issued by the DENR 1. Mineral Agreements

For purposes of mining operations, a mineral agreement may take the following forms: 1) 2) 3) 4)

Mineral production sharing agreement; Co-production agreement; J oint venture agreement; and Financial and technical assistance agreement (FTAA).

2. FTAAS not Unconst ituti onal

Financial and technical assistance agreements (FTAAs) were initially declared unconstitutional by the Supreme Court for being service contracts deemed illegal under the 1987 Constitution.387 However, upon 383 384 385 386

Philex Mining Corporation v. Zaldivar , G.R. No. 29669, February 29, 1972, 43 SCRA 479. Twin Peaks Mining v. Navarro, G.R. No. 49835, December 18, 1979, 94 SCRA 768.

Rep. Act No. 7942, Sec. 77. Rajah Lahuy Mining Company v. Pajares, G.R. No. 69261, May 13, 1985; 136 SCRA 415,

Rep. Act No. 7942, Sec. 76. 387

La Bugal-B’laan Tribal Association v. Ramos, G.R. No. 127882, J anuary 27, 2004, 421 SCRA

148. K-93


reconsideration, the Court reversed itself and declared said agreements as not constitutionally infirm, as the 1987 Constitution does not proscribe service contracts.388 3. Nature of DENR Secretary’s Power to Cancel FTAAS

Failure to relinquish or divest areas in excess of the maximum contract area, as provided for in DENR DMO 97-07, results in the denial or cancellation of the FTAA application, after which the areas covered thereby shall be open for Mining Applications. No further executive action is necessary since DMO 97-07 itself already provided for the sanction of failing to meet the deadline. Any executive action beyond the deadline would be a mere superfluity.389 4. Nature of Loc ator’s Right

The right of a locator of a mining claim as a property right is recognized. This right, however, is not absolute. It is merely a possessory right, more so, where claims are still unpatented. They can be lost through abandonment or forfeiture, or they may be revoked on valid legal grounds. Mere location does not mean absolute ownership over the affected land or the mining claim. It merely segregates the located land or area from the public domain by barring other would-be locators from locating the same and appropriating for themselves the minerals found therein. To rule otherwise would imply that location is all that is needed to acquire and maintain rights over a located mining claim. This is contrary to the intention of the law that the locator should faithfully and consistently comply with the requirements for annual work and improvements in the located mining claim.390 5. Rights of Surface Owner

Sec. 76 of Rep. Act No. 7942 provides that subject to prior notification, holders of mining rights shall not be prevented from entry into private lands and concession areas by surface owners, occupants, or concessionaires when conducting mining operations therein. Any damage done to the property of the surface owner, occupant, or concessionaire as a consequence of such operations shall be properly compensated. The purpose of the law is obvious, which is to prevent trespass on private property. No one can dispute that under the Regalian doctrine, 388 389

Id. Bonaventure Mining Corporation v. V.I.L. Mines, G.R. No. 174918, August 13, 2008, 562

SCRA 211. 390

Santa Rosa Mining Company v. Leido, G.R. No. 49109, December 1, 1987, 156 SCRA 1; Zambales Chromite Mining Company v. Leido, G.R. No. 49143, August 21, 1989, 176 SCRA 602.

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minerals found in one's land belong to the State and not to a private landowner. Nonetheless, a condition sine qua non is that the prospecting, exploration, discovery, and location must be done in accordance with the law. As it is, a locator’s right to use and exploit the mineral resources discovered and located do not mature if it does not comply with conditions precedent. To allow a claim for surface rights and right of way without meeting these conditions would be to countenance illegal trespass into private property.391 6. Other Permit s

An exploration permit grants the right to conduct exploration for all minerals in specified areas. The MGB has the authority to grant exploration permits.392 In large-scale quarry operations involving cement raw materials, marble, granite, sand and gravel construction aggregates, a qualified person and the government may enter into a mineral agreement, instead of the issuance of a quarry permit by the provincial governor.393 The MGB issues industrial sand and gravel permits for the extraction of sand and gravel and other loose or unconsolidated materials that necessitate the use of mechanical processing covering an area of more than five hectares (5 has.) at any one time. 394 An ore transport permit specifying the origin and quantity of nonprocessed mineral ores or minerals is required for their transport and is issued by the mines regional director who has jurisdiction over the area where the ores were extracted. The absence of a permit is considered prima facie evidence of illegal mining and is sufficient cause for the Government to confiscate the ores or minerals being transported, the tools and equipment utilized, and the vehicle containing the same. 395 A mineral trading registration from the Department of Trade and Industry is required for the trading of mineral products, either locally or internationally.396 A mineral processing permit from the DENR is required for the processing of minerals.397 391

Standard Mineral Products v. Court of Appeals, G.R. No. 43277, April 26, 1990, 184 SCRA

571. 392 Rep. Act No. 7942, Sec. 20. 393 Id., Sec. 43. 394 Id., Sec. 47. 395 Id., Sec. 53. 396 Id., Sec. 54. 397 Id., Sec. 55. K-95


F. Permits Issued by the Provincial Governor

1) Quarry Permits on privately-owned lands and/or public lands for building and construction materials, such as marble, basalt, andesite, conglomerate, tuff, adobe, granite, gabbro, serpentine, inset filling materials, clay for ceramic tiles and building bricks, pumice, perlite, and other similar materials that are extracted by quarrying from the ground are applied for with the provincial/city mining regulatory board.398 The permit to extract sand, gravel, and other quarry resources shall be issued exclusively by the provincial governor, pursuant to the ordinance of the sangguniang panlalawigan .399 The authority to cancel a quarry permit also lies with the provincial governor.400 2) Commercial sand and gravel permits to extract and remove sand and gravel or other loose or unconsolidated materials without undergoing processing from an area of not more than five hectares (5 has.) are also issued by the provincial governor.401 3) Exclusive sand and gravel permits may also be granted by the provincial governor to quarry and utilize sand and gravel or other loose or unconsolidated materials from public lands for personal use, i.e., not for commercial disposition.402 4) Government gratuitous permits may be issued by the provincial governor to a government entity or instrumentality to extract sand and gravel, quarry or loose unconsolidated materials for the construction of building or infrastructure for public use or other purposes over an area of not more than two hectares (2 has.).403 5) Any owner of land may be granted a private gratuitous permit by the provincial governor.404 6) A guano permit may be issued by the provincial governor to extract and utilize loose unconsolidated guano and other organic fertilizer materials in any portion of a municipality where the grantee has established domicile.405

398 399 400

Id., Sec. 44. Id., Sec. 43; L OCAL GOVERNMENT CODE, Sec. 138.

Rep. Act No. 7942, Sec. 45. Id., Sec. 46. 402 Id., Sec. 48. 403 Id., Sec. 49. 404 Id., Sec. 50. 405 Id., Sec. 51. 401

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7) A non-exclusive gemstone gathering permit may be issued by the provincial governor for the gathering of loose stones useful as gemstones from rivers and other locations. G. Small-Scale Mini ng

A provincial/city mining regulatory board is the implementing agency of the DENR in small-scale mining. It has jurisdiction over the following subjectmatter: 1) 2) 3) 4)

Declare and segregate existing gold-rush areas for small-scale mining; Reserve future gold and other mining areas for small-scale mining; Award contracts to small-scale miners; Formulate and implement rules and regulations related to small-scale mining; and 5) Settle disputes, conflicts or litigations over conflicting claims within a people's small-scale mining area, an area that is declared a smallmining. The decision of the provincial/city mining regulatory board is subject to the review of the DENR Secretary.406 H. Criminal Offenses 1. Essential Element in ECC Violation under Mining Act

Sec. 108 of Rep. Act No. 7942 penalizes violations of the terms and conditions of the Environmental Compliance Certificate (ECC) if said violation causes environmental damage through pollution. The fact that must be established is the willful violation and gross neglect on the part of the accused to abide by the terms and conditions of the Environmental Compliance Certificate. If there was no violation or neglect, and that the accused satisfactorily proves this, he will not be liable. 407 2. Offense not Proven under Mining Act may still be Prosecuted Under Other Enviro nmental Laws

It does not follow, however, that one who has escaped criminal liability under the Mining Act can no longer be prosecuted under the Water Code, Anti-Pollution Law, and the Revised Penal Code because violation of the Environmental Compliance Certificate is not an essential element of these laws. A single act or incident might offend against two or more entirely distinct and unrelated provisions of law, thus justifying the prosecution of the accused for more than one offense.408 406 407 408

People’s Small Scale Mining Act (Rep. Act No. 7076), Sec. 24. Loney v. People, G.R. No. 152644, February 10, 2006, 482 SCRA 194. Id.

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3. Mala in Se Felony Cannot Absorb Mala Prohibita Crimes

Moreover, a mala in se felony (such as Reckless Imprudence Resulting in Damage to Property) cannot absorb mala prohibita crimes (such as violation of Pres. Decree No. 1067, Pres. Decree No. 984, and Rep. Act No. 7942). What makes the former a felony is criminal intent (dolo) or negligence (culpa) ; what makes the latter crimes are the special laws enacting them.409 VII. PROTECTED AREAS A. Definit io n

"Protected area" refers to identified portions of land and water set aside by the government for reason of their unique physical and biological significance, and managed and protected to enhance biological diversity against destructive human exploitation.410 "National Integrated Protected Areas Systems (NIPAS)" is the classification and administration by the government of all designated protected areas to maintain essential ecological processes and life-support systems, to preserve genetic diversity, to ensure sustainable use of resources found therein, and to maintain their natural conditions.411 B. Components

All areas or islands in the Philippines proclaimed, designated or set aside, pursuant to a law, presidential decree, presidential proclamation or executive order as national park412, game refuge, bird and wildlife sanctuary, 413 wilderness area, strict nature reserve, 414 watershed, mangrove reserve, fish sanctuary, natural and historical landmark, protected and managed 409 410

Id.

Rep. Act No. 7586, “The National Integrated Protected Areas System Act of 1992”, Sec. 4 (b). Id., Sec. 4 (a). 412 Id., Sec. 4 (e): "National park" refers to a forest reservation essentially of natural wilderness character which has been withdrawn from settlement, occupancy or any form of exploitation, except in conformity with approved management plan and set aside as such exclusively to conserve the area or preserve the scenery, the natural and historic objects, wild animals and plants therein and to provide enjoyment of these features in such areas. 413 Id., Sec. 4 (m): "Wildlife sanctuary" comprises an area which assures the natural conditions necessary to protect nationally significant species, groups of species, biotic communities or physical features of the environment where these may require specific human manipulation for their perpetuation. 414 Id., Sec. 4 (k): "Strict nature reserve" is an area possessing some outstanding ecosystem, features and/or species of flora and fauna of national scientific importance maintained to protect nature and maintain processes in an undisturbed state in order to have ecologically representative examples of the natural environment available for scientific study, environmental monitoring, education, and for the maintenance of genetic resources in a dynamic and evolutionary state. 411

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landscape/seascapes,415 as well as identified virgin forests before the effectivity of Rep. Act No. 7586 or the “National Integrated Protected Areas Act of 1992”, are designated as initial components of the NIPAS.416 Within one (1) year after the effectivity of the NIPAS Act, the DENR shall have submitted to the Senate and the House of Representatives a map and legal description or natural boundaries of each protected area initially comprising the System.417 The Secretary of the DENR proposes the inclusion in the NIPAS of additional areas with outstanding physical features, anthropological significance and biological diversity in accordance with the procedure laid down in the NIPAS Act.418 Upon receipt of the recommendations of the DENR, the President issues a presidential proclamation designating the recommended areas as protected areas and providing for measures for their protection until such time when Congress has enacted a law finally declaring such recommended areas as part of the NIPAS.419 The NIPAS also encompasses outstandingly remarkable areas and biologically important public lands and ancestral domains 420 that are habitats of rare and endangered species of plants and animals, bio-geographic zones and related ecosystems, whether terrestrial, wetlands or marine, all of which shall be designated as "protected areas".421

415

Id., Sec. 4 (i): "Protected landscapes/seascapes" are areas of national significance which are

characterized by the harmonious interaction of man and land while providing opportunities for public enjoyment through recreation and tourism within the normal lifestyle and economic activity of these areas. 416 Id., Sec. 5 (a). 417 Id., Sec. 5 (b). 418 Id., Sec. 6. 419 Id., Sec. 5 (e). 420 Rep. Act No. 8371, Sec. 3 (a).Ancestral Domains refer to all areas generally belonging to ICCs/IPs comprising lands, inland waters, coastal areas, and natural resources therein, held under a claim of ownership, occupied or possessed by ICCs/IPs, by themselves or through their ancestors, communally or individually since time immemorial, continuously to the present except when interrupted by war, force majeure or displacement by force, deceit, stealth or as a consequence of government projects or any other voluntary dealings entered into by government and private individuals/corporations, and which are necessary to ensure their economic, social and cultural welfare. It shall include ancestral lands, forests, pasture, residential, agricultural, and other lands individually owned, whether alienable and disposable or otherwise, hunting grounds, burial grounds, worship areas, bodies of water, mineral and other natural resources, and lands which may no longer be exclusively occupied by ICCs/IP s but from which they traditionally had access to for their subsistence and traditional activities, particularly the home ranges of ICCs/IPs who are still nomadic and/or shifting cultivators. 421 DENR Administrative Order (DAO) 2008-26, Revised Implementing Rules and Regulations of Rep. Act No. 7586, or the NIP AS Act of 1992, Rule 2. K-99


C. Management and Admi nistr ation

The NIPAS is under the control and administration of the DENR through Protected Areas and Wildlife Divisions supervised by the DENR Regional Technical Director in regions where protected areas have been established.422 A Protected Area Management Board (PAMB) for each of the established protected areas is also set-up to decide the allocations for budget, approve proposals for funding, and decide matters relating to planning, peripheral protection, and general administration of the area in accordance with the general management strategy of the protected area. 423 The PAMB is composed of the DENR Regional Executive Director under whose jurisdiction the protected area is located; a representative from the autonomous regional government, if applicable; the Provincial Development Officer; a representative from the municipal government; a representative from each barangay covering the protected area; a representative from each tribal community, if applicable; and, at least three (3) representatives from non-government organizations/local community organizations, and if necessary, one (1) representative from other departments or national government agencies involved in protected area management. 424 The PAMB has jurisdiction to resolve conflicts or disputes among tenured migrant communities,425 between tenured migrant communities and indigenous peoples,426 but excluding conflicts or disputes exclusively among indigenous peoples,427 which are under the jurisdiction of the National Commission on Indigenous Peoples by virtue of the Indigenous Peoples Rights Act of 1997, or Rep. Act No. 8371. 422

Rep. Act No. 7586, Sec. 10. Id., Sec. 11. 424 Id., Sec. 11. 425 Id., Sec. 4 (l): "Tenured migrant communities" are communities within protected areas which have actually and continuously occupied such areas for five (5) years before the designation of the same as protected areas in accordance with this Act and are solely dependent therein for subsistence. 426 Id., Sec. 4 (d): "Indigenous cultural community" refers to a group of people sharing common bonds of language, customs, traditions and other distinctive cultural traits, and who have, since time immemorial, occupied, possessed and utilized a territory; Rep. Act No. 8371 Sec. 3 (h): Indigenous Cultural Communities/Indigenous Peoples refer to a group of people or homogenous societies identified by self-ascription and ascription by others, who have continuously lived as organized community on communally bounded and defined territory, and who have, under claims of ownership since time immemorial, occupied, possessed and utilized such territories, sharing common bonds of language, customs, traditions and other distinctive cultural traits, or who have, through resistance to political, social and cultural inroads of colonization, non-indigenous religions and cultures, became historically differentiated from the majority of Filipinos. ICCs/IPs shall likewise include peoples who are regarded as indigenous on account of their descent from the populations which inhabited the country, at the time of conquest or colonization, or at the time of inroads of non-indigenous religions and cultures, or the establishment of present state boundaries, who retain some or all of their own social, economic, cultural and political institutions, but who may have been displaced from their traditional domains or who may have resettled outside their ancestral domains. 427 DENR DAO 2008-26, Rule 12.1.7. 423

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D. Law Enforcement

The Secretary of the DENR is empowered to deputize field officers and delegate any of his powers to expedite implementation and enforcement of laws; exact administrative fees and fines for violations of guidelines, rules and regulations; determine the specification of the class, type and style of buildings and other structures to be constructed in protected areas and the materials to be used; control the construction, operation and maintenance of public utilities within the protected area; and control occupancy of suitable portions of the protected area and resettle outside of said area forest occupants therein, with the exception of the members of indigenous peoples.428 All officials, technical personnel and forest guards employed in the integrated protected area service or all persons deputized by the DENR, upon recommendation of the PAMB, are considered field officers and have the authority to investigate and search premises and buildings and make arrests in accordance with the rule on criminal procedure for the violation of laws and regulations relating to protected areas. Persons arrested are brought to the nearest police precinct for investigation. Regular law enforcers and police officers continue to be authorized to arrest any person violating said laws and regulations.429 E. Protected Area Superintendent

Each protected area is also safeguarded by a DENR Protected Area Superintendent (PASu). The PASu is the primary law enforcer in the protected area and is empowered to enforce rules and regulations to protect the area from trespassing, damage, vandalism and illegal occupancy. In cases of seizure, the PASu assumes custody of the apprehended items. The disposition of confiscated items is subject to the clearance from the PAMB, except those items that are held under custodia legis, those that are the subject of donation, those that must be deposited with appropriate government agency, and those that will be utilized for the DENR's own needs in accordance with its rules and regulations. The PASu also issues Certificates of Origin and transport permits for natural resources and other products collected or gathered from the protected area in accordance with the resource use instruments/agreements or gratuitous permits issued by the PAMB or the DENR.430

428

Rep. Act No. 7586, Sec. 10. DENR DAO 2008-26, Rule 19; Rep. Act No. 7586, Sec. 18. 430 DENR DAO 2008-26, Rule 11.7. 429

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F. Prohib ited Acts and Penalties

The NIPAS Act penalizes the following offenses: (a) Hunting, destroying, disturbing, or mere possession of any plant or animal or product derived therefrom without a permit from the Management Board; (b) Dumping of any waste product detrimental to the protected area, or to the plants and animals or inhabitants therein; (c) Use of any motorized equipment without a permit from the Management Board; (d) Mutilating, defacing or destroying objects of natural beauty or objects of interest to cultural communities; (e) Damaging and leaving roads and trails in a damaged condition; (f) Squatting, mineral locating, or otherwise occupying any land; (g) Constructing or maintaining any kind of structure, fences or enclosures, conducting any business enterprise without a permit; (h) Leaving in exposed or unsanitary conditions, refuse or debris, or depositing in ground or in bodies of water; and (i) Altering, removing destroying or defacing boundary marks or signs. 431 The penalties include rehabilitation or restoration of the area or compensation for restoration as determined by the court. The court shall also order the eviction of the offender from the land and the forfeiture in favor of the Government of all minerals, timber or any species collected or removed, including all equipment, devices and firearms used in connection therewith, and any construction or improvement made thereon by the offender. If the offender is an association or corporation, the president or manager is directly responsible for the act of their employees and laborers. 432

431 432

Rep. Act No. 7586, Sec. 20. Id., Sec. 21; DENR DAO 2008-26, Rule 22. K-102


VIII. WILDLIFE RESOURCES A. Coverage

The provisions of Rep. Act No. 9147, or the “Wildlife Resources Conservation and Protection Act”, are enforceable for all wildlife species 433 found in all areas of the country, including protected areas under the NIPAS and critical habitats. They also apply to exotic species 434 which are subject to trade, are cultured, maintained or bred in captivity or propagated 435 in the country.436 B. Jurisdi ctio n of the DENR

The DENR has jurisdiction over all terrestrial plant and animal species, all turtles and tortoises and wetland species, including crocodiles, waterbirds and all amphibians and dugong. The Department of Agriculture (DA) shall have jurisdiction over all declared aquatic critical habitats, all aquatic resources, including all fishes, aquatic plants, invertebrates, and all marine mammals, except dugong. In the Province of Palawan, jurisdiction is vested on the Palawan Council for Sustainable Development, pursuant to Rep. Act No. 7611.437 C. Appli cabilit y of Related Laws

The Implementing Rules and Regulations (IRR) of Rep. Act No. 9147 are supplementary to the provisions of Rep. Act No. 9072 (National Caves and Cave Resources Management and Protection Act) and its Implementing Rules and Regulations. In case of conflict, the IRR of Rep. Act No. 9147 prevails.438 The management of wildlife resources found within protected areas is governed by Rep. Act No. 7586 (NIPAS Act). The use for scientific or commercial purposes of aquatic and marine resources within protected areas listed under the jurisdiction of DA is governed by Rep. Act No. 9147 (Wildlife Act) and Rep. Act No. 8550 (Fisheries Code). 439 The utilization of wildlife 433

Rep. Act No. 9147, Sec. 5 (x): "Wildlife" means wild forms and varieties of flora and fauna, in all developmental stages, including those which are in captivity or are being bred or propagated. 434 Id., Sec. 5 (j): "Exotic species" means species or subspecies which do not naturally occur in the country. 435 Id., Sec. 5 (c): "Captive-breeding/culture or propagation" means the process of producing individuals under controlled conditions or with human interventions. 436 Id., 9147, “Wildlife Resources and Conservation Act”, Sec. 3; J oint DENR-DA-PCSD Administrative Order No. 1 “J oint Implementing Rules And Regulations (IR R) Pursuant To Rep. Act No. 9147,” Sec. 3. 437 Rep. Act No. 9147, Sec. 4; J oint DENR-DA-P CSD Administrative Order No. 1, Sec. 4. 438 J oint DENR-DA-PCSD Administrative Order No. 1, Rule 3.4. 439 Id., Rule 4.6. K-103


resources found within ancestral domains/ancestral lands shall be subject to the issuance of a Free and Prior Informed Consent, pursuant to Rep. Act No. 8371 (Indigenous Peoples Rights Act of 1997 or IPRA).440 D. Regulated Act ivit ies

Collection441 of wildlife may be allowed in accordance with the provisions of the Wildlife Conservation Act, which requires appropriate and acceptable techniques with least or no detrimental effects to the existing wildlife populations and their habitats.442 Collection of wildlife by indigenous peoples for traditional use and not primarily for trade443 is also allowed. Collection of threatened species444 is allowed but only for scientific, breeding or propagation purposes.445 Wildlife species may be exported to or imported from another country as may be authorized by the DENR Secretary. 446 The introduction,447 reintroduction or restocking of endemic448 and indigenous449 wildlife is allowed, but only for population enhancement or recovery purposes subject to prior clearance from the DENR Secretary. 450 Exotic species may be introduced into the country upon clearance from the DENR Secretary, but not into protected areas covered under the NIPAS or to critical habitats. 451 Bioprospecting452 is allowed subject to the approval of the DENR Secretary and the prior informed consent of the indigenous peoples, local communities and PAMBs.453 Collection and utilization of biological resources 440 441

Id., Rule 4.7.

Rep. Act No. 9147, Sec. 5 (d): "Collection or collecting" means the act of gathering or harvesting wildlife, its by-products or derivatives. 442 Id., Sec. 5 (m): "Habitat" means place or environment where species or subspecies naturally occur or has naturally established its population. 443 Id., Sec. 5 (t): "Trade" means the act of engaging in the exchange, exportation or importation, purchase or sale of wildlife, their derivatives or by-products, locally or internationally. 444 Id., Sec. 5 (s): "Threatened species" a general term to denote species or subspecies considered as critically endangered, endangered, vulnerable or other accepted categories of wildlife whose population is at risk of extinction. 445 Id., Secs. 7 and 23. 446 Id., Sec. 11. 447 Id., Sec. 5 (p): "Introduction" means bringing species into the wild that is outside its natural habitat. 448 Id., Sec. 5 (i): "Endemic species" means species or subspecies which is naturally occurring and found only within specific areas in the country. 449 Id., Sec. 5 (o): "Indigenous wildlife" means species or subspecies of wildlife naturally occurring or has naturally established population in the country. 450 Id., Sec. 12. 451 Id., Sec. 13. 452 Id., Sec. 5 (a): "Bioprospecting" means the research, collection and utilization of biological and genetic resources for purposes of applying the knowledge derived there from solely for commercial purposes. 453 Id., Sec. 14. K-104


for scientific research may be allowed through gratuitous permits 454 issued by the DENR Secretary and also subject to prior informed consent. 455 E. Prohibited Act s

The Wildlife Conservation Act penalizes the following as criminal offenses, unless otherwise allowed through a permit or otherwise in accordance with said Act: (a) killing and destroying wildlife species, except in the following instances: (i) when it is done as part of the religious rituals of established tribal groups or indigenous cultural communities456; (ii) when the wildlife is afflicted with an incurable communicable disease; (iii) when it is deemed necessary to put an end to the misery suffered by the wildlife;457 (iv) when it is done to prevent an imminent danger to the life or limb of a human being; and (v) when the wildlife is killed or destroyed after it has been used in authorized research or experiments. (b) inflicting injury which cripples and/or impairs the reproductive system of wildlife species; (c) effecting any of the following acts in critical habitat(s) (i) dumping of waste products detrimental to wildlife; (ii) squatting or otherwise occupying any portion of the critical habitat; (iii) mineral exploration and/or extraction; (iv) burning; (v) logging; and (vi) quarrying (d) introduction, reintroduction or restocking of wildlife resources;

454

Id., Sec. 5 (l): "Gratuitous permit" means permit issued to any individual or entity engaged in

noncommercial, scientific, or educational undertaking to collect wildlife. 455 Id., Sec. 15. 456 Only the killing of wildlife species not classified as threatened, as part of religious rituals of established indigenous cultural communities may qualify. J oint DENR-DA-PCSD Administrative Order No. 1, Rule 27.2. 457 For killing of any form of wildlife to be justified, a prior certification from a licensed veterinarian that the concerned wildlife is afflicted with an incurable disease or that the euthanasia is done to put an end to the misery of said wildlife is required. J oint DENR-DA-P CS D Administrative Order No. 1, Rule 27.1. K-105


(e) trading of wildlife; (f) collecting, hunting or possessing wildlife, their by-products and derivatives;458 (g) gathering or destroying of active nests, nest trees, host plants and the like; (h) maltreating and/or inflicting other injuries not covered by the preceding paragraph; and (i) transporting of wildlife.459 F. Seizure, Forfeitur e and Fines

Upon apprehension, all wildlife, its derivatives or by-products and all paraphernalia, tools and conveyances used in connection with the commission of the prohibited acts are automatically confiscated without the benefit of court order and kept in the custody of the concerned agency. The apprehending agency, after documentation of all seized/recovered wildlife, immediately causes the transfer of all seized or recovered wildlife to the nearest Wildlife Rescue Center. All perishable and consumable items still fit for human or animal consumption may be donated to non-profit, charitable or penal institutions or wildlife rescue centers.460 The penalties include forfeiture in favor of the government of all wildlife, derivatives or by-products, and all paraphernalia, tools and conveyances used in connection with the offense.461 Where the ownership of conveyances belongs to a third person who has no participation in or knowledge of the illegal acts committed, the same may be released to said owner upon order of the court.462 The fines prescribed as penalties are increased by at least ten percent (10%) every three (3) years to compensate for inflation and to maintain the deterrent function of such fines.463 The increase takes effect automatically without need of the issuance of further regulations.464 Fines imposed and damages awarded inure to the Wildlife Management Fund for rehabilitation or restoration of habitats affected by acts committed in violation of the Wildlife 458

Rep. Act No. 9147, Sec. 5 (b): "By-product or derivatives" means any part taken or substance extracted from wildlife, in raw or in processed form. This includes stuffed animals and herbarium specimens. 459 Id., Sec. 27. 460 Id., Sec. 28; J oint DENR-DA-P CS D Administrative Order No. 1, Rule 28.3. 461 Rep. Act No. 9147, Sec. 28. 462 Id., Sec. 28; J oint DENR-DA-P CS D Administrative Order No. 1, Rule 28.4. 463 Rep. Act No. 9147, Sec. 28. 464 J oint DENR-DA-PCSD Administrative Order No. 1, Rule 28.2. K-106


Conservation Act and to support scientific research, enforcement, and monitoring activities, as well as enhancement of capabilities of relevant agencies.465 G. Law Enforcement

The DENR Secretary is authorized to deputize wildlife enforcement officers from non-government organizations, citizens groups, community organizations and other volunteers who have undergone the necessary training. The Philippine National Police (PNP), the Armed Forces of the Philippines (AFP), the National Bureau of Investigation (NBI), and other law enforcement agencies may also designate wildlife enforcement officers from among their members. Wildlife enforcement officers have the full authority to seize illegally traded wildlife and arrest violators of the Wildlife Conservation Act, subject to existing laws, rules and regulations on arrest and detention.466 More specifically, wildlife enforcement officers may: 1) Seize illegally collected, possessed, and/or traded wildlife, or parts, by-products and/or derivatives thereof; 2) Arrest, even without warrant, any person who has committed, is committing, or is about to commit in his presence any of the offenses provided under the Act and other relevant laws, rules and regulations; 3) Assist in the conduct of surveillance and monitoring of wildliferelated activities; 4) Deliver the arrested offender within reasonable time to the nearest police station and assist in filing the proper complaint with the appropriate official designated by law to conduct preliminary investigation; 5) Deliver within reasonable time to the nearest CENRO, PENRO or DENR Regional Office or BFAR Regional/Provincial Offices or PCSDS District Management Office for custody all confiscated wildlife, their parts, by-products and/or derivatives, as well as tools, equipment and conveyances used in the commission of the crime, including corresponding reports; 6) Act as witness in court for the speedy prosecution of criminal complaints against wildlife violators; and 7) Prosecute cases before Municipal Trial Courts in areas where there are no prosecutors.467

465

Rep. Act No. 9147, Sec. 29. Id., Sec. 30. 467 J oint DENR-DA-PCSD Administrative Order No. 1, Rule 30.4. 466

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IX. CAVE RESOURCES

A. Coverage

Rep. Act No. 9072, or the Cave Resources Management and Protection Act, covers caves468 and cave resources469 within public domain and private lands, excluding any vug,470 aqueduct, mine tunnel, and other man-made excavations.471 Caves and cave resources are owned by the State. Landowners with caves inside their private lands must secure the necessary permit from the DENR for the use, collection or removal of any cave resource. All resource utilization outside caves within private lands, including the harvesting of planted trees, is also regulated by the DENR to preserve the integrity of the cave.472 B. Implementing Agencies

The DENR is the lead agency tasked to implement the provisions of Rep. Act No. 9072, in coordination with the Department of Tourism (DOT), the National Museum, the National Historical Institute, and concerned local government units (LGUs) for specific caves. In the Province of Palawan, the Palawan Council for Sustainable Development is the lead implementing agency, pursuant to Rep. Act No. 7611, or the Strategic Environmental Plan for Palawan Act.473 The responsibility in the management and protection of caves and cave resources found within ancestral domains or ancestral lands rests with the concerned indigenous people. The indigenous people may transfer responsibility over caves within their ancestral domains or lands to the DENR in writing.474

468

Rep. Act No. 9072, Sec. 3 (a): "Cave" means any naturally occurring void, cavity, recess or system of interconnected passages beneath the surface of the earth or within a cliff or ledge and which is large enough to permit an individual to enter, whether or not the entrance, located either in private or public land, is naturally formed or man made. It shall include any natural pit, sinkhole or other feature which is an extension of the entrance. The term also includes cave resources therein, but not any vug, mine tunnel, aqueduct or other manmade excavation. 469 Id., Sec. 3 (b): "Cave resources" include any material or substance occurring naturally in caves, such as animal life, plant life, including paleontological and archaeological deposits, cultural artifacts or products of human activities, sediments, minerals, speleogems, and speleothems. 470 A small cavity in a vein or in a rock, usually lined with crystal of a different mineral composition from the enclosing rock. Sec. 3, DENR Department Administrative Order (DAO) No. 2003-29, Implementing Rules and Regulations of Rep. Act No. 9072. 471 DAO No. 2003-29, Sec. 2. 472 Id., Sec. 6. 473 Rep. Act No. 9072, Sec. 4; DAO No. 2003-29, Sec. 4. 474 DAO No. 2003-29, Sec. 7. K-108


C. Other Appl icable Laws

Caves located within a protected area are covered by and subject to the provisions of Rep. Act No. 7586, or the National Integrated Protected Area System Act of 1992.475 The collection of biological cave resources is also governed by the provisions of Rep. Act No. 9147 (Wildlife Resources Conservation and Protection Act) and its implementing rules and regulations.476 D. Regulated Act ivit ies

The DENR may issue permits for the collection and removal of guano and other cave resources with regard to specific caves, taking into consideration bio-diversity, as well as the aesthethic and archaeological value of the cave. Clearance from PAWB is required prior to the issuance of any mining permit for cave resources pursuant to Rep. Act No. 7942 (Philippine Mining Act 1995) and related rules and regulations, as well as any prospecting permit to be issued by other concerned government agencies.477 Any permit issued may be revoked by the Secretary of the DENR for violation of any provision of Rep. Act No. 9072, or for failure to comply with any other condition upon which the permit was issued. The Secretary cannot issue permits for the removal of stalactites and stalagmites, and when it is established that the removal of the resources will adversely affect the value of a significant cave. 478 The DENR shall also set open and close seasons for the collection of edible bird’s nest and similar cave resources.479 It shall also regulate eco-tourism in caves through the issuance of visitors’ permits.480 E. Prohibited Act s

Under Rep. Act No. 9072, the following are prohibited acts: (a) Knowingly destroying, disturbing, defacing, marring, altering, removing, or harming the speleogem481 or speleothem482 of any cave, 475 476 477 478

Rep. Act No. 9072, Sec. 5 (c); DAO No. 2003-29, Sec. 5. DAO No. 2003-29, Sec. 14. Id.

Rep. Act No. 9072, Sec. 5 (c); DAO No. 2003-29, Sec. 5. DAO No. 2003-29, Sec. 13. 480 Id., Sec. 14. 481 Rep. Act No. 9072: Sec. 3 (d): "Speleogem" means relief features on the walls, ceilings and floor of any cave or lava tube which are part of the surrounding hedrock, including but not limited to anastomoses, scallops, meander niches, petromorphs and rock pendants in solution caves and similar features unique to volcanic caves. 482 Id., Sec. 3 (e): "Speleothem" means any natural mineral formation or deposit occurring in a cave or lava tube, including but not limited to any stalactite, stalagmite, helictite, cave flower, flowstone, concretion, drapery, rimstone or formation of clay or mud. 479

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or altering the free movement of any animal or plant life into or out of any cave; (b) Gathering, collecting, possessing, consuming, selling, bartering or exchanging, or offering for sale without authority any, cave resource; and (c) Counselling, procuring, soliciting, or employing any other person to violate any provisions of this Section. The person furnishing the capital to accomplish the above acts is also criminally liable. If the area requires rehabilitation or restoration as determined by the court, the offender is also required to restore the same or to compensate for the damage.483 F. Administr ative Seizure and Confis cation

The Secretary of the DENR is empowered to cause the administrative confiscation of the cave resources gathered, collected, removed, possessed or sold, including the conveyance and equipment used.484 The procedure on the seizure, confiscation, and forfeiture of cave resources and all implements used in violation of Rep. Act No. 9072 is governed by Sec. 4 of DENR Department Administrative Order (DAO) No. 97-32 (Administrative Adjudication of Illegal Forest Products and the Machinery, Equipment, Tools and Conveyances Used in Connection Therewith) and Department Administrative Order (DAO) No. 91-36 (Guidelines Governing the Confiscation, Seizure and Disposition of Wild Flora and Fauna Illegally Collected, Gathered, Acquired, Transported and Imported including Paraphernalia), whenever applicable. 485 G. Law Enforcement

The DENR, through its Regional Executive Directors (REDs), also deputizes Cave Protection Enforcement Officers from locally based nongovernment organizations, community organizations, indigenous people, and other volunteers who have undergone the necessary training. It may also designate the Philippine National Police, the Armed Forces of the Philippines, the National Bureau of Investigation and other law enforcement agencies as cave protection enforcement officers. Deputized cave protection enforcement officers have the full authority to seize and arrest violators of Rep. Act No. 9072, subject to existing laws, rules and regulations on arrest and detention.486 483

Rep. Act No. 9072, Sec. 7; DAO No. 2003-29, Sec. 19. Rep. Act No. 9072, Sec. 9. 485 DAO No. 2003-29, Sec. 17. 486 Id., Sec. 16. 484

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X. POLLUTION AND ENVIRONMENTAL MANAGEMENT

A. Pol luti on Adjudi cat io n Board (PAB) 1. Pollutio n Adj udicati on Bo ard (PAB) Has Pollutio n Cases

Jurisd ictio n Over

The matter of determining whether there is pollution of the environment that requires control, if not prohibition, of the operation of a business establishment, is essentially addressed to the Environmental Management Bureau (EMB) of the DENR which, by virtue of Sec. 16 of Exec. Order No. 192, series of 1987, has assumed the powers and functions of the defunct National Pollution Control Commission created under Rep. Act No. 3931. Under said Executive Order, a Pollution Adjudication Board (PAB) under the Office of the DENR Secretary now assumes the powers and functions of the National Pollution Control Commission with respect to adjudication of pollution cases.487 2. Exhaustion of Administrative Remedies in Pollution Cases; Effect of Non-Observance

The Pollution Adjudication Board is the agency of the government with the task of determining whether the effluents of a particular industrial establishment comply with or violate applicable anti-pollution statutory and regulatory provisions. The claim that going to the trial court without going to the DENR first is justified because of grave and irreparable injury from the operation of an establishment is wrong. The doctrine of exhaustion of administrative remedies requires that resort be first made with the administrative authorities in the resolution of a controversy falling under their jurisdiction before the same may be elevated to a court of justice for review. A premature invocation of a court’s intervention renders the complaint without cause of action and dismissible on such ground.488 3. Jurisdiction over Air Pollution

The Pollution Adjudication Board (PAB) has sole and exclusive jurisdiction over all cases of air pollution under the Clean Air Act and all other matters related thereto, including the imposition of administrative sanctions, except as may be provided by law. 489

487 488 489

Laguna Lake Development Authority v. Court of Appeals, supra note 105. Estrada v. Court of Appeals , G.R. No. 137862, November 11, 2004, 442 SCRA 117.

Implementing Rules and Regulations of the Clean Air Act, Rule L, Sec. 2. K-111


4. Exclusive Authority to Determine the Existence of "Pollution" Before Criminal Prosecution o f Violations

On matters not related to nuisance, no criminal prosecution for violation of pollution laws can be initiated until the PAB shall have finally ruled thereon. A court action involving the determination of the existence of pollution may not be initiated until and unless the PAB has so determined the existence of what in the law is considered pollution. 490 Public prosecutors lack the authority to file the information charging a person with a violation of pollution laws if there is no prior finding or determination by the PAB that the act had caused pollution. P ublic prosecutors may only file an information for the commission of pollution if the PAB had made a finding or determination that the law or any of its orders had been violated. Otherwise, the filing of the information is premature and unauthorized. Consequently, the court where the said information is filed is without jurisdiction to take cognizance of the criminal case.491 5. Filing of Criminal Cases for Gross Violations under The Clean Water Act A nd Clean Air Act

In case of gross violations under both the Clean Water Act and Clean Air Act, the PAB shall recommend that the proper government agencies file criminal charges against the violators. The PAB shall assist the public prosecutor in the litigation of the case. Gross violations under the Clean Water Act are the following: 1) Deliberate discharge of toxic pollutants identified pursuant to Rep. Act No. 6969 in toxic amounts; 2) Five (5) or more violations within a period of two (2) years; or 3) Blatant disregard of the orders of the PAB, such as the nonpayment of fines, breaking of seals or operating despite the existence of an order for closure, discontinuance or cessation of operation.492 Gross violations under the Clean Air Act are the following: 1) Three (3) or more specific offenses within a period of one (1) year; 2) Three (3) or more specific offenses in three (3) consecutive years; 3) Blatant disregard of the orders of the PAB, such as but not limited to the breaking of seal, padlocks and other similar devices, or 490 491 492

Mead v. Argel, GR No. 41958, J uly 20, 1982, 115 SCRA 256. Id.

Rep. Act No. 9275, Sec. 28. K-112


operation, despite the existence of an order for closure, discontinuance or cessation of operation; and 4) Irreparable or grave damage to the environment as a consequence of any violation of the provisions of the Act.493 6. Power to Issue Ex Parte Cease and Desist Orders

Under Pres. Decree No. 984, Sec. 7(a), the PAB has legal authority to issue ex parte orders to suspend the operations of an establishment when there is prima facie evidence that such establishment is discharging effluents or wastewater, the pollution level of which exceeds the maximum permissible standards set by the Board, the EMB, or the DENR. Ex parte cease and desist orders are permitted by law and regulations

precisely because stopping the continuous discharge of pollutants and untreated effluents into the rivers and other inland waters of the Philippines cannot be made to wait until protracted litigation over the ultimate correctness or propriety of such orders has run its full course, including multiple and sequential appeals which take several years. The relevant pollution control statute and implementing regulations were enacted and promulgated in the exercise of that persuasive, sovereign power to protect the safety, health, and general welfare and comfort of the public, as well as the protection of plant and animal life, commonly designated as the police power. It is a constitutional common place that the ordinary requirements of procedural due process yield to the necessities of protecting vital public interests like those here involved, through the exercise of police power.494 Industrial establishments are not constitutionally entitled to reduce their capitals costs and operating expenses and to increase their profits by imposing upon the public threats and risks to its safety, health, general welfare, and comfort, by disregarding the requirements of anti-pollution statutes and their implementing regulations. 495 7. Proper Remedy from PAB Decision is Appeal to the Court of Appeal s

Where the establishment affected by an ex parte cease and desist order contests the correctness of the prima facie findings of the Board, the Board must hold a public hearing where such establishment would have an opportunity to controvert the basis of such ex parte order. That such an opportunity is subsequently available is all that is required by the due 493 494

Rep. Act No. 8749, Sec. 48. Pollution Adjudication Board v. Court of Appeals, GR No. 93891, March 11, 1991, 195 SCRA

112. 495

Id.

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process clause of the Constitution. The Board's decision rendered after the public hearing may then be tested judicially by an appeal to the Court of Appeals, in accordance with Sec. 7(c) of Pres. Decree No. 984 and Sec. 42 of the Implementing Rules and Regulations. 496 Any decision of the Board involving only questions of law shall be appealed to the Supreme Court. Appeal shall not stay the execution of any order or decision of the Board, unless otherwise ordered by the Court of Appeals or the Supreme Court.497 8. PAB Retains Juris dict ion over Mining Polluti on

The power granted to the mines regional director under the Philippine Mining Act (Rep. Act No. 7942) to issue orders summarily suspending mining or quarrying operations in cases of violation of pollution laws does not repeal the power of the PAB over cases of mining pollution. While the mines regional director has express administrative and regulatory powers over mining operations and installations, it has no adjudicative powers over complaints for violation of pollution control statutes and regulations.498 B. DENR Authority to Enter Premises

The DENR may require any person who owns or operates any pollution source to submit reports and other written information. For this purpose, the DENR may: (a) enter any premises or to have access to documents and relevant materials; (b) inspect any pollution or waste source, control device, monitoring equipment or method required; and (c) test any discharge or emission.499 Under the Solid Waste Management Act (RA 9003), the DENR has the right to enter the premises of any generator, recycler or manufacturer, or other facilities at any time to question any employee or investigate any fact, condition or matter which may be necessary to determine any violation, or which may aid in the effective enforcement of the Act and its implementing rules and regulations.500

496 497

Id.

National P ollution Control Decree (Pres. Decree No. 984), Sec. 7 (c). Republic v. Marcopper Mining Corporation, G.R. No. 137174, J uly 10, 2000, 335 SCRA 386. 499 Clean Water Act, Sec. 23; Clean Air Act, Sec. 38; Solid Waste Management Act, Sec. 9. 500 Solid Waste Management Act (Rep. Act No. 9003), Sec. 9. 498

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C. Juris dict ion of other Agencies in Pollutio n Cases 1. Laguna Lake Develop ment Autho rity

As a general rule, the adjudication of pollution cases generally pertains to the Pollution Adjudication Board (PAB), except in cases where the special law provides for another forum. Water pollution cases involving acts or omissions committed within the Laguna Lake Region shall be dealt with in accordance with the procedure under Rep. Act No. 4850. 501 The LLDA, as a specialized administrative agency, is specifically mandated under Rep. Act No. 4850 and its amendatory laws to prevent undue ecological disturbances, deterioration and pollution in the Laguna Lake area and the surrounding provinces of Rizal and Laguna and the cities of San Pablo, Manila, Pasay, Quezon and Caloocan. The LLDA is authorized to "make, alter or modify orders requiring the discontinuance of pollution." In the exercise of its powers under its charter as a regulatory and quasi-judicial body with respect to pollution cases in the Laguna Lake region, the LLDA has the authority to issue a "cease and desist order".502 2. Traffic Adj udic ation Service

The Traffic Adjudication Service of the Land Transportation Office has jurisdiction over actions for any violation of any of the motor vehicle pollution control laws under the Clean Air Act.503 3. Coast Guard

The Philippine Coast Guard has the primary responsibility of enforcing the laws, rules and regulations governing marine pollution. However, it exercises joint responsibility and coordinates with the Pollution Adjudication Board in the enforcement of the provisions of the Marine Pollution Decree (Pres. Decree No. 979) and its implementing rules and regulations.504 D. Environmental Impact Statement System 1. Definiti on

The entire process of organization, administration, and procedures institutionalized for the purpose of assessing the significance of the effects 501 502 503 504

Clean Water Act (Rep. Act No. 9275), Sec. 28. Laguna Lake Development Authority v. Court of Appeals, supra note 105.

Clean Air Act Implementing Rules and Regulations, Rule LI. Pres. Decree No. 979, Sec. 6. K-115


of any project or undertaking on the quality of the physical, biological, and socio-economic environment, and designing appropriate preventive, mitigating, and enhancement measures.505 The EIS System covers Environmentally Critical Projects and projects or activities located in Environmentally Critical Areas. No project or activity covered under the EIS System can proceed without undergoing an environmental impact assessment and submitting an Environmental Impact Statement (EIS) or an Initial Environmental Examination (IEE) and acquiring an Environmental Compliance Certificate (ECC) from the DENR.506 2. Initial Environmental Examination; Requisi tes

Under DENR DAO 96-37, an ECC applicant for a project located within an environmentally critical area is required to submit an Initial Environment Examination, which must contain a brief description of the environmental setting and a documentation of the consultative process undertaken, when appropriate. As part of the description of the environmental setting, the ECC applicant must submit a certificate of locational clearance or zoning certificate.507 3. Official’s Act of Granting ECC must be Devoid of any Color of Authorit y to Allo w Cancell ation th rough Judi ci al Acti on without Exhausti ng Admi nist rative Remedies

While such documents are part of the submissions required from a project proponent, their mere absence does not render the issuance of the ECC patently illegal. To justify non-exhaustion of administrative remedies due to the patent illegality of the ECC, the public officer must have issued the ECC "[without any] semblance of compliance, or even an attempt to comply, with the pertinent laws; when manifestly, the officer has acted without jurisdiction or has exceeded his jurisdiction, or has committed a grave abuse of discretion; or when his act is clearly and obviously devoid of any color of authority." 508 4. ECC Subject to Cancellation for Non-Compliance through Admi nist rative, Not Judi cial, Proc eedings

The fact that an ECC is subject to cancellation for non-compliance with its conditions does not justify ignoring the procedure prescribed in DAO 96-37 on appeals from the decision of the DENR Executive Director. DAO 505

DENR Department Administrative Order No. 96-37, Sec. 3(n). Id., DAO 96-37. 507 Bangus Fisherfolk v. Lanzanas, supra note 54. 506 508

Id.

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96-37 provides for a separate administrative proceeding to address complaints for the cancellation of an ECC. Under Article IX of DAO 96-37, complaints to nullify an ECC must undergo an administrative investigation, after which the hearing officer will submit his report to the EMB Director or the Regional Executive Director, who will then render his decision. The aggrieved party may file an appeal to the DENR Secretary, who has authority to issue cease and desist orders. Article IX also classifies the types of violations covered under DAO 96-37, including projects operating without an ECC or violating the conditions of the ECC. This is the applicable procedure on complaints of alleged violations, not the filing of a case in the trial courts.509 5. Duties of PENRO

The Provincial Environment and Natural Resources Officer (PENRO) of the DENR is mandated to: 1) Conduct surveillance and inspection of pollution sources and control facilities and undertake/initiate measures relative to pollution-related complaints of the general public for appropriate referral to the regional office; 2) Comment on the project description, determine if the project fall within the Environmental Impact Statement (EIS) System and submit the same to the regional office; and 3) Implement programs and projects related to environmental management within the PENRO. In addition, the PENRO is likewise tasked to monitor the project proponent’s compliance with the conditions stipulated in the ECC, with support from the DENR regional office and the Environmental Management Bureau. The primary purpose of compliance monitoring is to ensure the judicious implementation of sound and standard environmental quality during the development stage of a particular project. Specifically, it aims to: 1) monitor project compliance with the conditions set in the ECC; 2) monitor compliance with the Environmental Management Plan (EMP) and applicable laws, rules and regulations; and 3) provide a basis for timely decision-making and effective planning and management of environmental measures through the monitoring of actual project impacts vis-à-vis predicted impacts in the EIS.

509

Id.

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Based on the foregoing, the monitoring duties of the PENRO mainly deal with broad environmental concerns, particularly pollution abatement. This general monitoring duty is applicable to all types of physical developments that may adversely impact on the environment, whether housing projects, industrial sites, recreational facilities, or scientific undertakings.510 6. Regional Executive Director (RED) not bound to Monitor Environmental Projects

The applicable administrative orders provide that the function of monitoring environmental programs, projects and activities in the regions is lodged with the Regional Technical Director of the DENR, not with the Regional Executive Director. Furthermore, monitoring is defined in DAO No. 21, Series of 1992, as the activity designed to gauge the level of compliance with the conditions stipulated in the Environmental Compliance Certificate (ECC), and in the Environmental Impact Statement (EIS) submitted. This is the function of the PENR and CENR offices, as mandated in DAO No. 37, Series of 1996. Administrative liability could not be based on the fact that petitioner was the person who signed and approved the ECC, without proof of actual act or omission constituting neglect of duty. In the absence of substantial evidence of gross neglect, administrative liability could not be based on the principle of command responsibility. The negligence of subordinates is not tantamount to the superior’s own negligence. The principles governing public officers under the Revised Administrative Code of 1987 clearly provide that a head of a department or a superior officer shall not be civilly liable for the wrongful acts, omissions of duty, negligence, or misfeasance of his subordinates, unless he has actually authorized by written order the specific act or misconduct complained of.511 E. Other Jurispr udence 1. Incineration no t b anned Under Clean Air Act

Section 20 of the Clean Air Act does not absolutely prohibit incineration as a mode of waste disposal; rather only those burning processes which emit poisonous and toxic fumes are banned.512

510

Balicas v. FFIB-Ombudsman, G.R. No. 145972, March 23, 2004, 426 SCRA 194. Principe v. FFIB-Ombudsman, G.R. No. 145973, J anuary 23, 2002, 374 SCRA 460. 512 Metropolitan Manila Development Authority v. Jancom, GR No. 147465, J anuary 30, 2002, 511

375 SCRA 320. K-118


2. Establishment of Landfi lls Requires Consul tation

Section 2 (c) of the Local Government Code requiring consultations with the appropriate local government units applies to national government projects affecting the environmental or ecological balance of the particular community implementing the project, such as a landfill. Under the Local Government Code, two requisites must be met before a national project that affects the environmental and ecological balance of local communities can be implemented: prior consultation with the affected local communities, and prior approval of the project by the appropriate sanggunian. Absent either of these mandatory requirements, the project’s implementation is illegal. Under the Solid Waste Management Act (Rep. Act No. 9003), landfills must also comply with the minimum requirements laid down in Sec. 40 thereof, specifically that the site selected must be consistent with the overall land use plan of the local government unit, and that the site must be located in an area where the landfill’s operation will not detrimentally affect environmentally sensitive resources, such as aquifers, groundwater reservoirs or watershed areas.513 3. Trade Secrets Maint ained und er Repub lic Act No. 6969

Section 12 of the Toxic Substances and Hazardous and Nuclear Wastes Control Act of 1990, which grants the public access to records, reports or information concerning chemical substances and mixtures, including safety data submitted, and data on emission or discharge into the environment cannot be used to divulge trade secrets. Sec. 12 deems as confidential matters, which may not be made public, those that would divulge trade secrets, including production or sales figures or methods; production or processes unique to such manufacturer, processor or distributor, or would otherwise tend to affect adversely the competitive position of such manufacturer, processor or distributor. While the DENR may release information, the clear import of the law is that said authority is limited by the right to confidentiality of the manufacturer, processor or distributor, which information may be released only to a medical research or scientific institution where the information is needed for the purpose of medical diagnosis or treatment of a person exposed to the chemical substance or mixture. The right to confidentiality is recognized by said Act as primordial.514

513

Province of Rizal v. Executive Secretary, GR No. 129546, December 13, 2005, 477 SCRA

436. 514

Air Philippines v. Pennswell, December 13, 2007, G.R. No. 172835, 540 SCRA 215.

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APPENDIX A PROCEDURE IN ADMINISTRATIVE SEIZURE AND CONFISCATION UNDER PRESIDENTIAL DECREE NO. 705 (DENR DAO 97-32)

DENR Department Administrative Order (DAO) 97-32 (“Rules for the Administrative Adjudication of Illegal Forest Products and the Machinery, Equipment, Tools and Conveyances Used in Connection Therewith”) provides guidelines in the exercise of the power of the DENR in administrative seizure and confiscation. Apprehension is the act of finding or intercepting, with probable cause, and thereafter taking temporary possession and control, over illegal forest products, machinery, tools, equipment, implements, and conveyances. Seizure is the official act of taking the forest products and other items into government custody upon determination that the apprehension is supported by a prima facie case against the offender, and pending formal administrative proceedings for disposition. Confiscation is the official act declaring the seized items as property of the Government upon determination of guilt in administrative proceedings. Forfeiture is the judicial act of disposing seized items in favor of the government when said items are surrendered by the DENR to the custody of the courts by virtue of criminal proceedings against the offender.515 Items subject to confiscation include illegal forest products,516 machinery, equipment, tools and implements, 517 and conveyances. 518

515

Department Administrative Order (DAO) 97-32 (“Rules for the Administrative Adjudication of Illegal Forest Products and the Machinery, Equipment, Tools and Conveyances Used in Connection Therewith”), October 10, 1997. 516 DAO 97-32, Sec. 2 (a). Illegal forest products are those that are removed, cut, collected, processed and/or transported: (a) without the requisite authorization or permit; or (b) with incomplete required supporting document; (c) with genuine authorizations or permits and/or supporting documentation that have an expired validity, have been cancelled or that contain forged entries; or (d) with spurious (fake) authorizations, permits and/or supporting documentation. Original documents shall be required at all times to actually accompany any forest products being moved or transported to any place and for any purpose. Whenever the requisite authorization and/or supporting documentation are required to but do not actually accompany the forest products, such absence constitutes a violation covered by the rules on administrative seizure and confiscation. 517 Id., Sec. 2 (b). Machinery, equipment, tools and implements are those used in the possession, gathering, collecting, processing and/or transporting of illegal forest products. 518 Id.., Sec. 2 (c). Conveyance is any mode or type or class of vehicle or craft or any other means used for transportation either on land, water, air, or any combination thereof, whether motorized or not, used for or in taking and/or maintaining temporary or permanent possession or control, gathering, collecting, processing, disposing of, or otherwise transporting, moving or transferring illegal forest products. K-120


1. Apprehending Off icers

The following are authorized to apprehend the above items: (a) Forest Officers; (b) Deputies (i.e., other government officials and private citizens duly deputized by the DENR Secretary or his duly authorized representative); (c) Members of law enforcement agencies; and (d) Private citizens as provided by law. 519 2. Seizure Offic ers

The administrative seizure of illegal forest products takes effect when, for the purpose of holding the same in custodia legis, any DENR Officer designated as a Seizure Officer actually takes delivery from an apprehending officer and thereby assumes possession/control of item(s) apprehended pursuant hereto. Only the following are designated Seizure Officers with authority to effect the administrative seizure of items mentioned above within their respective areas of operation: (a) The DENR Regional Executive Director (RED) or, in his absence, any DENR Regional Technical Director (RTD) actually assigned to the area of apprehension at the time thereof; (b) The Provincial Environment and Natural Resources Officer (PENRO) or, in his absence, any Senior Forest Management Specialist (SFMS) or Senior Environmental Management Specialist (SEMS) actually assigned to the area of apprehension at the time thereof; and (c) The Community Environment and Natural Resources Officer (CENRO) or, in his absence, any DENR Officer with the rank of Forester III or Land Management Officer III (LMO III) actually assigned to the area of apprehension at the time thereof.520

519 520

Id., Sec. 3 (1). id., Sec. 3 (2).

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3. Apprehension

Upon inspection or interception of the items or upon the discovery of such items that are abandoned, or whose owner, claimant, custodian or other interested party is absent or cannot be determined, the apprehending officer shall observe the following procedure”521 1. ON SITE DETERMINATION OF PROBABLE CAUSE - Upon encountering a possible violation of forestry laws, rules and regulations, the apprehending officer/individual/leader of the apprehending team (hereafter referred to as the apprehending officer) shall establish his authority by identifying himself to any person witnessing the activity by stating his full name, rank, and official designation. He shall exhibit his DENR Identification Card, if he is a DENR official or personnel, if not, a duly issued identification card. He will invoke DAO 97-32 and announce the commencement of a verification procedure. He shall then verify the existence of probable cause for an apprehension as outlined below. 2. OCULAR INSPECTION AND IMMEDIATE RELEASE - He will conduct an ocular inspection of all required authorizations. If all requisite authorizations, permits, and accompanying documentation are verified to be in order, and the probable cause for an apprehension is absent, the release of all items inspected must be effected immediately. In such cases, the official DENR seal of inspection/verification must be rubber-stamped or otherwise affixed on the face of all transport documents inspected in connection herewith. In the absence of an official DENR seal, he shall write the date, state the fact of inspection, and the release. After which he shall affix his signature above his full printed name in the official log book for the matter. 3. ON-SITE RECORD OF VIOLATIONS — Should inspection pursuant to the preceding paragraph indicate a violation of forestry laws, rules and regulations, and the probable cause for an apprehension is present, the apprehending officer shall immediately: (a) verbally inform the person(s) apprehended of his findings and announce that he is making an apprehension in accordance with DAO 97-32; (b) prepare a written on-site record of the names, addresses and other available data of all persons found in possession, exercising control and/or supervision over, or performing or 521

Id., Secs. 4 and 5.

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otherwise involved in the possession, supervision, control, cutting, gathering, processing, and/or transporting the item(s) item(s);; and (c) if any there be, he shall write an itemized list of all on-site machinery, equipment, tools, and implements used in the commission of or otherwise connected with the offense. He shall then indicate the date and sign the on-site record, and request the offender(s) to sign the same above their printed names. In case of refusal to sign as herein required, that fact or circumstances and reason, if any, of such refusal shall be written thereon in their presence, as proof of such action. 4. ON SITE DETERMINATION OF FRAUDULENT MISRE MISREPR PRES ESENTATION ENTATION PREJ PR EJ UDICIAL UDICIAL TO THE THE GOVERNMENT GOVERNMENT Intent to defraud the Government shall be presumed: (a) In case the quantity or volume of a shipment or stock of forest products exceeds what is authorized, documented, manifested or declared: (i) by five percent (5%) or more, in case of timber, and/or (ii) by two percent (2%) or more, in case of lumber; and/or (b) Upon discovery of a misdeclaration on the quantity and species being verified pursuant hereto. In all such cases, the entire shipment shall be considered illegal due to fraudulent misrepresentation with intent to prejudice the government. Such shipments shall be apprehended/seized, and subject to confiscation or forfeiture proceedings. The apprehending officer or individual shall effect the apprehension and proceed in accordance with DAO 97-32, even if the requisite authorizations and supporting documents for all or parts of said shipment are verified to be otherwise in order. 5. ON-SITE CONVEYANCE CHECK — In case the violation noted involves the use of a conveyance, the seizing officer will announce the apprehension thereof. Should the conveyance require government registration, he will require the presentation thereof and will inspect (a) the Certificate of Registration; (b) the Official Receipt; and (c) the Driver's License or similar authorization. Said documents shall be returned to the holder thereof upon notation of his identity and address, as well as of the name and address of the owner of the conveyance, its license plate number or other identifying marks or information.

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6. ON-SITE-REPORT - In addition to the foregoing, the following information, if available, shall be recorded on-site upon apprehension, (1) time, date, and place of apprehension; (2) full name and address of the offender(s) on-site; (3) full names of all persons accompanying or providing on-site assistance to the apprehending officer or individual; (4) circumstances that led to the apprehension (e.g., discovery of abandoned items, spot check by monitoring team, verification of absent, lacking, forged or spurious documentation, etc.); (5) names of local government officials present and/or of other person(s) witnessing the apprehension; (6) preliminary description of the item(s) being apprehended; (7) place, time and date of origin and intended destination, consignors and consignees of the items being apprehended; and (8) such other data or information and comments, observations and recommendations as may be available or pertinent on-site. 7. APPREHENSION RECEIPT - Upon completion of the foregoing procedure and finding the existence of probable cause to make an apprehension, the apprehending officer shall issue and hand-over to the offender an Apprehension Receipt, which shall contain the following: (a) the precise nature of the offense cited; (b) the time, date, and place of issuance of the Apprehension Receipt; and (c) the full names in print and signatures of both the apprehending officer and of the offender(s). Should the offender(s) refuse to sign or acknowledge in writing his receipt of the Apprehension Receipt, or refuse to take delivery thereof, such fact shall also be stated in writing on the Apprehension Receipt. 8. PROVISIONAL APPREHENSION RECEIPT - Should the counting, measurement, description, scaling, weighing, and/or value-estimation of the items being apprehended, and/or of any other documentation activity related thereto, remain incomplete at the close of regular office hours of the day when the apprehension was made, the fact that more time is required to complete the same shall be explained to those concerned on-site and reflected in the Apprehension Receipt which, in such cases, shall state the date and time this procedure commenced. In such, cases the Apprehension Receipt shall be prominently marked with the word “provisional”. The Provisional Apprehension Receipt shall also state the date, time, and place where the uncompleted documentation activity will resume. This procedure shall be followed each day that the documentation activity remains incomplete until final completion thereof. 9. TRANSPARENCY OF APPREHENSION PROCEEDINGS - The documentation activity outlined above shall be undertaken with full

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transparency and in the presence of the offender(s), owner, custodian, possessor, consignor, consignee, or other person(s) claiming the apprehended items or representatives of any of said persons, as well as any other concerned or interested persons. If the documentation activity is undertaken in the absence of anyone interested therein, such fact shall be stated on both the on-site report and apprehension receipt with an explanation, if any. Moreover, the apprehending officer shall immediately implement such measures to ensure that any persons known to have an interest in the apprehended item(s), but who are absent, are informed without delay of the fact of, and reasons(s) for, the apprehension, as well as invite said person(s) to attend the proceedings, stating the date, time, and date when the documentation activity will resume. 4. Seizure

The The follow lowing ing proce ocedure sha shall be be com complied lied with ith in the sum summary ary adminis inisttrativ ative e 522 522 seizure of items: 1. DELIVERY - As soon as possible, after items are apprehended as outlined above, the same shall be delivered by the apprehending officer to the nearest Seizure Officer who shall forthwith sign and issue a Seizure Receipt stating the date, place and time, name of apprehending officer, and containing an itemized list of the item(s) delivered to him. In case such delivery of any apprehended item(s) is impracticable, the apprehending officer shall deposit the same for temporary safekeeping at the nearest Government office. Should such temporary safekeeping be impracticable for any reason, the apprehended item(s) shall remain in the custody of the apprehending officer until delivery thereof is effected as herein provided. 2. SUMMARY ADMINISTRATIVE SEIZURE - Upon delivery to those authorized, the Seizure Officer concerned shall forthwith verify the existence of a prima facie case against the offender by examining all the documents submitted to him by the apprehending officer, as required by the foregoing provisions. He shall confirm that the item(s) delivered to him strictly coincide with the itemized list thereof reflected in the documents of apprehension. If such confirmation cannot be completed within the same day, the procedure for extensions previously outlined shall apply. In case of variance between the items so delivered and 522 522

Id., Sec. 6.

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those reflected in the documents of apprehension, he shall require a sworn statement from the apprehending officer with a complete, clear and concise explanation for said variation, which shall form an integral part of the permanent records of the case. In verifying the existence of a prima facie case against the offender, the appropriate DENR Officer shall personally examine the apprehending officer and any witnesses appearing before him in order to satisfy himself that an offense has been committed, that the evidence at hand indicates the offender is probably guilty thereof, and that the items delivered to him are the proceeds of the violation. Should a prima facie case against the offender be thus found, the Seizure Officer shall immediately declare this fact by issuing a Seizure Order for the apprehended item(s). In case the apprehended conveyance involved is a government vehicle, the procedure above shall be followed and the vehicle shall be immediately released to the highest regional official of the office which owns the same, upon acknowledging that the said conveyance has been used in violation of existing forestry laws, rules and regulations. 5. Confisc ation

The following procedure shall be complied with for the summary administrative confiscation of items. 523 Immediately upon, or as soon as practicable, after issuance of a Seizure Order, the following shall be followed in the summary seizure proceedings. 1. NOTICE OF HEARING — A Notice of Hearing shall be issued by the DENR Officer who issued the Seizure Order scheduling a formal, summary hearing at a specified place and date within one (1) calendar week from the date of the Seizure Order or, upon written request and signature of all interested parties, within two (2) calendar weeks from said date. In no case shall the hearing so scheduled be postponed without the written request of the offender(s) and/or the owner or other person(s) interested in the seized item(s). 2. HEARING -The DENR Officer who issued the Seizure Order shall preside as the Hearing Officer at the confiscation hearings, which shall be recorded and of summary nature, during which all interested parties shall be heard by themselves and/or through counsel of choice. Ample opportunity to obtain the services of 523

Id., Sec. 7.

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counsel shall, in all cases, be provided. A complete set of the documents supporting the apprehension and seizure as hereinabove outlined shall be provided to the interested parties at their expense, and who shall be afforded the opportunity to present controverting evidence. Although not strictly bound by the technical rules on evidence and procedure, the Rules of Court shall have suppletory application to ensure justice and equity at all times. In lieu of adducing testimonial evidence, any Party may elect to submit a Memorandum, attaching Affidavits and any other supporting documents thereto, with a request that the issues be decided on the basis thereof. 3. DISPUTABLE PRESUMPTIONS - In administrative proceedings conducted pursuant hereto, the following shall be considered presumptions of fact and/or law and taken as part of the evidence, unless specifically controverted and successfully overcome by a preponderance of evidence. (a) All those apprehended on-site for direct or indirect participation in the commission of the offense(s) cited had full knowledge of and willingly participated therein; (b) The registered owner and/or operator/driver of a conveyance used in the commission of the offense had full knowledge and willingly participated therein by providing the conveyance for the illegal purpose to which said conveyance was applied. In case the registered owner of the conveyance is a partnership or corporation, the partners and/or officers thereof had full knowledge of and granted authorization or issued instructions for the use or application of the conveyance in the commission of the offense; and (c) Any forest products were obtained from an illegal source. 4. DECISION — The Decision shall be rendered by the RED upon recommendation of the Hearing Officer. Substantial evidence shall suffice to sustain an administrative Decision adverse to interested Party(ies), failing which, a ruling shall be issued dismissing the case, and the controversy deemed closed, and ordering that the seized item(s) be returned forthwith. When the evidence so warrants, a ruling shall be issued declaring the seized items to be confiscated in favor of the Government, together with recommendations for further prosecution, if any. In the absence of compelling reasons, which shall in all cases be stated on the record, confiscation proceedings shall be terminated within fifteen (15) regular business days from commencement thereof. A transcript of stenographic notes or minutes taken at these proceedings shall form part of the permanent records of the case, together with the Decision issued thereon, citing the evidence adduced and reasons supporting the ruling. The Decision shall become final and executory upon the lapse of fifteen (15) regular

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business days, unless a Motion for Reconsideration is filed as provided below. 5. MOTION FOR RECONSIDERATION - A party aggrieved by the decision may file only one (1) Motion for Reconsideration within a non-extendible period of fifteen (15) calendar days from receipt of the Decision, containing a concise statement of the grounds relied upon for the purpose. The Hearing Officer shall issue a ruling on such Motion within fifteen (15) days from receipt thereof, stating the grounds therefor. Unless a Notice of Appeal is filed by a Party with the Hearing Officer within a non-extendible period of fifteen (15) calendar days from receipt of a Notice of Appeal, the Hearing Officer shall transmit the complete records of the case to the Office of the Secretary for appropriate action. 6. APPEAL - Within a non-extendible period of fifteen (15) calendar days from receipt of the ruling upon a Motion for Reconsideration, a Party, after paying the corresponding Appeal Fee, may file an Appeal with the Office of the Secretary, which shall contain a concise statement of all the issues of fact and law raised on appeal. Upon receipt thereof, the Appeal shall be forwarded to the Undersecretary for Legal and Legislative Affairs, who shall submit his recommendations to the Secretary within a period of fifteen (15) regular working days. 7. DECISION OF THE DENR SECRETARY -A Party aggrieved by the decision rendered by the Secretary may, within fifteen (15) days from receipt thereof, file but one (1) Motion for Reconsideration, failing which, the same shall become final and executory. However, the aggrieved Party may, within the same period, appeal said Decision to the Office of the President of the Philippines, pursuant to Executive Order No. 19, Series of 1996. 8. EXECUTIVE DECISION — When a Decision becomes final and executory upon the lapse of the reglementary periods herein prescribed, the Undersecretary for Legal and Legislative Affairs shall, motu proprio or upon Motion by any Party, issue a Certification to that effect for submission to the Secretary. The Certification shall cite the item(s) confiscated in accordance herewith (if any), together with a recommendation for execution of the Decision. 9. TERMINATION OF CASE — Upon approval by the Secretary issued pursuant to the preceding paragraph, confiscated items shall become permanent property of the Government and entered into the books as such and disposed of in accordance with law. The

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Secretary's approval shall be attached to and shall form part of the permanent records of the cases, which, from the date thereof, is considered, terminated and closed. 6. Abandoned Forest Product s

The following procedures apply in cases where illegal forest products and other items are abandoned, or when the owner, claimant, custodian or other interested Party(ies) is unknown, cannot be determined, or cannot otherwise be found. 1. The items shall forthwith be apprehended. Whenever practicable, photographs of the apprehension site and the item(s) seized shall be taken and shall form a permanent part of the records of the case. For this purpose, the apprehending officer shall identify, date, caption, and write his full printed name and affix his signature at the back of each photograph so taken. 2. The On-site Record of Violations, On-site Report and Apprehension Receipt shall be prepared as mandated hereby. In lieu of service of the Apprehension Receipt, a notice of the apprehension shall be left by the apprehending officer on-site, posted or tacked into the nearest tree, wall or other similar permanent structure. In this connection, the notice shall contain the date, time, and place of the apprehension, full printed name, designation and signature of the apprehending officer, a complete, itemized list of the item(s) apprehended, a summary statement of the violation(s) cited, and of the full printed name and office address of the seizure officer to whom said items will be submitted. 3. Summary Seizure/Confiscation Proceedings shall be conducted by the Hearing Officer designated. In such cases, the Notice of Hearing shall be posted at least three (3) times, once a every week for three (3) consecutive weeks, in at least three (3) public places, including, but not limited to: (a) the Barangay Hall of the apprehension site; (b) the Bulletin Board of the DENR Offices where the Proceedings will be conducted, and (c) at the Municipal Hall of the apprehension site. Should the owner, claimant or other interested Party fail to appear at the Proceedings, such failure shall be deemed a waiver of the right to appear and of any/all rights to the items apprehended in favor of the Government. The Hearing Officer shall state this fact in the records and certify that publication of Notice of Hearing had been effected in compliance herewith; thereupon, he shall forthwith issue his Decision based on the

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evidence at hand. A Motion for Reconsideration and/or Appeal may be taken by any interested Party. 7. Temporary Release of Conveyances

When a conveyance is apprehended, any time thereafter pending final disposition of the administrative case, and should available evidence establish to the satisfaction of the Hearing Officer that the conveyance may be used for lawful purposes, such as, but not limited to: personal mode of transportation, commercial passenger transport, cargo hauling, or other similar legal use, temporary release thereof to the owner or claimant or other interested Party may be applied for, and release thereof to the Applicant pendente lite may be granted by the Hearing Officer, upon compliance with the following requirements: 524 1. DENR CONFIRMATION - Written confirmation in the records of the case is entered by the Hearing Officer declaring under oath: (a) that the official registration papers and supporting documents thereof are secured and made an integral part of the records of the case, possession of which shall not be released, unless ordered in the final decision of said case or by other competent authority; and (b) that the Applicant was not among those who were apprehended and is not a respondent in the case by virtue of which the conveyance is being detained pendente lite; (c) the Applicant has not previously been held administratively or criminally liable for violation of forestry laws, rules and regulations; and that (d) available evidence does not in any way indicate the complicity of the Applicant in the offense cited in the confiscation proceedings. 2. SWORN STATEMENT AND UNDERTAKING — Submission by the Applicant of a Sworn Statement: (a) declaring the precise nature of his claim thereon; (b) declaring that he has not previously been held administratively or criminally liable for violation of forestry laws: (c) describing the precise lawful uses(s) to which the conveyance shall/may be applied during the pendency of the case; (d) stating the replacement cost of the conveyance at the time the application is filed; and (e) an unconditional undertaking to return possession of the conveyance to the DENR as may be required for the final disposition of the case.

524

Id., Sec. 9.

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3. POSTING OF BOND — Upon approval of an Application for Temporary Release of Conveyance, and as a precondition to the actual pendente lite release thereof, the Applicant shall post a cash or surety bond to guarantee the prompt return of the conveyance to the DENR as may be required pursuant hereto. In no case shall a personal or private bond or guarantee or recognizance be admitted for this purpose. The bond shall be equivalent to one-hundredtwenty-five percent (125%) of the replacement cost of the conveyance at the time the bond is submitted. A cash bond in favor of the DENR must be filed by the Applicant with the nearest DENR Regional, Provincial or Community Office; surety bonds in favor of the DENR must be from the GSIS or other government surety. Original documents evidencing the posting of the bond shall be submitted to the Hearing Officer and form part of the records of the case. 4. RECALL OF CONVEYANCE — In case of misrepresentation in the Application for Temporary Release of Conveyance and/or any documents submitted in connection with or support thereof, or in case of failure to comply with any representations or undertakings made in connection therewith, the conveyance shall be ordered recalled by the Hearing Officer and the same shall forthwith be returned by the Applicant to the DENR. In case of failure to return the conveyance in compliance with a directive issued in the administrative case, the bond shall be called and forfeited in favor of the Government. 5. RETURN/CANCELLATION OF BOND — When the Decision in a case becomes final and executory as outlined above, and administrative confiscation of the conveyance is not ordered by the Government, immediate return thereof to the owner and cancellation/return of the bond filed in connection therewith shall be ordered. Unless expressly mandated in the body of the Decision of the case, the Hearing Officer shall forthwith issue an Order citing said Decision, a copy of which shall thereto be attached, mandating the immediate release of the conveyance to the Owner thereof, together with an order for the cancellation of the surety bond or return of the cash bond submitted as hereinabove required.

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APPENDIX B SEIZURE OF FISH CATCH (DA-BFAR FAO 206, S. 2001)

Fishery Administrative Order (FAO) No. 206, Series of 2001 on “ Disposal of Confiscated Fish and Other Items in Fishing Through Explosives and Noxious or Poisonous Substances” lays down the procedure in the seizure of fish caught illegally through explosives and noxious or poisonous substances. Whenever the Director of Fisheries and Aquatic Resources, a fish warden deputized by the DA-BFAR or a BFAR Law Enforcement Officer seizes without warrant fish suspected to have been caught by means of explosives in a fishing boat, marketplace or elsewhere, he shall take adequate samples thereof, which shall immediately be examined for determination whether or not the same have been caught by means of explosives. Pending the result of the examination, the fish shall not be allowed to be unloaded from the boat or sold if in the marketplace.525 Samples taken for examination shall at least be 100 grams in weight. The ideal number of fish samples is three to five (3-5) pieces for big-sized fish or ten to twenty (10-20) pieces for small fish or fingerlings. These should be frozen or packed in ice then submitted to the nearest Fish Examiner specially trained to examine fish caught by explosives or to any municipal health offices or crime/hospital laboratory for examination. 526 If the examination shows that the fish sample is positive for blast fishing, the same shall be preserved for evidence. The preserved samples shall be properly labeled and the species identified in its scientific, English and local names, whenever and whichever applicable. The captain or in charge of the boat, or vendor or possessor of the fish, if in the marketplace or elsewhere shall be required to countersign the labeled evidence. In case of refusal, an affidavit to this effect shall be prepared by the apprehending officer, attested by two witnesses.527 If the examination shows that the samples were caught by blast fishing, the apprehending officer shall confiscate the fish haul for distribution to charitable institutions. Those willing to accept the dynamited fish still safe to eat shall execute promissory notes of their willingness to return the value of the fish in case of acquittal of the accused in court. In case such charitable institutions demur, the same may be given to penal institutions instead, with the same promissory note of repayment in case of acquittal of the accused.528 525

FAO No. 206, s. 2001, Sec. 1 (a). Id., Sec. 1 (b). 527 id., Sec. 1 (c). 528 Id., Sec. 3 (a). 526

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Fish caught by means of noxious substances, like sodium cyanide, exhibit on outward manifestation to that effect visible to the naked eye. Upon seizure without warrant, at least 100 grams of fish, either three to five pieces in case of big-sized fish or ten to twenty small-sized fish or fingerlings shall be taken as samples. Water sample of about one liter may likewise be collected from the scene of the offense, which sample should reach the laboratory within four (4) hours from collection. Fish samples must be packed in polyethylene plastic, either frozen or placed in a closed container or bottle with proportionate ratio of ice. In the absence of ice, ethyl alcohol or absolute alcohol may be used. Formalin must not be used at this stage. The internal organs of the fish samples must never be removed. The samples must be brought to the BFAR Laboratory or any government crime/hospital laboratory for examination the soonest possible time.529 If positive for cyanide or other noxious substances, the samples may be preserved in formalin and labeled. The same or any part or portion thereof should not be distributed to charitable and penal institutions as the safety of those who will consume the same cannot be assured, and in most cases, fish laced with cyanide is proven to be injurious to humans and animals alike. Those still briskly alive shall be returned to their habitat and those in worse condition shall be disposed of properly. The disposal shall be done by the apprehending officer in the presence of a third-ranking BFAR official, and representatives from the Office of the Prosecutor (Department of J ustice) or the Philippine National Police (PNP), and shall be documented properly. 530 In both major fishing violations, the apprehending officer shall likewise immediately seize, impound and take possession of the fishing vessel, tackle and appurtenances thereto, as well as the explosives, noxious or poisonous substances, or and other tools and the proceeds of the offense. He shall prepare an inventory of the items seized and issue a receipt to be countersigned by the captain, master or in-charge of the boat. Should the latter refuse, this fact shall be manifested in an affidavit attested by two witnesses. The seized items, documents and fish samples shall be kept in safe custody by the apprehending officer prior to being turned over to the investigating prosecutor. Copy of the registration papers and pertinent vessel licenses, its make and description, other relevant information and a photograph thereof shall be taken prior to its being ceded to the PNP-Maritime Group (MARIG) for the latter’s safekeeping during the course of the trial.531 Fishery Administrative Order No. 206, Series of 2001 may be applied by fish wardens deputized by the local governments and by other law enforcement officers, in the absence of an ordinance or rule covering the subject matter. It may be applied as well in the disposition of confiscated fish and impounded items 529

Id., Sec. 2 (a). Id., Sec. 2 (b). 531 Id., Sec. 3 (c). 530

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in cases of other fishery law violations. Local governments may enact an ordinance providing a different mode of disposition of fish catch and the vessel seized.532 In commercial fishing vessels under the jurisdiction of the DA-BFAR, i.e., vessels more than 3 gross tons, the owner, licensee, master, patron, or any person-in-charge of the fishing boat or the possessor in places other than a fishing vessel shall allow duly deputized fishery law enforcement officers to take fish samples in quantity of not more than one (1) kilo, or only (1) fish if it weighs more than a kilo, for an on-the-spot or scientific examination to determine whether the same was caught by means of explosives, or by poisonous or obnoxious substances. The receipt of the samples identified in its vernacular, English and/or scientific names, shall be countersigned by the owner/possessor thereof.533

532 533

Id., Sec. 4.

Sec. 27, Fishery Administrative Order No. 198, s. 2000, “Rules and Regulations on Commercial Fishing.”

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APPENDIX C SEARCH AND SEIZURE PROCEDURE IN POACHING CASES (DA-BFAR FAO 200, S. 2000) 534

The following constitute inspection and apprehension procedures in poaching cases: (a) Upon receipt of a report that a foreign fishing vessel is engaged in poaching, or upon the sighting of a foreign fishing vessel, the fishery law enforcement officer shall establish the violation, exact location with coordinates of the vessel and its distance: from the nearest shore, nature of and/or cause of apprehension, weather condition at the time of sighting or apprehension, and the description/condition of the vessel with appropriate identifying features and marks during sighting and apprehension. Where practicable, photographs of the vessel should be taken. (b) The fishing vessel shall be approached to within a safe distance to the leeward side of the ship, and given visible or audible signals for the vessel to stop. (c) Once the fishing vessel has stopped, the fishery law enforcement officer shall clearly identify himself and the unit or organization to which he belongs. He shall state clearly that he wishes to conduct an inspection on the ground that he has reason to suspect that the vessel may be engaged in poaching. (d) Upon boarding, the officer shall ask the master of the vessel to stop its operations and drop anchor, and the captain and crew shall be identified. As far as practicable, the state of the fishing gear at the time of boarding, any visible catch that may be on deck, and other conditions on board the vessel which indicate that it is poaching, shall be recorded. The position of the vessel shall be plotted on a map indicating its location. A technician or engineer from the apprehending vessel should ascertain and record the status of the engine of the apprehended vessel. The status of all navigational and other instruments in the vessel, whether it is working and operational at the time of apprehension, should be indicated as detailed as possible. (e) The boarding officer should read to the arrested persons his/her rights under the Philippine Constitution in English, or in the common language or dialect of the arrested person, if possible. (f) The master of the vessel shall be required to sign and conform with the plotted position of the vessel and be informed of the violation committed. (g) The registration papers, logbook and navigational chart of the vessel, the 534

Fishery Administrative Order (FAO) No. 200, s. 2000 “ Guidelines and Procedures in Implementing Section 87 of the Philippine Fisheries Code of 1998”.

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