Environmental Appeal Board

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1 Environmental Appeal Board Fourth Floor 747 Fort Street Victoria British Columbia Telephone: (250) Facsimile: (250) Mailing Address: PO Box 9425 Stn Prov Govt Victoria BC V8W 9V1 APPEAL NO. 98-WIL-28 In the matter of an appeal under section of the Wildlife Act, R.S.B.C. 1996, c BETWEEN: Allan Crawford APPELLANT AND: Regional Fish, Wildlife and Habitat Manager RESPONDENT BEFORE: A Panel of the Environmental Appeal Board Toby Vigod, Chair DATE OF HEARING: Conducted by way of written submissions concluding January 20, 1999 APPEARING: For the Appellant: Allan and Terry Crawford For the Respondent: Rick Morley APPEAL This is an appeal against the July 20, 1998, decision of Rick Morley, Regional Fish, Wildlife and Habitat Manager (the Regional Manager ), to deny the Appellant a possession permit for the horns of a mountain sheep. The authority for the Environmental Appeal Board to hear this appeal is found in section 11 of the Environment Management Act, and section of the Wildlife Act. This appeal has been conducted by way of written submissions. BACKGROUND The Appellant, Allan Crawford, is a Recreation, Fish and Wildlife Technologist who is employed as an assistant guide outfitter. He spends his spare time hunting for shed antlers. On April 2, 1998, while looking for shed antlers and horns, Mr. Crawford found the carcass of a big horn ram near Syringa Creek Park in the Castlegar area. Although he did not ascertain the exact cause of death, the ram appeared to have died of natural causes. After photographing the carcass, he removed the horns from the carcass and went directly to the local Wildlife Branch office of the Ministry of Environment, Lands and Parks (the Ministry ) to report the find. Shortly thereafter, Mr. Crawford presented the horns to the local Conservation Officer, Steve Wasylik. Mr. Crawford provided information on the location of the

2 APPEAL NO. 98-WIL-28 Page 2 carcass, the circumstances surrounding the find, and requested a permit to possess the horns for his personal collection. Mr. Wasylik advised Mr. Crawford that before a permit could be granted, Mr. Wasylik would have to consult with Rick Morley, the Regional Manager. Mr. Crawford was later informed that the Regional Manager had decided to refuse the permit to possess and that the horns would be auctioned off at a later date. Mr. Wasylik then encouraged Mr. Crawford to write a letter to the Regional Manager explaining why he felt he should gain legal possession of the sheep horns. By letter dated May 20, 1998, Mr. Crawford made a written request to the Regional Wildlife Manager for a permit to possess the ram horns. In that letter, he states that his main reason for seeking possession of the horns is that they are a dream come true. He states that, although he did not hunt the sheep in question, finding the horns was as much of a challenge, if not more. He further states that the sheep horns are the fondest memory he has of the two years he spent in Castlegar while attending the Recreation, Fish and Wildlife Technology program. In a letter dated July 20, 1998, the Regional Manager refused to issue Mr. Crawford a permit to possess the horns. He states: I have reviewed your request and information provided by Conservation Officer Steve Wasylik. Officer Wasylik indicates the horns may score high enough for the Boone and Crockett records and therefore be of considerable monetary value. In reviewing your request I do not find any specific reason to issue a permit to you for possession of these horns. Your hunt for horns you specified as being for shed horns which require no permit and therefore the finding of these sheep horns was a fortuitous event for you. They also represent a considerable monetary value. Given the above consideration I am not prepared to issue a permit to you to possess these horns. On July 29, 1998, Mr. Crawford appealed the Regional Manager s decision to the Environmental Appeal Board. He states that the decision is unjustifiable, as there is no reason to deny the permit. Mr. Crawford asks the Board to rescind the Regional Manager s decision and to issue a permit to possess the horns. ISSUE Whether a possession permit should be granted in the circumstances of this case. RELEVANT LEGISLATION According to section 2(1) of the Wildlife Act: 2 (1) Ownership in all wildlife in British Columbia is vested in the government.

3 APPEAL NO. 98-WIL-28 Page 3 (2) A person does not acquire a right of property in any wildlife except in accordance with a permit or licence issued under this Act or the Game Farm Act or as provided in subsection (3) of this section Section 33(2) of the Act makes it an offence for a person to have dead wildlife or a part of it in his or her possession, except as authorized under a licence or permit or as provided by regulation. As a Regional Manager, Mr. Morley s general power to issue a permit arises from section 19 of the Wildlife Act. 19 (1) A regional manager or a person authorized by a regional manager may, to the extent authorized by and in accordance with regulations made by the Lieutenant Governor in Council, by the issue of a permit, authorize a person (a) to do anything that the person may do only by authority of a permit or that the person is prohibited from doing by the Act or the regulations, or (b) subject to and in accordance with those conditions, limits and period or periods the regional manager may set out in the permit and, despite anything contained in this Act or the regulations, that person has that authority during the term of the permit. Section 1(l) of the Wildlife Act Permit Regulations (B.C. Reg. 337/82) provides further specific authority to the Regional Manager: 1. A regional manager, by issuing a permit with whatever conditions, limits and period or periods he may include in or attach to the permit, may authorize (1) a person to possess dead wildlife or parts of them. The Board notes that no permit is required to possess shed antlers. DISCUSSION The Appellant argues that the Respondent provided no specific reason to deny the permit. He argues that he was forthright and honest regarding his finding of the horns. He notes that he went immediately to the local Wildlife Branch Office, but since the office was closed, he called and left a message regarding the found horns. He continued to call the office until his call was returned. Once Mr. Crawford contacted a Conservation Officer, he provided detailed information about the location and circumstances of the find. Mr. Crawford states that he seeks to retain the ram horns for personal use only. He enjoys hunting for shed antlers as a hobby, and has no interest in selling the horns because they have great sentimental value to him. Similarly, he has not sold any of the elk or deer antlers he has found previously. He states that he would gladly agree to never sell the ram horns. Mr. Crawford argues, therefore, that the monetary value of the horns is no reason to refuse his request for a possession

4 APPEAL NO. 98-WIL-28 Page 4 permit, and cites the recent Environmental Appeal Board s decision in David Beranek v. Regional Wildlife Manager (Appeal No. 98-WIL-23, October 5, 1998 (unreported)) in support. In that case, the Regional Manager refused to issue a permit to possess horns from a mountain sheep on the basis that Mr. Beranek had found the horns as a consequence of his employment. In later submissions, the Regional Manager added monetary value as an additional reason for refusal. The Board found that Mr. Beranek s employment in that case should not have been determinative. Regarding monetary value, the Board stated that the monetary value of the horns cannot be a reason for refusal by itself. If monetary value is going to be considered as a reason for refusal in special circumstances, it is up to the Ministry to provide reasons why that should be so. No reasons were provided in that case, so the Board rejected this as a ground for refusal. However, as a condition for issuing a permit, the Board stated that Mr. Beranek could not sell the horns for profit. Mr. Crawford also suggests that refusing him a permit because of the monetary value of the horns to the Crown at auction is questionable. Mr. Crawford finds the Ministry policy of auctioning off wildlife hard to understand since he was taught that wildlife is not for sale in British Columbia. Finally, Mr. Crawford set out his finders keepers losers weepers theory of the case. He believes that this unwritten law or ethical theory is accepted by society and since he found the sheep horns, he should keep them. In his submissions to the Board, the Regional Manager correctly points out that under section 2 of the Wildlife Act; ownership of the wildlife resource is vested in the Crown. He also argues that if Mr. Crawford is granted a possession permit, he would have the right to possess the horns but their ownership would remain with the Crown. He submits that a possession permit does not transfer ownership of the horns and a permittee cannot legally dispose of the horns by any means during his period of legal possession. The Regional Manager notes that, although there are avenues under the Act, which allow transfer of ownership, he has no authority to do so. Therefore, the finders keepers losers weepers theory does not apply. Regarding permitting powers under the Wildlife Act, the Regional Manager points out that the Ministry has established guidelines in a Procedure Manual under the heading Policy and Procedures for the Disposal and Storage of Dead Wildlife and Parts (Volume 4, Section 7, Subsection 12.04), dated April 24, 1992 and as amended on November 12, At the time that Mr. Crawford applied for the permit, the relevant sections stated as follows: 3. An Officer may determine the disposition of the dead wildlife or parts of it according to the established priorities, as outlined in Section 4, unless a priority for disposal of dead wildlife or parts of it is of such importance, as established by the Regional Manager or the Director, so that the officer may no longer exercise his discretion. 4. (1)

5 APPEAL NO. 98-WIL-28 Page 5 (3) Priorities for disposal of parts of wildlife other than meat are: (a) Government uses e.g. research, education, museum exhibits and collections etc. (b) Bona fide scientific or medical uses (c) Traditional ceremonial or dress purposes; aboriginals receiving first priority (d) Private possession in accordance with Policy and Procedures (e) Commercial sales (f) Natural decomposition (g) Destruction in accordance with community by-laws and practices, as in 4(1)(e) above (h) Fur bearers and their parts are to be given to the B.C. Trappers Association. However, the Regional Manager points out that under recent changes to section 4(3) of the Procedure Manual, effective October 19, 1998, a higher priority is put on the use of these parts for commercial sale, or disposal by government auction, than on private possession. Section 4(3) now reads: 4 (3) Priorities for disposal of parts of wildlife other than meat are: (a) Government uses e.g. research, education, museum exhibits and collections etc. (b) Bona fide scientific or medical uses (c) Traditional ceremonial or dress purposes; aboriginals receiving first priority (d) Commercial sales (Disposal by Government Auction) (e) Private possession in accordance with Policy and Procedures (f) Natural decomposition (g) Destruction in accordance with community by-laws and practices, as in 4(1)(e) above (h) Fur bearers and their parts are to be given to the B.C. Trappers Association. [emphasis added]

6 APPEAL NO. 98-WIL-28 Page 6 The Regional Manager states that Mr. Crawford s removal of the horns from the environment without prior permission prevented the Crown from making decisions regarding their disposition, or from determining the sheep s cause of death. The Regional Manager argues that Mr. Crawford should have notified the Conservation Officer of the carcass and requested a possession permit before retrieving the horns. That way, the Crown could have considered the issue of disposal of the animal. He states that Mr. Crawford s act of removing the horns from the site without first obtaining a permit was illegal, and when he collected the horns he did not know whether the Crown was aware of them or not; or whether the Crown had already made a decision to leave them where they were; or whether they were being studied. However, even if the Crown did not know they were there, the Regional Manager submits that the horns have two types of value to the Crown: a monetary value that can be realized at auction, and an ecological value that can be realized by letting them become part of the ecosystem they grew in. He maintains that the subject horns are worth in the range of thousands of dollars. Although the Regional Manager submits that his decision to refuse a permit to possess in the circumstances was correct, he proposed two options for the resolution of this matter. First, he said that he would be willing to grant Mr. Crawford a permit to possess the horns for one year, after which they would revert to the Crown. Alternatively, the Regional Manager suggests that Mr. Crawford is free to purchase them at a government auction. Mr. Crawford acknowledges that he may have unintentionally breached the Wildlife Act by picking up the horns prior to securing a permit for their possession. However, he points out that he did not know he was breaking any law and he did go immediately to the Conservation Officer in Castlegar to get the permit. Regarding the application of the new policy, Mr. Crawford argues that, since the policy came into effect after the Regional Manager s decision was made and his appeal filed, the policy is not relevant. Mr. Crawford notes that under the Ministry policy in effect at the time, private possession was to be given priority over auction sale when considering the disposition of dead wildlife parts. Regarding the Crown s options, Mr. Crawford argues that the Crown has no intention of returning the horns to nature for decomposition. Mr. Crawford submits that, although he provided the Conservation Officer with the location of the carcass, the Officer expressed no interest in visiting the site. Mr. Crawford also submits that the cause of the sheep s death may be determined despite the removal of the horns, by examining the remaining bones. The Panel has now had an opportunity to review all of these submissions and notes that the Regional Manager s primary reason for refusing the permit is the considerable monetary value of the horns. He subsequently, noted that Mr. Crawford illegally removed the horns from the site without a permit. However, this latter consideration does not appear to have formed part of the original decision to refuse a permit and has not been fully argued before the Panel. The Panel will accordingly give it no weight.

7 APPEAL NO. 98-WIL-28 Page 7 It is noted that Ministry policy at the time that Mr. Crawford found the horns and applied for a permit provided that private possession should take precedence over commercial sales when deciding whether a permit should be issued. The Regional Manager appears to have considered the policy and decided that the horns had considerable monetary value. He further determined that there was no specific reason to issue a permit to the Appellant. The Panel agrees with the Regional Manager that the horns do have monetary value in the range of thousands of dollars. The Panel further finds that commercial value is a legitimate consideration for the Regional Manager when deciding to issue a permit for possession. The Panel has also considered the reasons that Mr. Crawford gave as to why he should have private possession of the horns. He advises that he has been trained as a Recreational, Fish and Wildlife Technologist. He is employed as an assistant guide and he spends his spare time combing the backcountry in search of shed horns. He further advises that he places great memorable value in this set of horns, as it was his best find to date. Finally, he advises that he will not try to sell or otherwise dispose of these horns. On reviewing these submissions the Panel cannot agree with the Regional Manager that there is no specific reason to issue the permit to the Appellant. The Panel is satisfied that Mr. Crawford has an above average interest in wildlife and the outdoors. He is a collector of shed antlers and places great memorable value on this particular set of horns. There is also no indication or suggestion that he has any intention of disposing of these horns for personal financial benefit. In the Panel s view these are valid reasons to consider when determining whether to issue a permit for possession. The Panel has also considered the fact that the Ministry policy on priority for disposal of wildlife was amended on October 19, That amendment placed commercial value over private possession when considering whether to issue a permit for possession. The Panel finds that the October amendment should not be considered over an existing policy that applied at the time of the decision to refuse the permit. The amended policy cannot be read retroactively. Accordingly, the Policy in place prior to October 19, 1998 is the relevant policy for the purposes of this appeal. Finally, the Panel notes that it was only through Mr. Crawford s personal efforts that the horns have come into the Ministry s possession. He brought the horns directly to the Ministry upon discovering them. He reported the details of his find to the Conservation Officer including the location of the dead ram. He then applied for a permit to possess the horns. The Panel finds that Mr. Crawford has acted in good faith throughout. Given the above the Panel has concluded that Mr. Crawford should be granted a possession permit and that, in this case, private possession takes priority over commercial sales.

8 APPEAL NO. 98-WIL-28 Page 8 DECISION In making this decision, the Panel of the Environmental Appeal Board has carefully considered all of the evidence before it, whether or not specifically reiterated here. The Panel finds that Allan Crawford should be granted a permit to possess the horns. Accordingly, pursuant to section 101.1(5) of the Wildlife Act, the Panel orders that the horns be returned to Mr. Crawford and directs the Regional Manager to issue a permit for possession of the horns, on the condition that he may not sell them, although he may donate them to an educational institution or public museum. The appeal is allowed. Toby Vigod, Chair Environmental Appeal Board February 4, 1999

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