Environmental Law and Procedural Rules

ENVIRONMENTAL LAW AND PROCEDURAL RULES
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Antonio G.M. La Via and Josef Leroi L. Garcia

A. Definition

Environmental law covers all laws that relate to the preservation, protection,
conservation, exploitation, utilization, development, and management of the
environment and its natural resources. Major Philippine environmental laws can
be divided into three categories, viz: Those that primarily deal with:

1) the regulation of exploitation, utilization and development of natural
resources;
2) the preservation, protection, and conservation of flora and fauna; and
3) pollution and environmental management.

Those that belong to the first category include the following:

1) Presidential Decree No. 705, Revised Forestry Code, as amended by
Pres. Decree No. 1559, Executive Order No. 277, and Republic Act
No. 7161;
2) Rep. Act No. 8550, Philippine Fisheries Code;
3) Rep. Act No. 7076, Peoples Small-Scale Mining Act; and
4) Rep. Act. No. 7942, Philippine Mining Act.

Those that belong to the second category include the following:

1) Rep. Act No. 7586, National Integrated Protected Areas System Act;
2) Rep. Act No. 9147, Wildlife Conservation and Protection Act; and
3) Rep. Act No. 9072, National Caves and Cave Resources
Management Act.

Those that belong to the third category include the following:

1) Pres. Decree No. 979, Marine Pollution Decree;
2) Pres. Decree No. 1586, Establishing an Environmental Impact
Statement System;
3) Rep. Act No. 8749, Clean Air Act;
4) Rep. Act No. 9275, Clean Water Act;
5) Rep. Act No. 9003, Ecological Solid Waste Management Act; and
6) Rep. Act No. 6969, Toxic Substances and Hazardous Waste Act.


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B. Rules of Procedure for Envi ronmental Cases

Supreme Court Administrative Matter No. 09-6-8-SC dated April 13, 2010 lays
down the Rules of Procedure for Environmental Cases
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.

These Rules govern the procedure in civil, criminal, and special civil actions
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.
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C. Environmental Laws 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, Prohibition Against Cutting of Tindalo, Akli, and Molave
Trees;
2) Pres. Decree No. 705, Revised Forestry Code;
3) Pres. Decree No. 856, Sanitation Code;
4) Pres. Decree No. 979, Marine Pollution Decree;
5) Pres. Decree No. 1067, Water Code;
6) Pres. Decree No. 1151, Philippine Environmental Policy of 1977;
7) Pres. Decree No. 1433, Plant Quarantine Law of 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, Peoples 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. Act No. 7942, Philippine Mining Act;
16) Rep. Act No. 8371, Indigenous Peoples Rights Act;
17) Rep. Act No. 8550, Philippine Fisheries Code;

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AM. No. 09-6-8-SC, Effective April 29, 2010.
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RULES OF PROCEDURE FOR ENVIRONMENTAL CASES, Rule 1, Sec. 2.

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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, Philippine Biofuels Act; and other existing laws that relate to the
conservation, development, preservation, protection, and utilization of
the environment and natural resources.
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D. Precautionary Principle

This is one of the distinctive features of this Rule.

1. Definition

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

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2. Application 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 Application

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.
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Id., Sec. 2.

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I. CRIMINAL CASES

A. Original and Exclusive Jurisdiction of First Level Courts

1. Violation 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. Violation 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 electro-
fishing 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) Illegal exploration (Sec. 102);
2) Theft of minerals (Sec. 103);
3) Destruction of mining structures (Sec. 104);
4) Willful damage to mine (Sec. 106);
5) Obstruction of permittees or contractors (Sec. 107);
6) 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. Violation 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. Violation 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 Pollution 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
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,
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 non-
environmentally 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 pre-
importation requirements.

B. Original and Exclusive Jurisdiction of Second Level Courts

1. Violation 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. Violation 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 Pollution 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.
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2. Application of Presumption of Regularity to Deputized Individuals

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.
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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.
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D. Custody and Disposition of Seized Items

1. Applicability of 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.
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RULES OF PROCEDURE 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.
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Id., Rule 11, Sec. 1(b).
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Id., Sec. 2.
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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.

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2. Applicability of Rules of Procedure for Envi ronmental 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.
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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.
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4. Return of Search Warrant or Submission 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.
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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.
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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.
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Id., Rule 12, Sec. 2.
12
Id.,Sec.2 (a).
13
Id., Sec.2 (b).
14
Id., Rule 12, Sec.2(c).
15
Id., Sec.2 (d,e, and f).

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E. Complaint and Information

1. Who May Initiate

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.
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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.
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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.
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F. Bail

1. Where Filed; Hold Departure Order

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.
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16
17
Id., Sec. 2.
18
Id., Sec. 3.
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2. Conditions 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.
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G. Arraignment and Plea-Bargaining

1. Setting of Arraignment; Notices

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.
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2. Procedure in Plea-Bargaining

On the scheduled date of arraignment, the court shall consider plea-
bargaining 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.
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20
Id., Sec. 2.
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22
Id., Sec. 2.

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H. Pre-Trial

1. Preliminary Conference; Purpose

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.
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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.
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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.
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2. How Conducted by the 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 pre-
trial 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

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24
Id.
25
Id.

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investigation, together with other documents identified and marked
as exhibits, to determine further admissions of facts as to:
a) The courts territorial jurisdiction relative to the offense(s)
charged;
b) Qualification of expert witnesses; and
c) Amount of damages;
4) Define factual and legal issues;
5) 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;
6) 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
7) Consider modification of order of trial if the accused admits the
charge but interposes a lawful defense.
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3. Manner of Directing Questions, Admissions and Agreements, and
Documentation

All questions or statements must be directed to the court.
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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 pre-
trial 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

26
Id., Sec. 3.
27
Id., Sec. 4.
28
Id., Sec. 5.
29
Id., Sec. 6.
30
Id., Sec. 7.

K-18
I. Trial

1. Continuous Trial; Affidavits 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. Submission 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
32
Id., Sec. 2.
33
Id., Sec. 3.
34
Id.
35
Id., Sec. 4.
36
Id., Sec. 5.
37
Id, Rule 10, Sec. 1.

K-19

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 for Restoration and Rehabilitation

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 Liability

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. Provisional 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.
39
40
41
42
Id., Sec. 2; See Section on Civil Cases: Environmental Protection Order.

K-20
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 Motion 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; Prosecutions and Accused Quantum of
Evidence Distinguished

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

K-21
II. Civil Cases

Limits on the J urisdiction of First and Second Level Courts in Ordinary
Civil Actions involving Environmental Laws

1. Primary Jurisdiction of the 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 Limits Court Jurisdiction

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. Muoz, 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;

K-22
3. Exhaustion of Administrative Remedies; Condition 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 ones 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 Admi nistrative 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 forum-
shopping, 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 PROCEDURE IN ENVIRONMENTAL CASES, Rule 2, Sec. 3.

K-23
5. Exceptions to Exhaustion of Administrative 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 asserted
61

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
remedy
63
.
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.
60
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,
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-24
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. Envi ronmental 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 countrys 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 all-
encompassing 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.
66
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.

K-25
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 non-
impairment 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.

K-26
8. Courts should stand Clear from Public Policy Acti vity of Granting
Environmental Licenses, 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 Administrative Confiscation 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 DENRs 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
owners 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 demonstrates Ignorance of the 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. Muoz, 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.

K-27
3. Seized and Apprehended property is in Custodia Legis and
beyond reach of Replevin

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
Factoran v. Court of Appeals, supra note 52.
77
Mamanteo, et. al. v. Deputy Sheriff Magumun, supra note 75; Calub v. Court of Appeals, supra
note 75.
78
Calub v. Court of Appeals, supra note 75.
79

K-28

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 Affidavits

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 Requirements

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

K-29

C. Environmental Protection Order

1. Definition

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 TEPO 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
87
88
89
90

K-30
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. Prohibition against Injunction

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 Effect 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.
92
93
94
Id., Sec. 10.
95
Id., Sec. 13.

K-31
case of juridical entities, summons by publication shall be done by
indicating the names of the officers or their duly authorized
representatives.
96

E. Answer

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 Allowed and Prohibited

1. Allowed Pleadings 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.
97
Id., Sec. 14.
98
Id.
99
Id.
100
Id., Sec. 15.

K-32
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. Prohibited 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. Envi ronmental Class Actions

1. Right to Balanced and Healthful Ecology 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 countrys resources, which duty is reposed in the DENR.
106

101
Id., Sec. 1.
102
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,
231 SCRA 292.
106
Province of Rizal v. Executive Secretary, G.R. No. 129546, December 13, 2005, 477 SCRA
436.

K-33
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 Pri nciple of Inter-Generational Responsibility

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 Invol ving 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-34
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. Citizen Suits under Specific Laws

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 on Filing and Legal 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 Citizen 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 attorneys 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-Blaan Tribal Association v. Ramos, G.R. No. 127882, J anuary 27, 2004, 421 SCRA
148.
110
111
Id.
112
Id.
113
Id., Sec. 12.
114

K-35
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 attorneys fees and damages.
116

7. Citizen Suit to Enforce 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 partys 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
Rep. Act No. 8749 [1999], Sec. 41; Rep. Act No. 9003 [2001], Sec. 52.
116
Id.
117
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-36
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 of Failure to Comply or File 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
RULES OF COURT FOR ENVIRONMENTAL CASES, Rule 3, Sec. 1.
119
Id., Sec. 2.
120
Id.

K-37
4. Mediation

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 pre-
trial. 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.
122
Id.
123
Id., Sec. 4.

K-38

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 pre-
trial 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.
125
Id.
126
Id., Sec. 5.
127
Id.
128
Id., Sec. 10.

K-39
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 Plaintiffs and Defendants 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. Minutes

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

K-40
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. Definition

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. Application during 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. Continuous 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. Affidavits in Direct Examination

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

132
Id., Sec. 9.
133
Id., Rule 1, Sec. 4 (b).
134
Id., Rule 3, Sec. 5; See Chapter on Mediation.
135
136
Id., Sec. 2.

K-41
3. One-Day Examination of Witness; Only Oral Offer of Evidence is
Allowed

The court shall strictly adhere to the rule that a witness has to be fully
examined in one (1) day, subject to the courts 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. Submission for Resolution; 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 to Try and Decide; Priority of Environmental 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. Definition

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.
138
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.

K-42

2. SLAPP as Defense in Answer; 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, attorneys 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 Heari ng

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. Defendants and Plaintiffs 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 Determination

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, attorneys fees, and costs of suit under a

143
144
Id.
145
146
147
Id., Sec. 3.

K-43
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 attorneys 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. Judgment and Execution

1. Judgments in favor of Environment not Stayed by Appeal

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
Id., Sec. 4.
149
Id.
150
Rep. Act No. 8749, Sec. 43; Rep. Act No. 9003, Sec. 53.
151
152
Id., Sec. 3.

K-44
3. Referral to a Commissioner

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 Discretion

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 nistrative Decisions

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

K-45
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, peoples 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
Id., Sec. 2.

K-46
3. Where to File

The writ may only be filed with the Supreme Court or the Court of
Appeals.
159

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

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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. Prohibited Pleadings and Motions

The following pleadings and motions are prohibited:

1) Motion to dismiss;
2) Motion for extension of time to file return;
3) Motion for postponement;
4) Motion for a bill of particulars;
5) Counterclaim or cross-claim;
6) Third-party complaint;
7) Reply; and
8) 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.
166
Id., Sec. 10.
167
Id., Sec. 11.
168
Id.
169
Id., Sec. 9.

K-48
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. Submission for Decision; 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 Judgment

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

K-49
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 Continuing 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. Definition

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
Id.
175
Metropolitan Manila Development Authority vs. Concerned Residents of Manila Bay, supra
note 107.
176
RULES OF PROCEDURE FOR ENVIRONMENTAL CASES, Rule 1, Sec. 3 (c).

K-50
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 File

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. Exemption from 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
178
Id.
179
Id., Sec. 2.
180
Id., Sec. 3.
181
Id., Sec. 4.

K-51
7. Summary Heari ng or Submission 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 Envi ronment 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. Judgment 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
Id., Sec. 6.
183
Id., Sec. 5.
184
Id., Sec. 7.
185
Id., Sec. 8.

K-52
IV. FORESTRY

A. Jurisdiction of the 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 lands
186
, grazing lands
187
, 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 products
189
and the
occupancy of forest lands; and the enforcement of forestry laws, rules and
regulations.
190

1. FMB under Direct Control and Supervisi on 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-53
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 Decisions of the DENR Secretary brought onl y by
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 by Licenses 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 officers
197
, 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
Pres. Decree No. 705, Sec. 8; Paat v. Court of Appeals, supra note 51.
195
Id.
196
Pres. Decree No. 705, Sec. 44.
197
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.

K-54
5. Authority to Deputize Officials or Other Qualified Persons to Assist
in Protection of Envi ronment

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

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 Offenses

1. Illegal Logging

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
Id., Sec. 89.
201
DENR DEPARTMENT ADMINISTRATIVE ORDER 2008-22, September 30, 2008.
202
Rules of Procedure for Environmental Cases, Rule 11, Sec. 1.
203

K-55
2. Other Offenses

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. Judicial and Administrative Confiscation 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 Cutting, 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.
205
Id., Sec. 77-A.
206
Merida v. People, G.R. No. 158182, J une 12, 2008, 554 SCRA 366.

K-56
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 Cri me of Illegal Cutting, Gathering, Collecting 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.
208
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
539.
209
People of the Philippines v. Que, supra note 207.
210
People of the Philippines v. CFI of Quezon, G.R. No. 46772, February 13, 1992, 206 SCRA
187.

K-57
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 to 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.
212
Roldan, Jr. v. Madrona, et al., G.R. No. 152989, September 4, 2002.
213
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.

K-58
6. 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
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
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
accuseds exercise of dominion and control over the lumber loaded in the

217
Id.
218
People of the Philippines v. Dator, G.R. No. 136142, October 24, 2000, 344 SCRA 222.
219
Monge v. People Philippines, supra note 208, People of the Philippines v. Que, supra note
207.
220
People of the Philippines v. Dator, supra note 218.

K-59
truck. The acts constitute possession of timber or other forest products
without the required legal documents. Moreover, where the accused ran
away at the mere sight of the police is likewise largely indicative of guilt.
221

10. Acts Punished under Pres. Decree No. 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
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
consciously.
223

11. Timber 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
joinery." Tree saplings or tiny tree stems that are too small for use as
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
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,
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
in jurisprudence that the term timber includes lumber.
227

221
Taopa v. Philippines, supra note 215.
222
Monge v. People of the Philippines, supra note 208.
223
Tigoy v. Court of Appeals, supra note 208; Tan v. People of the Philippines, 352 Phil. 724
(1998).
224
Merida v. People of the Philippines, supra note 206.
225
Tan v. People of the Philippines, supra note 223; Lalican v. Vergara, G.R. No. 108619, J uly
31, 1997, 276 SCRA 518; Mustang Lumber v. Court of Appeals, G.R. No. 104998, J une 18, 1996,
257 SCRA 430; Merida v. People of the Philippines, supra note 206.
226
Tan v. People of the Philippines, supra note 223.
227
Pallada v. People of the Philippines, G.R. No. 131270, March 17, 2000, 328 SCRA 494.

K-60
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
and forest products at DENR checkpoints.
228

2. Accountability 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
took possession of it on behalf of the government.
229

E. Admi nistrative 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 Secretary of the DENR and his duly authorized representatives are
given the authority to confiscate and forfeit any conveyances utilized in

228
Epie v. Marredo, G.R. No. 148117, March 22, 2007, 518 SCRA 641; People of the Philippines
v. Que, supra note 207.
229
Arriola v. Sandiganbayan, G.R. No. 165711, J une 30, 2006, 494 SCRA 344.

K-61
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 Judicial 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.
231
Id.
232
Momongan v. Omipon, A.M. No. MTJ -93-874, March 14, 1995, 242 SCRA 332.
233
234
Momongan v. Omipon, supra note 232.
235
Id.

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3. Due Process Requirements in Administrative Confiscation

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
Applicable in Administrative Confiscation

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 Admi nistrative 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.
237
Factoran v. Court of Appeals, supra note 52; Paat v. Court of Appeals, supra note 51.
238
Id.
239
DEPARTMENT ADMINISTRATIVE ORDER (DAO) No. 97-32 [year], Sec. 10.2.
240
DAO 97-32, Sec. 10 (1).
241
Id., Sec. 10 (2).

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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 by DENR Official or Philippine National Police

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 of Arrested Person and Seized Paraphernalia

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).
243
Id., Sec. 10 (4).
244
Id., Sec. 10 (5).
245
246
Id., Sec. 89.

K-64
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 Philippine National 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
Factoran v. Court of Appeals, supra note 52.
248
249
Id.
250
Id.
251
People v. CFI of Quezon, supra note 210.

K-65
5. How to Commence Prosecution

Section 89
252
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-66
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, non-
compliance 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, Authority to Arrest 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.
255
256
People of the Philippines v. CFI of Quezon, supra note 210.
257

K-67
G. Judgment and Conviction

1. Conviction based on Circumstantial 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.
259
260
Merida v. People of the Philippines, supra note 206; People of the Philippines v. Dator, supra
note 218.
261
262
Merida v. People of the Philippines, supra 206; People of the Philippines v. Dator, supra note
218.

K-68

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
Momongan v. Omipon, supra note 232.
264
Rep. Act No. 9175, Chain Saw Act of 2002, Sec. 3 (a).
265
Id., Sec. 6.
266
Id., Sec. 7.
267
Id., Sec. 7 (1) and (4).

K-69
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.
269
Id.
270
Id.
271
Id.

K-70
V. FISHERIES

A. Coverage

Rep. Act No. 8550, or the Philippine Fisheries Code of 1998, covers all
Philippine waters
272
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 Philippine Fisheries Code 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-71
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. Authority over Municipal Waters

1. Municipal 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 Authority

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
Rep. Act No. 7160, Sec. 131 (r).
277
Rep. Act No. 8550, Sec. 16; Rep. Act No. 7160, Sec. 149.

K-72
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. Municipal 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 Pri vileges

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
Municipality of Paoay v. Manaois, 86 Phil. 629 (1950).
279
Rep. Act No. 8550, Sec. 4 (57).
280
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).

K-73
6. Municipality or City Not Liable for Acts 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 Banning Shipment of Live Fish Not
Unconstitutional

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 so-
called 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. Classification of 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).
285
Tano v. Socrates, G.R. No. 110249, August 21, 1997, 278 SCRA 154.
286
US v. Sumulong, 30 Phil. 381 (1915).

K-74

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. Jurisdiction 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 Pri vileges

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.
288
Id., Sec. 6.
289
Id., Sec. 8.
290
Id., Sec. 9.

K-75

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. Authority to Board Fishing Vessels and Examine Record Books

In commercial fishing,
294
the owner, licensee, master, or any person-in-
charge of a fishing vessel keeps record books on board the boat reflecting
details of the boats 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. Authority to Pursue and Inspect Foreign Vessels for 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.
292
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
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-76
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 Activities

Rep. Act No. 8550 penalizes the following acts
299
:

1) Unauthorized Fishing or Engaging in Other Unauthorized Fisheries
Activities;
2) Poaching in Philippine Waters
300
;
3) Fishing Through Explosives, Noxious or Poisonous Substance, and/or
Electricity;
4) Possession of explosive, noxious or poisonous substances or electro-
fishing devices;
5) Possessing, dealing in, selling or disposing fish illegally caught, taken
or gathered;
6) Use of Fine Mesh Net
301
;
7) Use of Active Gear
302
in the Municipal Waters and Bays and Other
Fishery Management Areas;
8) Coral Exploitation and Exportation;
9) Use of Muro-Ami
303
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 Superlights
304
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-77
13) Fishing in Overfished Area and During Closed Season
305
;
14) Fishing in Fishery Reserves, Refuge and Sanctuaries;
15) Fishing Or Taking of Rare, Threatened or Endangered Species;
16) Capture of Sabalo
306
and Other Breeders/Spawners;
17) Exportation of Breeders, Spawners, Eggs or Fry;
18) Importation or Exportation of Fish or Fishery Species;
19) Violation of Catch Ceilings
307
;
20) Aquatic Pollution
308
;
21) Construction and Operation of Fish Corrals/Traps
309
, Fish Pens,
310

and Fish Cages
311
without a license/permit;
22) Obstruction of Defined Migration Paths;
23) Obstruction to Fishery Law Enforcement Officer.

No person is allowed to engage in any fishery activity in Philippine 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
registered in the registry of municipal fisherfolk.
312

The use of substances to eradicate predators in fishponds in accordance
with accepted scientific practices is not considered fishing through noxious
and poisonous substances.
313

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 waters.
306
Id., Sec. 98: Mature milkfish.
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
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
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
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
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
Id., Sec. 86.
313
Id., Sec. 88 (1).

K-78

The prohibition on the use of fine mesh net shall not apply to the gathering
of fry, glass eels, elvers, tabios, and alamang and such species which by their
nature are small but already mature to be identified.
314

F. Presumptions

1. Presence of Fishing Vessel without 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
person and/or vessel is engaged in unauthorized fishing.
315

2. Entry of Foreign Fishing Vessel

The entry of any foreign fishing vessel in Philippine waters constitutes
prima facie evidence that the vessel is engaged in fishing in Philippine
waters
316
under the following circumstances:

(a) Entry of a foreign fishing vessel into Philippine waters under the following
circumstances:
(i) Navigating with its fishing gear deployed and/or not stowed;
(ii) Navigating with an irregular track or route;
(iii) Navigating through Philippine territorial waters without prior notice to,
clearance of, or permission from the appropriate Philippine 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 without flying its national flag.

(b) When a foreign fishing vessel is found within Philippine waters:
(i) Under the circumstances 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
Id., Sec. 89.
315
Id., Sec. 86.
316
Id., Sec. 87.

K-79
(c) When a foreign fishing vessel, after having been inspected within 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
fish on deck or in storage, corals, mollusks.
317

3. Presence of Explosives, Poisonous Substances, Electro-Fishing
Devices and Fish Caught with their Use

The discovery of dynamite, other explosives and chemical compounds
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 discovery in any fishing vessel of fish caught or killed with the use of
explosive, noxious or poisonous substances or by electricity likewise
constitutes prima facie evidence that the fisherfolk, operator, boat official
or fishworker is fishing with the use thereof.
318

The law creates a presumption that illegal fishing has been committed
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
presumed to have engaged in illegal fishing.
319

4. Presumptions Not Unconstitutional

These legal presumptions are not constitutionally impermissible. 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
main fact presumed.
320

317
318
Rep. Act No. 8550, Sec. 88 (1).
319
Hizon v. Court of Appeals, G.R. No. 119619, December 13, 1996, 265 SCRA 517.
320
Id.

K-80
5. Presumptions can be Rebutted by Contradictory 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. Confiscation and Forfeiture

Poaching entails confiscation of the catch, fishing equipment and fishing
vessel.
322

In fishing with explosives, noxious and poisonous substances, and electro-
fishing, 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
Id.
322
Rep. Act No. 8550, Sec. 87.
323
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.

K-81
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 Equipment

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.
332
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.

K-82
3. Warrantless Search and Seizure Incidental to a Lawful Arrest 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 Evidence

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
Id.
339
Senson v. Pangilinan, supra note 336.

K-83
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. Dissolution of Seizure Warrant by 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
Senson v. Pangilinan, supra note 336.
342
RP v. Cansino, G.R. No. 17923, May 26, 1962, 5 SCRA 103.
343
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-84
J. Prosecution

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 Profit 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).
347
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,
2003, 417 SCRA 1.

K-85
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.
351
Sangguniang Bayan of Guindulman, Bohol v. De Castro, supra note 349.
352
Bautista v. Angeles, 34 Phil. 580 (1916).

K-86
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 Mining

Mining is allowed in:

1) Mineral reservations
355
;
2) Ancestral lands, with the consent of the concerned indigenous
people
356
;
3) Public or private lands, including timber or forest lands
357
;
4) Military and other government reservations, with written clearance
of the concerned government agency
358
; 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 law
360
; 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
354
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.

K-87
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. Authority of the 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

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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. Deputization to Police Mining Activities

The MGB Director may deputize, when necessary, any member or unit
of the Philippine National Police, barangay, duly registered non-
governmental 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 Pollution

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
Id., Sec. 9.
365
Id., Sec. 9.
366
Id., Sec. 67.
367
Id., Sec. 66.

K-89
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 peoples 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 PABs
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 Jurisdiction over Mining Disputes and Issues

1. Panel of Arbitrators and Mines Adjudication Board

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.

K-90
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. POAs 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 POAs jurisdiction over disputes
involving mineral agreements under Sec. 77 (b) of Rep. Act No. 7942.
374

370
371
Id., Sec. 78.
372
Id., Sec. 79.
373
Celestial Nickel Mining Corporation v. Macroasia Corporation, supra note 50.
374
Id.

K-91
3. DENR Secretary, not POA-MAB, has Authority to Cancel Contracts

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. POAs 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 Arbitration Suspends POA-MAB Jurisdiction

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
Id.
376
Benguet Corporation v. DENR-MAB, G.R. No. 163101, February 13, 2008, 545 SCRA 196.
377
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.

K-92
6. Appeal from the MAB to Court Of Appeals and Appeal from the
DENR Secretary to the Office of the President Distinguished

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 Jurisdiction over Civil Mining 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. Administrative and Civil Mining Disputes Distinguished

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 Jurisdiction

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
Id.
382
Standard Mineral Products v. Court of Appeals, G.R. No. L-43277, April 26, 1990.

K-93
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 Jurisdiction

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

2. FTAAS not Unconstitutional

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
Philex Mining Corporation v. Zaldivar, G.R. No. 29669, February 29, 1972, 43 SCRA 479.
384
Twin Peaks Mining v. Navarro, G.R. No. 49835, December 18, 1979, 94 SCRA 768.
385
386
Rajah Lahuy Mining Company v. Pajares, G.R. No. 69261, May 13, 1985; 136 SCRA 415,
387
La Bugal-Blaan Tribal Association v. Ramos, G.R. No. 127882, J anuary 27, 2004, 421 SCRA
148.

K-94
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 Secretarys 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 Locators 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
Id.
389
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.

K-95
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 locators 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 Permits

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 non-
processed 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
393
Id., Sec. 43.
394
Id., Sec. 47.
395
Id., Sec. 53.
396
Id., Sec. 54.
397
Id., Sec. 55.

K-96
F. Permits Issued by the Provi ncial 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
Id., Sec. 44.
399
Id., Sec. 43; LOCAL GOVERNMENT CODE, Sec. 138.
400
401
Id., Sec. 46.
402
Id., Sec. 48.
403
Id., Sec. 49.
404
Id., Sec. 50.
405
Id., Sec. 51.

K-97
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 Mining

A provincial/city mining regulatory board is the implementing agency of the
DENR in small-scale mining. It has jurisdiction over the following subject-
matter:

1) Declare and segregate existing gold-rush areas for small-scale mining;
2) Reserve future gold and other mining areas for small-scale mining;
3) Award contracts to small-scale miners;
4) 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 small-
mining.

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 Mini ng 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 Mi ning Act may still be Prosecuted
Under Other Envi ronmental 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
Peoples Small Scale Mining Act (Rep. Act No. 7076), Sec. 24.
407
Loney v. People, G.R. No. 152644, February 10, 2006, 482 SCRA 194.
408
Id.

K-98
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. Definition

"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 park
412
, 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
Id.
410
Rep. Act No. 7586, The National Integrated Protected Areas System Act of 1992, Sec. 4 (b).
411
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.

K-99
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/IPs 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 NIPAS Act of 1992, Rule 2.

K-100
C. Management and Admi nistration

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
423
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.

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

K-102
F. Prohibited 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
Id., Sec. 21; DENR DAO 2008-26, Rule 22.

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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. Jurisdiction 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. Applicability 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 (IRR) Pursuant To Rep.
Act No. 9147, Sec. 3.
437
Rep. Act No. 9147, Sec. 4; J oint DENR-DA-PCSD Administrative Order No. 1, Sec. 4.
438
J oint DENR-DA-PCSD Administrative Order No. 1, Rule 3.4.
439
Id., Rule 4.6.

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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 Activities

Collection
441
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 trade
443
is also allowed. Collection of
threatened species
444
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 endemic
448
and indigenous
449
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

Bioprospecting
452
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
Id., Rule 4.7.
441
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-105
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 Acts

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 communities
456
;
(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-PCSD Administrative Order
No. 1, Rule 27.1.

K-106
(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, Forfeiture 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-PCSD Administrative Order No. 1, Rule 28.3.
461
462
Id., Sec. 28; J oint DENR-DA-PCSD Administrative Order No. 1, Rule 28.4.
463
464

K-107
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 wildlife-
related 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
466
Id., Sec. 30.
467

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IX. CAVE RESOURCES

A. Coverage

Rep. Act No. 9072, or the Cave Resources Management and Protection
Act, covers caves
468
and cave resources
469
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-109
C. Other Applicable 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 Activities

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 birds nest and similar
cave resources.
479
It shall also regulate eco-tourism in caves through the
issuance of visitors permits.
480

E. Prohibited Acts

Under Rep. Act No. 9072, the following are prohibited acts:

(a) Knowingly destroying, disturbing, defacing, marring, altering,
removing, or harming the speleogem
481
or speleothem
482
of any cave,

475
Rep. Act No. 9072, Sec. 5 (c); DAO No. 2003-29, Sec. 5.
476
DAO No. 2003-29, Sec. 14.
477
Id.
478
Rep. Act No. 9072, Sec. 5 (c); DAO No. 2003-29, Sec. 5.
479
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.

K-110
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. Administrative Seizure and Confiscation

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 non-
government 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.
484
485
DAO No. 2003-29, Sec. 17.
486
Id., Sec. 16.

K-111
X. POLLUTION AND ENVIRONMENTAL MANAGEMENT

A. Pollution Adjudication Board (PAB)

1. Pollution Adjudication Board (PAB) Has Jurisdiction Over
Pollution Cases

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 Admi nistrative 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 courts 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
Laguna Lake Development Authority v. Court of Appeals, supra note 105.
488
Estrada v. Court of Appeals, G.R. No. 137862, November 11, 2004, 442 SCRA 117.
489
Implementing Rules and Regulations of the Clean Air Act, Rule L, Sec. 2.

K-112
4. Exclusive Authority to Determine the Existence of " Pollution"
Before Criminal Prosecution of 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. Public
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 And Clean Ai r 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 non-
payment 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
Mead v. Argel, GR No. 41958, J uly 20, 1982, 115 SCRA 256.
491
Id.
492

K-113
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
Appeals

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
Pollution Adjudication Board v. Court of Appeals, GR No. 93891, March 11, 1991, 195 SCRA
112.
495
Id.

K-114
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 Jurisdiction over Mini ng Pollution

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
Id.
497
National Pollution Control Decree (Pres. Decree No. 984), Sec. 7 (c).
498
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.

K-115
C. Jurisdiction of other Agencies in Pollution Cases

1. Laguna Lake Development Authority

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 Adjudication 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. Definition

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

501
Clean Water Act (Rep. Act No. 9275), Sec. 28.
502
Laguna Lake Development Authority v. Court of Appeals, supra note 105.
503
Clean Air Act Implementing Rules and Regulations, Rule LI.
504

K-116
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; Requisites

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. Officials Act of Granting ECC must be Devoid of any Color of
Authority to Allow Cancellation through Judicial Action without
Exhausting Admi nistrative 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 nistrative, Not Judicial, Proceedings

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).
506
Id., DAO 96-37.
507
Bangus Fisherfolk v. Lanzanas, supra note 54.
508
Id.

K-117
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
proponents 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--vis predicted impacts in
the EIS.

509
Id.

K-118
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
superiors 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 Jurisprudence

1. Incineration not banned 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.
511
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,
375 SCRA 320.

K-119
2. Establishment of Landfills Requires Consultation

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 projects
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 landfills operation will not detrimentally
affect environmentally sensitive resources, such as aquifers, groundwater
reservoirs or watershed areas.
513

3. Trade Secrets Maintained under Republic 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.

K-120
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-121
1. Apprehending Officers

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 Officers

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
Id., Sec. 3 (1).
520
id., Sec. 3 (2).

K-122
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.

K-123
otherwise involved in the possession, supervision, control,
cutting, gathering, processing, and/or transporting the
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
MISREPRESENTATION PREJ UDICIAL TO THE 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.


K-124
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

K-125
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 following procedure shall be complied with in the summary administrative
seizure of items:
522

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
Id., Sec. 6.

K-126
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. Confiscation

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.

K-127
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

K-129
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 Products

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

K-130
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.

K-131
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-hundred-
twenty-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.

K-132
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).
526
Id., Sec. 1 (b).
527
id., Sec. 1 (c).
528
Id., Sec. 3 (a).


K-133
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 latters 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).
530
Id., Sec. 2 (b).
531
Id., Sec. 3 (c).

K-134
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
Id., Sec. 4.
533
Sec. 27, Fishery Administrative Order No. 198, s. 2000, Rules and Regulations on
Commercial Fishing.


K-135
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


K-136
Seamans Book and other documents should be confiscated as evidence, to
enable the proper authorities to establish the sailing experience of the
apprehended person, and for review by the same appropriate Philippine
authorities (PN, PCG, PNP/MARIG, etc.)
(h) In the absence of such documents, the apprehending officer should inquire
from the master of the vessel his years of sailing experience, which should
be duly indicated in an Investigation and Apprehension Report.
(i) The apprehending agency shall take custody of the evidence until turned
over to the concerned government agency or inter-agency committee for its
proper disposition.
(j) The captain of the vessel shall bring the vessel or towed by the
apprehending vessel to the nearest port.
(k) A more thorough inspection of the vessel shall be conducted as soon as the
vessel has docked at port. An Investigation and Apprehension Report shall
be prepared and sent to the Department of Agriculture and the Bureau of
Fisheries Head office, copy furnished the National Committee on Illegal
Entrants of the Department of Foreign Affairs, and the Bureau of
Immigration.
(l) The fishing gear found on the vessel shall be impounded. Any fish found on
the vessel shall be confiscated, photographed, the species, numbers, and
volume duly recorded as if the same were duly landed by a domestic fishing
vessel, and thereafter donated to charitable and penal institutions within the
vicinity where the violation was committed provided that the Directors
thereof execute a promissory note of their willingness to pay the face value
of the catch if the accused are acquitted from the charge. The vessel
subject of the offense shall be examined thoroughly by BFAR assessing its
efficiency and effectiveness in catching fish before auctioning the same, the
proceeds of which shall be submitted automatically to the National Treasury
in accordance with Pres. Decree No. 1177.
(m) The apprehending authorities shall turn over the arrested illegal entrants to
the police or military authorities in his/her jurisdiction for the temporary
detention; the National, Regional or Provincial Committee on Illegal
Entrants; or to the Bureau of Immigration to be dealt with in accordance with
applicable immigration laws.

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