SPECIAL JURISDICTION

ENVIRONMENTAL LAW AND PROCEDURAL RULES

Antonio G.M. La Viña 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, People’s 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.

B. Rules of Procedure for Environmental Cases

Supreme Court Administrative Matter No. 09-6-8-SC dated April 13,

2010 lays down the Rules of Procedure for Environmental Cases1.

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 regulations2.

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, People’s Small-Scale Mining Act;
13) Rep. Act No. 7586, National Integrated Protected Areas
System Act including all laws, decrees, orders,
proclamations and issuances establishing protected areas;
14) Rep. Act No. 7611, Strategic Environmental Plan for Palawan
Act;
15) Rep. Act No. 7942, Philippine Mining Act;
16) Rep. Act No. 8371, Indigenous Peoples Rights Act;
17) Rep. Act No. 8550, Philippine Fisheries Code;
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.3
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. 4

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.5

I. CRIMINAL CASES

A. Original and Exclusive Jurisdiction of First Level Courts (MTC’s

Environmental Court)

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.

1st. principle – filing -6 years below MTC unless law says so.

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);
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); (No need for katarungan)
3) Destruction of mining structures (Sec. 104);
4) Willful damage to mine (Sec. 106);
In filing (rpc –malicious mischief in relation to sec. 106) or will be
subjected to motion to quash
If jurisdictional issue – still subject to motion to quash
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;
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.

7. Violation of Pollution Laws

7.1 Criminal offenses punished under Sec. 4 of the

Marine Pollution Decree (Pres. Decree No. 979):

you are in a ship

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

operations6, 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. (all the cases are administrative
cases) no prison penalties only revocation of licences and imposition of
fines.

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;
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"; (file the case against the importer)
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 (if situation near your property –you can
claim for just compensation- exercise of power of
imminent domain)
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.

In special laws (penalties determine jurisdiction)

B. Original and Exclusive Jurisdiction of Second Level Courts (RTC

Environmental Court)

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).

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;
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).

C. Arrest

1. Warrantless Arrest

A peace officer or an individual deputized by the proper

government agency may, without a warrant, arrest a person:

1) When, in his presence, the person to be arrested has

committed, is actually committing or is attempting to commit
an offense; or
2) When an offense has just been committed, and he
has probable cause to believe, based on personal
knowledge of facts or circumstances that the person to
be arrested has committed it.7

2. Application of Presumption of Regularity to Deputized

Individuals

A peace officer or an individual deputized by the proper

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

3. Arrest Warrant
 All warrants of arrest issued by the court shall be accompanied
by a certified true copy of the information (due process of the law)
filed with the issuing court.9

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.10

2. Applicability of Rules of Procedure for Environmental

Cases

In the absence of applicable laws or rules promulgated by

the concerned government agency, Rule 12, Sec. 2 of the Rules of
Procedure for Environmental Cases shall apply. 11

BFAR – if no rules on procedure, apply Rule 12 Sec. 2. If insufficient, apply

the rules on Court. On filing cases, provided it is consistent on AM 6-8-

3. Documentation of Seized Items

The apprehending officer having initial custody and control

of the seized items, equipment, paraphernalia, conveyances and
instruments shall physically inventory and, whenever practicable,
photograph the same in the presence of the person from whom such
items were seized.12

4. Return of Search Warrant or 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.13
 5. Auction of Seized Items

Upon motion by any interested party, the court may direct the
auction sale of seized items, equipment, paraphernalia, tools or
instruments of the crime. The court shall, after hearing, fix the
minimum bid price based on the recommendation of the concerned
government agency. The sheriff shall conduct the auction.14

The auction sale shall be with notice to the accused, the person
from whom the items were seized, or the owner thereof and the
concerned government agency. The notice of auction shall be
posted in three conspicuous places in the city or municipality where
the items, equipment, paraphernalia, tools or instruments of the
crime were seized. The proceeds shall be held in trust and
deposited with the government depository bank for disposition
according to the judgment.15

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.16

2. Filing of Information

The information charging a person with a violation of an

environmental law and subscribed by the prosecutor shall be filed with
the court.17

3. Special Prosecutor

Where there is no private offended party, a counsel whose

services are offered by any person or organization may be allowed by
the court as special prosecutor, with the consent of and subject
to the control and supervision of the public prosecutor. 18

F. Bail
 1. Where Filed; 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.19

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
andauthorizes the court to enter a plea of not guilty on behalf
of the accused and to set the case for trial;
2) To appear whenever required by the court where the case is
pending; and
3) To waive the right of the accused to be present at the trial, and
upon failure of the accused to appear without justification and
despite due notice, the trial may proceed in absentia.20

G. Arraignment and Plea-Bargaining

1. Setting of 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.21

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.22

(Pleaded guilty to the crime charged but requested lowerpenalty be imposed = only in special cases)

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.23

The preliminary conference shall be for the following purposes:

1) To assist the parties in reaching a settlement of the civil aspect

of the case;
2) To mark the documents to be presented as exhibits;
3) To attach copies of the documents to the records after
comparison with the originals;
4) To ascertain from the parties the undisputed facts and
admissions on the genuineness and due execution of
documents marked as exhibits;
 5) To consider such other matters as may aid in the prompt
disposition of the case;
6) To record the proceedings during the preliminary conference in
the Minutes of Preliminary Conference to be signed by the
parties and counsel;
7) To mark the affidavits of witnesses which shall be in question
and answer form and shall constitute the direct
examination of the witnesses; and
8) To attach the Minutes and marked exhibits to the case
record before the pre-trial proper.24

The parties or their counsel must submit to the branch clerk of

court the names, addresses and contact numbers of the affiants. 25

2. How Conducted by the Court

1991 – Preliminary Conferrence (summary procedure) (Civil Case)

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 investigation, together with other documents
identified and marked as exhibits, to determine further
admissions of facts as to:

a) The court’s territorial jurisdiction relative to the

offense(s) charged;
b) Qualification of expert witnesses; and
c) Amount of damages;
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.

3. Manner of Directing Questions, Admissions and

Agreements, and Documentation

All questions or statements must be directed to the

27
court. 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

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

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

Rule 141 – first lien on judgement award

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

L. Criminal SLAPP Suits

1. Defined

Strategic lawsuit against public participation (SLAPP)

(only in environmental case) 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; Prosecution’s 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

II. Civil Cases

Limits on the Jurisdiction 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. 47The 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

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 one’s right of action, is too significant
to be waylaid by the courts.53 It is a pre-condition that all the
means afforded by the administrative processes should first be
availed of before a court's judicial power can be sought. The
premature judicial action is fatal to one's cause of action. 54
Accordingly, absent any finding of waiver or estoppel, the case is
susceptible to dismissal for lack of cause of action. 55 In the case of the
Secretary of the DENR, failure to appeal his decision to the Office of
the President is a failure to exhaust administrative remedies. 56

4. Failure to Exhaust Administrative Remedies May

Constitute Forum-Shopping

If agreements of sale pertain to shares of stock which

represent ownership of mining rights or interest in mining agreements,
the power of the MGB to rule on the validity of the questioned
agreements of sale is inextricably linked to the very nature of such
agreements over which the MGB has jurisdiction under the law.
Unavoidably, there is identity of reliefs if the same issue is
brought to the RTC. Forum shopping exists when both actions
involve the same transactions, same essential facts and
circumstances and raise identical causes of actions, subject matter,
and issues. The case instituted with the RTC is correctly ordered
dismissed on the ground of forum shopping. Not only is there
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

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 done60
2) Where insistence on its observance would result in nullification
of the claim being asserted61
3) Where the controverted act is patently illegal or was
performed without jurisdiction or in excess of jurisdiction;
4) Where the respondent is a department secretary, whose acts as
an alter ego of the President bear the implied or assumed
approval of the latter, unless actually disapproved by him;
5) Where there are circumstances indicating the urgency of
judicial intervention;62 and
6) When the rule does not provide a plaintiff speedy and
adequate 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
ofconfiscated 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
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 located in an environmentally
critical area. It is the ministerial duty of the EMB to issue
the Certificate of Non-Coverage and said agency can be
compelled to perform its duty through a petition for mandamus
filed with the Regional Trial Court even without exhausting
administrative remedies by first appealing the EMB decision
to the DENR Secretary.65

6. Environmental Licenses and Permits are Not Contracts

Protected by the Non-Impairment and Due Process Clauses

Timber licenses, permits, and license agreements are the

principal instruments by which the State regulates the utilization and
disposition of forest resources to the end that public welfare is
promoted. They merely evidence a privilege granted by the State to
qualified entities, and do not vest in the latter a permanent or
irrevocable right to the particular concession area and the forest
products therein. They may be validly amended, modified,
replaced or rescinded by the Chief Executive when national
interest so requires. They are not deemed contracts within the
purview of the due process of law clause.66

This holds true as well for mining exploration permits under Rep.
Act No. 7942. Exploration permits merely evidence a privilege granted
by the State, which may be amended, modified or rescinded when the
national interest so requires. This is necessarily so since the
exploration, development and utilization of the country’s natural
mineral resources are matters impressed with great public interest.
Like timber permits, mining exploration permits do not vest in the
grantee any permanent or irrevocable right within the purview of the
nonimpairment 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 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

8. Courts should stand Clear from Public Policy Activity 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 DENR’s prerogative to undertake
administrative confiscation proceedings. The doctrine of primary
jurisdiction does not warrant a court to arrogate unto itself the
authority to resolve a controversy, the jurisdiction over which is
initially lodged with an administrative body of
special competence.72
 Dismissal of a replevin suit for lack of cause of action in view of
the owner’s failure to exhaust administrative remedies is the proper
course of action for a court, not to assume jurisdiction over the
case and, consequently, issue the writ ordering the return of the
seized items.73

2. Judge 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

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.

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 replevin order that was issued with grave abuse of discretion.
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.

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.

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.

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.

3. Evidence to be attached to the Complaint; Form of

Afidavits

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.

4. Other Requirements

The complaint shall state that it is an environmental case and

the law involved. The complaint shall also include 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.

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.

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
excecutive judge shall conduct a special raffle on the day the
complaint is filed.

7. Agency Concerned to be Furnished Complaint

Upon 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 upin the
government or the appropriate agency shall be attached to complaint.

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.

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.The issuance of a TEPO may also be
prayed for in a petition for the writ of kalikasan. It may also be
granted in a petition for the writ of continuing mandamus.

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.

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
such damages as he may suffer and subject to the posting of a
sufficient bond by the party or person enjoined.

In the judgment, the court may convert the TEPO to a

permanent EPO.

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.

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.

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.

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

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.

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.

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.

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.

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 intervention, motion for discovery and
motion for reconsideration of the judgment.

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.

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.

G. Environmental 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.

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." This right implies, among other
things, the judicious management and conservation of the country’s
resources, which duty is reposed in the DENR.

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.

2. Class Action in Representation of Future Generations

Allowed under the Principle 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.

3. Real Parties in Interest and Legal Standing

Distinguished; Legal Standing Sufficient in
Constitutional Questions Involving Public Interest

A farmers’ and indigenous peoples’ cooperative organized

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

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.

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.

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.

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.

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 attorney’s fees, costs of suit
and other litigation expenses. It may also require the violator to
submit a program of rehabilitation or restoration of the environment,
the costs of which shall be borne by the violator, or to contribute
to a special trust fund for that purpose subject to the control of
the court.

6. Citizens suit under the Clean Air Act (Rep. Act No. 8749)
and the Solid Waste Management Act (Rep. ActNo. 9003)

Any citizen may file an appropriate civil, criminal or

administrative action in the proper court against:

1) Any perosn 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.

Within thirty (30) days, the court shall make a

determination if the complaint is malicious and/or baseless and
shall act accordingly dismiss the action and award attorney’s
fees and damages.

7. Citizen Suit to Enforce Right to Clean Air

Petitioners in a cetizen suit to enforce their fundamental

legal right to clean air have legal standing in a petition for
mandamus brought against the State. A party’s standing is a
procedural technicality which may be set aside, in view of the
importance of the issue raised, if it involves one of transcedental
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.

I. Pre-Trial

1. Notice and Schedule

Within two (2) days from the filling 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.

2. Pre-trial Brief

At least three (3) days before the pre-trial, the parties

shall submit pre-trial briefs containg the following:

1) A statement of their willingness to enter into an

amicable settlement, indicating the desired terms
thereof or to submit 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 repective
positions thereon;
4) the documents or exhibits to be presented, including
dpositions, answers to interrogatories and aswers 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 commisioner 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.

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.
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 referb 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.

Mediation must be conducted with 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.

5. Preliminary Conference

If mediation fails, the court will schedule to 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 settlement;

2) To mark the documents or exhibits to be presented
by the parties and copies thereof to be attached to
the records after compraison 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 paqrties to submit the depositions
taken under Rule 23 of the Rules of Court, the
asnwers to written interrogatories under Rule 25,
and the answers to request for admissions by the
adverse party under Rule 26;
5) To require the productions of documents or things
requested by a party under Rule 27 and the results
of the physical and mentalexamination of persons
under Rule 28;
6) To consider such other matters as may aid in its
prompt disposition;
 7) To record the proceedings in “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.

The parties or their counsel must submit to the branch

clerk of court the names, addresses and contact numbers of the
affiants.

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 he 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. The judge shall put the parties and their
counsels under oath, and they shall remain under oath in all pre-
trial conferences.

6. Failure to present Evidence

Evidence not presented during the pre-trial, except newly-

discovered evidence, shall be deemed waived.

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.

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 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.

8. Effect of Plaintiff’s and Defendant’s Failure to Appear at

 Pre-Trial Distinguished

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

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.

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.

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.

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.

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.

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.

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 court’s
discretion of extending the examination for justifiable reason.
After the presentation of the last witness, only oral offer of
evidence shall be allowed, and the opposing party shall
immediately interpose his objections. The judge shall forthwith
rule on the offer of evidence in open court.

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.

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.The court shall have a period of sixty (60) days to decide
the case from the date the case is submitted for
decision.The court shall prioritize the adjudication of
environmental cases.

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.

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, attorney’s fees and costs of suit.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.

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.

3. Summary Hearing
 The defense of a SLAPP shall be set for hearing by
the court after issuance of the order to file an opposition
within fifteen (15) days from filing of the comment or the
lapse of the period. The hearing on the defense of a SLAPP
shall be summary in nature. The parties must submit all
available evidence in support of their respective positions.

4. Defendant’s and Plaintiff’s Quantum of Evidence on

SLAPP Cases Distinguished

The party seeking the dismissal of the case must prove by

substantial evidence that his acts for the enforcement of
environmental law are legitimate actions for the protection,
preservation, and rehabilitation of the environment. The party
filing the action assailed as a SLAPP shall prove by
preponderance of evidence that the action is not a SLAPP
and is a valid claim.

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,
attorney’s fees, and costs of suit under a counterclaim if
such has been filed. The dismissal shall be with prejudice.

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.

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

Where a case (SLAPP suit) is filed against a person who

filed a citizen suit, the investigating prosecutor or the court
shall immediately make a determination within thirty (30)
days whether said legal action has been filed to harass, vex,
exert undue pressure or stifle such legal recourse of the person
filing the citizen suit. Upon determination thereof, the court
 shall dismiss the case and award attorney’s fees and
double damages. Court actions against SLAPP suits also apply to
benefit public officers who are sued for enforcing the Act without
grave abuse of authority.

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.

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.

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.

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.

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.

2. Instances of Grave Abuse of Discretion in

Environmental Administrative 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.

III. SPECIAL CIVIL ACTIONS

A. Writ of Kalikasan

1. Nature of the Writ; Who May File

The writ is a remedy available to a natural or juridical

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

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.

3. Where to File
 The writ may only be filed with the Supreme Court
or the Court of Appeals.

4. Exemption from Docket Fees

The petitioner for a Writ of Kalikasan shall be

exempt from the payment of docket fees.

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.

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.

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.

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.

The return shall include affidavits of witnesses,

documentary evidence, scientific or other expert studies,
and, if possible, object evidence, in support of the defense of
the respondent. A general denial of allegations in the petition
shall be considered an admission thereof.In case the
respondent fails to file a return, the court shall proceed to hear
the petition ex parte.

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.

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.

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.

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 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.

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.
 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.

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.

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.

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.

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.

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.

The petition may be filed by one who is personally aggrieved by

the unlawful omission.

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.

5. Exemption from Docket Fees

The petitioner for a writ of continuing mandamus shall be

exempt from the payment of docket fees.

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.

7. Summary Hearing 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.

8. Issuance of Temporary Environment Protection Order

(TEPO)

The court in which the petition is filed may issue such

orders to expedite the proceedings, and it may also grant a
TEPO for the preservation of the rights of the parties pending such
proceedings.

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.

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.

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, grazing lands, and forest reservations, including
watershed reservations. 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 and the occupancy of forest lands; and the enforcement
of forestry laws, rules and regulations.

1. FMB under Direct Control and Supervision of DENR

Secretary

The FMB is directly under the control and supervision of the

Secretary of the DENR. 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. 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. All
actions and decisions of the Director of the FMB are subject to the
review of the Secretary of the DENR, either motu proprio or upon
appeal of any person aggrieved thereby.

2. Court Review of Decisions of the DENR Secretary brought

only 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.

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. Forest
officers, 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.

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.
 5. Authority to Deputize Officials or Other Qualified Persons to
Assist in Protection of Environment

The Secretary of the DENR may deputize any agency,

barangay or barrio official, or any qualified person to protect the
forest and exercise said powers or authority.200

Under Department Administrative Order (DAO) No. 2008-22,

the DENR deputizes environment and natural resources officers,
or individuals or groups who are authorized to assist in the
enforcement of laws, rules and regulations governing environment,
forest lands, mineral lands, protected areas and other lands of the
public domain under the jurisdiction of the DENR; assist in the
issuance of apprehension receipts, seizure orders and notices of
administrative hearings including the proceedings necessary for the
conduct of the administrative adjudication of illegally procured,
transported, possessed or utilized forest products, wildlife (flora
and fauna), minerals and other natural resources; and arrest, even
without warrant, any person who has committed or is committing any
of the offenses provided in environmental and natural resources
laws, rules and regulations.201

A peace officer or an individual deputized by the proper

government agency may effect a warrantless arrest. Individuals
deputized by the proper government agency who are enforcing
environmental laws shall enjoy the presumption of regularity under
Section 3(m), Rule 131 of the Rules of Court when effecting arrests
for violations of environmental laws.202

B. Criminal 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
 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

The phrase “existing forest laws and regulations” in the third

category is interpreted to mean as those existing at the time of the
commission of the offense, and not those existing at the time of the
enactment of Exec. Order No. 277, which amends Pres. Decree
No. 705 to penalize mere possession of timber and other forest
products without legal documents.207

2. Two Distinct and Separate Offenses Punished

Section 77 of Pres. Decree No. 705, therefore, criminalizes two distinct

and separate offenses, namely:

1) Cutting, gathering, collecting and removing of timber or other

forest products from any forest land, or timber from
alienable or disposable public land, or from private land
without any authority; and
2) Possession of timber or other forest products without the
legal documents required under existing laws and
regulations.208

In the first offense, one can raise as a defense the legality of the
acts of cutting, gathering, collecting or removing timber or other forest
products by presenting the authorization issued by the DENR.

In the second offense, it is immaterial whether the cutting,

gathering, collecting and removal of the forest products is legal or not
because what the law penalizes is the illegal possession, or
possession without legal documents, of timber or forest products, whether
legally acquired or not.209

3. Elements of the Crime of Illegal 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

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.

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

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 accused’s exercise of dominion and
control over the lumber loaded in the 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.222In 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

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 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. Administrative Confiscation

Section 77-A of Pres. Decree No. 705 grants the Secretary of the
DENR the power to order the confiscation of any forest products
illegally cut, gathered, removed or possessed or abandoned, and all
conveyances used either by land, water or air in the commission of the
offense, and to dispose of the same in accordance with pertinent
laws, regulations or policies on the
matter. This power covers all cases of violations of Pres. Decree No.
705 or other forest laws, rules, and regulations.

The Secretary of the DENR and his duly authorized

representatives are given the authority to confiscate and forfeit
any conveyances utilized in 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 judicial confiscation
of the fruits of, and the tools and implements used in, the commission
of the crime. Administration 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 Secertary 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 turnover the same to the DENR for purposes of
administrative confiscation proceedings. The court has no mandatory
duty to do so. The duty to turnover vehicles and conveyances to the
nearest DENR field office rests on the officials apprehending the same,
not on the court.235

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 Directorof 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
Municipal Trial Court for premiminary investigation and prosecution. 239

5. Arrest Procedure in Administrative 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.

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 before
the Municipal Trial Court of appropriate jurisdiction for preliminary
investigation and prosecution in accordance with law. In all matters
perataining to arrests and prosecution of any person(s) effected
pursuant thereto, DENR personnel shall coordinate with the
Department of Justice Task Force on Environment and Natural
Resources (DOJ-STF-ENR).

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 (10x) times the value of the forests products confiscated.

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 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 mey 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.

F. Arrest and Prosecution

1. Arrest by DENR Official of 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 purnished 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.

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 the 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. The delivery of the seized forest products, tools and equipment
within six (6) hours required under this legal provision applies to
criminal prosecutions provided for in Sec. 77, and not to administrative
confiscations provided for in Sec. 77-A.

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 siezed products, materials and
equipment are also immediately disposed of in accordance with DENR
administrative orders.

3. Investigation by Forest Officers and the Philippine

 National Police

Reports and compalaints regarding the commission of any

offense not committed in the presence of a forest officer or DENR
employee, or any personnel of the Philippine Nationa Police or any of
DENR deputized officers or oficials, 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.

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 Poilce files the necessary complaint with the appropriate
official authorized by law to conduct a preliminary investigation and file
the information in Court. The phrase “reporst and complaints” refers to
“reports and complainst 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 deputized officers
or officials, for violations of forest laws not committed in their
presence.”

5. How to Commence Prosecution

Sec. 89 of Pres. Decree No. 705 covers two (2) specific instances
when a forest oficer mkay 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 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.

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.

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.

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.

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.

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.

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.

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.An estimate appearing in the
official transmittal letter of the DENR-CENRO addressed to the
Office of the Provincial Prosecutor is insufficient.

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.

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.

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.

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.

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.

For acts committed under Section 7 (1) and (4) of the Chain Saw
Act, the penalty includes confiscation of the chain saw.

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.

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.

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.

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.

V. FISHERIES

A. Coverage

Rep. Act No. 8550, or the Philippine Fisheries Code of 1998,

covers all Philippine watersincluding 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.The
use and exploitation of the fishery and aquatic resources in
Philippine waters is reserved exclusively to Filipinos.

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.

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.
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.

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 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.
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.

4. Grant of Fishery Privileges

Municipalities and cities have the exclusive authority to

grant fishery privileges in their municipal waters and impose rentals,
fees or charges.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. They also issue licenses for the operation of fishing
vessels of three (3) tons or less.

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.

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.

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.

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.
 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.

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.
1. Grant of Fishery Privileges

The DA determines rental rates for fishpond areas covered by

fishpond lease agreements and license fees for commercial fishing boat
licenses. It also prescribes fees and other fishery charges and
issues the corresponding license or permit for fishing gear, fishing
accessories, and other fishery activities beyond municipal waters.

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. 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.
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. 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.

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.

3. Authority to Board Fishing Vessels and Examine Record

Books

In commercial fishing, the owner, licensee, master, or any

person-in-charge of a fishing vessel keeps record books on board the
boat reflecting details of the boat’s fishing activities in the past five
years. These record books are kept on board the fishing vessel to be
presented upon demand by fishery law enforcers, except when the
boat is dry docked or undergoing repairs and, therefore, not in
operation.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.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.

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 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.

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;
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;
7) Use of Active Gearin the Municipal Waters and Bays
and Other Fishery Management Areas;
8) Coral Exploitation and Exportation;
9) Use of Muro-Ami 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 in Municipal Waters or in
Violation of DA Rules;
12) Conversion of Mangroves;
13) Fishing in Overfished Area and During Closed Season;
14) Fishing in Fishery Reserves, Refuge and Sanctuaries;
15) Fishing Or Taking of Rare, Threatened or Endangered
Species;
16) Capture of Sabalo 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;
20) Aquatic Pollution;
21) Construction and Operation of Fish Corrals/Traps,
Fish Pens, and Fish Cages 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.

The use of substances to eradicate predators in fishponds in

accordance with accepted scientific practices is not considered
fishing through noxious and poisonous substances.

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.

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.

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 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.

(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.

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.
 The law creates a presumption that illegal fishing has been
committed when: (a) explosives, obnoxious 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.

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.

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.
G. Confiscation and Forfeiture

Poaching entails confiscation of the catch, fishing equipment and

fishing vessel.

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.In fishing with active
gear in municipal waters, bays and fishery management areas, the
catch shall be confiscated and forfeited.In fishing with superlights,
the superlight, fishing gears and vessel shall be confiscated.

In coral exploitation and exportation, the collected corals and

the vessel used are forfeited. In muro-ami, the catch and gear used is
confiscated. In the gathering of sand, silica and pebbles, the
substance taken shall be confiscated.

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.

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.
Fishing in violation of catch ceilings entails forfeiture of the catch and
fishing equipment used.

The capture and export of sabalo and other breeders or spawners

entail forfeiture of the catch and fishing equipment.

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.

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. 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.

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.

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. Notice of seizure of the fishing vessel
is also not required for the legality of
said seizure.

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.

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.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 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.

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.

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.

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 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.
 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.

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.

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.

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.

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.

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.

6. Imposition of Mere Fine on Boat Captain Constitutes

Gross Ignorance of the Law

Section 90 of Rep. Act No. 8550 enumerates the penalties

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.

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.

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.

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.

1. Areas Open to Mining

Mining is allowed in:

1) Mineral reservations;
2) Ancestral lands, with the consent of the concerned
indigenous people;
3) Public or private lands, including timber or forest lands;
4) Military and other government reservations, with written
clearance of the concerned government agency; 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.
2. Areas Closed to Mining

Mining is prohibited in:

1) Areas expressly prohibited by law; 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.

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.

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.

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.

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.
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.

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.

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 summarily suspend mining or quarrying operations in case
of imminent danger to life or property. The law likewise requires
every contractor to
undertake an environmental protection and enhancement program,
which shall be incorporated in the work program which the
contractor shall submit as an accompanying document to the
application for a mineral agreement or permit. In addition, an
environmental clearance certificate is required based on an
environment impact assessment. The law also requires contractors
and permittees to rehabilitate the mined-out areas, and set up a
mine rehabilitation fund. Significantly, the law allows and
encourages people’s organizations and non-governmental
 organizations to participate in ensuring that contractors/permittees
shall observe all the requirements of environmental protection.

6. Pollution Adjudication Board (PAB) Retains Authority

over Mine Pollution; Mines Regional Director has no
Adjudicative Powers over Pollution Complaints

The power of the mines regional director does not

foreclose PAB’s authority to determine and act on complaints
filed before it. The power granted to the mines regional director
to issue orders requiring the contractor to remedy any practice
connected with mining or quarrying operations or to summarily
suspend the same in cases of violation of pollution laws is for
purposes of effectively regulating and monitoring activities within
mining operations and installations pursuant to the environmental
protection and enhancement program undertaken by contractors
and permittees in procuring their mining permit. While the mines
regional director has express administrative and regulatory powers
over mining operations and installations, it has no adjudicative
powers over complaints for violation of pollution control statutes
and
regulations.

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
4) Disputes pending before the Bureau and the
Department at the date of the effectivity of Rep. Act No.
7942.

The decision or order of the panel of arbitrators is appealable

to the Mines Adjudication Board (MAB).
 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.

2. POA-MAB and DENR Secretary Jurisdiction Distinguished

The power of the POA to resolve any adverse claim,

opposition, or protest relative to mining rights under Sec. 77(a) of
Rep. Act No. 7942 is confined only to adverse claims, conflicts and
oppositions relating to applications for the grant of mineral rights.
POA’s jurisdiction is confined only to resolutions of such adverse
claims, conflicts and oppositions and it has no authority to approve
or reject said applications. Such power is vested in the DENR
Secretary upon recommendation of the MGB Director.

A petition for the cancellation of an existing mineral

agreement covering an area applied for by an applicant based on the
alleged violation of any of the terms thereof, is not a “dispute”
involving a mineral agreement under Sec. 77 (b) of Rep. Act No.
7942. It does not pertain to a violation by a party of the right of
another.
The applicant is not a real party-in-interest as he does not have
a material or substantial interest in the mineral agreement but only a
prospective or expectant right or interest in the mining area. He has
no legal right to such mining claim and hence no dispute can arise
between the applicant and the parties to the mineral agreement. A
petition for cancellation of a mineral agreement anchored on the
breach thereof, even if filed by an applicant to a mining claim,
falls within the jurisdiction of the DENR Secretary, and not POA. Such
petition is excluded from the coverage of the POA’s jurisdiction
over disputes involving mineral agreements under Sec. 77 (b) of Rep.
Act No. 7942.

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. POA’s jurisdiction over “disputes involving rights to mining
areas” has nothing to do with the cancellation of existing mineral
agreements. The DENR Secretary, by virtue of his powers as
administrative head of his department in charge of the management
and supervision of the natural resources of the country under the
1987 Administrative Code, Rep. Act No. 7942, and other laws,
rules, and regulations, can cancel a mineral agreement for
violation of its terms, even without a petition or request filed for its
cancellation, provided there is compliance with due process.

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.

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. 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.
 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.

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 reign 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.

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.

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.

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.

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.

The Bureau of Mines and Geo-Sciences (now POA-MAB)

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.

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) Joint 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.
However, upon reconsideration, the Court reversed itself and
declared said agreements as not constitutionally infirm, as the 1987
Constitution does not proscribe service contracts.

3. Nature of DENR Secretary’s Power to Cancel FTAAS

Failure to relinquish or divest areas in excess of the maximum

contract area, as provided for in DENR DMO 97-07, results in
the denial or cancellation of the FTAA application, after which
the areas covered thereby shall be open for Mining Applications. No
further executive action is necessary since DMO 97-07 itself already
provided for the sanction of failing to meet the deadline. Any
executive action beyond the deadline would be a mere superfluity.

4. Nature of Locator’s Right

The right of a locator of a mining claim as a property

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

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

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.

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.

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.

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.

A mineral trading registration from the Department of

Trade and Industry is required for the trading of mineral
products, either locally or internationally.

A mineral processing permit from the DENR is required for

the processing of minerals.

F. Permits Issued by the Provincial Governor

1. Quarry Permits on privately-owned lands and/or public

lands for building and construction materails, such as
marble, basalt, andesite, conglomerate, tuff, adobe, granite,
gabbro, serpentine, inet filling materials, clay for ceramic
tile and building bricks, pumice, perlite, and or other similar
materials that are extracted by quarrying from the ground
are applied for with the provincial/city mining regulatory
board. The permit to extract sand, garvel, and other quarry
resources shall be issued exclusively by the provincial
governor, pursuant to the ordinance of the
sangguniang panlalawigan. The authority to cancel a
quarry permit also lies with the provincial governor.

2. Commercial sand and gravel permit 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.

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.

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.).

5. Any owner of land may be granted a private gratuitous permit

by the provincial governor.

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.

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 seggregate 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 clalims 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.

H. Criminal Offenses

1. Essential Element in ECC Violation under Mining Act

Sec. 108 of Rep. Act No. 7942 penalizes violations of the terms
and conditions of the Evironmental Compliance Certificate (ECC) if said
 violation causes environmental damage through pollution. The fact
that must be established is the willfull violation and gross neglect on
the part of the accused to abide by the terms and conditions of the
Environmental Comliance Certificate. If there was no violation or
neglect, and that the accused satisfactorily proves this, he will not be
liable.

2. Offense not Proven under Mining Act may still be

Prosecuted Under Other Environmental 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 mor more entirely distinct and unrelated provisoons of
law, thus justifying the prosecution of the accused for more than one
offense.

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 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.

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. “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 maintan their natural conditions.

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, game refuge, bird
and wildlife sanctuary, wilderness area, strict nature reserve,
watershed, mangrove reserve, fish sanctuary, national and historical
landmark, protected and managed landscape/seascapes, 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. Within one (1) year after the
effectivity of the NIPAS Act, the DENR shall have submitted to the
Senate and the House of Represenatatives a map and legal description
or natural boundaries of each protected areainitially comprising the
System.

The Secretary of the DENR proposes the in the NIPAS of

additional areas with outsatnding physical features, anthropological
significance and biological diversity in accordance with the procedure
laid down in the NIPAS Act. 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.

The NIPAS also encompasses outstanding remarkable areas and

biologically important public lands and ancestral domains 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”.

C. Management and Administration

 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. 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.

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.

The PAMB has jurisdiction to resolve conflicts or disputes among

tenured migrant communities, between tenured migrant communities
and indigenous peoples, but excluding conflicts or disputes exclusively
among indigenous peoples, which are under the jurisdiction of the
Natioanl Commission on Indigenous Peoples by virtue of the
Indigenous Peoples Rights Act of 1997, Rep. Act No. 8371.

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 the buildings and other
structures to be constructed in protected areas and the materials to be
used; control the construction, operation and maintenance of public
utilitieswithin the protected area; and control occupancy of suitable
portions of the protected area and resettle outside of said afrea forest
occupants therein, with the exception of the members of indigenous
peoples.
 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.

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.

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.

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.

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 found in all areas of the country, including
 protected areas under the NIPAS and critical habitats. They also
apply to exotic species which are subject to trade, are cultured,
maintained or bred in captivity or propagated in the country.

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.

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. 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). The utilization 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).

D. Regulated Activities

Collection 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. Collection of wildlife by indigenous peoples for
traditional use and not primarily for trade is also allowed.
Collection of threatened species is allowed but only for scientific,
breeding or propagation purposes. Wildlife species may be
exported to or imported from another country as may be
authorized by the DENR Secretary. The introduction,
reintroduction or restocking of endemic and indigenous wildlife is
allowed, but only for population enhancement or recovery
purposes subject to prior clearance from the DENR Secretary.
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. Bioprospecting is
allowed subject to the approval of the DENR Secretary and the
prior informed consent of the indigenous peoples, local
communities and PAMBs.
Collection and utilization of biological resources for
scientific research may be allowed through gratuitous permits
issued by the DENR Secretary and also subject to prior informed
consent.

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;
(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;
(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;
(e) trading of wildlife;
(f) collecting, hunting or possessing wildlife, their by-
products and derivatives;
(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.

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.
 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.
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.

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. The
increase takes effect automatically without need of the issuance
of further regulations. 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 Conservation Act and to support scientific research,
enforcement, and monitoring activities, as well as enhancement
of capabilities of relevant agencies.

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.

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.

IX. CAVE RESOURCES

A. Coverage

Rep. Act No. 9072, or the Cave Resources Management

and Protection Act, covers caves and cave resources within
public domain and private lands, excluding any vug, aqueduct,
mine tunnel, and other man-made excavations. 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.

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. 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.

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. 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.

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. 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. The DENR shall also set open and close seasons
for the collection of edible birds nest and similar cave resources.
It shall also regulate eco-tourism in caves through the issuance
of visitors permits.

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 or speleothem of
any cave, 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.

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. 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.

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.

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.

2. Exhaustion of Administrative Remedies in Pollution

Cases; Effect of Non-Observance

The Pollution Adjudication Board is the agency of the

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

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.

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.

5. Filing of Criminal Cases for Gross Violations under The

Clean Water Act And Clean Air Act

In case of gross violations under both the Clean Water Act and
Clean Air Act, the PAB shall recommend that the proper government
agencies file criminal charges against the violators. The PAB shall
assist the public prosecutor in the litigation of the case.

Gross violations under the Clean Water Act are the following:

1) Deliberate discharge of toxic pollutants identified

pursuant to Rep. Act No. 6969 in toxic amounts;
2) Five (5) or more violations within a period of two (2)
years; or
 3) Blatant disregard of the orders of the PAB, such as the
non-payment of fines, breaking of seals or operating despite the
existence of an order for closure, discontinuance or cessation of
operation.
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 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.

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.

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 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.

8. PAB Retains Jurisdiction over Mining 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.
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.

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.

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.

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".

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.

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.

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 of any project or undertaking on the
quality of the physical, biological, and socio-economic
environment, and designing appropriate preventive, mitigating,
and enhancement measures.

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.

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.

3. Officials Act of Granting ECC must be Devoid of any

Color of Authority to Allow Cancellation through Judicial
Action without Exhausting Administrative 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."

4. ECC Subject to Cancellation for Non-Compliance

through Administrative, 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 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.

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.

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.
 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.

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.

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.

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.

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.

Items subject to confiscation include illegal forest products,516

machinery, equipment, tools and implements,517 and conveyances.

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.

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.

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

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 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 PREJUDICIAL 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

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 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:

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 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
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 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 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 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:

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

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.

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.

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.

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.

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.

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.

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 Justice) or the Philippine
National Police (PNP), and shall be documented properly.

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.

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 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.

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.

APPENDIX C

SEARCH AND SEIZURE PROCEDURE IN POACHING CASES (DA-BFAR

FAO 200, S. 2000)

The following constitute inspection and apprehension

procedures in poaching cases:

(a) Upon receipt of a report that a foreign fishing vessel is

engaged in poaching, or upon the sighting of a foreign fishing vessel,
the fishery law enforcement officer shall establish the violation, exact
location with coordinates of the vessel and its distance: from the
nearest shore, nature of and/or cause of apprehension, weather
condition at the time of sighting or apprehension, and the
description/condition of the vessel with appropriate identifying features
and marks during sighting and apprehension. Where practicable,
photographs of the vessel should be taken.

(b) The fishing vessel shall be approached to within a safe

distance to the leeward side of the ship, and given visible or audible
signals for the vessel to stop.

(c) Once the fishing vessel has stopped, the fishery law
enforcement officer shall clearly identify himself and the unit or
organization to which he belongs. He shall state clearly that he wishes
to conduct an inspection on the ground that he has reason to suspect
that the vessel may be engaged in poaching.

(d) Upon boarding, the officer shall ask the master of the vessel
to stop its operations and drop anchor, and the captain and crew shall
be identified. As far as practicable, the state of the fishing gear at the
time of boarding, any visible catch that may be on deck, and other
conditions on board the vessel which indicate that it is poaching, shall
be recorded. The position of the vessel shall be plotted on a map
indicating its location. A technician or engineer from the apprehending
vessel should ascertain and record the status of the engine of the
apprehended vessel. The status of all navigational and other
instruments in the vessel, whether it is working and operational at the
time of apprehension, should be indicated as detailed as possible.

(e) The boarding officer should read to the arrested persons

his/her rights under the Philippine Constitution in English, or in the
common language or dialect of the arrested person, if possible.

(f) The master of the vessel shall be required to sign and

conform with the plotted position of the vessel and be informed of the
violation committed.

(g) The registration papers, logbook and navigational chart of

the vessel, the 534 Fishery Administrative Order (FAO) No. 200, s.
2000 Guidelines and Procedures in Implementing Section 87 of the
Philippine Fisheries Code of 1998. ENVIRONMENTAL LAW AND
PROCEDURAL RULES 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.