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DILG Circular Does Not Cover Cutting of Trees
« on: October 20, 2019, 04:12:10 PM »
Written by Atty Angel R. Ojastro III

LEGAL ADVISORY FOR LGUs/DILG/PUBLIC:

People are asking for my legal opinion if CUTTING OF TREES is included in the DILG Memo Circular No. 2019-121.

My CATEGORICAL answer is NO, not included, for the following reasons:

1. According to the Circular, only those roads being used for PRIVATE ENDS are included;

2. "Private ends" is further defined in the Circular as those involving "illegal structures and constructions".

3. "structure" and "construction" are defined in the National Building Code as referring only to MAN-MADE/ARTIFICIAL structures/construction. The Building Code provides: "SECTION 1.01.04: Application. (a) This Code shall apply to all buildings and structures constructed xxx". A tree is NEVER CONSTRUCTED.

4. The DILG Circular, being an implementation order of existing laws that prohibit obstruction to roads, must necessarily adhere strictly to those legislative acts. Clearly, the following laws are the bases of the Circular: (a) the provisions of Section 23 of Presidential Decree (PD) No. 17, also known as the Revised Philippine Highway Act, as amended, declaring as unlawful for any person to usurp any portion of a right-of-way, to convert any part of any public highway, bridge, wharf or trail to his own PRIVATE use or to obstruct the same in any manner; and (b) the provisions of the National Building Code of the Philippines (PD No. 1096) and its Implementing Rules and Regulations, in the interest of public safety and convenience and of the common good, permit to construct or to build a structure is required, without such building or construction permit, the structure or construction is deemed illegal, in other words, only ARTIFICIAL structures are covered by this prohibition.

5. Under the Revised Highway Act, only the following PRIVATE ends are prohibited:

a.  All kinds of temporary and permanent structures, such as buildings, houses, shanties, stores, shops, stalls, sheds, canopies, billboards, signages, advertisements, fences,
walls, railings, basketball courts, barangay halls, garbage receptacles, and the like;

b. Posts and towers of Electric Cooperatives and Major Electric Power Distributors; distribution lines; posts for cables of phones and mobile service providers;

c. Driveways and ramps occupying or protruding to the sidewalk;

d. Humps, whether permanent or temporary;

e. Dumping and storage of construction materials, such as sand, gravel, cement, lumber and steel bars, earth spoils, waste materials, debris, embankment, heaps, and the like;

f. Vehicles and equipment, including junked items that are parked, occupying or protruding to the sidewalk or shoulder;

g. Vending, repair of vehicles, and other businesses within the sidewalk and other parts

h. Disposal of household/commercial/industrial wastewater and sewage into the sidewalk, curb and gutter, and carriageway;

i. Raising of animals or allowing them to roam within the ROW;

j. Washing and drying of clothes, crops, and similar items;

k. Placing plants and plant boxes.

6. For ANY tree to be included in the removal, especially the old-growth ones, there must first be a determination for EACH such tree if it is a NUISANCE PER SE as it is understood under the Civil Code. The Civil Code classifies nuisance (Article 694)  into two kinds: nuisance per se and nuisance per accidens. The first is recognized as a nuisance under any and all circumstances by its very existence, because it constitutes a direct menace to public health or safety, and, for that reason, may be abated summarily under the undefined law of necessity. The second, nuisance per accidens,  is that which depends upon certain conditions and circumstances, and its existence being a question of fact, it cannot be abated without due hearing thereon in a tribunal authorized to decide whether such a thing does in law constitute a nuisance. A tree is generally desirable and good, it is only certain condtions that it may become undesirable. In other words, it may fall only under nuisance per accidens,

7. Generally, LGUs have no power to declare a particular thing as a nuisance unless such a thing is a nuisance per se.(AC Enterprises v. Frabelle Properties Corp., G.R. No. 166744, November 2, 2006, 506 SCRA 625, 660-661).

8. In the case of AC Enterprises v. Frabelle Properties Corp:(G.R. No. 166744, November 2, 2006, 506 SCRA 625, 660-661) decided by the Supreme Court, it was held that uUnder Section 447(a)(3)(i) of R.A. No. 7160, otherwise known as the Local Government Code, the Sangguniang Panglungsod is empowered to enact ordinances declaring, preventing or abating noise and other forms of nuisance. It bears stressing, however, that the Sangguniang Bayan cannot declare a particular thing as a nuisance per se and order its condemnation. It does not have the power to find, as a fact, that a particular thing is a nuisance when such thing is not a nuisance per se; nor can it authorize the extrajudicial condemnation and destruction of that as a nuisance which in its nature, situation or use is not such. Those things must be determined and resolved in the ordinary courts of law.If a thing, be in fact, a nuisance due to the manner of its operation, that question cannot be determined by a mere resolution of the Sangguniang Bayan.

9. This interpretation binds the DILG. Its Circular, in paragraph two, requires that, in implementing the order of the President, such LGU-based implementation must first revisit their "ordinances and similar legislative measures to ensure responsiveness to this presidential directive and consistency with related laws and policies". In other words, trees not being declared as nuisance per se, every LGU must first review their ordinances or resolutions that specifically declare trees as nuisance, and to submit the matter of abatement to the concerned court of appropriate jurisdiction. Even with the existence of an ordinance, the LGU may not summarily cut trees, unless they are considered as RUINOUS trees under the Civil Code, or those that are already weak, rotten, and an IMMEDIATE danger to public safety.

DPWH Department Order No. 73 series of 2014 that lists trees along sidewalks as road obstruction that would allow for summary cutting is PARTLY unconstitutional for that ground alone, because of the doctrine of SUBORDINATE LEGISLATION in Constitutional Law. That DO cannot add something that is not in the laws. All the references of laws to "obstruction" pertains to artificial or man-made ones. The inclusion of what is not within the genus or family or category of things enumerated in the laws is an undue assumption of legislative power as it is an issue of policy determination. Someone must challenge it as being UNCONSTITUTIONAL. 

10. Cutting a tree, anywhere it may be located, whether in public or private lands, requires a PERMIT FROM DENR, regardless if the person intending to cut is a public official/employee or a private person, or ordered by either a private or juridical person. PD 705 (Forestry Code, as amended by EO 277 and RA 7161) provides that:

"Sec. 89-A. Cutting, Gathering and/or collecting Timber, or Other Forest Products Without License. Any person who shall cut, gather, collect, removed timber or other forest products from any forest land, or timber from alienable or disposable public land, or from private land, without any authority, or possess timber or other forest products without the legal documents as required under existing forest laws and regulations, shall be punished with the penalties imposed under Articles 309 and 310 of the Revised Penal Code: Provided, That in the case of partnerships, associations, or corporations, the officers who ordered the cutting, gathering, collection or possession shall be liable, and if such officers are aliens, they shall, in addition to the penalty, be deported without further proceedings on the part of the Commission on Immigration and Deportation."

"The court shall further order the confiscation in favor of the government of the timber or any forest products cut, gathered, collected, removed, or possessed as well as the machinery, equipment, implements and tools illegally used in the area where the timber or forest products are found."

11. Cutting trees on a mass-scale requires an Environmental Impact Assessment (EIA). Environmental Assessment (EA) refers to the process of systematic analysis, evaluation and management of the potential environmental and social effects, short-term and long-term, of proposed actions or projects. It is an administrative tool that integrates environmental considerations in development initiatives to ensure that the proposed projects will have minimal environmental impacts and be environmentally sound (ADB, 2003). When properly implemented, it can serve as basis to improve project design and implementation through measures that prevent, mitigate and compensate for adverse environmental impacts.

Such tree-cutting activities, even if the trees are along roads/highways, may still possibly fall under Environmentally Critical Pprojects (ECP) and/or Environmentally Critical Areas (ECA).

With PD 1586 declaring certain projects and areas as environmentally critical, Presidential Proclamation (PP) 2146 or the policy “Proclaiming Certain Areas and Types of Projects as Environmentally Critical and Within the Scope of the Environmental Impact Statement System Established Under PD 1586” was issued on December 14, 1981. PP 2146 identified the ECPs, broadly categorized into: (1) heavy industries; (2) resource extractive industries; and (3) INFRASTRUCTURE projects (roads and bridges), and ECAs. In addition, PP 803 was signed on June 6, 1996 which identified golf course projects as environmentally critical.

(Ref.: The Philippine Environmental Assessment Policies, 2016-05-10, Ms. Princess Alma B. Ani (Senior Science Research Specialist, Socio-Economics Research Division-Philippine Council for Agriculture, Aquatic and Natural Resources Research and Development (SERD-PCAARRD)

When this is teh case, LGUs and national agencies need to secure first an ECC (Environmental Compliance Certificate) from DENR, aside from, or not just, a tree-cutting permit.

I hope that this LEGAL OPINION could effectively resolve the issue and clarify the confusion created on the ground. Aside from that, the DILG Secretary, in media posts, had already clarified that his Circular does not cover cutting of trees especially the old-growth ones.

For those who might question my expertise on the matter, please note that:

1. I teach the subject Natural Resources and Environmental Law, as well as Constitutional Law Review, at the University of Nueva Caceres College of Law in Naga City;

2. I was the Secretary General (Undersecretary) of the former housing and Urban Development Coordinating Council now the Department of Human Settlements and Urban Development

3. I have been practicing environmental law since 2002 (legal consultant of various environmental NGOs)

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