Cutting trees and classifying an auxiliary forest

Almost everyone comes to this Act with the same question: whether they can cut a tree. The short answer is that it depends on the tree, not the land. The Act does not prohibit cutting just any tree in your yard; it prohibits cutting five kinds of trees — wherever they are, on public or private property — and prohibits cutting another person’s without authorisation or title. Then there are two operational rules that surprise even contractors: you may not cut until the permit is final, firm and unappealable, and authorised felling may only be done Monday to Friday, from six in the morning to six in the evening. The Act’s second half is for the farm owner: if you have more than five contiguous cuerdas and dedicate them to forest, you can ask to have them classified as an Auxiliary Forest and they become exempt from property tax, with the timber being yours.

The Article 9 prohibitions reach every person, on public and private properties alike, and do not depend on being the landowner: what decides is which tree it is. To classify an Auxiliary Forest, Article 10 requires private lands exceeding five cuerdas in contiguous area, dedicated exclusively to producing and developing forests for purposes other than producing coffee, fruit or other edible fruits; that the owner apply; that a Forest Service technician inspect them if the Secretary judges the case merits it; that the owner agree in writing to tend, care for and maintain the forest according to the Secretary’s instructions; and that they submit a forest protection and management plan to be evaluated before the classification is certified and which forms part of the agreement. The minimum term to maintain an Auxiliary Forest may not be less than one full fiscal year.

• Not cutting, felling, debarking or affecting a tree before the authorisation or permit granted is final, firm and unappealable (Article 9(C)).Verified against the official source
• Carrying out the authorised activity only on business days, Monday to Friday, from 6 a.m. to 6 p.m., save a permit from the Secretary for risk to health or safety (Article 9(C)).Verified against the official source
• For the Auxiliary Forest: private lands exceeding five cuerdas in contiguous area dedicated exclusively to forests, for purposes other than coffee, fruit or other edible fruits (Article 10(A)).Verified against the official source
• For the Auxiliary Forest: agreeing in writing to tend, care for and maintain the forest according to the Secretary’s instructions (Article 10(A)).Verified against the official source
• For the Auxiliary Forest: submitting a forest protection and management plan, evaluated before certifying the classification, which forms part of the agreement (Article 10(B)(3)).Verified against the official source

• Auxiliary Forest certification application in the form the Secretary prescribes, with a description of the land, the site where it sits, boundaries, areas and any other information required (Article 10(A)).

1. 1

   Step 1: Which trees may not be cut, wherever they are

   Article 9(B) is the heart of the Act for the citizen and applies “on public or private properties.” It prohibits cutting, felling, debarking or in any way affecting five kinds of trees: those whose characteristics are indispensable or necessary for forest use, including watershed protection, erosion control and the ecological balance of the environment; rare species in danger of extinction; species protected for any reason duly justified by regulation; those located in plazas and public parks; and those indispensable for some essential public utility purpose. Note what the list implies: it is not that you need a permit for every tree, it is that these five kinds are prohibited, and whoever acts in violation commits an infraction of the Act.

2. 2

   Step 2: Another person’s trees

   Article 9(A) covers the different case: any person who without due authorisation or title voluntarily cuts, debarks or otherwise damages or appropriates any tree or shrub of another person found inside private property, or on properties of the Commonwealth, its public instrumentalities or the municipalities, commits an infraction of this Act. That is, the neighbour’s tree, the one on the adjoining lot and the one on the municipal pavement are covered by this provision even if they fall into none of the five categories in paragraph (B).

3. 3

   Step 3: Wait for the permit to be final, firm and unappealable

   This is the rule most people breach without knowing. Article 9(C) says: “It is prohibited to cut, fell, debark or otherwise affect a tree before the authorisation or permit granted is final, firm and unappealable.” It is not enough that it has been approved: you must wait for it to become firm. Cutting in that interval is an infraction of the Act.

4. 4

   Step 4: The timetable: Monday to Friday, 6 a.m. to 6 p.m.

   That same Article 9(C) sets it: “The activity for which the aforementioned authorisation or permit was granted may be carried out only on business days, that is Monday to Friday, from 6 a.m. to 6 p.m.” The Secretary may issue a permit to do it outside those days and hours provided the activity represents a risk to health, safety or any other circumstance warranting it. And the Act closes the gaps: where the Department delegates its competence by agreement to a municipality or any other public or private entity, the agreement must establish that the delegated functions are subject to this timetable; municipalities with prior agreements and the incidental permits issued by the Permit Management Office are equally bound.

5. 5

   Step 5: If you are a developer

   Article 9(C) adds a specific duty: urbanising companies developing housing, commercial or any other kind of projects shall be obliged to comply with the provisions established in the Planting, Cutting and Forestation Regulation for Puerto Rico, adopted jointly by the Department of Natural and Environmental Resources and the Planning Board and approved by the Governor of Puerto Rico on 1 March 1996. We did not read that regulation and therefore do not describe its content.

6. 6

   Step 6: The dispensation and emergency cases

   The Act provides ways out and they are worth knowing. Article 9(C) orders the Secretary to provide, by regulation, the cases in which he may issue a dispensation in relation to these regulatory provisions: to that effect the petitioner shall file an application with the Secretary, or the person designated by him, who shall issue, if deemed justified, a permit authorising the cutting, felling, debarking or otherwise affecting of the tree or trees in question. The same article orders him also to provide the procedures necessary for emergency cases. We did not read that regulation, so we do not publish how a dispensation is requested or what justifies it.

7. 7

   Step 7: The Auxiliary Forest: what it is and what it saves you

   Article 10(A) authorises the Secretary to classify as Auxiliary Forests, at the owner’s petition, private lands exceeding five cuerdas in contiguous area dedicated exclusively to producing and developing forests for purposes other than producing coffee, fruit or other edible fruits. The benefit is twofold: “The lands in auxiliary forests shall be exempt from property tax and the income from the sale of forest products from forests classified as auxiliary forests shall be exempt from paying income tax.” That is, exemption from property tax on the land and exemption from income tax on the sale of forest products.

8. 8

   Step 8: How the Auxiliary Forest is processed

   The application is submitted to the Secretary in the form he prescribes and must contain a description of the land, the site where it sits, boundaries, areas and any other information required. If on receiving and studying the application the Secretary judges the case merits it, he orders the lands inspected by a Forest Service technician, who renders a report; on receiving and considering it he decides whether they should be included in the classification. If affirmative, he notifies the Secretary of the Treasury, who orders that in the assessment where the Auxiliary Forest sits the exempt area be deducted for preparing the tax receipts. A requirement worth knowing beforehand: the Secretary will not proceed to classify until the owner has agreed in writing to tend, care for and maintain the Auxiliary Forest according to that official’s instructions, and a forest protection and management plan must additionally be submitted, to be considered and evaluated before the classification is certified and which forms part of the agreement.

9. 9

   Step 9: The timber is yours, and what you may do with the forest

   Article 10(B)(2) is more generous than people assume. The timber produced in Auxiliary Forests shall be the owner’s exclusive property. They may at any time remove or cut trees or parts of trees exposed to fire, or that have fallen or are split or damaged by any natural cause; they may rationally do the necessary cleaning of the property and remove undesirable tree varieties and use, when necessary, the timber needed on the property for general purposes. To those ends, the Department shall provide, through the Forest Service, the necessary technical assistance.

10. 10

    Step 10: What happens if you breach the agreement

    The exemption lasts while the Auxiliary Forest is conserved as such, and the property shall be inspected at least once a year to determine whether the agreement is being met. Should the owner fail to comply, the Secretary shall exclude the lands from the classification and so notify the Secretary of the Treasury to proceed to charge the corresponding taxes prospectively, except where the Auxiliary Forest is not conserved for a full fiscal year. In that case the corresponding tax shall be charged by issuing a supplementary tax receipt. The minimum term to maintain an Auxiliary Forest may not be less than one full fiscal year.

11. 11

    Step 11: The fines, and how they are fought

    Article 14 empowers the Secretary to impose administrative fines, after holding quasi-judicial hearings, not exceeding ten thousand dollars nor less than fifty. He shall also order reforestation and restoration of the affected area when necessary. For subsequent violations he may impose a fine of no less than five hundred dollars nor more than fifty thousand. Criminally, Article 17 makes every infraction a misdemeanour punished with a fine of no less than five hundred nor more than one thousand dollars, or jail of five to ninety days, or both. To defend yourself, Article 15 gives you eleven rights at the hearing, among them being notified personally or by certified mail with return receipt no less than fifteen days in advance, appearing with a lawyer, a stenographic or equivalent record, and that the decision be taken only on the evidence presented. And Article 16 sets the route: reconsideration within fifteen days, the Secretary has thirty to decide and if he does not it is deemed denied, and judicial review before the Court of First Instance, San Juan Part, within the following thirty days. Note this: “It shall be an indispensable requirement to request reconsideration of the Secretary’s decision or order before going to the courts in judicial review.”

Authorisations, dispensations and Auxiliary Forest classification come from the Department of Natural and Environmental Resources, through the Forest Service of Puerto Rico that Article 4 creates under its direction. The Act contemplates the Department delegating competence by agreement to municipalities or other entities, and mentions the incidental permits issued by the Permit Management Office; in both cases the Article 9(C) cutting timetable still applies. Reconsideration goes to the Secretary himself and judicial review to the Court of First Instance, San Juan Part. The Act publishes no form, address or portal.

• Believing you may cut whatever you like in your own yard: the Article 9(B) prohibition applies on public and private properties alike.
• Cutting as soon as the permit is approved: you must wait for the authorisation to be final, firm and unappealable.
• Felling on a Saturday or at night: the authorised activity may only be done Monday to Friday, 6 a.m. to 6 p.m., save a permit for risk to health or safety.
• Cutting the neighbour’s tree or the one on the pavement: Article 9(A) covers another person’s trees and those on Commonwealth and municipal properties.
• Thinking a municipal permit frees you from the timetable: delegated agreements and the Permit Management Office’s incidental permits are subject to the same timetable.
• Believing the Auxiliary Forest admits fruit trees: the classification requires the land be dedicated to forests for purposes other than coffee, fruit or other edible fruits.
• Assuming five cuerdas is enough: the Act asks for lands EXCEEDING five cuerdas in contiguous area.
• Taking it for granted the Auxiliary Forest is automatic: a written agreement, a forest protection and management plan and an inspection by a Forest Service technician are needed.
• Believing you lose the timber: in the Auxiliary Forest the timber produced is the owner’s exclusive property.
• Going to court without requesting reconsideration: the Act makes it an indispensable requirement before judicial review.

These are the government pages this guide is based on.

• Departamento de Recursos Naturales y Ambientales (DRNA)

  DRNA

  bvirtualogp.pr.gov