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Romanian Forest code is bureaucratic, experts say

de Radu Rizea     HotNews.ro
Joi, 14 august 2008, 13:10 English | Top News

PRESERVING ROMANIA’S FORESTS


Introduction
In the past 19 years, Romania has lost as much forest land as other countries have lost in the whole of the last century. Such an abrupt and catastrophic loss made it an absolute imperative that the nation’s remaining forests be preserved through a combined effort at biodiversity, the ecological reconstruction of existing forests, effective fire prevention, and the regulation of wood exploitation. Until recently, compliance with existing laws designed to protect Romania’s forests has more often been avoided and ignored than enforced and honored. This was partially due to the poverty of some who depend in winter on illegally obtained wood, and partially upon the greed of others who simply choose to ignore the law and the grave harm that uncontrolled deforestation creates.

In March 2008, the Romanian Parliament passed Law 46/2008 adopting a new Romanian Forest Code (hereinafter refer to as the “Forest Code”). Necessity aroused Parliament to enact the new Forest Code because the prior law had been amended so often that confusion alone caused many acts of deforestation. The new Forest Code embodies the government’s desire to prevent uncontrolled deforestation, increase public awareness of diminishing forest land, and enforce a better crafted and more understandable law.

Forest Ownership in Romania
The Forest Code provides that forests can either be public property or private property but, whatever the case may be, all forests are of national interest, falling within the protection of the state and not local authorities. The law allows for privately owned forest land to be enjoyed by the owners, and even sold or transferred, but in accordance with the provisions of the Forest Code which limit the exploitation of their ownership rights, and expressly prohibits any construction on forest land.

Forests that are the public property of the state are administered by Regia Nationala a Padurilor – ROMSILVA (hereinafter ROMSILVA), which functions under the authority of the Ministry of Agriculture and Rural Development. Forests that are the public property of localities are administered by special forest administration entities.

The Forest Code provides that ownership of private forest land cannot be divided into plots of less than one hectare. This limitation applies for both inter vivos and mortis causa property transfers. If through testamentary proceedings, the property must be divided into plots under one hectare, then the inheritance will be construed to the benefit of one or more heirs at the minimum level established (one hectare) and, in turn, that beneficiary will have to compensate the remaining heirs. That compensation derives either from the division of the inheritance, if possible, or from the private funds of the beneficial heir.

Obligations of the Private Owners
As noted above, there is a requirement that forests be placed under special administration. This obligation applies to both privately owned forests and those publicly owned. In accordance with the Forest Code, the administration of privately owned forest land is performed by private special administration entities that function as an association or a foundation, as per the relevant legislation in the field. Therefore the private forest owners have to either incorporate such entities themselves or remain within such already incorporated entities. The special forest administration entities can operate independently or by way of agreements with other such entities that are larger and have more resources. By incorporating or adhering to these entities, the private forest owners fulfill their obligation, pursuant to the Forest Code, for all forest land to be placed under special administration and to benefit from special services and maintenance.

Forest owners, be they private or public, have the following obligations in regard to their property: to ensure the drafting and abiding by the forest plan (i.e., a  deed documenting the physical and legal state of the forest and the elements in it), to ensure the security and integrity of the forest, perform forest regeneration efforts, plant trees and maintain them, treat against and prevent pest infestation, abide by fire prevention and fire extinction regulations, exploit the wood in a lawful manner, ensure the maintenance and repair of forest roads that pass through their property, and properly enclose their forest land as per the ownership deeds.  The owners must ensure for the protection of the forest from illegal wood cutting, storms, other forms of destruction, degradation, farm animals’ feeding, as well as any other actions that could harm the forest. Moreover, the owners are obligated to notify ROMSILVA of any ownership transfers regarding the forest within 60 days. All of these obligations fall within the purview of the special administration entities once they are authorized.

If an owner does not comply with the obligation to perform forest regeneration, the competent authorities may perform reforestation efforts instead at the expense of the owner.

According to the provisions of the Forest Code, the Romanian state is not merely interested in the preservation of the national forests, but also in acquiring new forest lands. While the state’s public policy is characterized by a substantial interest to buy new private forest lands, the conditions in which this might occur depend on the administrator of the public forest. For private forest lands that are located in or are bordering a forest that is public property, the state has a pre-emptive right to purchase them if they are to be sold, at the same price and conditions of the proposed sale. The seller is obligated to notify in writing the forestry administrator of the public state forest of the intention to sell. The state can then exercise its pre-emptive purchase rights within 30 days after the receipt of notice. A breach of this notification obligation nullifies the sale-purchase agreement by virtue of law. If the administrator of the public forest does not submit in writing his intention to purchase the land within 30 days, the sale of the land may proceed unrestricted.

As a consequence of the great importance that Romania pays to its national forests, the Forest Code provides that any and all actions that negatively affect a national forest are crimes.

Rights of Exploitation
In the exploitation of a forest, the owner must comply with the special provisions regarding the exploitation of wood and wildlife. Logging may occur only after a special authorization for wood exploitation is obtained. Wood can only be exploited by companies certified in the cutting and transporting of wood. Private owners can only exploit their forests by themselves up to a maximum of 20 cubic meters per annum of wood from the forest they own. After this limit they must hire a certified company. The owners can freely exploit the trees that have been accidentally uprooted or that have been cut down illegally. The rest of the trees have to be marked for cutting by the competent authorities in order to be exploited. Hunting animals on forest land is also prescribed under limited conditions.

Deforestation
The Forest Code prevents any forest that is currently state public property from becoming private property or to be dismembered in any way. The Forest Code provides that the size of a national forest cannot be reduced. According to Article 36 of the Forest Code, there is only one exception to the rule that national forest land cannot be reduced – a demonstrable need by a public utility pursuant to law. In such case, the utility has a choice between two means of compensation: to provide an equivalent amount of land to substitute for the amount taken; or to pay for the forest land utilized.

The Forest Code (Art. 37) does provide for certain situations in which forest land can be permanently excluded from the national forest without diminishing the size of the country’s forest area in the following situations:
1.    The exploitation of natural resources: coal, rock, aggregate minerals, minerals and mineral water;
2.    Tourist facilities - tourist accommodations, churches, social, sporting and medical facilities,  hydro-technical  constructions, sources of drinkable water;
3.    Houses or vacation homes - this situation is specific only for private property forests and only under the following terms: the building and the land have to be the property of the same person and the maximum area (including the building, the access way and the fence) must represent no more than 5% of the total area of the private forest, but no larger than 200 sq. m.
4.    The forest facilities created prior to 1990 that are mentioned within a respective forest plan in the “occupations and litigations” section and that had been in effect from January 1, 1990.

Compensation for deforestation is sought primarily in land, not cash. The compensation provided for in the Forest Code is for land that has five times the value of the plot of land that is to be deforested and an area that cannot be less than 33% of the deforested area of land. Moreover, the land offered as compensation must come from outside of the national forest areas and must border it.  Compensation can also be offered in land that does not border a forest area. However, such land has to have a compact surface of at least 20 hectares. The land also has to be suitable for forestation. This method of compensation for land taken from the national forest allows the authorities, in principle, to skip the difficulties of acquiring land themselves and ensure that the land given as compensation is properly forested to replace the lost forests.   

Besides the abovementioned conditions, the land used for compensation needs to also meet some other requirements such as:
-The lands used for compensation have to be registered in the forest plan and they have to be put under the forestry administration or services within a 30 day period from the date of the approval of the transformation of the forest land. Furthermore, the land used as compensation needs to be forested within the next two vegetation seasons.
-In the counties with forests that comprise less than 16% of the total surface of the county, the compensation has to be made with land from the same county. The purpose for this condition is obvious: the law seeks to protect each county’s forest lands and preserve the existing percentages.

One of the most important consequences of such compensation is that the land excluded permanently from forestry enters into the ownership of the beneficiary and acquires the designation for which it has applied and for which the whole procedure has taken place (Article 38 from the Forest Code). The land given as compensation acquires the legal status of the replaced land from the national forest area. Not all of the land in Romania can be used for compensation. For example, land within the protective area of the state border cannot be used as compensation.

As noted above, land can only be excluded from the national forest for a specific purpose that must be one of the expressly provided categories described above. The Forest Code provides for a prohibition in changing that specific purpose for a period of five years after the approval of the exclusion of the land. Therefore, if a beneficiary, after having taken a plot of land out of the national forest, does not use it for the purpose for which the authorities approved the deforestation, he will face the automatic cancellation of the order of the minister or the Government decision that approved the removal of that parcel from the national forest.  The land thus reverts to its initial status as forest land and the former beneficiary bears all the expenses for re-foresting.  

Persons interested in excluding lands from the national forest also have some monetary obligations which consist of:
·    The tax for the permanent exclusion of the land from the national forest;
·    The payment of the market value of the land;
·    The market value of the loss of the vegetation caused by the exploitation of the wood before the age of technical exploitation, i.e., the difference in value between what would have been obtained if the wood would have been exploited at full maturity and what has been obtained by exploiting it at that respective moment and at that state of growth;
·    The market value of any affected goods that might have been on the respective plot of land; and
·    The cost of forestation and the upkeep costs until the age of maturity of the forest.

All the monetary obligations have to be paid before the application and commencement of the procedure for excluding land from the national forest.

Besides the procedure of applying for a certain area of forest land to be excluded from the national forest by way of compensation, the interested parties also have the option of occupying the forest land for a predetermined period of time, necessary for the specific intended purpose for the land, but for not more than for 10 years. For the occupied forest land, the occupier has to pay a rent to the administrator or to the owner. The rent is paid on January 31st for the year it is owed, and it is calculated according to what is stipulated by the law in effect on January 1st.  In addition, for lands temporarily excluded from the national forestry, the occupier has to fulfill certain monetary obligations in the Forest Code. All monetary obligations must be paid before the application and approval for the land to be taken from the forestry is approved.

Another situation that gives rise to a temporary occupation is where the complexity of the purpose for which the land has been permanently excluded from the national forest requires the temporary occupation of an area in its vicinity. Such temporary occupation of the area in the vicinity is possible for a maximum of one year and on no more than the equivalent of 10% of its area, for the purpose of a construction site. The applicant requesting forest land for temporary or permanent exclusion is entitled only to the land in itself. The wood has to be returned to the owner or to the administrator in the case of public forest land.

Conclusion
Perhaps the preservation of Romania’s forests might have been better achieved by a piece of legislation that is simpler, more to the point, and far less bureaucratic, than the new Forest Code. There is now only one piece of legislation to confuse us instead of a Code with numerous amending acts, and circuitous and tortuous procedures that were followed more in their breach than in compliance. Nevertheless, the passage of the Forest Code is a major step forward in the protection of one of Romania’s most valuable assets – its forests. Hope abounds that it will be strictly enforced.

The article was published based upon approval of:
Rubin Meyer Doru & Trandafir
SOCIETATE CIVILA DE AVOCATI / LAWYERS PROFESSIONAL CORPORATION
IN ASOCIERE CU / AFFILIATED WITH HERZFELD & RUBIN, P.C.
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