Environmental Appeal Board

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1 Environmental Appeal Board APPEAL NO. 95/16 WILDLIFE In the matter of an appeal under section 103 of the Wildlife Act, S.B.C. 1982, c. 57 BETWEEN: Edward Boyd APPELLANT AND: Deputy Director of Wildlife RESPONDENT BEFORE: Ben van Drimmelen, Panel Chair DATE OF HEARING: November 30, 1995 PLACE OF HEARING: Kelowna, BC APPEARING: For the Appellant: Mr. Edward Boyd For the Respondent Mr. Geoff Swannell SUBJECT AND DECISION This is an appeal by Mr. Edward Boyd of a decision made on June 22, 1995 by the Deputy Director of Wildlife, W. Munro (Ministry) to refuse to renew a permit for Mr. Boyd to keep, possess or display wildlife, specifically vipers, and an order that Mr. Boyd dispose of all wildlife currently in his possession. The panel of the Environmental Appeal Board has decided that the appeal should be dismissed. FACTS Mr. Edward Boyd is fond of reptiles. He has for years been particularly interested in snakes and especially poisonous snakes ( hot snakes in the trade). For an unspecified number of years, he raised snakes, including many poisonous species, in his home. At least as early as 1989, he was importing snakes to his home in Cranbrook. He raised them there, planning to act as a reptile wholesaler to pet stores and such. He continued this business through 1990 but, by the summer of 1991, he had concluded that this business would not, of itself, lead to significant revenues. Mr. Boyd was unaware that the regulations to the Wildlife Act were amended in 1990 so that all vipers, not just the indigenous rattlesnake, were declared to be wildlife. A permit from the Ministry of Environment, Lands and Parks is required to keep any wildlife in captivity. As of 1990, therefore, Mr. Boyd required a permit from the Wildlife Branch for the exotic vipers in his collection (although not for the cobras, boomslang, mangrove snakes, mambas and other hot snakes in his

2 APPEAL NO. 95/16 PAGE 2 collection). He did not know this. The local Wildlife Branch office was equally unaware that Mr. Boyd had vipers in his collection. By the summer of 1991, Mr Boyd decided that more was required to generate income. He decided to get into public display. In October, he set up a one-week display in a shopping mall in Cranbrook. Despite this public appearance, the Wildlife Branch still did not become aware that Mr. Boyd had poisonous snakes in his possession that required permits. In January of 1992, one of Mr. Boyd s cobras bit him. It put him in hospital for five days. Mr. Boyd considered that accident to be a foreseeable risk of his keeping over 100 poisonous snakes. He was not overly concerned. The city of Cranbrook, however, reacted more strongly. It passed a bylaw prohibiting the keeping of any poisonous reptiles within the city. By June of 1992, probably in response to the Cranbrook bylaw, Mr. Boyd decided to take his snakes and move to the nearby community of Yahk. He took a severance package from his previous employer, CP Rail and decided to construct a zoo that would include carnivores (lynx, foxes) as well as snakes. He made inquiries to the regional Fish and Wildlife office in Nelson about obtaining a zoo permit. In response to his inquiry, he received a copy of the Designation and Exemption Regulation that lists all vertebrates designated as wildlife. To Mr. Boyd s surprise, he noted that all species of vipers were included, as well as the foxes and lynx. He therefore applied for a permit to have a zoo and also for a permit to possess the vipers in his collection. The Fish and Wildlife Branch took the news about Mr. Boyd s possession of vipers badly. In February of 1993, not only were both permits denied, Mr. Boyd was told he had 90 days to get rid of all his vipers, either by exporting them out of the province or, presumably, killing them. There were also conditions imposed for keeping the vipers during the 90 day period. Among the conditions was a requirement that Mr. Boyd have an adequate supply of antivenom (officially, antivenin ) suitable for the snakes being held. The Wildlife Branch had no authority to make any order about the other families of snakes, but all of the vipers had to go. Mr. Boyd found this to be a bit much, particularly as he had informed the Wildlife Branch officials of his vipers in the first place. He appealed the regional decision to the Director of the Wildlife Program. Before the appeal was heard, Mr. Boyd decided to move again, now to the community of Westside near Kelowna. He applied to the Wildlife Branch office in Penticton for a permit to have a reptile zoo. Regional wildlife staff were acutely aware of their lack of expertise in this subject. They consulted with regional headquarters in Kamloops and with Victoria headquarters staff. They also consulted with local government authorities (the Central Okanagan Regional District) to check whether they had any bylaws on possession of venomous snakes. The regional Branch office decided to await the director s decision on the Cranbrook office s refusal before considering Mr. Boyd s new application.

3 APPEAL NO. 95/16 PAGE 3 In May, 1993, the Deputy Director of Wildlife overturned the Cranbrook Wildlife Branch office s refusal to issue Mr. Boyd a permit. In July, Mr. Boyd was issued two permits by the Deputy Director, one to possess and transport his vipers and one to commercially display them. The Ministry still had no authority to issue permits for Mr. Boyd s other poisonous snakes, and it appears he did not need permits from any agency to move or display them. The permits were valid until the end of March, Both permits contained extensive, and identical, conditions. Although the Wildlife Branch did not have the jurisdiction to set permit conditions for the non-vipers, the permit conditions nevertheless relate to all venomous animals. Mr. Boyd testified that he had informally agreed to ensure that all of his poisonous snakes would be kept in compliance with the conditions imposed for his 46 vipers. Of particular significance, both permits required that Mr. Boyd have on hand, in a go kit, a sufficient quantity of multivalent antivenin that was not otherwise available locally to treat bites from the species of snakes in his care. The significance of this condition requires an understanding of the properties of various poisons and antivenins. Mr. Boyd explained this subject in his evidence. First, there are three categories of poisonous snakes: the vipers - with fangs at the front of the mouth that fold back into the mouth (rattlesnakes, vipers, adders); the colubrids - with fangs in the rear of the mouth (boomslang, mangrove snake); and the elapids - fangs at the front of mouth, but not hinged (mambas, cobras and coral snakes). The variety of snakes produce a corresponding variety of poisons that act in different ways. The vipers release cytotoxins that kill cells, including blood cells. The result is a thinning of the blood and potential death by haemorrhaging. The elapids release neurotoxins that relax nerve cells so that essential muscles of the heart and lungs may stop functioning. (As a result, a person injected with a neurotoxin can survive the poison with the help of a heart-lung machine - for some five days in the case of a black mamba bite.) There are rattlesnakes indigenous to the Okanagan area, so local hospitals carry a supply of antivenin that is used to treat bites of these native vipers. Happily, this polyvalent is a broad-spectrum antivenin. It is effective against bites of almost all species of vipers in the world. There are, unfortunately, at least two viper species whose venom cannot be counteracted with the local polyvalent: the gaboon viper and the puff adder. Mr. Boyd has both in his collection. These two species require a different antivenin that is made only in South Africa. It is the difficulty in obtaining the African antivenin that ultimately resulted in the permit refusal that led to this appeal.

4 APPEAL NO. 95/16 PAGE 4 Recall that Mr. Boyd was issued two permits in July, 1993, one to transport his vipers to the Okanagan and to possess them privately, plus a second permit allowing him to display some of his snakes publicly. Recall also that both permits had the identical condition that Mr. Boyd have on hand a sufficient quantity of multivalent antivenin that is not otherwise available locally to treat bites from the species of snakes in his care. The only necessary viper antivenin that was not available locally would have been the African antivenin required to treat a bite from Mr. Boyd s puff adders or gaboon vipers. Fortunately, there was a source of African antivenin available nearby in the summer of Mr. Boyd determined that a reptile zoo in Penticton called the Reptile Rendezvous had the African antivenin on hand. Mr. Boyd tried to purchase some of the African antivenin there but was unsuccessful. He concluded that having an emergency supply available in Penticton was sufficiently nearby to meet safety concerns. Unfortunately, the Reptile Rendezvous closed abruptly in October of Mr. Boyd was then in contravention of his permit conditions until he could bring in his own supply of African antivenin. He testified that he tried the Director of Pharmacy at the Kelowna Hospital, but was directed to the distributor in South Africa. Mr. Boyd also tried other potential sources in Alberta, contacting facilities that had poisonous snakes in Drumheller and at the Calgary zoo. He testified that he received no conclusive response. He would have to go to the international suppliers, either in Germany or South Africa. Unfortunately, Mr. Boyd testified that the African antivenin is classified as a narcotic, so importation is a complex bureaucratic process. Ultimately, Mr. Boyd never did succeed in obtaining the African antivenin. Mr. Boyd s permits were renewed in February, 1994 and were valid to the end of March There were additional conditions added, including a requirement that Mr. Boyd dispose of his vipers if he failed to meet any permit conditions. The requirement for African antivenin was included as before. Significantly, there is no indication in the materials presented at the hearing that Mr. Boyd had informed the Wildlife Branch at the time of renewal that he now had no access to African antivenin. He was in violation of this essential permit condition from the day his new permit was issued. Meanwhile, Mr. Boyd s landlord gave him notice in early October, He had to move by the end of the month and decided to move into Kelowna itself. Mr. Boyd testified that he notified the local Conservation Officer and both the Penticton and Victoria Wildlife Branch staff by telephone in early October but that he did not apply in writing for a permit to transport his snakes. The Wildlife Branch was aware of the request by mid-november but had still to decide the larger issue of whether Mr. Boyd should be allowed to keep vipers in Kelowna. This was a complex issue which required expertise to impose suitable conditions, to carry out informed inspections and even to identify the various species owned by Mr. Boyd. The local staff did not have that expertise. They asked Victoria headquarters for advice. Even though the Wildlife Branch had no authority

5 APPEAL NO. 95/16 PAGE 5 to deal with any poisonous snakes except vipers, would issuing a permit for vipers within Kelowna impose a public liability risk on the Crown because the Crown was aware that Mr. Boyd had other poisonous snakes on the site? The Branch had by now confirmed that Kelowna had no bylaw prohibiting the possession of poisonous animals except, surprisingly, within city parks. Subregional officials deferred to regional staff, and regional staff deferred to Victoria staff. Legal opinions were considered. In the meantime, time ran out for Mr. Boyd and he had to move. He finally did so on November 16, 1994, without a valid permit to do so. Mr. Boyd, now relocated, still had no African antivenin. Then, on November 30, 1994, Mr. Boyd was bitten by one of his puff adders. Suddenly, he was in urgent need of the African antivenin and neither he nor the Kelowna Hospital had a supply. Kelowna Hospital tried Drumheller, Alberta and could not obtain the African antivenin there. It finally found a supply in Seattle, Washington from the San Diego Zoo. The antivenin was flown from Seattle to Kelowna and Mr. Boyd spent two days in hospital. Mr. Boyd testified that he did have medical coverage, so the transportation of the antivenin was paid for by the medical plan. Nevertheless, the extraordinary costs were paid by subscribers to the insurance plan, not Mr. Boyd. Further, Kelowna Hospital emergency staff were considerably displeased at having to be put in the position of having to scramble, at considerable cost, to find the necessary antivenin. They had understood that it was a condition of Mr. Boyd s permit that he have suitable antivenin available (as indeed it was) and expressed a strong concern about public safety, given the extraordinary efforts that were required to obtain the antivenin. The puff adder emergency was the trigger for a comprehensive Wildlife Branch review of whether Mr. Boyd should continue to have a permit. In mid-december, the Director of Wildlife suggested a blanket policy of preventing the keeping of wildlife in captivity for private purposes. By late December, the Deputy Director began to consider cancelling the permit, at the suggestion of regional staff. On December 21, 1994, officials inspected Mr. Boyd s facilities at his new address in Kelowna. There were some minor deficiencies that needed correction, but the officials concluded that the snakes were securely maintained, with no significant risk of escape. The animals were generally well cared for. The main problem, of course, was that there was no African antivenin on hand for the puff adders and gaboon vipers. Beyond those concerns within the jurisdiction of the Wildlife Act, the officials understood that there was simply no known antivenin in existence for some of the Asian cobras and that one of Mr. Boyd s colubrids, the boomslang, required yet another African antivenin (distinct from the African viper antivenin) that was not on site. To this point, then, it appears that Mr. Boyd was taking care of his snakes well and also that there was no risk to the public from escape of his animals. However, there was still a potential public safety problem if members of the public (e.g.- fire fighters) had to go into Mr. Boyd s facilities quickly (although Mr. Boyd testified that he had alerted the local hospital and emergency response authorities that he had

6 APPEAL NO. 95/16 PAGE 6 poisonous snakes on the premises). The Wildlife Branch s lack of expertise regarding exotic reptiles compounded those concerns. Beyond those general problems, Mr. Boyd appeared to be in contravention of two Wildlife Act matters. He had moved his vipers from Westside to Kelowna without a permit and he did not have the African antivenin available (as was required by his permits) for treatment of puff adder and gaboon viper bites. In early January of 1995, Mr. Boyd was questioned by a Conservation Officer on the apparent violations. Mr. Boyd frankly admitted that he had moved the snakes in November without a permit. He had to move, permit or no. In his defence, Mr. Boyd noted that the most recent move had been local. He had previously moved his snakes from Yahk to Kelowna, across Ministry regional boundaries, without a permit and the Ministry had expressed no concern and had issued a permit retroactively. As regards the African antivenin, Mr. Boyd stated that he was still trying to obtain it. He explained his efforts via Drumheller, South Africa and Germany. He explained that he had obtained $1 million dollars worth of liability insurance, as was required by the permits. At the time, he estimated his reptiles to be worth some $200,000, although at the hearing, Mr. Boyd qualified that figure as representing his investment. He thought he might receive only $30,000 if he had to sell them on the open market. In late January, while the Crown was considering whether to lay charges, Mr. Boyd applied to renew his private possession permit. He also noted that he was moving again to a new address in Kelowna at the end of February, so he asked that a new permit be issued to allow transportation of his snakes as well as possession. He had apparently decided not to pursue his efforts to set up a reptile zoo, as he did not apply to renew his commercial permit. There was one curious feature in Mr. Boyd s evidence concerning his perceived difference between conditions on a private possession versus a commercial display permit. Mr. Boyd believed that the conditions of the two permits were different. Specifically, he believed that the possession of African antivenin was a condition of a commercial display permit but not of his private possession permit. He testified to that effect in the hearing. He had also previously indicated that impression to Wildlife Branch. However, the conditions attached to his 1993 possession permit and his 1993 commercial display permit appear to be absolutely identical. Certainly both permits required, as condition 9(b), a sufficient quantity of antivenin that was not available locally. Within the week, Conservation Officer G. Hoyer decided to charge Mr. Boyd with two violations: transporting wildlife without a permit (the November move from Westlake to Kelowna); and failure to comply with permit conditions (not having the African antivenin on hand). Mr. Boyd was also issued a warning for the minor violation of not having his three snapping turtles included in the list of species on his

7 APPEAL NO. 95/16 PAGE 7 possession permit. The fine for each ticketed violation was $100. Mr. Boyd did not dispute either violation, and was deemed to be guilty 30 days after the ticketing. Meanwhile, the Wildlife Branch was still deliberating whether to issue Mr. Boyd a new permit for simple possession. Regional staff were by now recommending rejection. They began to compile the information required to support refusal to reissue Mr. Boyd s permit. Mr. Boyd called the Ministry periodically to ask if his permit was ready. In late March, the Wildlife Branch requested a list of species in Mr. Boyd s possession and informed him that, given the provincial significance of his permit application, the matter would be decided by the Deputy Director in Victoria. Mr. Boyd provided an up-to-date list of his vipers, covering 43 individuals in four genuses. He also asked that the new permit include transportation provisions plus a provision to allow him to take one rattlesnake and one gaboon viper to public and educational facilities for public education purposes. (Note that the gaboon viper was one of the species for which Mr. Boyd could not yet obtain antivenin.) By June 1, 1995, Mr. Boyd had further complicated matters by not paying his fines. At the hearing, he explained that he understood that the fines would ultimately be payable when his driver s licence was renewed. He was content to delay the payment of the $200 until then. Apparently, Mr. Boyd was unaware that section 87 of the Wildlife Act made it mandatory for the director to cancel any existing permit and refuse to issue an new one until the fines were paid. A request to cancel due to non-payment had been made by enforcement staff as early as late March. Through early June, Mr. Boyd continued to try and obtain the African antivenin. He again contacted the Director of Pharmacy at the Kelowna Hospital. They had none and, upon being contacted by Mr. Boyd, again expressed their frustration to the Wildlife Branch about public safety in general and the spectre of having to repeat their chore of arranging for emergency shipping of African antivenin in case of a future accident. On June 22, the Deputy Director made his decision. He refused to issue Mr. Boyd a permit to possess, to transport or to commercially display any vipers or to possess any species designated as wildlife, such as Mr. Boyd s tiger salamanders, Australian tree frogs, African bullfrogs and snapping turtles. He gave Mr. Boyd 30 days to dispose of all of his wildlife, including his vipers, by sale or euthanasia. He gave four reasons for the refusal: failure to meet past permit conditions (presumably the primary concern being the sustained failure to obtain African antivenin); Mr. Boyd s past (deemed) convictions for un-permitted transportation and for failure to have African antivenin on hand; Mr. Boyd s failure to pay $200 in fines; and

8 APPEAL NO. 95/16 PAGE 8 the concerns expressed by local health authorities. Mr. Boyd responded a month later that it made no sense to have to dispose of his animals pending his right to appeal. He requested that the Environmental Appeal Board grant a stay on the disposal order until the appeal was decided. The Wildlife Branch did not oppose a stay and, in late August, the Board granted a stay until the Board made a final decision on the appeal, subject to several conditions that were requested by the Wildlife Branch. There the matter remains pending this decision. ISSUES A) The Law Vipers are wildlife, designated as such under B.C. Regulation 168/90, Schedule A under the authority of the Wildlife Act. The Crown owns all wildlife under section 2 of that Act, and no person can own wildlife except in accordance with a permit or licence; see subsection 2(2). Ministry officials may authorize wildlife ownership by the issuance of a permit under section 20. This is a discretionary power. It is an offence under section 34 to have wildlife in one s personal possession without either a licence or permit authorizing possession. It is also an offence under section 38 to transport wildlife without a permit or in accordance with regulations. If a permit is issued, the Ministry may attach whatever conditions the Ministry believes are reasonably required. Under section 26, the Ministry may suspend or cancel a permit for any reasonable cause or order that the person be ineligible to renew or obtain a permit. Cancellation and non-renewal are normally discretionary, but under section 87, the director is required to cancel all permits and licences held by a person who has not paid a fine. That same section also requires the director to refuse to issue or renew a licence or permit until the fine is paid. Neither of these powers are discretionary. B) The Parties Positions In grossly simplified form, the dispute can be summarized as follows. The Wildlife Branch believes that it gave Mr. Boyd a chance to responsibly keep his vipers when a permit was issued, overturning an initial regional rejection, in July of Although Mr. Boyd was required to keep the necessary antivenins on hand, he may have been in substantial compliance while the antivenins were locally available in Penticton. As of October, 1993, however, there was none available locally. Mr. Boyd failed to acquire a supply and did not let the Branch know that he was in breach of his permit condition until the puff adder bit him and emergency response action was required at the local hospital. The Wildlife Branch believes that Mr. Boyd chose not to make serious efforts to obtain African antivenin regardless of his permit conditions. It considers Mr. Boyd to be incapable of safely possessing poisonous snakes, so that he is a risk to himself and the general public. These factors, plus the comments of Kelowna Hospital staff, are the primary basis for the refusal to issue a permit for his vipers. Further, Mr. Boyd s failure to pay the

9 APPEAL NO. 95/16 PAGE 9 fines means that the Wildlife Branch must refuse to issue permits for his other wildlife. Mr. Boyd believes his snakes are securely housed and pose no risk to the public. He is willing to accept risk to himself and feels the Wildlife Branch has no business protecting his personal safety. He feels he made all reasonable efforts to obtain the African antivenin but admits he has to date been unsuccessful. He stated that he had been forthright and open with the regulatory and local emergency authorities, informing them of his poisonous snakes and also of his need to move from time to time. Finally, he decided to simply delay payment of his fines until he needs to renew his driver s licence and does believe not that non-payment should be a basis for refusal to issue a permit. DISCUSSION Mr. Boyd testified that he is not in the habit of writing letters; most of his dealings occurred by telephone. Therefore, he had no documentary evidence to submit and tendered no exhibits at the hearing. As a result, all of his evidence consisted of unsupported statements of what had happened in the past. Nevertheless, he seems a straightforward and honest individual. The panel accepts his version of events in all but one respect; that reservation will be explained later. Given that Mr. Boyd s evidence is generally accepted by the panel, he has many facts in his favour. He voluntarily informed the regulatory officials that he had poisonous wildlife in his possession and did apply for the necessary permits. He kept the Ministry informed of his collection s movements and changes of location. He keeps his snakes in good conditions and in safe, secure facilities. He notified the local emergency authorities that he had poisonous snakes in his facilities so that they could respond appropriately in an emergency such as a fire. In regard to his Wildlife Act convictions, his violation of moving his snakes without a permit seems minor. He had moved his snakes from Yahk to Westside without a permit but with the apparent knowledge of the Wildlife Branch and was not charged. He notified the local Ministry office in advance of his need to move from Westside to Kelowna and waited a reasonable time until he was forced by time to move them without a permit. There are, however, two factors that weigh against Mr. Boyd. First, his testimony indicated that he does not accept the fact that he is part of the public for which the Ministry feels responsible when it issued a permit to him to keep his vipers. He personally accepts the risk of injury and death but the Crown, by issuing him a permit, may have become potentially liable to Mr. Boyd s relatives if Mr. Boyd were to die from a viper bite. Second, and more significantly, Mr. Boyd knowingly contravened his permit condition to have African antivenin locally available. He did not hide his inability to obtain the antivenin, but neither did he keep the authorities informed of his failure. The question of due diligence arises. If Mr. Boyd had gone to all reasonable lengths to obtain the African antivenin, there might be a basis for refusing him a permit to

10 APPEAL NO. 95/16 PAGE 10 possess the puff adders and gaboon vipers but to allow him to keep most of his vipers for which the local antivenin was sufficient. Mr. Boyd testified that he had made serious and sustained efforts to obtain the African antivenin, all to no avail. He could, unfortunately, produce no evidence of that, as all his searching was by phone. The panel specifically asked Mr. Boyd to produce telephone bills to corroborate the number and locations of his calls. He had two weeks to do so. He did not provide much; only a September 1993 invoice. It showed calls to Alberta and to three B.C. locations immediately after the Reptile Rendezvous source in Penticton closed down. There was no indication of international efforts, nor of sustained efforts through Therefore, the panel does not accept Mr. Boyd s evidence of his significant efforts to comply with his permit conditions. He made some calls, but the panel believes that his efforts were inadequate given the serious need for African antivenin. As a result, the panel finds as follows: Mr. Boyd was not particularly concerned about compliance with his permit conditions. His misapprehension about differences in permit conditions suggests that he did not even read the conditions carefully. The panel received no credible evidence to indicate that Mr. Boyd had made more than cursory efforts to obtain the African antivenin. Mr. Boyd was not forthright with regulatory officials in that he failed to inform them of his failure to acquire African antivenin. The Wildlife Branch went beyond their jurisdiction in an effort to accommodate Mr. Boyd. Specifically, they purported to regulate all venomous animals to provide some measure of public safety even thought they knew that only local governments had the authority to regulate the non-vipers. The director had no choice but to cancel Mr. Boyd s permits and refuse renewals as a result of the failure of Mr. Boyd to pay his fines. The panel finds that the Wildlife Branch, by issuing permits even though they had limited expertise and inadequate jurisdiction, made a commendable effort to accommodate Mr. Boyd. Mr. Boyd, for his part, knew that the regulatory authorities and local medical authorities were concerned. He knew, or ought to have known, that he was obliged to abide by his permit conditions to the letter. He did not do so. He made desultory efforts to comply and in fact did not even bother to carefully determine what the exact conditions were. In conclusion, the Wildlife Branch gave Mr. Boyd a chance to show that he could responsibly keep his poisonous snakes. Mr. Boyd failed to show sufficient regard to the reasonable conditions imposed on him and breached those conditions on a continuous basis. He has not earned the privilege of being allowed to keep wildlife.

11 APPEAL NO. 95/16 PAGE 11 Disposition Under the Wildlife Act, the Environmental Appeal Board has limited powers. It can merely dismiss an appeal or send the matter, with instructions, back to the deputy director to reconsider. In this case, the panel dismisses the appeal and upholds the deputy director s decision. Recommendations and Comments Mr. Boyd has a collection of unusual animals. Highly specialized expertise is required to care for them and the market for disposition is limited. In his decision, the deputy director gave Mr. Boyd just 30 days to dispose of all wildlife in his possession. The panel recommends that Mr. Boyd be given more time to dispose of his wildlife; a time limit of 90 days is recommended. Ben van Drimmelen, Panel Chair Environmental Appeal Board January 11, 1996