CHAPTER 134

FORMERLY

HOUSE BILL NO. 351

AS AMENDED BY HOUSE AMENDMENT NO. 1 AND SENATE AMENDMENT NO. 1

AN ACT TO AMEND CHAPTER 29, TITLE 7 OF THE DELAWARE CODE RELATING TO THE CONSERVATION AND REFORESTATION OF CERTAIN TREES.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE (Two-thirds of all members elected to each House thereof concurring therein):

Section 1. Amend Chapter 29, Title 7 of the Delaware Code by adding a new subchapter, designated as subchapter V, which shall read as follows:

"Subchapter V. Pine and Yellow-Poplar Tree Conservation and Reforestation.

§2965. Findings; policy; purpose.

(a) The General Assembly finds and declares that the pine and yellow-poplar forest resource of the State provides significant recreational, aesthetic, wildlife and environmental benefits as well as wood fiber essential to commerce and industry for the citizens of the State. The General Assembly has also determined that the pine and hardwood forest resources are being harvested at a greater rate than they are being replanted or reproduced and unless measures are instituted to ensure that the forest resources are sustained, this natural resource will be depleted to the detriment of the citizens of the State. It is, therefore, the declared public policy of this State to preserve and protect the pine and yellow-poplar forest resource of the State. The purpose of this Chapter is to regulate the maintenance and reproduction of the pine and yellow-poplar forest resource of the State in the public interest.

§2966. Definitions.

As used in this subchapter:

(1) "Cutting operation" shall mean the cutting of timber for commercial purposes from ten acres or more of land on which loblolly pine (Pinus taeda), shortleaf pine (Pinus echinata), or pond pine (Pinus serotina), yellow-poplar (Liriodendron tulipifera), singly or together occur and constitute twenty-five (25%) percent or more of the live trees on each acre.

(2) "Live tree" shall mean trees that have their crowns in the uppermost layers of the canopy (dominant and co-dominant trees), are largely free growing, free of insect and disease infestation, windfirm, and old enough to produce fertile seed crops.

(3) "Diameter" shall mean the distance through the tree at the point of average thickness as measured from outside the bark to outside of bark at a point eight Inches above the ground level.

(4) "Landowner" shall mean any person holding title to the land or possessing the right to contract for the cutting operation thereon.

(5) "Operator" shall mean any person, including a landowner, who conducts any cutting operation.

(6) "Person" shall mean the State, any county, municipality, corporation or other political subdivision of the State, or any of their units, or an individual receiver, trustee, guIrdlan, executor, administrator, fiduciary, or representative of any kind, or any partnership, firm, association, public or private corporation or any other entity, or principal(s) in business ventures operating under more than one name.

(7) "Pine" shall mean any loblolly pine (Pinus taeda), shortleaf pine (Pinus echinata), or pond pine (Pinus serotina).

(8) "Secretary" shall mean the Secretary of the Department of Agriculture.

(9) "Seedling" shall mean a young pine or yellow-poplar plant less than one Inch in diameter.

(10) "Tree" or "timber" shall mean any tree of a currently commercially valuable species which is six inches or more in diameter.

(11) "Free to grow" shall mean to increase stem and crown diameter, basal area, height, volume, and quality of individual tree.

§2967. Conservation or reforestation plan required; applicability; regulations.

(a) No person shall commence a cutting operation unless seed trees have been reserved pursuant to the natural regeneration method set forth herein or pursuant to an alternate management plan approved by the State Forester or his designee.

(b) This subchapter shall not apply to cutting operations of timber from land being cleared for reservoirs, military installations, agriculture, residential, ditch and utility right-of-ways, industrial sites, railroad, or to cutting operations undertaken pursuant to a contract executed prior to January 1, 1989.

(c) The Department of Agriculture shall have the authority to adopt, amend, modify or repeal such rules and regulations as it deems necessary to effectuate the policies and the purposes of this Chapter.

§2968. Natural regeneration.

(a) Operators and landowners shall leave uncut and uninjured at least 6 seed bearing pine or yellow-poplar trees, 14 inches diameter or larger on each acre involved in a cutting operation. If an acre lacks one or more of the required seedtrees, then two seed-bearing pine or yellow-poplar of the next smallest diameter shall be chosen to replace each missing tree.

(b) Trees reserved pursuant to subsection (a) for the purpose of reseeding shall be healthy, windfirm, well-distributed throughout each acre and have well developed crown possessing viable cones.

(c) Seed-bearing pine or yellow-poplar trees need not be reserved, if at least 400 pine or yellow-poplar seedlings exist on each acre which are vigorous, well distributed throughout, and free to grow upon completion of the cutting operation.

(d) Any operators or landowners proposing to utilize the natural regeneration method shall notify the State Forester at the Delaware Department of Agriculture, Forestry Section of the proposed natural regeneration plan at least ten working days prior to initiation of a cutting operation.

(1) Operators or landowner shall be responsible to have seed trees physically marked prior to notification of the State Forester.

(2) Within ten working days, the State Forester or his designated agent shall inspect the proposed site and provide the operator or landowner with approval, approval with modifications or rejection of the natural regeneration plan.

(e) Once approval is given, but before the cutting operation begins, the landowner will agree, on a form furnished by the Department of Agriculture's Forestry Section, that he will not cut or permit to be cut any pine or yellow-poplar tree required to be reserved for reseeding for two years after completion of the cutting operation. The provisions of this subsection do not apply if the landowner places the land in any of the uses enumerated in §2967(b).

(f) Prior to the sale or other transfer of rights of the land or perpetual timber rights subject to the obligation to reserve the trees, the transferor shall notify the transferee of the existence and nature of the obligation and the transferee shall sign a notice of the obligation indicating the transferee's knowledge thereof.

(1) The notice shall be on a form furnished by the Department of Agriculture's Forestry Section and shall be sent to the Department of Agriculture by the transferor at the time of sale or transfer of rights of the land or perpetual timber rights.

(2) If the transferor fails to notify the transferee about the obligation to reserve the trees, the transferor shall pay the transferee's costs related to fulfilling the obligation to reserve the trees or reforest all trees cut, including all legal costs and reasonable attorneys fees incurred by the transferee in enforcing the obligation against the transferor.

(3) Failure by the transferor to send the required notice to the Department of Agriculture's Forestry Section at the time of transfer shall be prima facie evidence, in any action by the transferee against the transferor for costs related to reserving the trees or reforestating all trees cut, that the transferor did not notify the transferee of the obligation to reserve the trees prior to transfer.

§2969. Reforestation method.

(a) The land involved in a cutting operation may be reforested pursuant to an approved reforestation plan In lieu of the natural regeneration method. The plan shall be prepared by the landowner or his agent and shall be designed to assure the reproduction and maintenance of growth of young, vigorous pine or yellow-poplar trees.

(b) The reforestation plan shall be accompanied by a statement of the landowner, on a form furnished by the Department of Agriculture's Forestry Section, that the landowner will not perform any act or permit any act to be performed which prevents reforestation. This provision does not apply If the landowner places the land in any of the uses enumerated in §2967(b).

(c) Ten working days prior to the initiation of the cutting operation, the landowner, his agent or operator shall notify the State Forester of the intention to reforest and shall submit a reforestation plan.

(d) The landowner, his agent or operator shall submit the reforestation plan to the State Forester at the Department of Agriculture's Forestry Section for approval.

(1) The Department of Agriculture's Forestry Section shall approve, approve with modifications, or reject any reforestation plan submitted within ten working days.

(2) The determination of the Department of Agriculture's Forestry Section shall be in writing, setting forth the reasons for approval with modifications or rejection and shall be forwarded to the operator or landowner.

(3) In cases where a reforestation plan has been rejected by the State Forester, the landowner, his agent or operator shall be required to submit another reforestation plan for approval. Under no circumstances, shall a cutting operation begin prior to approval of a reforestation plan by the Forestry Section.

(e) Prior to the sale or other transfer of rights of land or perpetual timber rights subject to a reforestation obligation, the transferor of land shall notify the transferee of the existence and nature of the obligation and the transferee shall sign a notice of reforestation obligation Indicating the transferee's knowledge thereof:

(1) The notice shall be on a form furnished by the Department of Agriculture's Forestry Section and shall be sent to the Department of Agriculture by the transferor at the time of sale or transfer of rights of land or perpetual timber rights.

(2) If the transferor fails to notify the transferee about the reforestation obligation, the transferor shall pay the transferee's costs related to reforestation including all legal costs and reasonable attorney's fees incurred by the transferee in enforcing the reforestation obligation against the transferor.

(3) Failure by the transferor to send the required notice to the Department of Agriculture at the time of the sale shall be prima facie evidence, in any action by the transferee against the transferor for costs related to reforestation, that the transferor did not notify the buyer of the reforestation obligation prior to sale.

§2970. Prohibitions.

No person shall cut or permit to be cut any pine or yellow-poplar tree or seedling required to be reserved for reseeding or planted under a reforestation plan or perform any act or permit any act to be performed which prevents reseeding or reforestation of any area in which a cutting operation has been conducted.

§2971. Right of entry.

The State Forester or his duly authorized representative may enter, at reasonable times, upon any public or private property for the purpose of determining whether a violation of the provisions of this Chapter or any of the regulations promulgated thereunder exists upon given verbal notice and after presenting official identification to the landowner, operator, custodian or agent of said property.

§2972. Cease and desist orders.

The Secretary shall have the power to issue a cease and desist order to any person violating any provision of this subchapter or rule or regulation promulgated thereto. Any such cease and desist order shall remain in effect until withdrawal of said order by the Secretary, or until the order Is superseded by an injunction, whichever occurs first.

§2973. Injunctive relief.

Whenever it appears that any person has engaged or is about to engage In any act or practice constituting a violation of any provisions of this Chapter or rule or regulations adopted pursuant to it, the Secretary may bring an action in the Court of Chancery to restrain or to enjoin the acts or practices and to enforce compliance with this subchapter. The Court shall not require the Department of Agriculture to post a bond.

§2974. Appeals.

(a) Any person whose interest Is substantially affected by an action of the State Forester or his designee may request a hearing to demonstrate compliance with this subchapter or any regulations promulgated thereunder.

(b) Such hearing shall be scheduled within 15 days of the request and shall be held by the Secretary or his designee. The decision of the Secretary or his designee may be appealed to Superior Court on the record within 30 days of the decision.

(c) No appeal shall operate to automatically stay any action of the Secretary.

§2975. Penalties.

(a) Any person who violates any provision of this subchapter shall, upon conviction, be subject to a fine not exceeding $2,000 or imprisonment not exceeding three months or both.

(b) Any person found guilty of a second or subsequent violation of any provision of this Chapter is subject to a fine not exceeding $4,000 or imprisonment not exceeding one year, or both. For the purpose of this subsection, a second or subsequent violation is one which has occurred within two years of any prior violation of this subchapter.

(c) The Justices of the Peace Court shall have original jurisdiction to hear and determine violations of this subchapter.

Approved July 18, 1989.