ONTARIO
NORMAL FARM PRACTICES PROTECTION BOARD
Horbal v Deschateles
2000 ONNFPPB 12
DATE OF DECISION:
2000-08-07
2000-03
STATUTE:
Farming and Food Production Protection Act 1998
HEARING:
BETWEEN:
Robert Horbal -- Applicants
and
Michel Deschatelets and Diane Deschatelets -- Respondents
REASONS FOR DECISION
Robert Horbal owns a campground on the shore of Lake Nipissing near Sturgeon Falls. The campground consists of nine cottages and numerous sites for campers. He has operated the business for seven years and has increased the gross revenue of his business by approximately 50 percent during that time.
The Deschatelets own 250 acres of land near Sturgeon falls of which approximately 200 acres are arable. They began to operate a fruit and vegetable farm in 1980. They currently raise 30-40 acres of strawberries each year. They also raise 10-30 acres of other crops including raspberries, sweet corn and pumpkins. The Deschatelets grow oats and barley on the balance of their land. The grain is sold as a cash crop while the straw is utilised to cover strawberry plants in the fall of each year. Approximately 80 acres of the farm is irrigated and the Deschatelets rotate their fresh market crops around the portion of the farm which can be irrigated.
The Deschatelets have a large "pick your own" operation for all of their crops. Due to the northerly location of the farm, their season is relatively brief and because the number of people vacationing in the local area is sharply reduced after Labour Day, they end their "pick your own" season at Labour Day. They do continue to sell pumpkins later in the fall.
The Deschatelets also employ a large number of summer students to pick crops which are sold commercially. They supply produce to chain stores and local markets.
The Horbal campground and the Deschatelets farm are separated from their nearest boundaries by approximately one mile. The land between the properties varies from open land to dense bush.
NATURE OF COMPLAINT
The Deschatelets own two propane-fired cannons. In August 1999, one of the propane-fired cannons was used continuously to frighten birds during the daylight hours and racoons at night. The propane-fired cannon can be programmed so that it makes loud noises at irregular intervals which sound like large guns.
Mr. Horbal's campground is in operation from May until October in each year. July and August are his busiest months. He has no objection to the use of a propane-fired cannon during daylight hours but expressed a significant degree of concern about the use of the propane-fired cannon at night. He indicated that he had received a number of complaints from customers in August 1999 about the use of the propane-fired cannon during the night. He indicated that his own rest had been disturbed by the noise.
Mr. Horbal testified that he is concerned about the use of a propane-fired cannon during the month of August. It disrupts his busy season and he is concerned that he will experience a significant degree of business loss if customers cannot sleep properly and decide to camp elsewhere. Because the problem anise only in 1999, Mr. Horbal was unable to demonstrate any loss of business to date. He is convinced that there will be a noticeable problem in August if the Board permits the propane-fired cannon to remain in use at night.
Mr. Horbal provided evidence about the level of the noise which reaches his campground. He stated that during windy nights when the leaves in the trees were rustling, one could not notice the propane-fired cannon. However, it caused a great deal of concern to Mr. Horbal during nights when the air was still in August 1999.
The first test to be reviewed pursuant to the Farming and Food Production Protection Act ("the Act") is whether Mr. Horbal as applicant has been "directly affected by a disturbance from an agricultural operation" as noted in section 5(1) of the Act. After reviewing Mr. Horbal's evidence, the Board is satisfied that Mr. Horbal was directly affected in 1999 by noise emanating from the propane-fired cannon utilised by the Deschatelets. Noise is one of the disturbances over which the Board has jurisdiction.
ANIMAL AND BIRD CONTROL PRACTICES OF THE DESCH ATELETS
Mr. and Mrs. Deschatelets both provided evidence regarding their animal and bird control practices. They have utilised a propane-fired cannon since about 1985 during daylight hours for the purpose of frightening birds away from crops. They indicated that they have not experienced any significant losses in their berry crops. The problem with birds has been limited to sweet corn. The propane-fired cannon has been an effective deterrent to birds for many years. Mr. Horbal does not complain about the use of the propane-fired cannon during daylight hours and as another panel of the Board concluded several years ago in the case of Bader and Hubbard v. Dionis. the use of a propane-fired cannon during daylight hours to frighten birds from fruit crops is a normal farm practice.
Some evidence was also raised with regard to the control of bears. That issue does not appear to be of relevance to our decision. All of the parties testified that bears are occasionally seen in the local area. Mr. Deschatelets indicated that he has not had problems with bears destroying fruit or vegetable crops. Bears cause damage to his outlying grain fields, but he takes no steps to control the damage from bears which appears to be quite minimal.
The issue in this case deals with the- control of racoons. Mr. Deschatelets testified that he had not experienced significant problems with racoons destroying crops until 1999. He stated that in earlier years, there appeared to be a significant population of coyotes in. the local area and he assumed that the coyotes were limiting the population of racoons to a level where damage to crops from racoons was minimal. In 1999, Mr. Deschatelets noted a significant decline in the number of coyotes. He did not know the reason for the decline, but he believes that it led to an increase in the number of racoons in the local area which posed a threat to his sweet corn crop. The problem was compounded by the fact that his rotation in 1999 caused him to plant sweet corn in a field at the rear of his farm which is surrounded by bush on two sides.
The Deschatelets testified that racoons do not pose a significant threat to berry or pumpkin crops.
However, they can significantly damage corn crops. One practice of Mr. Deschatelets is to drive through his fields at night in a tack equipped with a searchlight.
He testified that when he shone the searchlight through the trees surrounding his sweet corn field in the summer of 1999, there were so many racoons sitting in the trees that their eyes looked like "Christmas lights" reflecting back at him. The Deschatelets concluded that they faced a severe problem with racoons in 1999 as their sweet corn ripened and they decided to use the propane-fired cannon at rught as a method of controlling racoons.
There were differences between the evidence of Mr. Horbal and the Deschatelets regarding the date that the propane-fired cannon was initially used. That difference is not material to our decision as the Deschatelets testified that they would only need to use a propane-fired cannon between August 10 and Labour Day as the corn is vulnerable to racoons only during that period of time.
Mr. Horbal did contact the police in August 1999 to express concern about the use of the propane-fired cannon. While neither party called any representative of the police force, it appears that there were some other complaints or inquiries made to the police about the use of the propane-fired cannon at night. The Deschatelets testified that the propane-fired cannon was in continuous use from the time that the corn reached a level of maturity where it was at risk until August, 8. They testified that the propane-fired cannon provided very effective racoon control. Their marketing season ends on Labour Day and they testified that after the propane-fired cannon was turned off on August 28, the remaining corn was decimated by racoons to the point where they could not fulfil their shipping contract to Labour Day.
The Deschatelets were questioned about a number of other potential animal control practices. They were:
The use of dogs to scare racoons - The Deschatelets were concerned that they would have to maintain a significant number of dogs and the noise from the dogs chasing racoons would pose a problem.
Trapping - Mr. Deschatelets testified that he had consulted a trapper. However, racoon skins are not of any value if the racoons are killed during the summer and they would therefore have to pay someone to trap the racoons. Additionally, because they were dealing with hundreds of racoons in 1999, trapping the animals would be a very significant task and it would be nearly impossible to get enough traps to handle all of the racoons before they did significant damage to the sweet corn.
Poison - Poison would place other species of animals and birds at risk and the racoons might choose corn instead of poisoned bait.
Shooting - It would be very difficult to shoot the racoons at night when they are in the corn fields. Additionally, the noise from the guns would be almost as loud as the propane-fired cannon and could pose some risk to people if rifles were used.
Electric Fencing - A significant amount of evidence was heard about whether electric fencing would control racoons. Robert Stone, an engineer employed by OMAFRA testified pursuant to section 8(3) of the Act as an individual having technical ability to assist the Board. Mr. Stone acknowledged that he is not an expert in animal control and was not aware of anyone employed by OMAFRA who would be an expert. In an effort to provide technical help, Mr. Stone did search for relevant publications from OMAFRA, the Ministry of the Environment and Energy, and the Internet. One of these publications (Exhibit " 33"1 was from the University of Florida where the author suggested that scare devices would not be successful with racoons and that a single strand of electric wire "can do wonders" to repel racoons.
Mr. Deschatelets doubted the feasibility of using electric wire and had concerns about whether it would control racoons. He also suggested that he had experienced good success in controlling racoons with the propane-fired cannon in 1999. Mr. Stone also had concerns about the effectiveness of an electric fence. Mr. Stone did suggest that the propane-fired cannon may have been effective in 1999 against racoons because it was only used for a short period of time and the racoons did not have an opportunity to become acclimatised to the irregular noises during the nights when the device was in use.
While the electric fence might or might not control racoons, electric fencing is not of great significance to this case. The primary issue is whether the use of the propane-fired cannon is a normal farm practice.
WHETHER THE PROPANE-FIRED CANNON IS A NORMAL FARM PRACTICE
The Act defines normal farm practice to mean a practice that:
a. is conducted in a manner consistent with proper and acceptable customs and standards as established and followed by similar agricultural operations under similar circumstances, or
b. makes use of innovative technology in a manner consistent with proper advanced faun management practices. Pursuant to section 5 of the Act, if the noise from the propane-fired cannon results from a normal farm practice, the Application is to be dismissed. If the disturbance is not the result of a normal farm practice, then the Board can either order the farther to cease the practice or order modifications to the practice.
Definition "a" of normal farm practice invites a comparison of the operation in question with other similar operations. A comparative review is somewhat difficult when the Respondents farm in a location that is remote from other similar operations. Mr. Stone was aware of other operations in which racoons posed a threat to sweet corn and field corn crops.
He was aware of situations in which the farmers had not taken substantial steps to control the problem and experienced significant loss. He indicated that he had heard that a small number of other farmers in Ontario had used propane-fired cannons at night to frighten racoons but as this statement is hearsay, the Board does not rely upon it in arriving at a decision in this case.
Exhibit "4" to this hearing is Sound Level Limits for Stationary Sources in Rural Areas, a publication of the Ministry of the Environment and Energy. Paragraph 10 of the publication states that noise from a pest control device employed to protect growing crops should be not more than 70 decibels at a point which is within 30 metres of a dwelling or a camping area.
This publication, presented by Mr. Stone sets the noise standard for rural areas. Exhibit "5" is an OMAFRA fact sheet authenticated by qtr. Stone which outlines bird control on grape and tender fruit farms. Exhibit "5" is an OMAFRA fact sheet dealing with noise control on farms. Exhibit '.'S" notes the use of propane-fired cannons to scare birds. The fact sheet indicates that noise measurements taken beside a propane-fired cannon are about 115 decibels. That is louder than a chainsaw which according to Exhibit "6", would have a sound of 110 decibels.
Exhibit "6" states that the intensity of sound is measured in decibels. If a sound level is increased by 10 decibels, the ear perceives it as a doubling in loudness. By way of examples, a soft whisper is 20 decibels, rustling leaves are 30 decibels and normal conversation is 65 decibels.
Exhibit "6" indicates that noise diminishes through distance. For example, if a point source produces 90 decibels at 1 metre from the source, the sound level at 2 metres would be 84 decibels and at 4 metres would be 78 decibels. The attenuation is expected to reduce by 6 decibels each time the distance from the source of the noise is doubled.
The noise attenuation outlined in the preceding paragraph assumes that nothing will affect the simple calculation. However, topography and vegetation can change the pattern of attenuation. Topography and vegetation could absorb sound or in some situations, create echoes.
Mr. Stone calculated that a propane-fired cannon with a volume of 115 decibels would create a noise level of 70 decibels approximately 500 feet from the source of the noise. :fir. Horbal's camping facility is approximately one mile from the location of the propane-fired cannon in 1999. Therefore, while we recognise that the calculation of distance attenuation is not a precise one, we have no doubt that the noise from the propane-fired cannon was well below the 70 decibel limit established by the
Ministry of the Environment and Energy by the time the noise was within 30 metres of the camping area.
Our conclusion is supported by Mr. Horbal's evidence that the propane fired cannon was not audible during nights when there was sufficient wind to rustle the leaves of the dense bush surrounding his campsite. Exhibit "6" indicates that rustling leaves create 30 decibels of sound and it therefore appears that the noise from the propane-fired cannon is not strong enough to be audible when 30 decibels of sound are created by leaves rustling in the forest. The Board recognises that sleeping patterns would not be affected by a steady rustling breeze in the same manner as by the irregular sound of a propane-fired cannon. However, we conclude that the noise level at the camping site is within the guidelines for noise established by the Ministry of the Environment and Energy.
The Board concludes that the use of the propane-fired cannon meets the definition of "normal farm practice" because it makes use of an innovative technology in a manner consistent with proper advanced farm management practices. The Deschatelets limited the use of the propane-fired cannon in 1999 to the weeks when the corn was vulnerable and they testified that they would not need to use the cannons except between August 10 and Labour Day.
We conclude that the use of the propane-fired cannon to frighten racoons in the fashion used by Mr. and Mrs. Deschatelets is a normal farm practice in the circumstances of this farm.
DISPOSITION OF CASE
For the reasons outlined previously, we have concluded that the use of the propane-fired cannon at night to control racoons is a normal farm practice. Mr. and Mrs. Deschatelets are therefore entitled to utilise the propane-fired cannon at all times when necessary to control racoons between August 10 and Labour Day. Based upon the evidence of Mr. and Mrs. Deschatelets, it would not be a normal farm practice for them to utilise the propane-fired cannon at night during any other period of the year. Accordingly the Application is dismissed.
DATED at Waterloo, Ontario, this )_ day of August, 2000.