petition for continuing mandamus
TRANSCRIPT
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Republic of the Philippines
COURT OF APPEALS Cagayan de Oro City
CONCERNED RESIDENTS OF ILIGAN CITY as represented and joined by Michaela Tabilon, Harvey Lacasan, Fr. Nazer M. Zaragoza, Sr. Carmen M. Hayrosa RSM, Atty. Vermin M. Quimco, Cesar Padilla, Atty. Kerth Jossef M. Ablanque, Atty. Dean Quijano, Dr. Charles Marquez, Dr. Aileen Acosta-Gerona, Steve Librado, Jose Dennis O. Mancia, Nimfa Bracamonte, Esmeralda R. Padagas, David Almarez, and Teresita O. Poblete, ; CENTER FOR ALTERNATIVE LEGAL FORUM AND JUSTICE, Inc., as represented by ATTY. KERTH JOSSEF M. ABLANQUE, Petitioners,
- versus - CA -G.R. NO. _______________ FOR: CONTINUING MANDAMUS with Application for Temporary Environmental Protection Order
CITY GOVERNMENT OF ILIGAN CITY as represented by HON. LAWRENCE LL. CRUZ and ATTY. RANULFO CENAS, in their official capacities as the City Mayor and City Environment Management Officer, respectively; SANGUNNIANG PANLUNGSOD OF ILIGAN CITY as represented by HON. VICE MAYOR HENRY DY, in his official capacity as its Presiding Officer; MINES AND GEO SCIENCES BUREAU as represented by ENGR. LEO L. JASARENO, in his official capacity as Acting Director; DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES as represented by HON. RAMON PAJE, in his official capacity as Department Secretary; SECRETARY OF THE DEPARTMENT OF ENVIRONMENT AND NATURAL RESORUCES, HON. RAMON PAJE; SECRETARY OF THE DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT, HON. JESSE M. ROBREDO; SECRETARY OF THE DEPARTMENT OF NATIONAL DEFENSE, HON. VOLTAIRE T. GAZMIN; CHIEF OF THE PHILIPPINE NATIONAL POLICE, POLICE DIRECTOR GENERAL NICANOR A. BARTOLOME; CHIEF OF
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Dead bodies retrieved in Iligan City after
Sendong.
STAFF OF THE ARMED FORCES OF THE PHILIPPINES, LIEUTENANT GENERAL JESSE DELLOSA, in their official capacities as members of the Anti-illegal logging task force; PROVINCIAL GOVERNMENT OF LANAO DEL SUR, as represented by HON. MAMINTAL ALONTO-ADIONG, JR., in his official capacity as Governor; PROVINCIAL GOVERNMENT OF BUKIDNON, as represented by HON. ALEX PADUA CALINGASAN, in his official capacity as Governor; and COMMISSION ON AUDIT, as represented by HON. MA. GRACIA M. PULIDO Tan, in her official capacity as Chairperson. Respondents. X - - - - - - - - - - - - - - - - - - - - - - - - - - - - /
URGENT PETITION FOR CONTINUING MANDAMUS with Application for Temporary Environmental Protection Order
PETITIONERS, by counsel, most respectfully state:
PREFATORY STATEMENT
SENDONG – THE WORLD’S DEADLIEST STORM FOR 2011
This is how American meteorologist Dr. Jeff
Masters, citing data from insurance broker
AON Benfield, described the extent of
fatalities caused by typhoon SENDONG when
it slashed through the residents of Northern
Mindanao and other parts of the Philippines.1
In a January 17, 2012 NDRRMC Update, the
number of casualties was already 1,257 2 and 182 are still missing. More than 50
percent3 of these casualties are petitioners‘ beloved parents, grandparents, children,
grandchildren, brothers, sisters, friends and neighbors in Iligan City.
1 Jojo Malig. ―Sendong world‘s deadliest storm for 2011‖. www.abs-cbnnews.com. <http://www.abs-cbnnews.com/nation/12/19/11/sendong-worlds-deadliest-storm-2011> 2 NDRRMC UPDATE Sit Rep No. 41 re Effects of Tropical Storm ―SENDONG‖ and Status of Emergency Response Operations, January 17, 2012. p. 1
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In addition, there was a total of 120, 233 families or 1, 141, 252 persons
affected by SENDONG. In Iligan alone, there were 20, 228 families or 483,165 persons
affected and displaced.4
What made Sendong the world’s deadliest storm for 2011?
At first view, it would seem that Sendong was the only culprit in this annihilation.
However, as will be shown and discussed below, there are other factors that
contributed to the effect of Sendong that made it the world‘s deadliest storm for 2011.
Particularly in Iligan, it was a deadly mix of:
i. Heavy rainfall;
ii. Topography of Iligan City;
iii. Lack of preparedness and complacency of the City Government of Iligan;
iv. Illegal loggings within the City of Iligan, as well as, in the nearby provinces –
Province of Bukidnon and Lanao del Sur; and
v. Irresponsible mining and quarrying activities in Iligan City.
Obviously, the first and second factors are considered as natural in character,
which cannot be prevented since they are considered as ―acts of nature‖. However, the
third, fourth and fifth factors are considered as human environmental recklessness that
can be prevented and corrected. Indeed, Sendong shows the sad-truth that human
environmental recklessness such as illegal logging and irresponsible mining had
degraded the environment - that led to a disaster. Disasters are often associated to
environmental degradation. For example, research shows that in many parts of the
world, an increase in flooding has always been linked to the escalating rate of
deforestation in those areas. 5 Thus, there is no gainsaying that controlling and
preventing these so-called ―human-made factors‖ i.e. logging and mining are a must do
to achieve an ecologically balanced and safer Iligan City.
3 Disaster Command Center: Updated Summary Report on Sendong Flashflood in Iligan City, as of January 16, 2012 4 Supra note 2 at p. 25 5 UNITED NATION DISASTER MANAGEMENT TRAINING PROGRAM: Disasters and the Environment; 2nd Edition. at p. 9
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City of Flashfloods
Houses damaged by flash floods in a subdivision in
Iligan City, on December 19, 2011 (Reuters/Erik De
Castro)
City of Majestic Waterfalls
Iligan City is known for its breathtaking
waterfalls.
Petitioners cannot just sit and wait for another tragedy of greater magnitude or
perhaps another Sendong to happen. Their conscience and their concern for self-
preservation and self-perpetuation moved them to stand together to protect their city
from threats caused by environmental degradation not only for the present generation
but also for the future generation of Iliganons yet unborn. With the aftermath of
Sendong, the petitioners realized that their beloved city - the City of Majestic Waterfalls
– might turn out into a City of Flashfloods if environmental issues are not seriously
addressed.
The sense of urgency in protecting the environment from irreversible
consequences is the idea that the Supreme Court wanted to emphasize to the local
government units in Tano et. al v. Gov Socrates, et. al6, when it said that:
―We hope that other local government units shall now be roused
from their lethargy and adopt a more vigilant stand in the battle
against the decimation of our legacy to future generations. At this time,
the repercussions of any further delay in their response may prove
disastrous, if not irreversible.‖
Hence, petitioners, feeling the same sense of urgency, humbly pray to this
Honorable Court to exercise urgent judicial intervention to protect and advance
petitioners‘ right to a safe and ecologically-balanced environment.
6 G.R. No. 110249, August 21, 1997
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PROPRIETY AND NATURE OF THIS PETITION
1. Section 1 of Rule 8 of the Rules of Procedure on Environmental Cases
provides:
Petition for continuing mandamus. – When any agency or
instrumentality of the government or officer thereof unlawfully neglects
the performance of an act which the law specifically enjoins as a duty
resulting from an office, trust or station in connection with the enforcement
or violation of an environmental law rule or regulation or a right therein,
or unlawfully excludes another from the use or enjoyment of such right and
there is no other plain, speedy and adequate remedy in the ordinary course
of law, the person aggrieved thereby may file a verified petition in the proper
court, alleging the facts with certainty, attaching thereto supporting evidence,
specifying that the petition concerns an environmental law, rule or regulation,
and praying that judgment be rendered commanding the respondent to do an
act or series of acts until the judgment is fully satisfied, and to pay damages
sustained by the petitioner by reason of the malicious neglect to perform the
duties of the respondent, under the law, rules or regulations. The petition shall
also contain a sworn certification of non-forum shopping.
2. Section 2 of Rule 8 provides:
SEC. 2. Where to file the petition. – The petition shall be filed with the
Regional Trial Court exercising jurisdiction over the territory where the actionable
neglect or omission occurred or with the Court of Appeals or the Supreme
Court.
3. Section 16, Article II of the Constitution provides that:
The State shall protect and advance the right of the people to a balanced and
healthful ecology in accord with the rhythm and harmony of nature.
4. The instant petition involves the acts or omissions of the respondents that
violated petitioners‘ constitutional right to a balanced and healthful ecology by failing to
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perform their mandated duties which could have prevented or at least minimize the
impact of Sendong.
5. This petition is all about – compelling the respondents to take serious
action and attention on environmental and safety concerns and prevent those ―human
factors‖ that aggravated the damage brought by Sendong. As will be shown below,
most of these human contributory causes are due to respondents‘ inactions before and
during the onslaught of Sendong.
6. Finding no other plain, speedy and adequate remedy in the ordinary
course of law to compel respondents to perform their duties in order to protect and
save the petitioners, the people they represent and Iligan City as whole from future
calamities, petitioners has no other choice but to file this petition.
7. This petition is directly filed before this Honorable Court of Appeals because of:
a. The strong public interest7 involved in this case since it aims to liberate
the City of Iligan from future environmental and climate threats;
b. The complexity of the issues involved can be best resolved by a collegial
body than a single-judge court;
c. The urgency of the matters involved must be decided at a higher level at
the soonest possible time because petitioners‘ health and safety are at
stake; and a further delay in protecting the environmental condition of
Iligan City might cause irreversible damage to the petitioners.8
7 One of the exceptions to the rule on exhaustion of administrative remedies is when there is strong public interest involved. (Vigilar v. Aquino, G.R.No. 180388, January 18, 2011, citing Republic of the Phil. V. Lacap G.R. No. 158253, March 2, 2007 8 Another exception is when there are circumstances indicating the urgency of judicial intervention, and unreasonable delay would greatly prejudice the complainant. (Hongkong & Shanghai Banking Corporation, Ltd. v. G.G. Sportswear Manufacturing Corporation, G.R. No. 146526, May 5, 2006)
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GOVERNMENT AGENCIES, NOT IMPLEADED AS PARTIES TO THE CASE
In compliance with Sec. 6, Rule 2 of the Rules of Procedure for Environmental
Case, the following government agencies, although not parties to this case, are
furnished with a copy of this petition:
8. Philippine Atmospheric, Geophysical and Astronomical Services
Administration (PAG-ASA) - PAG-ASA, created by virtue of PD 78, is tasked, among
others to observe and report the weather of the Philippines and specified adjacent
areas, issue forecasts and warnings of weather and flood conditions affecting national
safety, welfare and economy. It is furnished with a copy of this petition to its address at
Science Garden Compound, Agham Road, Diliman, Quezon City.
9. National Disaster Risk Reduction Management Council (NDRRMC)
– NDRRMC is created by virtue of R.A. 10121, whose mandate to be implemented by
the Office of the Civil Defense is to administer a comprehensive national civil defense
and disaster risk reduction and management program. It is furnished with a copy of this
petition to its central office at the Office of Civil Defense, Camp Gen. Emilio Aguinaldo,
Quezon City.
10. Climate Change Commission (CCC) – CCC, created by virtue of R.A.
9729, is tasked to coordinate, monitor and evaluate the programs and action plans of
the government relating to climate change. It is furnished with a copy of this petition to
its office at Room 238 Mabini Hall, Malacañang Compound, San Miguel Manila 1000
Philippines. CCC may submit a comment regarding LGUs‘ duty to formulate and
implement their respective Local Climate Change Action Plan.
11. Office of the Solicitor General (OSG) – OSG, being the law firm of the
Republic of the Philippines, is furnished with a copy of this petition to its office at 134
Amorsolo St., Legaspi Village, Makati City. It is tasked to represent the Philippine
Government, its Agencies and Instrumentalities, Officials and Agents in any litigation or
matter requiring the services of a lawyer.
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THE PARTIES
Petitioners:
12. Petitioner Concerned Residents of Iligan City, whose names and personal
circumstances are found in the verification and certification hereof, are suing on their
behalf and on behalf of the minor Filipinos and of the generations of Filipinos yet
unborn in accordance with the provision on citizen suit provided under Sec. 5 of the
Rules on Environmental Procedure. They may be served with court processes and
pleadings through the Center For Alternative Legal Forum For Justice, Inc. to its
address at Rm. 202, Monsanto Bldg., Don Pedro Celdran St., Rosario Heights, Iligan
City.
13. Petitioner Center for Alternative Legal Forum and Justice Inc. (CALL FOR
JUSTICE, Inc.) is a non-government organization duly registered under the laws of the
Republic of the Philippines. Its principal office address is at Rm. 202, Monsanto Bldg.,
Don Pedro Celdran St., Rosario Heights, Iligan City. It is primarily established to
advocate human rights which include the right to ecology. It is represented by Atty.
Kerth Jossef M. Ablanque pursuant to a board resolution a copy of which is attached as
Annex A.
Respondents:
14. Respondent City Government of Iligan City (City Government), as
represented by Hon. Mayor Lawrence Ll. Cruz and the Chief of Staff/Officer-in-Charge
of Iligan City Environmental Management Office Atty. Ranulfo Cenas, is a local
government unit created by virtue of Republic Act No. 525. It may be served with
summons, papers and other legal processes to its main office at Buhanginan Hills, Pala-
o, Iligan City.
15. Respondent Sangguniang Panlungsod as represented by Hon. Vice Mayor
Henry Dy is the local legislative body of Iligan City created by virtue Republic Act No.
525. It may be served with summons, papers and other legal processes to its main
office at Buhanginan Hills, Pala-o, Iligan City.
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16. Respondent Mines and Geosciences Bureau (MGB) was elevated into a line
bureau of public respondent DENR pursuant to Republic Act No. 7942. Its central office
is located at MGB Compound, North Ave., Diliman, 1110 Quezon City where it may be
served with summons and other legal processes. Its declared mission is to be the
steward of the country's mineral resources committing itself to the promotion of
sustainable mineral resources development, and being aware of its contribution to
national economic growth and countryside community development. It is represented in
this suit by its Acting Director, Engr. Leo L. Jasareno.
17. Respondent Department of Environment and Natural Resources (DENR),
as represented by Secretary Ramon Paje, is a government agency created by virtue of
Executive Order No. 192, dated June 10, 1987. It is primarily mandated to conduct
conservation, management, development, and proper use of the country‘s environment
and natural resources. It may be served with summons, papers and other legal
processes at DENR Building, Visayas Avenue, Diliman, 1110 Quezon City, Philippines.
18. Respondents DENR Secretary, Hon. Ramon Paje; DILG Secretary, Hon.
Jesse M. Robredo; DND Secretary, Hon. Voltaire T. Gazmin; Chief of PNP, Police
Director General Nicanor Bartolome; and Chief of Staff of AFP, Lieutenant General Jesse
Dellosa, are members of the Anti-illegal logging task force created by virtue of
Executive Order No. 23. They are mandated to take the lead in the anti-illegal logging
campaign. They may be served with summons, papers and other legal processes at
their respective addresses:
DENR Secretary - Visayas Avenue, Diliman, 1100 Quezon City
DILG Secretary - A. Francisco Gold Condominium II, EDSA cor.
Mapagmahal St, Diliman, Quezon City
DND Secretary - Camp General Emilio F Aguinaldo, Quezon City,
Philippines 1110
Chief of PNP - PNP National Headquarters Camp General
Crame, Quezon City, Metro Manila
Chief of Staff of AFP - Camp Emilio Aguinaldo , E. de los Santos
Avenue, Quezon City
19. Respondent Provincial Government of Lanao del sur, as represented by its
Governor Hon. Mamintal Alonto-Adiong, Jr., is a local government unit created by virtue
10
On December 13, Tropical Storm Sendong formed near Guam
going towards Philippine Area of Responsibility.
Republic Act 2228. It may be served with summons, papers and other legal processes
to its address in Marawi City.
20. Respondent Provincial Government of Bukidnon, as represented by its
Governor Hon. Alex Padua Calingasan, is a local government unit created by virtue
Republic Act 2711. It may be served with summons, papers and other legal processes
to its address in Malaybalay, Bukidnon City.
21. Respondent Commission on Audit, as represented by its Chairperson Ma.
Gracia M. Pulido Tan, is a constitutional commission possessing the power, authority,
and duty to examine, audit, and settle all accounts pertaining to the revenue and
receipts of, and expenditures or uses of funds and property, owned or held in trust by,
or pertaining to, the Government, or any of its subdivisions, agencies, or
instrumentalities. It may be served with summons, papers and other legal processes to
its official address at Commonwealth Avenue, Quezon City.
STATEMENT OF FACTS
22. On December 13,
2011, Tuesday, PAG-ASA
notified its media partners of
tropical cyclone formed near
Guam, which was still too far
to affect the Philippines.9
23. On December 14,
2011, Wednesday, PAG-ASA
forecasted that a tropical
depression over the Pacific was
expected to enter the Philippine Area of Responsibility (PAR) by December 15, Thursday
morning. It warned that it will affect Visayas and Mindanao. It also warned the affected
areas to take all precautionary measures.10 9 Official Gazette. PAG-ASA and NDRRMC Sendong advisory timeline as of December 19, 2011 <http://www.gov.ph/2011/12/19/timeline-of-pagasa-ndrrmc-advisory-timeline-as-of-600am-december-19-2011/ >
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24. On December 15, Thursday, PAG-ASA issued the following advisories:
2:00 A.M.: The tropical depression was at 1,100 km east of Mindanao
with maximum winds of 55kph.
10:00 A.M.: Weather Bulletin No.1 – the tropical depression has
entered the PAR and was named ―SENDONG.‖
11:00 A.M.: Severe Weather Bulletin No. 1 – 840 km East Southeast
of Hinatuan, Surigao del Sur (Expected to be 300 km East Southeast of
Surigao City on Friday morning)
(At the same time, NDRRMC echoes/posts Advisory on PAG-ASA SWB No.
1.)
5:00 P.M.: Severe Weather Bulletin No. 2 – Sendong has intensified
into a tropical storm as it moves to Northeastern Mindanao
Public Storm Warning Signal no. 1 was in effect at Surigao
del Norte, Surigao del Sur, Dinagat prov., Agusan provice
and Misamis Oriental.
11:00 P.M.: Severe Weather Bulletin No. 3 –Signal No. 1 was in
effect at Lanao Provinces, Misamis Occidental and
Zamboanga Provinces.11
25. Also on December 15, at 11 A.M., NDRRMC disseminated Severe
Weather Bulletin No. 1 on Tropical Depression “SENDONG” to all Office of the
Civil Defense Regional Centers through SMS and facsimile and uploaded the same at
the NDRRMC website for further dissemination to their respective local disaster risk
reduction and management councils (LDRRMCs) from the provincial down to the
municipal levels. It directed RDRRMCs concerned through the OCD Regional Centers to
undertake precautionary measures in their area of responsibility (AOR) and
10 Ibid 11 Supra note 9
12
Residents of the Orchid Homes Subdivision in Barangay
Santiago survey the damage Sunday Dec. 18, 2011 a day
after flashfloods brought about by Typhoon Sendong hit
Iligan City.
subsequently advised local DRRMCs to initiate pre-emptive evacuation of families in
low-lying and mountainous areas if situation warrants.12
26. On December 16, Friday night, Storm Sendong was slashing through
northern Mindanao including Iligan City with unsuspecting residents fast asleep in their
homes. There was no known "pre-emptive evacuation" that took place.
27. On December 17, early Saturday morning, the full force of Sendong in the
major population centers of Cagayan de Oro and Iligan City began to be felt.
28. Sendong, with a
heavy rainfall, unleashed
flashfloods on river communities
affecting thousands of residents.
Sendong caused widespread
damage in Iligan City.
29. As of January 16,
2012, the Disaster Command
Center of Iligan City has
accounted the following:
1. Death - 666
2. Missing - 566
3. Families affected - 22,693
4. Dependents affected - 102,192
5. Houses totally damaged - 5,683
6. Houses partially damaged - 16,95913
30. Aside from the heavy rainfall brought by Sendong and the geography of
Iligan City, human factors were also blamed such as the local government‘s
complacency and lack of disaster preparedness, mining, and logging operations
12 NDRRMC Update, Sever Weather Bulletin No. 1, Tropical Depression Sendong, December 15, 2011. p. 2 13 Supra note 3
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conducted within the territory of Iligan City and in the nearby provinces, which
aggravated the damage caused by Sendong.
31. First, the City Government‘s complacency and lack of disaster
preparedness was raised because of the fact that it failed to take serious attention to
the geo hazard map that was distributed by the Mines and Geosciences of the DENR. In
fact after Sendong, DENR Sec. Ramon Paje reiterated the call to local government units,
noting the apparent lack of system that could have indentified flood risk areas that led
to the hundreds of people killed and missing in the flash floods triggered by the heavy
rains of storm ―Sendong‖ :
―More than a planning tool, these maps are a lifesaver.‖
This was stressed today by Department of Environment and Natural
Resources (DENR) Secretary Ramon J. P. Paje who on Monday reiterated
anew his call for local government executives to give serious attention to
the geohazard maps which the DENR has distributed to some 1,600
municipalities and cities and about 4,000 barangays nationwide.
―I implore on heads of local government units to take
genuine interest in these geohazard maps we have provided
them especially for those whose areas are in identified disaster-
prone areas so they can take the necessary steps before, during
and after calamity,‖ said Paje, adding that the 1:50,000-scale
geohazard maps are a critical planning tool in the government‘s risk
reduction program.
Paje has earlier ordered the MGB last year to re-distribute the maps
to LGUs following the May 2010 elections to ensure that all newly elected
local officials. ―The practice is we immediately furnish the local
government units after completion of the maps. But after the elections in
May last year, I directed the MGB to distribute the maps again to make
sure that our local officials, particularly the new ones,‖ he said. Briefings
were also conducted to local officials down to barangays.
14
Among other things, geo-hazard maps contain information
as to the level of susceptibility of areas to flooding and landslide,
including areas that could possibly be used as relocation or
evacuation sites, in case of calamities.
Under Republic Act No. 10121 or the Disaster Risk Reduction and
Management, LGUs are tasked to evacuate residents in flood- and
landslide-prone areas and relocate them to safe areas in times of
impending typhoon and other weather disturbances that could
bring heavy rains.
The Act requires all provinces, cities, and municipalities to
have a Local Disaster Risk Reduction and Management (LDRRM)
systems to have a greater responsibility in building the disaster
preparedness of communities and institute disaster risk
reduction within their jurisdictions.
―The maps are there to increase the LGU’s competence on
hazards, vulnerability and risk assessment activities and enable
them to establish their LDRRM system to effectively comply with
RA 10121,‖ Paje stressed.14
32. As of now, the City Government has yet to formulate and fully implement
a City Disaster Risk Reduction Management Plans as required under R.A. 10121, the
Philippine Disaster Risk Reduction and Management Act of 2010, and a Climate Change
Action Plan as required under R.A. 9729, the Climate Change Act of 2009. These action
plans are mandated by law in order to ensure the safety of the people from calamities
such as Sendong.
33. Relative to the issue of lack of disaster preparedness, petitioners have
been asking the City Government regarding the Calamity Fund since it was not able to
take the necessary action before, during and after the calamity. They also demanded
14DENR official website. ―PAJE IMPLORES MAYORS, GOVERNORS TO TAKE GEOHAZARD MAPS SERIOUSLY‖. www. Denr.gov.ph <http://www.denr.gov.ph/index.php/news-and-features/latest-news/509-paje-implores-mayors-governors-to-take-geohazard-maps-seriously.html>
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Huge logs that Sendong dumped on a five-kilometer stretch of the coastline of Iligan City.
for the transparency of the transactions involving the disbursement of the calamity
fund. However, Mayor Lawrence Cruz simply replied that the fund is still ―intact‖, and
that it is not in their possession but it is with the Office City Treasurer. Moreover, he
also added that the release of the calamity fund passes through a long and tedious
process.
34. Second, the small-scale mining operations within the territory of Iligan
City were also blamed because of the large volume of loosed land that came along with
the rainfall contributed to the speeding up of ―hyper-concentrated floods‖, meaning, the
flood water contained a large volume of land, sediments, gravel and for such reason, it
became massive.
35. No less than the Congressman of Iligan City, Hon. Vicente ―Varf‖ Belmonte,
in his privilege speech last January 17, 2012, recognized the contributing factor of
mining activities on the impact of Sendong.15
36. Finally, illegal loggings in Iligan City, as well as, in the Province of
Bukidnon and Lanao del Sur, had also contributed to the damage caused by Sendong.
In fact, petitioner Michaela Tabilon testified that her family would not have been
separated from each other if not for the huge logs that slammed the house where they
were staying. (Attached hereto as Annex B, is an Affidavit of Michaela Tabilon, a 9-
year old girl who was orphaned after Sendong Killed both her parents.)
15 Privilege speech of Hon. Vicente ―Varf‖ Belmonte. Source: www.congress.gov.ph/download/journals_15/J-32.pdf
16
37. According to Congressman Vicente Belmonte, the pervasive logging
activities in Iligan City as well as in the nearby provinces brought extensive destruction
to the environment and consequently, aggravated the impact of Sendong.16
38. In fact, Presidential Adviser for Environmental Protection, Sec. Nereus
Acosta also said that when we tamper with the forests, we become vulnerable to these
kinds of disasters – such as Sendong. (Attached hereto as Annex C is the Affidavit of
Sec. Nereus Acosta)
39. Knowing that the failure of the City Government to conduct disaster
preparedness and the contributing factor of mining during the onslaught of Sendong,
petitioners sent a letter dated December 28, 2011 to Mayor Lawrence Cruz of Iligan City,
demanding information regarding the small-scale mining operations in Iligan City, and a
copy of the City Disaster Risk Reduction Management Plans, as well as, a copy of the
Climate Change Action Plan of the City Government. In the said letter, petitioners
likewise demanded for the revocation of all existing small-scale mining permits issued
by the City Government. (Attached hereto as Annex D is the petitioners‘ letter dated
December 28, 2011.)
40. Also, on January 10, 2012, petitioners sent a letter to the Officer-in-
Charge of the City Environment and Management Office (CEMO) to follow up their
request for the copies of the mining and quarrying permits and other relevant
documents. On January 16, 2012, the OIC of CEMO, Atty. Ranulfo Cenas, forwarded to
the petitioners certified true copies of permits granted by the City Government to
Quarry, Sand and Gravel and Small-Scale Mining Concessionaires since year 2000 with
their Environmental Compliance Certificate. (Attached hereto are the petitioner‘s letter
dated January 10, 2012 as Annex E; Atty. Cenas‘ reply-letter dated January 16, 2012
as Annex F; Mining Permits of Rogel M. Mandapitan as Annexes G, G-1 to G-2, of
Gilbert B. Besana as Annexes H and H-1, of Minning Philippines as Annexes I, I-1
to I-2, of Wolfland Resources Inc. as Annexes J, J-1 to J-2, of Elaine C. Bartolome
as Annexes K, K-1 to K-2; and Quarrying Permits of Wilfredo E. Echavez as Annexes
L, L-1 to L-3, of Editha Q. Mabayo as Annexes M, M-1 to M-3, of Seis Hermanas Y
Hermano, Inc. as Annexes N, N-1 to N-3, of Alfonso K. Canete, Jr. as Annexes O,
O-1 to O-3, of Usha Monique F. Tamula as Annexes P, P-1 to P-3, of Rudolph
Charles Ll. Tamula as Annexes Q, Q-1 to Q-3; of Dino Mikel F. Tamula as Annexes
16 Ibid
17
R, R-1 to R-3, of Ma. Theresa I. Cabug as Annexes S, S-1 to S-4, of Siram Pagsidan
as Annexes T, T-1 to T-3, of Imelda S. Abragan as Annexes U, U-1 to U-3, of
Bedelyn C. Beltran as Annexes V, V-1 to V-3, of Veronic S. Echavez as Annexes W,
W-1 to W-3, of Nestor Ong as Annexes X, X-1 to X-3, of JJ Horizon Co. Inc. as
Annexes Y, Y-1 to Y-3, of Lambaguhon Multi-Purpose Cooperative as Annexes Z, Z-
1 to Z-2, of Fausto Echavez as Annexes AA, AA-1 to AA-3, of OFW Multi-Purpose
Cooperative as Annexes BB, BB-1 to BB-2, of Gerelyn Bumaat as Annexes CC, CC-
1 to CC-2, of Upper Hinaplanon Aggregates Multi-Purpose as Annexes DD, DD-1 to
DD-3, of Sybil T. Seares as Annexes EE, EE-1 to EE-3, of Mamsar Construction &
Industrial Cons. as Annexes FF, FF-1 to FF-3, of Pindurock Development Corporation
as Annexes GG, GG-1 to GG-2)
41. To follow up for the other documents requested, specifically, the Potential
Environmental Impact Report (PEIR) of all small-scale mining permitees, as well as,
their Final Mine Rehabilitation/Decommissioning Plan (FMRDP); and the certified true
copy of the Local Disaster Risk Reduction and Management Plans and the Climate
Change Action Plan of Iligan City, petitioners sent a letter to Mayor Cruz, dated January
18, 2012. City Government, through Atty. Ranulfo Cenas, responded in a letter dated
January 24, 2012 with copies of the PEIR/Environmental Protection Enhancement
Program of the small-scale mining permit holders in Iligan City. (Attached hereto are
petitioner‘s letter dated January 18, 2012 as Annex HH and Atty. Cenas‘ letter dated
January 24, 2012 as Annex II, II-1 to II-5)
42. However, Atty. Ranulfo Cenas claimed that the Final Mine Rehabilitation
and Decommissioning Plan does not apply to small-scale mining permit and that this is
only required for large scale mining permits.17
43. Further, in response to petitioner‘s demand for revocation, Atty. Ranulfo
Cenas said that the City Mining Regulatory Board found no basis to recommend the
revocation of the existing small-scale mining permits in Iligan City. It attached therein a
supposed report 18 of Prof. Alfredo Mahar Lagmay of University of the Philippines-
National Institute of Geological Sciences (UP-NIGS). He claimed that from the said
report, the board noted that mining is ―NOT‖ a contributory cause of the deadly flash
flood that hit Iligan City.
17 See Annex II-1 18 See Annex II-3 to II-5
18
44. Up to now, with the presence of mining activities and the doubtful
stoppage of loggings in the hinterlands of Iligan City, forest denudation continues to be
a threat to the lives of Iliganons, which would likely trigger another Sendong-like
tragedy.
45. Worse, a considerable number of residents of Iligan City are still in the
danger areas such as river banks and other critical areas in the geo hazard map. (See
Annex JJ-1 and JJ-2 )
ENVIRONMENTAL LAWS/PRINCIPLES VIOLATED
I. Sec. 16, Art. II of the Philippine Constitution;
II. Sections 16 and 458 of R.A. 7160, otherwise known as the Local Government Code;
III. Section 12 of R.A. 10121, otherwise known as Philippine
Disaster Risk Reduction and Management Act of 2010; and Section 14 of R.A. 9729, otherwise known as Climate Change Act of 2009;
IV. PD 1899: Establishing Small-Scale Mining As A New
Dimension In Mineral Development; R.A. 7076: People's Small-scale Mining Act of 1991; AND R.A. 7942: Philippine Mining Act of 1995; as outline in DENR Memorandum Circular No. 2007-07;
V. Executive Order No. 23: Declaring a moratorium on the
cutting and harvesting of timber in the natural and residual forests and creating the anti-illegal logging task force; and
VI. Principle of Good Neighborliness
VII. Trust Doctrine or Principle of Guardianship.
19
GROUND FOR GRANTING THE PETITION
RESPONDENTS VIOLATED PETITIONERS’ CONSTITUTIONAL
RIGHT TO A BALANCED AND HEALTHFUL ECOLOGY WHEN THEY
UNLAWFULLY NEGLECTED THE PERFORMANCE OF THEIR
MANDATE WHICH GREATLY AGGRAVATED THE IMPACT OF
TYPHOON SENDONG AND WHICH WOULD GREATLY AGGRAVATE
FUTURE CALAMITIES, PARTICULARLY:
I. Respondents City Government and Sanggunian Panlungsod of
Iligan grossly failed to perform their legal duty to formulate and
fully implement a Local Disaster Risk Reduction Management
Plan (LDRRMP) as required in R.A. 10121 and a Climate Change
Action Plan (CCAP) as required in R.A. 9729, which could have
prevented or at least minimize the loss of lives, limbs and
properties of Iliganons during Sendong;
II. Respondents City Government, Sanggunian, MGB and DENR
grossly neglected their duties when they allowed holders of
mining and quarry permit to start their operation despite
violations and/or non-compliance with DENR Memorandum
Circular No. 2007-07, PD 1899, R.A. 7076 AND R.A. 7942,
resulting to rampant and irresponsible mining and quarrying
activities in Iligan City;
III. Respondents City Government, Sanggunian, and DENR
Secretary, DILG Secretary, DND Secretary, Chief of PNP and
Chief of Staff of AFP unlawfully neglected their respective duties
when they failed to stop and prosecute illegal loggers in Iligan
City, as well as, in the Provinces of Bukidnon and Lanao del Sur;
and
IV. Respondents Province of Bukidnon and Province of Lanao del
Sur violated the principle of good neighborliness when they
gravely abused their natural resources at the expense of the
petitioners, the people that they represent and the City of Iligan
as a whole.
20
DISCUSSIONS
RESPONDENTS VIOLATED PETITIONERS’ CONSTITUIONAL RIGHT TO A BALANCED AND HEALTHFUL ECOLOGY WHEN THEY UNLAWFULLY NEGLECTED THE PERFORMANCE OF THEIR MANDATE WHICH GREATLY AGGRAVATED THE IMPACT OF TYPHOON SENDONG AND WHICH WOULD ALSO AGGRAVATE FUTURE CALAMITIES. _____________________________________________________________
46. Section 16, Article II of the Constitution which provides that:
―The State shall protect and advance the right of the people to a
balanced and healthful ecology in accord with the rhythm and
harmony of nature.‖
47. In interpreting this provision, the Supreme Court recognized the primacy
and centrality of the right to ecological security and health among the many rights
assured by the Constitution, to wit:
[W]hile the right to a balanced and healthful ecology
is to be found under the declaration of Principles and State
Policies and not under the Bill of Rights, it does not follow
that it is less important than any of the civil and political
rights enumerated in the latter. Such a right belongs to a
different category of rights altogether for it concerns nothing less
than self-preservation and self-perpetuation - the
advancement of which may even be said to predate all
governments and constitutions. As a matter of fact, these basic
rights need not even be written in the Constitution for they are
assumed to exist from the inception of mankind. If they are now
explicitly mentioned in the fundamental charter, it is because of the
well-founded fear of its framers that unless the rights to a balanced
and healthful ecology and to health are mandated as state policies
by the Constitution itself, thereby highlighting their continuing
importance and imposing upon the state a solemn obligation to
preserve the first and protect and advance the second, the day
would not be too far when all else would be lost not only for the
present generation but also for those to come - generations which
21
stand to inherit nothing but parched earth incapable of sustaining
life.‖19
48. The import of the court‘s interpretation is that the right to a sound
environment is a self-executory constitutional policy. By itself, independent of specific
statutory rights, the right is actionable.20
49. Moreover, Sections 3(i), 16 and 458, 1(VI) of the Local Government Code
requires LGUs to share with the national government the responsibility to advance
petitioners‘ right to ecology, to wit:
―Local government units shall share with the national
government the responsibility in the management and
maintenance of ecological balance within their territorial
jurisdiction, subject to the provisions of this Code and national
policies‖
―General Welfare. ― xxx Within their respective territorial
jurisdictions, local government units shall ensure and
support, among other things, the preservation and enrichment of
culture, promote health and safety, enhance the right of the
people to a balanced ecology, encourage and support the
development of appropriate and self-reliant scientific and
technological capabilities, improve public morals, enhance
economic prosperity and social justice, promote full employment
among their residents, maintain peace and order, and preserve
the comfort and convenience of their inhabitants.”
―The Sangguniang Panlungsod shall protect the
environment and impose appropriate penalties for acts
which endangered the environment xxx such as activities
which result in pollution, destruction of rivers and lakes, or of
ecological imbalance‖
19 Oposa vs Factoran, G.R. No. 101083 July 30, 1993 20 Antonio G. M. Lavina, ―THE RIGHT TO A BALANCED AND HEALTHFUL ECOLOGY: THE ODYSSEY OF A CONSTIUTIONAL POLICY‖. Philippine Law Journal. [VOL. 69, 1994]. p 135
22
50. Finally, Republic Act No. 525 otherwise known as the ―Act Creating The
City of Iligan, requires the Sanggunian of Iligan City to enact necessary ordinances for
the safety, comfort and convenience of its inhabitants:
―Section 15. General Powers and duties of the Board. – Except as
otherwise provided by law, and subject to the conditions and
limitations thereof, the Municipal Board shall have the following
legislative powers:
―nn) To enact all ordinances it may deem necessary and
proper for the sanitation and safety, the furtherance of the
propensity, and the promotion of the morality, peace, good
order, comfort, convenience, and general welfare of the
city and its inhabitants, and such others as may be necessary to
carry into effect and discharge the powers and duties conferred by
this Act, and to fix the penalties for the violation of ordinances,
which shall not exceed a two hundred-peso fine or six months‘
imprisonment, or both such fine and imprisonment, for a single
offense.‖
51. From the foregoing provisions, it can be deduced that respondents, being
national government agencies and LGUs, have the legal duty to promote and advance
petitioners‘ right to a balanced and healthful ecology, which includes the right to a safe
environment - free from environmental threat brought by human recklessness and
exploitation.
52. Unfortunately, however, Sendong has exposed respondents‘ recklessness
and inactions that greatly aggravated the impact of Sendong.
53. Indeed, Sendong has proved that issues of global warming and climate
change, disaster risk reduction and management programs are intertwined with the
issues of environmental protection and conservation. Typhoon Sendong not only
showed that Iligan City is already experiencing the frightening effects of climate
change; it also revealed the environmental condition of Iligan City.
23
54. Discussions below are specific acts or omissions of the respondents that
contributed to the degrading environment of Iligan City and worsening its vulnerability
to disasters like Sendong.
I. RESPONDENT CITY GOVERNMENT AND THE SANGGUINIANG PANLUNGSOD OF ILIGAN FAILED TO PERFORM ITS LEGAL DUTY TO FORMULATE AND FULLY IMPLEMENT A CITY DISASTER RISK REDUCTION MANAGEMENT PLAN (CDRRMP) AS REQUIRED IN R.A. 10121, AND A CLIMATE CHANGE ACTION PLAN (CCAP) AS REQUIRED IN R.A. 9729, WHICH COULD HAVE PREVENTED OR AT LEAST MINIMIZE THE LOSS OF LIVES, LIMBS AND PROPERTIES OF ILIGANONS DURING SENDONG. __________________________________________
A. The City Government failed to formulate and fully implement a CDRRMP. Thus, it lacks disaster preparedness.
55. Republic Act 10121, otherwise known as Philippine Disaster Risk
Reduction and Management Act of 2010 was created to achieve, among others, the
following policies:
―Uphold the people's constitutional rights to life and property
by addressing the root causes of vulnerabilities to disasters,
strengthening the country's institutional capacity for
disaster risk reduction and management and building the
resilience of local communities to disasters including
climate change impacts.
―Adopt a disaster risk reduction and management
approach that is holistic, comprehensive, integrated, and
proactive in lessening the socioeconomic and
environmental impacts of disasters including climate
change, and promote the involvement and participation of all
sectors and all stakeholders concerned, at all levels, especially the
local community.
24
―Adopt and implement a coherent, comprehensive,
integrated, efficient and responsive disaster risk reduction program
incorporated in the development plan at various levels of
government adhering to the principles of good governance
such as transparency and accountability within the context
of poverty alleviation and environmental protection
―Provide maximum care, assistance and services to
individuals and families affected by the disaster, implement
emergency rehabilitation projects to lessen the impact of disaster,
and facilitate resumption of normal social and economic activities.
―Mainstream disaster risk reduction and climate
change in development processes such as policy
formulation, socio-economic development planning,
budgeting, and governance, particularly in the areas of
environment, agriculture, water, energy, health, education,
poverty reduction, land-use and urban planning, and public
infrastructure and housing, among others.‖ (Sec. 2 of R.A. 10121)
56. From the foregoing policies, it is clear that R.A. 10121 aims to prepare our
country to any threats brought by disasters. It likewise aims to lessen the
socioeconomic and environmental impact of disasters including climate change. To
achieve these objectives, the State recognizes the vital role of local government units in
building a disaster resilient community. Hence, the law requires the establishment of
Local Disaster Risk Reduction and Management Office (LDRRMO) in every province, city
and municipality.
57. The LDRRMO, which is under the Office of the City Mayor, is mandated by
law to perform the following duties:
(1) Design, program, and coordinate disaster risk reduction and management activities consistent with the National Council's standards and guidelines;
(2) Facilitate and support risk assessments and contingency planning activities at the local level;
25
(3) Consolidate local disaster risk information which includes natural hazards, vulnerabilities, and climate change risks, and maintain a local risk map;
(4) Organize and conduct training, orientation, and knowledge management activities on disaster risk reduction and management at the local level;
(5) Operate a multi-hazard early warning system, linked to disaster risk reduction to provide accurate and timely advice to national or local emergency response organizations and to the general public, through diverse mass media, particularly radio, landline communications, and technologies for communication within rural communities;
(6) Formulate and implement a comprehensive and - integrated LDRRMP in accordance with the national, regional and provincial framework, and policies on disaster risk reduction in close coordination with the local development councils (LDCs);
xxx
(9) Identify, assess, and manage the hazards, vulnerabilities ,and risks that may occur in their locality;
(10) Disseminate information and raise public awareness about those hazards, vulnerabilities, and risks, their nature, effects, early warning signs and counter-measures;‖
58. In the case of the Iligan City Disaster Risk Reduction and Management
Office, it miserably failed to formulate and implement a CDRRMP. As mentioned above,
petitioners had sent letters to Mayor Cruz on December 28, 201121 and January 18,
201222, demanding for a certified true copy of the CDRRMP, but the City Government
was not able to furnish petitioners a copy of a CDRRMP - because there was none. The
City Government has not formulated a CDRRMP which could have helped the City
Government in providing an effective plan before, during and after a calamity.
59. Assuming en arguendo that the City Government has formulated a
CDRRMP, it still failed to fully implement the same because of its noticeable lack of
preparedness considering that there was no known pre-emptive evacuation made by
the City Government despite warnings from the PAG-ASA and NDRRMC about the in-
21 See Annex D 22 See Annex HH
26
coming Sendong. In fact, it took few days from the time the Sendong tragedy occurred
before the City Government was able to put up a disaster command center.
60. The lack of preparedness of the City Government during Sendong has
been criticized by many Iliganons. Had it been more vigilant and serious about the
safety of its constituents, tragedy of this magnitude would have been avoided. The City
Government could have done something to lessen the impact if only it took serious
attention on the Geo-Hazard Map distributed by the DENR. As pointed out by Sec.
Ramon Paje, the geo-hazard maps were distributed mainly to aid the local government
to take the necessary steps, before, during and after calamity. He stressed that, ―the
maps are there to increase the LGU‘s competence on hazards, vulnerability and risk
assessment activities and enable them to establish their LDRRM system to effectively
comply with RA 10121.‖23
61. NDRRMC, Executive Director Benito Ramos even mentioned during an
interview that indeed the local government of Iligan City lacks disaster preparedness:
In Mindanao, Ramos said there is ―about 60%‖ compliance, especially in ―Regions 11, 12, Caraga and Autonomous Region‖
―Ito lang Region 10, medyo palpak at saka Region 9. Kung ready lang ito, hindi ganyan karami ang namatay eh… kasi (If it were ready, there would not have been so many dead. But there was) complacency No offense intended. We are not prepared here,” he said.
Region 10 or Northern Mindanao was badly battered by typhoon Sendong, particularly the cities of Cagayan and Iligan and Baungon town in Bukidnon.‖24
62. The devastation of Sendong should be a lesson learned and that the City
Government must realize the urgency of the formulation and full implementation of a
CDRRMP. By now, it should take into serious consideration the vulnerability of some
residents to flash floods and similar calamity. An effective CDRRMP would necessarily
require the relocation of those residents living within the disaster prone areas such as
those who are still living in the river banks of Brgys. Mandulog, Mahayahay, Tubod,
23 Supra note 14 24 http://www.mindanews.com/top-stories/2012/02/27/will-your-lgu-qualify-for-dilg%E2%80%99s-seal-of-disaster-preparedness/
27
Tambacan and Mandulog, and in the shorelines of Bayug, Santiago and Sta. Felomina.
(See Annex JJ-1 and JJ-2)
63. Without a functioning CDRRMP, similar tragedies will continue to be a
threat to the lives and properties of many Iliganons.
B. Petitioners’ right to a safe ecology includes the right to ensure that the calamity fund required in R.A 10121 is properly utilized for disaster preparedness.
64. Relative to the issue on City Government‘s disaster preparedness is the
issue of the proper utilization of the Calamity Fund required in Sec. 21 of R.A. 10121,
which reads:
Section 21. Local Disaster Risk" Reduction and Management Fund (LDRRMF). - The present Local Calamity Fund shall henceforth be known as the Local Disaster Risk Reduction and Management Fund (LDRRMF). Not less than five percent (5%) of the estimated revenue from regular sources shall be set aside as the LDRRMF to support disaster risk management activities such as, but not limited to, pre-disaster preparedness programs including training, purchasing life-saving rescue equipment, supplies and medicines, for post-disaster activities, and for the payment of premiums on calamity insurance.
Of the amount appropriated for LDRRMF, thirty percent (30%) shall be allocated as Quick Response Fund (QRF) or stand-by fund for relief and recovery programs in order that situation and living conditions of people In communities or areas stricken by disasters, calamities, epidemics, or complex emergencies, may be normalized as quickly as possible.
65. The above-provision clearly sets out that the purpose of a calamity fund is
for pre-disaster preparedness programs and post-disaster activities. Yet, petitioners
observed that during Sendong there was no known pre-disaster preparedness program
established by the City Government and post disaster relief operations of the City
Government were hardly felt despite the outpouring of support from the various
sectors of society. If not for the NGO‘s and actual relief operations of the private
sectors, the survivors‗ condition would have been miserable beyond words.
28
66. Since the City Government was not able to act swiftly as it should before,
during and after the calamity, petitioners have been asking the City Government
concerning the 2010 and 2011 Calamity Fund which could have been used for pre-
disaster programs.
67. As mentioned, when asked by petitioners regarding the Calamity Fund,
Mayor Lawrence Cruz simply replied that the fund is still ―intact‖, and it is not in his
possession but it is in the City Treasurer‘s Office. He added that there is a long process
before a calamity fund can be released.
68. What did he say? “Intact”? Coming from his own mouth, Mayor
Lawrence Cruz clearly admitted that the City Government had not properly used the
Calamity Fund for pre-disaster preparedness.
69. The obvious inaction of the City Government regarding pre-disaster
preparedness led the petitioners to demand from the City Government to show
transparency on the financial statements of the 2010 and 2011 Calamity Fund. But, it
was left unheeded.
70. The City Government continue to refuse petitioners access to the financial
statements of the 2010 and 2011 Calamity Fund. This deliberate and obstinate refusal
not only undermines petitioners‘ right to a safe ecology but it was being done in total
disregard of the Constitutional provisions on transparency, and the people‘s right to
information on matters of public concern.
71. The right of the people to information on matters of public concern is a
fundamental, ―self-executing‖ right that is guaranteed under Article III, Sec. 7 of the
Constitution:
―The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.‖
29
72. This right to information does not exist in a vacuum, but is in fact supported and
even strengthened by other provisions of the Constitution. Correlative to this
fundamental right is the Constitutional policy of transparency and full public
disclosure by the State with respect to transactions involving the public interest:
―Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all its transactions involving public interest.‖
72. As explained during the deliberations of the 1986 Constitutional
Commission, the public right to information on matters of public concern is a challenge
to the people to be active in seeking for themselves, information rather than to simply
depend on whatever the State may release to them.
73. In this case, transactions involving the 2010 Calamity Fund are of vital
public concern and interest to the petitioners and those they represent. It must be
noted that 70% of a calamity fund should be used for preparedness and risk
management activities; while 30% should be used for quick response.
74. Thus, it is necessary for the petitioners to know whether 70% of the
2010 Calamity Fund was properly used by the City Government in conducting pre-
disaster preparedness programs that could have saved the lives of the Sendong victims.
C. The City Government and Sanggunian failed to formulate and implement a CCAP.
74. In Republic Act 9729, the State recognizes that climate change and
disaster risk reduction are closely interrelated. It can be said, therefore, that a synergy
of an effective climate change mitigation and adaptation plan, with a similarly effective
disaster risk reduction plan are important factors in achieving a climate and disaster
resilient community.
75. In the said law, the State likewise recognizes the vulnerability of local
communities to potential dangerous consequence of climate change such as the rising
seas, changing landscapes, increasing frequency and/or severity of droughts, fires,
floods and storms, climate-related illnesses and diseases, damage to ecosystems,
biodiversity loss that affect the country‘s environment, culture, and economy.
30
76. With this recognition, the law considered LGUs as the frontline agencies in
the formulation, planning and implementation of Climate Change Action Plans (CCAP) in
their respective areas, prioritizing climate change issues and implementing climate
change mitigation and adaptation as one of their regular functions.
77. Unfortunately, with respect to climate change issues, the City Government
of Iligan, again, lacks serious commitment. The City Government still has no Local
Climate Change Action Plan which would serve as guide in implementing the necessary
climate change mitigation and adaptation of the City.
78. No doubt that Climate Change is no longer a science fiction – it is already
a fact that must be given serious attention. Presidential Adviser for Environmental
Protection, Sec. Nerues Acosta stated in his Affidavit that Iligan City is one of the cities
that are vulnerable to climate change:
―Three years ago a few of us who convened the Philippine Imperative on Climate Change came up with a simulation showing coastal areas in the country, where flooding risks and climate change impacts are high. We had shown that Cagayan de Oro and Iligan, among 25 other “vulnerable climate hotspots” around the archipelago, were prone to storm surges and flooding. While some local officials and sectors were receptive, others called us ―alarmists.‖ ―Yet as we track the swaths of fury of typhoons ―Ondoy,‖ ―Peping,‖ ―Peding,‖ ―Reming ―Quiel,‖ and now Sendong – all in just a matter of a few years – we see that in a warming world and climactic disturbances, such storms are becoming more frequent, more fierce, more destructive. ―Calamities will be more frequent, stronger and more intense. No small wonder that the latest risk assessments rank the Philippines one of the five most vulnerable to climate change impacts in the world.‖25
79. Thus, considering the vulnerability of Iligan City to climate change,
particularly to storm surges and flooding, there is clearly an immediate need to
formulate and effectively implement a CCAP. An effective CCAP would help cushion
devastating effects of climate change.
25 See Annex C
31
II. RESPONDENTS CITY GOVERNMENT, SANGGUNIAN, MGB AND DENR GROSSLY NEGLECTED THEIR DUTIES WHEN THEY ALLOWED HOLDERS OF MINING AND QUARRY PERMITS IN ILIGAN CITY TO START THEIR OPERATION DESPITE VIOLATIONS AND/OR NON-COMPLIANCE WITH DENR MEMORANDUM CIRCULAR NO. 2007-07, PD 1899, R.A. 7076 AND R.A. 7942. THUS, RESULTING TO RAMPANT AND IRRESPONSIBLE MINING ACTIVITIES
IN ILIGAN CITY.
80. A summary table26 prepared by the Iligan City Environment Management
Office shows that there is a total of 30 permits issued by the City Government to the
mining and quarrying operators in Iligan City. Five of these are issued to the small-
scale mining operators; while, the rest are to the quarrying operators. The mining and
quarrying industries of Iligan City occupy a total land area of 177.927 hectares; an
estimated 56 % of this area is covered by the small-scale mining industry; while 44%
thereof is covered by the quarrying industry.
81. The numbers themselves would suggest how rampant mining and
quarrying is in Iligan City. What is more disturbing is that a careful review of these
permits would reveal some violation and/or non-compliance with the environmental
requirements provided under DENR MEMORANDUM CIRCULAR NO. 2007-07, PD 1899,
R.A. 7076 AND R.A. 7942.
A. A Final Mine Rehabilitation / Decommissioning Plan is a condition sine qua non for the issuance of a small-scale mining permit.
82. In response to petitioners‘ letter dated January 18, 201227, demanding,
among others, a certified true copy of the small-scale mining operators‘ Final Mine
Rehabilitation/Decommissioning Plan (FMRDP), the Officer-in-Charge of the Iligan City
Environment Management Office, Atty. Ranulfo Cenas, answered in a letter dated
26 See Annex II-3 27 See Annex HH
32
January 24, 201228, that the FMR/DP does not apply for small-scale mining permit and
that this is only required for large-scale mining permit.
83. Contrary to Atty. Cenas‘ claim that a FMRDP applies only to large-scale
mining permit, DENR-Memorandum Circular NO. 2007-07: CLARIFICATORY
GUIDELINES IN THE IMPLEMENTATION OF THE SMALL-SCALE MINING LAWS
provides that:
― Environmental, Safety and Health, and Social Concerns
The SSMP/SSMC holder shall strictly comply with the environmental, safety and health, and social provisions of R.A. No. 7942, the Philippine Mining Act of 1995, the Small-Scale Mining Laws and their implementing rules and regulations, among others. In particular, the SSMPISSMC holder shall comply with the following requirements: xxx B. The following documents shall be required prior to the start of small-scale mining operation under a SSMPISSMC: 1. Potential Environmental Impact Report, which is a simplified
Environmental Protection and Enhancement Program, and a Final Mine Rehabilitation/Decommissioning Plan duly approved by the Mine Rehabilitation Fund Committee concerned. 2. Community Development and Management Program, a simplified 'Social Development and Management Program, duly approved by the Mines and Geosciences Bureau Regional Office
concerned. ―
84. From the foregoing, there is no doubt that a Final Mine
Rehabilitation/Decommissioning Plan is a condition sine qua non before a small-scale
mining operator can start with its mining activities. It is, therefore, unfortunate to hear
from Atty. Ranulfo Cenas that the City Government does not require the small-scale
mining operators in Iligan to submit a FMR/DP.
85. It bears stressing that a FMR/DP is an important document that ensures
that all disturbed areas will be restored, as near, as possible to its original state or to a
28 See Annex II-1
33
pre-agreed productive end-use, pursuant to Section 71 (Rehabilitation) of Republic Act
No. 7942:
―Contractors and permittees shall technically and biologically
rehabilitate the excavated, mined-out, tailings covered and
disturbed areas to the condition of environmental safety…‖
86. A Final Mine Rehabilitation Plan identifies the activities and research
required to address on-going physical rehabilitation and include strategies to address
long-term stability and sustainability and time frames for the assessment of
rehabilitation activities. While, a Decommissioning Plan identifies the areas and
equipment that require decommissioning and includes techniques chosen to remove
and dispose of equipment and infrastructure.29
B. Lack of Final Mine Rehabilitation / Decommissioning Plan means lack of Final Mine Rehabilitation and Decommissioning Fund.
87. Further, an essential element of a FMR/DP is the establishment of a Final
Mine Rehabilitation and Decommissioning Fund. Section 187-B of DAO No. 96-40, as
amended, states that:
A Final Mine Rehabilitation and Decommissioning
Fund (FMRDF) shall be established by each operating
Contractor/Permit Holder to ensure that the full cost of the
approved FMR/DP is accrued before the end of the
operating life of the mine. The FMRDF shall be deposited in a
Government depository bank and shall be used solely for the
implementation of the approved FMR/DP.
88. If the small-scale mining operators in Iligan City are allowed to run its
mining activities without a FMR/DP, it means that these operators have not established
a Final Mine Rehabilitation and Decommissioning Fund that could be used for
29 GUIDELINE IN THE PREPARATION OF A FINAL MINE REHABILITATION AND/OR DECOMMISSIONING PLAN (FMR/DP) AND IN THE ESTABLISHMENT OF A FINAL MINEREHABILITATION AND DECOMMISSIONING FUND (FMRDF) PURSUANT TO DENR ADMINISTRATIVE ORDER (DAO) NO. 96-40. p. 8
34
rehabilitation and therefore, there is no guarantee that the mined-out and disturbed
areas in Iligan City will be rehabilitated and restored to its original state.
C. A small-scale mining permit should not be issued without the mandatory submission of the Potential Environmental Impact Report.
89. In the small-scale mining permit issued by the City Government to a
certain Rogel M. Mandapitan, it is stated that:
―8. The permittee shall submit the following documents four (4) months after the granting of this small-scale mining permit:
a.) Potential Environmental Impact Report, which is a simplified Environmental Protection and Enhancement Program.
b) Community Development and Management Program, a simplified Social Development and Management Program, duly approved by the Mines and Geosciences Bureau Regional Office concerned. (See Annex G-1)
90. As provided in DENR-MC NO. 2007-07, a Potential Environmental Impact
Report (PEIR) is also a condition sine qua non before a small-scale mining operator can
start its mining activities. PEIR is a simplified Environmental Protection and
Enhancement Program which is required to ensure environmental protection and
rehabilitation of the disturbed environment that may be caused by the mining activities.
91. Obviously, in the case of Mr. Mandapitan, he was allowed by the City
Government to operate his mining activities without submitting the PEIR and CDMP.
And this is very dangerous because he is operating his mining activities without any
program that will ensure the protection of the environment that may be disturbed
thereof.
35
D. A small-scale mining operator is prohibited to use heavy equipments such as dozers, loaders, backhoe and hauling equipment.
92. In the Environmental Protection and Enhancement Program (EPEP) of
Elaine C. Bartolome of Elaine Mining Ventures, particularly page 5 thereof, the mining
equipments to be used in its operations are listed, to wit:
EQUIPMENT NO. OF UNIT Bulldozer 1 Backhoe/Loader 1 Hauler (6-10 cu. m.) 2 (Attached hereto as Annex KK, is a copy of page 5 of the said EPEP.) 93. The abovementioned equipments are prohibited, and cannot be used in a
small-scale mining operation. This is expressly provided in DENR-MC NO. 2007-07:
“Small-scale mining operations under P.D. No. 1899 or RA No. 7076 shall be largely artisanal with heavy reliance on manual labor and without the use of explosives and/or blasting accessories. For this purpose, a single unit small-scale mining operation, in open cast or shallow underground, shall be prohibited from using sophisticated and/or heavy equipment, i.e., excavators, loaders, backhoes, dozers, drilling machines and/or related or similar equipment for the extraction and/or breakage of materials, as well as hauling equipment within the mining/permit/contract area.”
94. The use of heavy equipments is exclusively given to large-scale operators
with Mineral Production Sharing Agreements granted by the MGB.
95. Thus, it can be inferred that Elaine Mining Ventures is operating a large
scale mining using a small-scale mining permit. Simply put, its operation is a large-scale
mining disguising as a small-scale mining, which is contrary to law.
36
E. Mining brought more destruction than development in Iligan. Hence, Iligan City should be declared as a NO MINING ZONE.
96. The abovementioned violations and/or non-compliance of the
environmental requirements provided by law clearly show that the City Government,
MGB and DENR are not doing their duties effectively. Their leniency in implementing the
mining laws only promotes irresponsible mining operations, thereby, promoting an
industry that destroys the environment.
97. Indeed, the mining industry in Iligan City was considered as one of the
factors that worsened the impact of Sendong. Presidential Adviser of Environmental
Protection, Sec. Nereus Acosta observed that the rapid acceleration of climate change,
together with the illegal logging activities and mining operations in and around Iligan
City had aggravated the extent of damage the natural calamity had caused. He said
that when we tamper with the watersheds and the forests, we become vulnerable to
these kinds of disasters. He also emphasized that the mining activities in Iligan City
have contributed to the siltation of the major rivers in the area.30
98. Moreover, even the Congressman of the Lone District of Iligan City, Hon.
Vicente Belmonte recognized that the worst calamity (Sendong) that ever occurred in
Iligan City was not caused by Typhoon Sendong but by a few greedy people who had
brought relentless destruction to the environment through their illegal
logging and mining activities.31
99. For these reasons, petitioners strongly demand for the revocation of all
mining permits in Iligan City and its territory should be declared as a ―NO MINING
ZONE.‖
30 See Annex C 31 Supra note 15 at p. 20
37
For several years, the mountains of Iligan City have been protecting
its inhabitants from typhoons and other calamities. Now, it is our turn
to protect them from human recklessness and exploitation.
100. Iligan
City is a small city
where most of its
inhabitants are living
in the lower-coastal
areas. The mountains
surrounding the lower
areas used to serve as
the inhabitants‘ shield
against typhoons and
as a natural sponge for
water run-off during
heavy rains. Sadly, due to the degradation of its mountains as a result of the mining
operations and the continuing plunder of its forest by illegal loggers, flash-floods in
Iligan become more frequent. Without any doubt mining brought more destruction than
development to Iligan City.
101. Yet, despite all of these glaring facts pinpointing mining as a contributory
cause during Sendong, the City Government still refuse to stop the mining industry in
Iligan. Atty. Ranulfo Cenas said in his letter dated January 24, 201232, that the City
Mining Regulatory Board (CMRB) noted that mining is not a contributory cause and that
it found no basis to recommend the revocation of existing small-scale mining permits in
Iligan City. It based its findings on a supposed ―report‖33 of Prof. Alfredo Mahar Lagmay
of the University of the Philippines-National Institute of Geological Sciences (UP NIGS).
102. The findings of the CMRB are inaccurate. First and foremost, the alleged
―report‖ is not an official report of the distinguished professor of UP, Mahar Lagmay, it
is only a ―news article‖ written by a certain Julie M. Aurelio of Philippine Daily Inquirer.
Second, in the said news article, Prof. Lagmay did not say that mining is not a
contributory cause. Third, in another news article, Prof. Lagmay even referred mining
as the one that caused the floods to be ―hyperconcetrated‖ because it contains a large
volume of land, sediments and gravel, to quote:
32 See Annex II 33 See Annex II-3 to II-5
38
―Dr. Mahar Lagmay, geologist and professor at the University of the
Philippines National Institute of Geological Sciences, said the rampaging
Mandulog river in Iligan City collected a lot of things as the water
cascaded toward the sea. Among the deadly debris that it eroded
and carried were sand, gravel, and huge logs, allegedly from
illegal mining in the mountains.‖34
103. It would seem that the City Government is trying to justify their acts in
issuing the mining permits to avoid any liability the disaster had caused. But the
undeniable fact is that the City Government should be held responsible for it lacks
commitment in protecting the environment. It merely treats mountains as a commodity
for commercial purposes rather than as a source of security that needs to be protected
and conserved, not only for the present generation of Iliganons but also for the
Iliganons yet unborn. If this wanton display towards the environment by our
government officials be left unchecked, the next generation of Iliganons may no longer
experience Iligan City as the City of Majestic Waterfalls, but as a City of Flashfloods.
104. Instead of trying to protect the destructive industry of mining, the City
Government and the Sanggunian should preserve its natural wealth in its entirety and
pursue economic development in ways and means that are non-extractive, non-
destructive and along the lines of CPR economics (Conservation, Protection and
Restoration). Besides the City Government needs to protect its natural capital for it to
cope with climate change. And they can start it by revoking all mining permits and
declaring Iligan City as a ―NO MINING ZONE.‖
34 Joseph Holandes Ubalde. ―Geologist on Sendong flashflood in Iligan: 'Like a tsunami but with more debris‖. www.interaksyon.com. <http://www.interaksyon.com/article/20792/geologist-on-sendong-flashflood-in-iligan-like-a-tsunami-but-with-more-debris>
39
F. The issuance of a quarry permit or commercial/industrial sand and gravel permit requires the prior submission of an Environmental Protection and Enhancement Program (EPEP).
105. Adding more threat to the environment is the continuous unplanned
quarrying industry in Iligan City.
106. ―Unplanned‖ because the City Government issued 22 quarrying permits
mostly involving extraction of sand, gravel and limestone without requiring a prior
submission of an EPEP which will serve as comprehensive plan or program of the
operator to ensure environmental protection and rehabilitation of the disturbed
environment that may be caused by quarrying activities. In most of the quarrying or
sand and gravel permits, if not all, it is stated therein that:
―That the required Environmental Protection and Enhancement Program shall be submitted after the DENR Central Office has formulated guidelines regarding Quarry/Commercial/Industrial Sand and Gravel Permit;‖
(See Annexes L-GG-2)
107. This completely undermines the importance of an EPEP as a condition sine
qua non before any one can start its quarrying activities. An EPEP is a mandatory
requirement, as provided in DENR Administrative Order No. 96-40, Revised
Implementing Rules and Regulations of Republic Act No. 7942, Otherwise Known as the
"Philippine Mining Act of 1995", which reads:
Quarrying operations along Mandulog River in Iligan City.
40
Section 74. Mandatory Requirements for Quarry or Commercial/Industrial Sand and Gravel Permit Application Xxx Upon payment of the filing and processing fees (Annex 5-A), the applicant shall submit at least two (2) sets of the following mandatory requirements applicable to the type of permit applied for: xxx e. Environmental Compliance Certificate prior to extraction, removal and/or disposition and Environmental Protection and Enhancement Program (MGB Form No. 16-2) as provided for in Section 169 hereof;‖
108. Thus, it can be said that there is a series and continuous violations of the
law when the City Government has been issuing quarry or sand and gravel permits
without requiring the operators to submit an EPEP as a condition before allowing them
to start their quarrying activities.
G. Quarrying permits without an EPEP should be revoked. Selective quarry sites and extensive study of the impact of quarrying operations on the environment should be observed.
109. Since the quarrying operators in Iligan City do not have an EPEP, they are
definitely operating without knowing the severity of the end result of their activities to
the environment. They are operating at the expense of the environment including the
welfare of the community around them. The absence of an EPEP means that these
operators are quarrying irresponsibly.
110. In our country, unplanned quarrying has been found to have caused
negative impacts on the environment. Mountain quarrying results in the scraping of the
upland topsoil and vegetation and the destruction of the aesthetic value of the quarried
area. For river quarrying, the noted effect was the uneven deepening of the river beds,
and the destruction of the river banks.35 In a study36 conducted by the University of
35 http://www.pids.gov.ph
41
Northern Philippines, entitled: Characterizing the Environmental Effects of the
Quarrying Industry: The Case of Strategic Quarry Sites in the Ilocos Region, they
found out, among others, that:
In Banaoang, Bantay, where a sand and gravel extraction is being
conducted in its river: The mouth of the river is becoming wider,
extending the discharge of water to cause flooding of farmlands
and houses near the river banks.37
In Namruangan, Cabugao, Ilocos Sur: The continuous
extractions of sand dunes disturbed natural cohesion especially
that sand particles have generally weak coherence with each
other. As a result, the disturbed surface readily dusts off even for slight
wind action.38
In Bio, Tagudin: The extraction of sand and gravel has
widened river beds and eroded banks aggravated by quarrying
causes flooding in nearby houses.39
In Bengcag, Laoag CIty: The river bank widened at Bengcag quarry
site as a result of the uncontrolled hauling.40
111. With these observations, they concluded that the effect of quarrying in
Ilocos Norte has been generally caused by a disturbed course of the water flow which
tends to a changed direction of the flow. Most of the depositions were concentrated at
the center, causing: a) a divergence in the flow, b) a shift or changed direction in the
flow, or c) meander.41 River quarrying poses potentially significant negative
impacts to the environment. The operation of scarifying to push and accumulate
sand and gravel aggregates at the banks, and extending to the river bed by the use of
36 Norma A. Esguerra, MEM, DPA, Franklyn T. Amistad, MSCE and Alfredo R. Rabena, Ph.D.. Characterizing the Environmental Effects of the Quarrying Industry: The Case of Strategic Quarry Sites in the Ilocos Region. UNP Research Journal Vol. XVII. January –December 2008. 37 Ibid at 42 38 Ibid 39 Supra note 36 at 43 40 Supra note 36 at 45 41 Supra note 36 at 48
42
heavy equipment, (e.g. pay loader, backhoe, dump trucks) disturbs the natural
cohesion of the soil. As a result, the river bank is destroyed and the mouth of the river
widens. During rainy seasons, when the upstream volume is large, flooding results,
depositing sand and gravel to the vegetative level, setting an incidence which gradually
causes the top soil to be washed out, making it unable to support plant life. This then
leads adjacent lands to become barren.42
112. The effects of the quarrying industry in Ilocos Region are also present in
Iligan City, such as: frequent flooding, rerouting of river course, uneven deepening of
river beds and weakening of soil cohesion.
113. If the existing unplanned quarrying operations in Iligan City be allowed to
continue its extraction, there will come a time that their effects on the environment may
eventually be beyond repair. Thus, petitioners demand the immediate revocation of all
existing quarrying permits, especially those permit holders operating without an EPEP,
and the banning of all persons conducting quarrying activities without government
permits.
114. Petitioners do recognize the importance of quarrying industry especially in
construction of houses and infrastructures; however, it is more important that this
industry should not be prejudicial to the environment. For this reason, petitioners
believe that if indeed quarrying industry is considered indispensable, it should be strictly
regulated and allowed only in selected areas, where it cannot threaten the security of
the nearby communities.
42 Supra note 36 at 49
43
III. RESPONDENTS CITY GOVERNMENT, SANGGUNIAN, DENR AND MEMBERS OF THE ANTI-ILLEGAL TASK FORCE GROSSLY FAILED TO PERFORM THEIR RESPECTIVE DUTIES WHEN THEY FAILED TO STOP AND PROSECUTE ILLEGAL LOGGERS IN ILIGAN CITY AND ITS NEARBY PROVINCES. __________________________________________
115. In our country, the two government agencies that are principally
mandated to prevent illegal logging are the Local Government Units and the Forest
Management Bureau (FMB) which is under the control and supervision of the Secretary
of the Department of Environment and Natural Resources (DENR).
116. By virtue of Presidential Decree 705, FMB has the jurisdiction and
authority over all forest land, grazing lands, and all forest reservations including
watershed reservations presently administered by other government agencies or
instrumentalities.
117. It is responsible for the protection, development, management,
regeneration, and reforestation of forest lands; the regulation and supervision of the
operation of licensees, lessees, and permittees for the taking or use of forest products
there from or the occupancy or use thereof; the implementation of multiple use and
sustained yield management in forest lands; the protection, development and
preservation of national parks, marine parks, game refuges and wildlife; the
implementation of measures and programs to prevent kaingin and managed occupancy
of forest and grazing lands; in collaboration with other bureaus, the effective, efficient
and economic classification of lands of the public domain; and the enforcement of
forestry, reforestation, parks, game and wildlife laws, rules, and regulations.
118. On the other hand, DAO No. 30-92 (Role of Local Governments in
Environmental Protection) mandates that, ―The LGUs shall share with the national
government, particularly the DENR, the responsibility in the sustainable management
and development of the environment and natural resources within their territorial
jurisdiction.‖ Sec. 3 of DAO No. 30-92 provides that the following functions, programs
and projects of the DENR are hereby devolved to the concerned LGUs:
44
―d. Enforcement of forest laws in community-based forestry project areas,
small watershed areas and communal frets, as defined in Section 2 above,
such as but not limited:
i. Prevention of forest fire, illegal cutting and kaingin;
ii. Apprehension of violators of forest laws, rules and
regulations;
iii. Confiscation of illegally extracted forest products on
site;
iv. Imposition of appropriate penalties for illegal logging,
smuggling of natural resources products of endangered
species of flora and fauna, slash and burn farming and other
unlawful activities; and
v. Confiscation, forfeiture and disposition of
conveyances, equipment and other implements use
in the commission of offenses penalized under P.D.
705 as amended by E.O. 277 and other forestry laws, rules
and regulations.‖
119. Recently, an Anti-illegal Task Force was created by virtue of Executive
Order No. 23 of President Simeon Benigno Aquino III. It is mandated to take the lead in
the anti-illegal logging campaign and ensure the implementation of EO 23 which
provides a moratorium on the cutting and harvesting of timber in the natural and
residual forests of the entire country. The task force is composed of the DENR Secretary
or his duly authorized representative as Chairman, and DILG Secretary, DND Secretary,
Chief of PNP, Chief of Staff of the AFP, or their respective authorized representatives, as
members.
120. Sad to say, despite all these agencies tasked to prevent illegal logging, the
destruction of Sendong only proves that illegal logging continues to pillage our forest,
thus, frustrating the order of the President to ban logging in the entire country.
45
A coastal village in Iligan swamped by logs washed away by TS Sendong. Photo from
Reuters/Pool
F
121. Res Ipsa Loquitor - the above photos would speak for themselves that
logging in Iligan City and its nearby provinces never stopped despite the total log ban.
And had the City Government of Iligan City and other concerned government agencies
been more vigilant, these illegal loggings would have been minimized if not prevented.
122. Unfortunately, it took a tragedy such as ―Sendong‖ to befall for these
agencies to realize that illegal logging in Iligan City and in its nearby provinces –
Province of Bukidnon and Lanao del Sur, do exist.
123. Worthy to reiterate is that the City of Iligan is known for its majestic
waterfalls and in fact its famous Maria Cristina Falls have been a major source of power
in Mindanao Region. Now, if illegal logging in Iligan City and Lanao del Sur will not be
totally stopped, this will only cause destructive effect on the environment and the river
systems that mainly support the hydroelectric plant in Iligan City.
46
This illustrates the flow of water coming from the upland provinces – Bukidnon and Lanao del Sur
going towards the low-lying cities of Cagayan de Oro and Iligan.
IV. RESPONDENTS PROVINCIAL GOVERNMENT OF BUKIDNON AND PROVINCIAL GOVERNMENT OF LANAO DEL SUR VIOLATED THE PRINCIPLE OF GOOD NEIGHBORLINESS WHEN IT GRAVELY ABUSED ITS NATURAL RESOURCES AT THE EXPENSE OF THE PETITIONERS, THE PEOPLE THAT THEY REPRESENT AND ILIGAN CITY AS A WHOLE. __________________________________________
124. As mentioned in the foregoing, illegal loggings exist not only in some parts
of Iligan City but also in the large parts of its nearby provinces – Bukidnon and Lanao
del Sur.
125. For such reason, the denudation of the forests in Bukidnon and Lanao del
Sur were also considered to have compounded the impact of Sendong in their low-lying
neighbors – Iligan City and Cagayan de Oro City, which became catch basins for water
flowing from Bukidnon and Lanao del Sur.
126. In fact, Dr. Esteban Godilano, a geospatial-watershed management
specialist, explained that even if there are no rains falling on Cagayan De Oro City (and
Iligan City), the city will still get flooded when there are rains in the neighboring upland
provinces (Bukidnon and Lanao del Sur); and if the rains are heavy and furious,
catastrophic floods are not difficult to predict for CDO, Iligan and other low-lying areas.
This is the reason why he said that all the garbage of soil erosion, of illegal logging
(from the upland provinces) are brought to Cagayan de Or City and Iligan.43
43 ESTEBAN C. GODILANO, MOST REV. ANTONIO LEDESMA, S.J. DD, and CHRISTIAN MONSOD Cagayan de Oro and Iligan: Let Us Avoid Another Catastrophe! < http://www.digitaleducation.net:8080/ACDO/news/cagayan-de-oro-and-iligan-let-us-avoid-another-catastrophe>
Iligan City
47
127. Based on the illustration, it can be said that the most devastated cities --
Cagayan de Oro and Iligan -- became catch basins for water flowing from highlands
with denuded forests, particularly the provinces of Bukidnon and Lanao del Sur.
128. Thus, there is no doubt that environmental activities conducted by the
Provincial Government of Bukidnon and Lanao del Sur in their respective areas pose
threat to the environment and inhabitants of Iligan City and Cagayan de Oro City.
129. Although the Provincial Government of Bukidnon and Lanao del Sur may
invoke the principles of subsidiarity and local autonomy – its duty and power to chart its
own course in the pursuit of happiness and full human development in economics and
social, it is submitted that such duty and power is not without limitations or restrictions.
Limited in a sense that they should see to it that activities within their jurisdiction or
control do not cause damage to the environment of other cities or provinces, or of
areas beyond their jurisdiction and the inhabitants therein.
A. Applying Principle 21 of the Stockholm Declaration by analogy.
130. While, there may be no apparent statutory provision or doctrines in our
jurisdiction that can support petitioner‘s above-mentioned theory, there are, however,
relevant environmental principles of international application that can be applied in this
case. It is humbly submitted that environmental principles are universal in character,
thus, it can be both applied in international and local setting. One example of these
principles is the ―Principle 21 of the Stockholm Declaration‖ (Principle 21).
131. Principle 21 links state‘s sovereign rights relating to the exploitation of
resources and national environmental policies to the ―responsibility to ensure that
activities within their jurisdiction or control do not cause damage to the environment of
other States or of areas beyond the limits of national jurisdiction.‖
132. State sovereignty cannot be exercised in isolation because activities of one
State often bear upon those of others and, consequently, upon their sovereign rights.44
As Oppenheim noted in 1912: A State, in spite of its territorial supremacy, is not allowed
44 Atul Sinha Singh Seema. Seminar Paper On ―International Environmental Responsibility: Sovereignty vs. trans-boundary environmental harm: The evolving International law obligations and the Sethusamuduram Ship Channel Project‖ p. 6
48
to alter the natural conditions of its own territory to the disadvantage of the natural
conditions of the territory of a neighbouring State.45 Thus, the principle of territorial
sovereignty finds its limitations where its exercise touches upon the territorial
sovereignty and integrity of another State.46
133. Consequently, the scope for discretionary action arising from the principle
of sovereignty is determined by such principles and adages as ‘good neighbourliness’
and sic utere tuo ut alienum non laedas (you should use your property in such a
way as not to cause injury to your neighbour’s) as well as by the principle of State
responsibility for actions causing transboundary damage.
134. If States, enjoying ―independence and territorial supremacy‖, are duty-
bound not to cause environmental harm to their neighboring States, with more reason
that this duty should also be imposed upon local governments with respect to their
neighbors, which are merely enjoying a more limited to type of independence - ―local
autonomy‖.
135. Thus, it can be said that each local government units, in spite of its local
autonomy, is not allowed to alter the natural conditions of its own territory to the
disadvantage of the natural conditions of the territory of its neighboring local
governments.
136. Here, the Provincial Government of Bukidnon and Lanao del Sur are
conducting and/or allowing activities – such as but not limited to logging that caused
the degradation of their environment which increased the volume of rainwater coming
towards Iligan City and Cagayan de Oro City. Therefore, they violated the principle of
―good neighborliness‖.
137. The Provincial Government of Bukdinon and Lanao del Sur have the
responsibilities to see to it that their activities do not cause environmental harm to
Iligan City and Cagayan de Oro City. And they can do this by conducting a prior
environmental impact assessment to determine the potential effects of their activities
on the environment in Iligan City and Cagayan de Oro City and if possible, communicate
the result of the assessment to the Local Government of Iligan City and Cagayan de Oro
City.
45 Oppenheim on International Law (1912: 243–44) Chapter Eight p.220 46 Supra note 44 at 6
49
138. Moreover, it is also necessary that the Provincial Government of Bukidnon
and Lanao del Sur should include in their Local Climate Change Action Plans and Local
Disaster Risk Reduction and Management Plans effective measures that will reduce and
control the volume of rainwater coming from their respective areas towards the
territories of Iligan City and Cagayan de Oro City.
EX PARTE APPLICATION FOR THE ISSUANCE OF A TEMPORARY ENVIROMENTTAL PROTECTION ORDER
Petitioners replead, mutatis mutandis, their foregoing allegations. For the
purpose of protecting and preserving their right to a balanced and safe ecology, they
further state that:
A. There is an urgent need to protect petitioners and the people that they represent from impending environmental and climate threats.
139. To reiterate what Sec. Nereus Acosta had warned, ―Calamities will be
more frequent, stronger and more intense‖ and that Iligan City is prone to storm surges
and flashfloods. 47
140. Although, recently, the Sangguniang Panlunsgod of Iligan City has passed
an ordinance declaring some areas affected by Sendong as No Build Zone, yet, it
remains a sad fact there are still a lot residents living in danger areas such as in those
in the river banks of Mahayahay, Tambacan and Mandulog and those living along the
shorelines of Iligan City who will potentially, if not definitely, suffer the same fate like
that of Sendong if urgent measures will not be undertaken by the City Government.
141. Thus, there is an extreme urgency to direct the City Government of Iligan
City and the Sannguniang Panlungsod of Iligan City, by way of issuance of a TEPO, to
take urgent measures, such as but not limited to:
a. Providing those families living in the danger areas a relocation or
resettlement site with basic services and facilities and access to
47 See Annex C
50
employment and livelihood opportunities sufficient to meet their basic
needs;48
b. Initiating the formulation of a comprehensive City Disaster Risk Reduction
and Management Plans; and
c. Initiating the formulation of a City Climate Change Action Plans.
142. Without urgent measures such as those mentioned above, petitioners and
those they represent would suffer grave and irreparable damage in the form of loss of
lives, limbs and properties.
B. There is an urgent need to prevent further damage to the environment caused by irresponsible mining and quarrying.
143. Despite of the existence of violations and/or non-compliance in the mining
and quarrying permits issued by the City Government, the City Government, MGB and
DENR still refuses to stop all mining operations in Iligan City and allows the issuance of
new mining and quarrying permits.
144. And as already discussed above, the mining and quarrying industry of
Iligan City has aggravated the impact of Sendong, and will aggravate future calamities.
Ignoring respondents‘ environmental recklessness would surely result into grave and
irreparable damage to the health of petitioners and those they represent and the
integrity of the natural environment.
145. Thus, it presents a clear and present danger to human life or health,
inequity to the present and future generations of Iliganons, and prejudices the
environment in utter disregard to the ecological rights of petitioners.
48 Republic Act 7279, Sec. 29. Resettlement. — Within two (2) years from the effectivity of this Act, the local government units, in coordination with the National Housing Authority, shall implement the relocation and resettlement of persons living in danger areas such as esteros, railroad tracks, garbage dumps, riverbanks, shorelines, waterways, and in other public places as sidewalks, roads, parks, and playgrounds. The local government unit, in coordination with the National Housing Authority, shall provide relocation or resettlement sites with basic services and facilities and access to employment and livelihood opportunities sufficient to meet the basic needs of the affected families.
51
146. Thus, there is also an extreme urgency to enjoin the City Government,
MGB and DENR, by way of the issuance of a TEPO, from allowing the mining and
quarrying operators to continue with their activities in Iligan City.
C. There is an urgent need to confiscate and remove all logs being stocked in log ponds near Iligan City.
147. A considerable number of huge logs are still floating in the log ponds near
Iligan City, particularly in Lanao del Sur, which will possibly drift again towards Iligan
City if another flashfloods will happen. It poses an impending danger to the residents of
Iligan City just like what happened during Sendong.
148. Thus, there is an urgent need to direct, by way of TEPO, the City
Government of Iligan City and the members of the Anti-illegal logging task force to
confiscate and remove all logs stocked in log ponds situated in Iligan City and Lanao del
Sur.
D. There is an urgent need to
allow petitioners an access to the
transactions involving the 2010
and 2011 Calamity Fund. Otherwise,
it would cause injustice and
irreparable injury to the petitioners
and those they represent.
149. Lastly, since the Calamity Fund is intended only for disaster-related
problems, no more, no less, any misappropriation of the calamity funds can be equated
to depletion of funds for disaster preparedness and response, thus, it would cause
grave injustice and irreparable injury to the petitioners.
150. Therefore, there is an urgent need to direct, by way of TEPO, the City
Government to allow petitioners access to the 2010 and 2011 Calamity Fund.
52
E. Principle of Precaution and
Rule on Judicial Notice on matters
of common and general knowledge.
151. Taking into consideration of the undeniable fact that the City
Government‘s lack of preparedness, the irresponsible mining and quarrying industry in
Iligan City and the illegal logging operations have greatly contributed on the impact of
Sendong, petitioners invoke the precautionary principle49 and the rules on judicial notice
on matters of common and general knowledge in resolving this application for TEPO.
152. In support to this application, petitioners submit and attach their affidavit
proving grave and irreparable damage that may be caused or will likely cause them by
reason of respondents‘ acts or omissions, copy is attached as Annex LL hereof.
CREATION OF A MONITORING COMMITTEE
153. The determination of what environmental laws and principles were
violated by respondents and what legal mandates do respondents should perform is just
the beginning of a long-term solution that must be done to achieve a safe and
ecologically balanced Iligan City.
154. The real challenge here lies in ensuring that the Judgment and orders of
this Honorable Court are actually implemented.
155. Similar to the landmark case of MMDA vs Concerned Residents of Manila
Bay 50 where the Supreme Court created an advisory committee that monitors the
compliance of the respondent government agencies, there is also a need to do the
same in this case considering that one of the problems sought to be addressed by the
49 SEC.. 1. Applicability - When there is a lack of full scientific certainty in establishing a causal link between human activity and environmental effect, the court shall apply the precautionary principle in resolving the case before it. The constitutional right of the people to a balanced and healthful ecology shall be given the benefit of the doubt. SEC. 2. Standards for application – In applying the precautionary principle, the following factors, among others, may be considered: (1) threats to human life or health; (2) inequity to present or future generations; or (3) prejudice to the environment without legal consideration of the environmental rights of those affected. 50 G.R. Nos. 171947-48, December 18, 2008
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petitioners is the respondents‘ lack of political will and commitment to prioritize
environmental and safety concerns as exposed during Sendong. In fact 3 months after
Sendong, local government officials of Iligan City were reported to have illegally cut a
70-year old mother Molave tree, which is now a subject of a letter-complaint filed
before the Ombudsman. (Attached hereto as Annex MM, MM-1 to M-6 is a copy of
the said letter-complaint.)
156. Further, worthy to reiterate is that Iligan City is among 25 other
―vulnerable climate hotspots‖ in the Philippines, thus, it is imperative upon the
respondents to take urgent approach in addressing the environmental and climate
threats that Iligan City is now experiencing. To borrow the words of the Honorable
Justice PRESBITERO J. VELASCO, JR. in the MMDA case:
―The era of delays, procrastination, and ad hoc measures is over. Petitioners must transcend their limitations, real or imaginary, and buckle down to work before the problem at hand becomes unmanageable. Thus, we must reiterate that different government agencies and instrumentalities cannot shirk from their mandates; they must perform their basic functions in cleaning up and rehabilitating the Manila Bay. ‖
85. Here, the ever constant problem of lack of political will and inattentiveness of
the respondents will be dealt with if ―time frames‖ will be set for the respondents to
perform their assigned task.
86. Finally, in order not to unduly tax the time of this Honorable Court, the
monitoring of compliance by the respondents may be delegated to a group of
commissioners which may compose of a group of environmental and climate experts
pursuant to Rule 32, Sec. 2 (b) of Rules of Court51.
ATTORNEY’S FEES AND LITIGATION EXPENSES
87. Section1, Rule 5 of the Rules on Environmental Procedure provides that:
Reliefs in a citizen suit. – If warranted, the court may grant to the plaintiff proper reliefs which shall include the protection, preservation or rehabilitation of the environment and the payment of attorney’s fees, costs of suit and other litigation expenses. It may also require the violator to submit a program of rehabilitation or restoration of the
51 Under the Rules of Court, a ‗commissioner‗ may be appointed by the Court or agreed upon by the Parties to assist in the carrying out of a judgment or order into effect
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environment, the costs of which shall be borne by the violator, or to contribute to a special trust fund for that purpose subject to the control of the court.
88. In the instant case, by reason of the acts or omissions of the respondents,
petitioners are forced to litigate and incurred litigation expenses and attorney‘s fees in
the sum of ONE HUNDRED THOUSAND PESOS (P 100,000.00)
CLOSING STATEMENT
The world-renowned environmental lawyer, Atty. Antonio A. Oposa, Jr.,
explained the principle underlying all environmental laws, to wit:
―Underlying all environmental laws is the – ―trust doctrine‖. The trust
doctrine precedes from the premise that humankind, allegedly the most
intelligent being in the animal kingdom, are only the trustees of the earth‘s
natural resources. As a species, we hold these God- given gifts in trust not only
for future generations of humankind, but also for the ―lesser‖ forms of animals of
which we are supposedly their guardians and stewards. They - future
generations of humankind and other life forms - are, in law, the beneficiaries of
our trust. If our generation misappropriates for its exclusive use and
benefit the natural resources of the earth to the permanent prejudice
of future generations and other life forms, we breach that trust”.
―This misappropriation, if done in bad faith and with knowledge
aforethought, is tantamount to ―generational swindling‖, i.e. swindling future
generations of what rightfully belongs to them. And because what is
damaged is the very life-support system of the rightful beneficiaries,
this misappropriation can even result in generational genocide. Finally,
the act of misappropriating life-support systems of future generations of life
forms (humankind included) violates the highest law of Nature. It offends every
living being‘s right and instinct of self-preservation and self-perpetuation.‖52
By law, respondents are the ones to whom the ―trust‖ is vested. A number of
government agencies and organizations are tasked to exert a collaborative effort to
ensure that this ―trust― is protected. They are mandated by law to protect the 52 Antonio A. Oposa, Jr. LEGAL MARKETING OF ENVIRONMENTAL LAW: THE PHILIPPINE EXPERIENCE. p. 2
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environment not only for the present generation but for the generations of Filipinos yet
unborn.
Similarly, Petitioners Concerned Residents of Iligan City are also considered as
―trustees‖ of the natural resources of Iligan. They are duty-bound to ensure that the
future generation of Iliganons will inherit a safe and ecologically-balanced Iligan City.
They can not just sit and watch with indifference the pillage of Mother Nature. They can
not just wait for the time to come when the future generation looks back at them with
misgivings and ask, ―What have you done to preserve the environment for us?‖
Thus, to guarantee the future generation of a positive answer, petitioners
urgently filed this petition to compel the City Government of Iligan and other concerned
government agencies to perform their mandate not only for the safety and protection of
the Iliganons of the present generation but also for the Iliganons of the generation yet
to come.
PRAYER
WHEREFORE, premises considered, petitioners most respectfully pray of the
Honorable Court of Appeals that:
1. Upon the filing hereof, a Temporary Environmental Protection Order will
be issued:
a. Directing the City Government of Iligan City and its Sangguniang Palungsod
to conduct resettlement/relocation programs for those families residing
in the danger areas such as but not limited to those living in the river banks
of Brgys. Mahayhay, Tubod, Tambacan and Mandulog, and in the shorelines
of Brgys. Bayug, Santiago and Sta. Felomina, and to provide them with
basic services and facilities and access to employment and livelihood
opportunities sufficient to meet their basic needs;
b. Directing the City Government of Iligan City and Sangguniang Panlungsod of
Iligan to start the formulation of a comprehensive City Disaster Risk
Reduction and Management Plans;
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c. Directing the City Government of Iligan City and Sangguniang Panlungsod of
Iligan to start the formulation of a Climate Change Action Plan;
d. Enjoining the City Government of Iligan City, DENR and MGB from
processing, entertaining all pending as well as new applications for mining
and quarrying permits in Iligan City;
e. Directing the City Government of Iligan City, DENR and MGB to stop all
mining and quarrying operations in Iligan City until all environmental
concerns raised by petitioners are sufficiently addressed;
f. Directing the Secretary of the Department of Environment and Natural
Resources, Secretary of the Department of Interior and Local Government,
Secretary of the Department of National Defense, Chief of the Philippine
National Police, Chief of Staff of the Armed Forces of the Philippines, as
members of the Anti-illegal logging task force, to confiscate and remove
all logs stocked in the log ponds near Iligan City; and
g. Directing the City Government of Iligan to allow petitioners an access to
the 2010 and 2011 Calamity Fund.
2. Upon the filing hereof, issue a writ of continuing mandamus to the
respondents and order them to comment on the petition.
3. After a summary hearing, grant the petitioners the privilege of a writ of
continuing mandamus directing:
a. City Government of Iligan and the Sangguniang Panlungsod of Iligan
City to formulate and to fully implement a comprehensive City
Disaster Risk Reduction and Management Plan pursuant to Section 12
of Republic Act 10121;
b. City Government of Iligan and the Sangguniang Panlungsod of Iligan
City to formulate and to fully implement a City Climate Change
Action Plan pursuant to Section 14 of Republic Act 9729;
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c. City Government of Iligan and the Sangguninag Panlungsod of Iligan
City to revoke all mining permits in Iligan City and to declare Iligan
City as a ―No Mining Zone‖, pursuant to their duty to promote health
and safety, and enhancement of the right to balanced ecology of its
inhabitants, as provided under Section 16 of Republic Act 7160;
d. Mines and Geosciences Bureau to submit a comprehensive report
on all environmental transgressions committed by previous and
present small-scale mining operators in Iligan City and to impose
necessary sanctions and curative actions to restore or rehabilitate the
affected environment, pursuant to its duty under Section 9 of Republic
Act 7942, and to recommend to the DENR Secretary Ramon
Paje the reversion of the small-scale mining areas in Iligan City on
the ground of safety, health and environmental conditions pursuant to
Section 22 of Republic Act 7076;
e. Department of Environment and Natural Resources to undertake
conservation and rehabilitation program on the areas affected by
mining in Iligan City, pursuant to its duty under Section 8 of Republic
7942;
f. Mines and Geosciences Bureau and the Department of Environment
and Natural Resources to submit a comprehensive study on the
carrying capacity of Iligan City with respect to quarrying and
to limit quarrying activities to selected areas taking into consideration
the safety of the environment and of the nearby communities,
pursuant to their duties under Sections 9 and 8 of the Republic Act
7942;
g. City Government of Iligan to revoke the permits of all quarrying
operators who have not submitted an Environmental
Protection and Enhancement Program, pursuant to their duty to
promote health and safety, and enhancement of the right to balanced
ecology of its inhabitants, as provided under Section 16 of Republic Act
7160;
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h. City Government of Iligan and Sangguniang Panlungsod to limit the
quarrying sites in Iligan City taking into consideration the safety of
the environment and of the nearby communities, pursuant to their
duty to promote health and safety, and enhancement of the right to
balanced ecology of its inhabitants, as provided under Section 16 of
Republic Act 7160;
i. City Government of Iligan City and Sangguniang Panlungsod to
investigate and prosecute those persons responsible for illegal
logging in Iligan City, pursuant to their duties under DENR
Administrative No. 30-92;
j. Secretary of the Department of Environment and Natural Resources,
Secretary of the Department of Interior and Local Government,
Secretary of the Department of National Defense, Chief of the
Philippine National Police, Chief of Staff of the Armed Forces of the
Philippines, being members of the Anti-illegal logging task force
created by virtue of EO No. 23, to investigate the illegal logging
activities in Iligan City, Lanao del Sur and Lanao del Norte and
to fully implement EO No. 23 in the said areas, pursuant to Section 3.1
of Executive Order No. 23 of President Benigno S. Aquino III.
k. Provincial Governments of Bukidnon and Lanao del Sur to conduct
and/or require a prior environmental impact statements in
every action, project or undertaking conducted in their respective
areas that significantly affects the environment in Iligan City.
l. Provincial Governments of Bukidnon and Lanao del Sur to include in
their Local Climate Change Action Plan and Local Disaster Risk
Reduction and Management Plans effective measures that that
will reduce and control the volume of rainwater coming from their
respective areas towards the territory of Iligan City.
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m. Commission on Audit to conduct an audit investigation on the 2010
and 2011 Calamity Funds of the City Government of Iligan.
3. After finality of the decision of this Honorable Court:
a. Order each respondent to submit a detailed Action Plan and a
complete Program of Work on how they intend to implement the
aforementioned directives. It must contain, inter alia, success and
impact indicators that can be easily monitored by the Court;
b. Set time frames for the implementation of the respondents‘ action
plans; and
c. Require the respondents to submit a quarterly progress report
detailing the progress and execution of their Action Plan.
4. Order the creation of a monitoring group which will evaluate and monitor
the performance of the respondents to their submitted Action Plan and Program of
work.
5. Order respondents to jointly and severally pay petitioners Attorney‘s fees
amounting to ONE HUNDRED THOUSAND PESOS (P 100,000.00); and
6. Order the respondents to jointly and severally pay the costs of suit.
Other just and equitable reliefs are likewise prayed for.
Done this 30th day of April 2012. Iligan City for Cagayan de Oro City
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