Administrative responsibility for violations in the field of land reclamation

Ustyukova Valentina Vladimirovna ORCID: 0000-0002-3118-4805 Doctor of Law Professor; Chief Researcher of the Environmental, Agrarian and Land Law Department; Institute of State and Law of the Russian Academy of Sciences 119019, Russia, Moscow, Znamenka str., 10 ustyukova.v@yandex.ru Other publications by this author

The article was prepared with the information support of the ConsultantPlus legal reference system

Introduction. Activities in the field of land reclamation are aimed at improving the properties of lands, reproducing their fertility and should be carried out in compliance with the requirements of land, water, forest legislation, as well as the legislation of the Russian Federation on environmental protection, on subsoil, on flora and fauna. Offenses in the field of land reclamation pose a certain threat to ensuring food and environmental security in Russia, however, little attention is paid to this issue in the science of administrative law, which determines the relevance of the topic of this article.

The purpose of the article is to identify, on the basis of general scientific and special methods of cognition, controversial issues in the legal doctrine in relation to the characteristics of offenses in the field of land reclamation, to identify gaps and contradictions in judicial practice. As a result of the analysis of scientific literature and the practice of applying the norms of Articles 10.9 and 10.10 of the Code of Administrative Offences of the Russian Federation, the article formulates proposals for improving the norms and practices of their application.

Land reclamation as an activity aimed at improving the properties of land through land reclamation measures is carried out in order to increase the productivity and sustainability of agriculture, ensure guaranteed production of agricultural products based on the reproduction of fertility of agricultural lands and lands intended for agricultural activities, as well as create the necessary conditions for the involvement of unused and unproductive lands in agricultural production and formation of a rational structure of agricultural land (Article 1 of Federal Law No. 4-FZ of January 10, 1996 "On Land Reclamation"; hereinafter – Law No. 4-FZ). For the first time at the federal level, this Law began to regulate the land reclamation sphere comprehensively, systematically, covering all types and types of land reclamation, environmental, property, management and other relations ^[6]. In addition, the regulatory and legal framework concerning land reclamation at the regional and local levels has begun to take shape ^[7].

Through the implementation of land reclamation measures, strategic goals of ensuring food and environmental security of the state are achieved; these measures correspond to the national interests of the Russian Federation, which include environmental protection, conservation of natural resources and rational use of natural resources, adaptation to climate change (paragraph 25 of the National Security Strategy of the Russian Federation, approved by Decree of the President of the Russian Federation dated July 02, 2021 No. 400).

The Code of Administrative Offences of the Russian Federation includes two articles establishing special responsibility for carrying out reclamation works in violation of the project (Article 10.9) and for violating the rules of operation of reclamation systems or separately located hydraulic structures (hereinafter referred to as GTS) and damage to reclamation systems (Article 10.10). These articles are in Chapter 10 of the Code "Administrative offenses in agriculture, veterinary medicine and land reclamation", but in the legal literature it is noted that these offenses, as well as a number of others located in other chapters of the Code (chapters 7, 8, 19), can be considered as land offenses ^[1]. In addition, M.M. Brinchuk expressed the opinion that these articles (along with a number of others) "have environmental characteristics" ^[2].

The commentary to the administrative legislation emphasizes the important purpose of Article 10.9 of the Administrative Code of the Russian Federation "both in legal (ecological and legal) terms and from the point of view of socio-economic. It consists in providing administrative and legal means for proper law and order in the conduct of land reclamation, improving the quality of reclaimed land, increasing the productivity of agricultural land, and preventing economic losses" ^[3]. These words can be attributed to a certain extent to article 10.10

With that said, one would expect extensive judicial practice on these types of offenses, but this is not entirely true. These articles, judging by the data of the SPS "ConsultantPlus" are not so often used, but even in cases when administrative authorities (as a rule, territorial bodies of the Federal Service for Veterinary and Phytosanitary Supervision - Rosselkhoznadzor), make decisions on bringing the guilty, in their opinion, persons to administrative responsibility, a number of questions arise on about the legality of their actions or the procedure for applying a particular article.

In particular, according to Article 10.9 of the Administrative Code of the Russian Federation, responsibility must come for carrying out land reclamation works in violation of the project. According to Part 1 of Article 25 of Law No. 4-FZ, land reclamation is carried out on the basis of projects developed in accordance with feasibility studies and taking into account construction, environmental, sanitary and other norms and rules. The procedure for the development, coordination and approval of land reclamation projects was approved by the Ministry of Agriculture of the Russian Federation No. 255 dated 05/15/2019.

The application of Article 10.9 is justified when, in fact, there are deviations by an economic entity from a land reclamation project developed in accordance with the established procedure, which, for example, were allowed by the limited liability company "VSGTS".

In 2017, the head of the company approved the design documentation developed by the Federal State Budgetary Institution Station of Agrochemical Service Velikolukskaya "Complex of cultural works on the lands of LLC VSGTS, which provides for the storage of remote woody vegetation for drying, further shaking and final formation of piles of woody and shrubby vegetation in places provided for burning /.../. The burning of wood residues should be carried out with the installation of protective fire shields, after the secondary burning of piles there should be no wood residues that interfere with the primary tillage.

According to the results of an unscheduled on-site inspection by an official of the Rosselkhoznadzor Administration for St. Petersburg, Leningrad and Pskov regions, the fact of reclamation works carried out by the company on a land plot in violation of the specified project was revealed. In particular, it was found that on a total area of about 120 hectares, the following were carried out: cutting and uprooting shrubs and small forests, raking shrubs and small forests into piles and shafts located on a site up to 2-3 m high (according to the project up to 5-7 m), with a base area of up to 400 sq. m (according to the project 20-30 sq. m), mixed with a fertile soil layer, /.../; there are no traces of burning of shrubberies and small woodlands; on the area freed from woody and shrubby vegetation /.../ there are focal traces of draining manure-containing liquid, clogging of the plowed soil surface with stones; there are no signs of growing crops on the land plot. Due to the fact that the actual condition of the land plot does not confirm the compliance of the work carried out with the project documentation regarding the removal (disposal) of woody vegetation from the site, the company was fined 30,000 rubles under Article 10.9 of the Administrative Code.

Several judicial instances reasonably refused to satisfy the company's complaint about the cancellation of the decision on bringing to administrative responsibility (Resolution of the Pskov Regional Court of November 1, 2019 No. 4a-183/2019 // SPS "ConsultantPlus").

However, in practice, there are cases of unlawful prosecution of business entities under the article in question. Thus, in one of the cases, the Southern Interregional Rosselkhoznadzor Administration, represented by the Deputy head of the Land Supervision Department of the Department, issued a resolution on bringing Monolit Group of Investment Companies LLC (hereinafter referred to as Monolit Company) to administrative responsibility under Article 10.9 of the Administrative Code of the Russian Federation with an administrative fine of 30,000 rubles. The Monolith Company appealed to the Arbitration Court of the Republic of Crimea with an application for recognition of this decision as illegal and for its cancellation.

During the court session, it was established that the land plot, in respect of which violations were allegedly revealed, belongs to the Republic of Crimea by right of ownership in the person of the Ministry of Property and Land Relations and was leased to PJSC Massandra. Therefore, the development of a land reclamation project falls within the competence of the Ministry or PJSC Massandra, but not the Monolith Company, which carried out land reclamation work on this land plot in accordance with the reclamation project developed as part of the project documentation for the location of the Feodosia Industrial Park Republic of Crimea facility, which corresponds to paragraph 10 Rules of land reclamation and conservation approved by Decree of the Government of the Russian Federation No. 800 dated July 10, 2018.

However, according to the Management, the Monolith company carries out land reclamation works in violation of the project of land reclamation works. The territory where the fertile layer released during the construction process will be used will not be reclaimed, but reclaimed. The court disagreed with this interpretation and concluded that the case materials did not confirm the presence in the actions of the Monolith company of signs of the objective side of the offense, responsibility for which is provided for in Article 10.9 of the Administrative Code of the Russian Federation (Decision of the Arbitration Court of the Republic of Crimea dated January 21, 2022 in case No. A83-14083/2021 // SPS "ConsultantPlus").

Meanwhile, the "misconception" of the Management regarding the nature of the offense was, in our opinion, due to the fact that the measures carried out by the Monolith company to remove and move the fertile soil layer fall under the concept of "land management", which is a complex of works on removing, transporting and applying a fertile soil layer and (or) potentially fertile rocks on unproductive lands in order to improve them (See "GOST R 59070-2020. The national standard of the Russian Federation. Environmental protection. Reclamation of disturbed and oil-contaminated lands. Terms and definitions" (approved and put into effect by the Order of Rosstandart dated 01.10.2020 N 731-st) // SPS "ConsultantPlus"). And although in the named GOST R 59070-2020 this term is revealed specifically in relation to reclamation, but it also occurs in Article 8 of Law No. 4-FZ as one of the types of cultural reclamation. In addition, land reclamation works may include the creation of protective forest belts ^[8], at the same time, these protective forest belts (agroforestry plantations) belong to reclamation systems in accordance with Article 2 of Law No. 4-FZ, that is, in some cases there is a certain similarity of reclamation and reclamation activities.

At the same time, in our opinion, in this particular case, the administrative body, extending the Law "On Land Reclamation" to the relations in question and applying Article 10.9 of the Administrative Code of the Russian Federation, went beyond its competence, which was confirmed by the court.

On the issue of the objective side of the offense provided for in Article 10.9, the literature suggests that it can be expressed as an action (carrying out reclamation works in violation of the procedure for the construction, operation and reconstruction of reclamation systems, i.e. with deviations from the design documentation, including by type, volume, timing, materials used, etc. machinery, equipment during construction or reconstruction of reclamation systems), and in the form of inaction - failure to take measures to maintain reclamation systems in good condition; failure to carry out preventive inspections, repairs, violation of the operating mode of hydraulic structures, etc. ^[3].

We can only partially agree with this position. In our opinion, the wording of the article, which speaks of "carrying out work", still assumes that the business entity carries out certain actions in violation of the project. As for inaction, i.e. passive non-compliance with the requirements for carrying out land reclamation measures, E.S. Pyshyeva drew attention to the fact that there are no sanctions for this and proposed to establish them in the form of a fine in the Administrative Code of the Russian Federation, in particular for carrying out land reclamation works without a land reclamation project drawn up and approved in accordance with the established procedure ^[4]. It seems that this proposal deserves support and can be implemented by making appropriate changes to Article 10.9 of the Administrative Code.

An ambiguous approach is observed in the legal literature regarding the subjective side of the offense in question. We share the position expressed in the Commentary to the Administrative Code of the Russian Federation quoted above, edited by N.G. Salishcheva, that this act can only be committed intentionally, although other publications allow the possibility of committing this offense both intentionally and through negligence ^[5].

Article 10.10 of the Administrative Code of the Russian Federation provides for liability for violation of the rules of operation of reclamation systems or separately located GTS and damage to reclamation systems.

The article consists of three parts and contains the following compositions:

- violation of the rules of operation of a reclamation system or a separately located GTS (part 1);

- damage to the reclamation system, as well as protective forest plantations (Part 2); please note that currently in Law No. 4-FZ the term "protective forest plantations" has been replaced by the term "agroforestry plantations". Therefore, in Part 2 of Article 10.10, it is advisable to make appropriate legal and technical changes to clarify the terminology;

- construction and (or) operation of communication lines, power lines, pipelines, roads or other facilities on reclaimed (reclaimed) lands without approval from a specially authorized state body in the field of land reclamation (Part 3), which is the Ministry of Agriculture of the Russian Federation.

For the correct application of Article 10.10, it is important to take into account that in Law No. 4-FZ, reclamation systems are understood as complexes of interconnected hydraulic and other structures and devices that ensure the creation of optimal water, air, thermal and nutrient regimes of soils on reclaimed lands, as well as agroforestry plantations.

In recent years, there has been a significant increase in interest in agroforestry, which "has traditionally been shown by both Russian and international specialized organizations, which is explained by the high efficiency of creating forest protection plantations in terms of increasing agricultural productivity, preventing erosion, dehumidification and desertification, as well as mitigating the effects of climate change" ^[9].

Reclamation systems (including agroforestry plantations) can be state-owned, as well as systems for general and individual use. The subject of responsibility depends on who owns the reclamation systems (respectively, the state, two or more persons or one person) or in whose interests they are used, if the reclamation systems are operated with violations.

For example, the North Caucasus Interregional Office of the Rosselkhoznadzor conducted an unscheduled on-site inspection, during which an inspection of an agricultural land plot belonging to the head of a peasant (farmer) farm (hereinafter referred to as a farm) was carried out on the right of ownership. The inspection found that on the eastern side the land plot adjoins a forest protection strip, along the entire length of which multiple foci of cluttering with dry branches of various sizes were found. On this basis, the Department drew up a protocol on an administrative offense and issued a resolution on bringing the head of the farm to responsibility under part 2 of Article 10.10 of the Administrative Code of the Russian Federation in the form of 2 thousand rubles fine.

Disagreeing with this decision, the head of the farm appealed it to the Arbitration Court of the Stavropol Territory. The decision of the named court, upheld by the decision of the Sixteenth Arbitration Court of Appeal, satisfied the requirements of the head of the farm. The courts proceeded from the fact that the Department had established only the fact of damage and cluttering of the forest belt, but not the circumstances under which this happened. The scheme drawn up by the department indicates that the considered protective forest strip is not a reclamation system for individual use, is located outside the land plot of the head of the farm and runs between land plots owned by several persons, and damage to the forest belt was found not only on the site adjacent to the land plot of the head of the farm, but also along the borders of neighboring land plots plots. Thus, the Department has not presented evidence that would indicate that the head of the farm was involved in the damage to the disputed forest belt. This served as the basis for the cancellation of the Management's decision to hold the head of the farm accountable under Article 10.10 of the Administrative Code of the Russian Federation (Decision of the Sixteenth Arbitration Court of Appeal dated March 29, 2022 in case No. A63-13150/2021).

Conclusion. Based on the above examples of judicial practice under Articles 10.9 and 10.10 of the Administrative Code of the Russian Federation, it can be stated that there are shortcomings both in the formulation of offenses and in the practice of applying these articles. The fines in these articles are too low (no more than 40 thousand rubles for legal entities) and do not contribute to the prevention of the commission of these offenses. The territorial bodies of the Rosselkhoznadzor also do not always properly perform their duties (draw up protocols on offenses beyond the time limits for bringing to administrative responsibility, do not submit to the courts proper evidence of the legality of bringing legal entities and citizens to justice, etc.). Eliminating these shortcomings is an important task for both legislative and law enforcement agencies.

It can also be noted that the improvement of land reclamation legislation can also contribute to reducing the number of administrative offenses in the field of land reclamation. In particular, with regard to agroforestry, it is necessary to agree with proposals to "create mechanisms to stimulate the interest of owners of land plots on which protective forest plantations are located in their preservation, maintenance in proper condition, as well as renewal" ^[10]. The above applies to tenants of land plots with land reclamation systems, and also has a positive effect on a number of other adjacent (neighboring) land plots and the ecological system as a whole. This will achieve a balance of private and public interests ^[11]. Under such conditions, the probability that the owners of reclamation systems will violate the requirements of the legislation on reclamation is significantly reduced.