Manitoba judge fines farmer for disturbing rare Prairie orchid

For just one plant, the western-prairie fringed orchid has been a big topic of discussion in corners of Manitoba's farming community this year — and now one man is paying the price for flouting laws protecting the rare flower.

Provincial court Judge Robert Heinrichs fined Tobias Hershberger $1,000 on Friday after the 31-year-old pleaded guilty to violating Manitoba's Endangered Species and Ecosystems Act this spring.

The decision was the culmination of a hotly contested, months-long debate that saw a wave of farming communities calling on the province to change its legislation, claiming the flower was impacting farmers' livelihoods.

The western-prairie fringed orchid is white, gives off a vanilla scent and grows to just under one metre tall. It's plentiful in pockets of southeastern Manitoba, but that's one of the only spots in the world you'll find it.

In Canada, the orchid can only be found in and around the rural municipality of Stuartburn, located about 95 kilometres southeast of Winnipeg, and that area also makes up about half of the endangered flower's global population. 

Unaware at point of sale

Hershberger ​​​​​​and others from his Ontario-based Amish community uprooted and moved to southeastern Manitoba in recent years to begin a new settlement. 

In 2017, he purchased a 65-hectare plot of land west of Vita in the RM of Stuartburn.

Neither he nor the RM claim to have been aware at the point of sale that the land was home to the western prairie fringed orchids.

"I think there's a bit of blame to go around here beyond Mr. Hersherger"​​​​​- Judge Robert Heinrichs

Manitoba Sustainable Development was aware of its presence in the area, though it wasn't until the fall of 2018 that officials with its wildlife conservation branch notified Hershberger and the laws against cultivating that land, court heard.

Despite that notification, conservation officials checked on the property on May 22, 2019, and found evidence that parts of Hershberger's land where the flower grows had been disturbed.

An investigation revealed he had asked another farmer to begin breaking the land using a tractor, court heard.

99% of tall grass gone

In the ensuing months, Stuartburn called for changes to the Endangered Species and Ecosystems Act and more than 30 rural municipalities signed letters of support.

Manitoba Sustainable Development provided a statement, read out in court by a Crown prosecutor, detailing the importance of preserving Prairie species.

More than 99 per cent of all tall grass Prairie habitat has been destroyed since European settlement, court heard, and the provincial government has a responsibility to protect endangered species.

"The destruction of western prairie fringed orchids and their habitat is a threat to the survival of the species given the limited area and habitat types in which it occurs," the Crown prosecutor said, reading the province's statement.

"Plowing western prairie fringed orchid habitat not only destroys the individual plants; it also alters the local ecosystems and creates favourable conditions for the establishment of invasive exotic species, thus reducing the probability that western prairie fringed orchids can re-establish in the disturbed areas."

'As long as the flower grows'

Hershberger's defence lawyer, Grant Driedger, argued Manitoba Sustainable Development was offloading its responsibility.

"It is one private individual or one family that has been forced to bear this burden," said Driedger.

"Really this amounts to an expropriation: the stop work order is indefinite so it continues as long as the flower grows."

Driedger said the battle generated a lot of discussion among farmers in the area. He suggested in pursuing court action against his client, Sustainable Development could be hurting itself and endangered Prairie plant life in the long run.

"There is certainly a sentiment that if there are going to be severe consequence for disturbing a plant like this, it sort of encourages — the colloquial way they describe it — is 'the shoot, shovel and shut up" approach: if you see one of these things, you are better off as the farmer to bury it than to let anyone know it's there."

Judge Heinrichs said Hershberger ignored the law when he decided to alter the flower's habitat this spring, and so he deserved some form of punishment.

Still, Heinrichs said he was confused as to why the province wouldn't have put up signage or fencing around the orchids, or otherwise notify the RM of Stuartburn of the presence of a such a delicate endangered species before it sold the land.

"I think there's a bit of blame to go around here beyond Mr. Hershberger," he told court. 

Hershberger has one year to pay the fine.