Senate Bill No. 504

(By Senator Dittmar)

____________

[Introduced February 20, 1995; referred to the Committee
on Natural Resources; and then to the Committee on Finance.]
____________



A BILL to amend article one, chapter twenty of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new section, designated section nineteen; to amend and reenact sections two, five, five-b, twelve, thirteen, twenty-two-a, twenty-six and fifty-seven, article two of said chapter; and to amend and reenact sections four, eight and nine, article seven of said chapter, all relating to consolidation of article two, criminal penalties, with article seven, powers and duties of conservation officers; providing civil administrative penalties for violations of chapter twenty; administrative hearing; and moneys from assessments to fund the nongame wildlife and natural heritage program; and providing assessments to be deposited in the nongame wildlife and natural heritage fund.

Be it enacted by the Legislature of West Virginia:
That article one, chapter twenty of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new section, designated section nineteen; that sections two, five, five-b, twelve, thirteen, twenty-two-a, twenty-six and fifty-seven, article two of said chapter be amended and reenacted; and that sections four, eight and nine, article seven of said chapter be amended and reenacted, all to read as follows:
ARTICLE 1. ORGANIZATION AND ADMINISTRATION.
§20-1-19. Nongame wildlife resources and natural heritage fund
created; payments to the regional jail and correctional facility development fund; the crime victims compensation fund; and the law-enforcement training special revenue account.

(a) There is hereby created in the state treasury a special revenue account known as the "Nongame Wildlife and Natural Heritage Fund." All moneys deposited in this fund shall be expended for the purpose of enhancement and perpetuation of the nongame wildlife and natural heritage of this state: Provided, That notwithstanding the provisions of section two, article two, chapter twelve of this code, moneys deposited in the fund shall only be expended upon line item appropriation by the Legislature.
(b) Every individual, business or corporation that is required to pay a civil administrative penalty pursuant to the provisions of section nine, article seven, chapter twenty of this code, shall be required to pay an additional fifty-two dollar payment: (1) Forty dollars of which payment shall be deposited in the regional jail and prison development fund in the state treasury; (2) ten dollars of which shall be deposited in the crime victims compensation fund in the state treasury; and (3) two dollars of which shall be deposited in the law-enforcement training special revenue account in the state treasury.
ARTICLE 2. WILDLIFE RESOURCES.
§20-2-2. Violations of article.
When no specific punishment or penalty is otherwise provided for violations of the provisions of this article, any person violating any provision hereof of this article, any permit, order or rules issued or promulgated hereunder shall be guilty of a misdemeanor offense, and, upon conviction thereof, shall be subject to the punishment and penalties prescribed in section nine, article seven of this chapter.
§20-2-5. Unlawful methods of hunting and fishing.
Except as authorized by the director, it is unlawful at any time for any person to:
(1) Shoot at or to shoot any wild bird or animal unless it is plainly visible to him;
(2) Dig out, cut out or smoke out, or in any manner take or attempt to take, any live wild animal or wild bird out of its den or place of refuge, except as may be authorized by regulations rules promulgated by the director or by law;
(3) Make use of, or take advantage of, any artificial light in hunting, locating, attracting, taking, trapping or killing any wild bird or wild animal, or to attempt to do so, while having in his possession or subject to his control, or for any person accompanying him to have in his possession or subject to his control, any firearm, whether cased or uncased, bow, arrow, or both, or other implement or device suitable for taking, killing or trapping a wild bird or animal: Provided, That it shall not be unlawful to hunt or take raccoon, opossum or skunk by the use of artificial lights. No person shall be guilty of a violation of this subdivision merely because he looks for, looks at, attracts or makes motionless a wild bird or wild animal with or by the use of an artificial light, unless at such time he has in his possession a firearm, whether cased or uncased, bow, arrow, or both, or other implement or device suitable for taking, killing or trapping a wild bird or wild animal, or unless such artificial light (other than the head lamps of an automobile or other land conveyance) is attached to, a part of, or used from within or upon an automobile or other land conveyance.
Any person violating the provisions of this subdivision shall be guilty of a misdemeanor, and, upon conviction thereof, shall for each offense be fined not less than one hundred dollars nor more than five hundred dollars and shall be imprisoned in the county jail for not less than ten days nor more than one hundred days be subject to the penalty set forth in subdivision (1), subsection (a), section nine, article seven of this chapter;
(4) Hunt for, take, kill, wound or shoot at wild animals or wild birds from an airplane, or other airborne conveyance, an automobile, or other land conveyance, or from a motor-driven water conveyance, except as may be authorized by regulations rules promulgated by the director;
(5) Take any beaver or muskrat by any means other than by trap;
(6) Catch, capture, take or kill by seine, net, bait, trap or snare or like device of any kind, any wild turkey, ruffed grouse, pheasant or quail;
(7) Destroy or attempt to destroy needlessly or willfully the nest or eggs of any wild bird or have in his possession such nest or eggs unless authorized to do so under regulations rules or under a permit by the director;
(8) Except as provided in section six of this article, carry an uncased or loaded gun in any of the woods of this state except during the open firearms hunting season for wild animals and nonmigratory wild birds within any county of the state, unless he has in his possession a permit in writing issued to him by the director: Provided, That this section shall not prohibit hunting or taking of unprotected species of wild animals and wild birds and migratory wild birds, during the open season, in the open fields, open water and open marshes of the state;
(9) Except as provided in subdivision (11) below of this section or in section six of this article, carry an uncased or loaded gun after the hour of five o'clock antemeridian on Sunday in any woods or on any highway, railroad right-of-way, public road, field or stream of this state, except at a regularly used rifle, pistol, skeet, target or trapshooting ground or range;
(10) Have in his possession a loaded firearm or a firearm from the magazine of which all shells and cartridges have not been removed, in or on any vehicle or conveyance, or its attachments, within the state, except as may otherwise be provided by law or regulation rule. Except as hereinafter provided, between five o'clock postmeridian of one day and seven o'clock antemeridian, eastern standard time of the day following, any unloaded firearm, being lawfully carried in accordance with the foregoing provisions, shall be so carried only when in a case or taken apart and securely wrapped. During the period from the first day of July to the thirtieth of September, inclusive, of each year, the foregoing requirements relative to carrying certain unloaded firearms shall be permissible only from eight-thirty o'clock postmeridian to five o'clock antemeridian, eastern standard time;
(11) Hunt, catch, take, kill, trap, injure or pursue with firearms or other implement by which wildlife may be taken after the hour of five o'clock antemeridian on Sunday any wild animals or wild birds: Provided, That traps previously and legally set may be tended after the hour of five o'clock antemeridian on Sunday, and the person so doing may carry only a twenty-two caliber firearm for the purpose of humanely dispatching trapped animals;
(12) Hunt with firearms or long bow while under the influence of intoxicating liquor alcohol or a controlled substance as defined in chapter sixty-a of this code or under the combined influence of alcohol and a controlled substance;
(13) Hunt, catch, take, kill, injure or pursue a wild animal or bird with the use of a ferret;
(14) Buy raw furs, pelts or skins of fur-bearing animals unless licensed to do so;
(15) Catch, take, kill, or attempt to catch, take or kill any fish at any time by any means other than by rod, line and hooks with natural or artificial lures unless otherwise authorized by law or regulation rule issued by the director: Provided, That snaring of any species of suckers, carp, fallfish and creek chubs shall at all times be lawful;
(16) Employ or hire, or induce or persuade, by the use of money or other things of value, or by any means, any person to hunt, take, catch or kill, any wild animal or wild bird except those species on which there is no closed season, or to fish for, catch, take or kill any fish, amphibian or aquatic life which is protected by the provisions of this chapter or regulations rules of the director, or the sale of which is prohibited;
(17) Hunt, catch, take, kill, capture, pursue, transport, possess or use any migratory game or nongame birds included in the terms of conventions between the United States and Great Britain and between the United States and United Mexican States for the protection of migratory birds and wild mammals concluded, respectively, the sixteenth day of August, one thousand nine hundred sixteen, and the seventh day of February, one thousand nine hundred thirty-six, except during the time and in the manner and numbers prescribed by the federal Migratory Bird Treaty Act and regulations made thereunder;
(18) Kill, take, catch or have in his possession, living or dead, any wild bird, other than a game bird; or expose for sale, or transport within or without the state any such bird, except as aforesaid. No part of the plumage, skin or body of any protected bird shall be sold or had in possession for sale, except mounted or stuffed plumage, skin, bodies or heads of such birds legally taken and stuffed or mounted, irrespective of whether such bird was captured within or without this state, except the English or European sparrow (Passer domesticus), starling (Sturnus vulgaris), crow (Corvus brachyrhynchos) and cowbird (Molothrus ater), which shall not be protected and the killing thereof at any time is lawful;
(19) Use dynamite or any like explosive or poisonous mixture placed in any waters of the state for the purpose of killing or taking fish. Any person violating the provisions of this subdivision shall be guilty of a felony, and, upon conviction thereof, shall be fined not more than five hundred dollars or imprisoned for not less than six months nor more than three years, or both fined and imprisoned subject to the penalty set forth in subdivision (2), subsection (a), section nine, article seven of this chapter;
(20) Have a bow and gun, or have a gun and any arrow or arrows, in the fields or woods at the same time;
(21) Have a crossbow in the woods or fields or use a crossbow to hunt for, take or attempt to take any wildlife;
(22) Take or attempt to take turkey, bear, elk or deer with any arrow unless the same is equipped with a point having at least two sharp cutting edges measuring in excess of three fourths of an inch wide;
(23) Take or attempt to take any wildlife with an arrow having an explosive head or shaft, a poisoned arrow, or an arrow which would affect wildlife by any chemical action;
(24) Shoot an arrow across any public highway or from aircraft, motor-driven watercraft, motor vehicle or other land conveyance;
(25) Permit any dog owned by him or under his control to chase, pursue or follow upon the track of any wild animal or wild bird, either day or night, between the first day of May and the fifteenth day of August next following: Provided, That dogs may be trained on wild animals and wild birds, except deer and wild turkeys, and field trials may be held or conducted on the grounds or lands of the owner or by his bona fide tenant or tenants or upon the grounds or lands of another person with his written permission or on public lands, at any time: Provided, however, That notwithstanding any of the above provisions, no person may train a dog in any county, or portion thereof, in which a legal bear hunting season has been established prior to the first day of July, one thousand nine hundred eighty-eight, except that residents may train dogs in such counties after the twenty-fourth day of August through the end of the legal small game hunting season: Provided further, That nonresidents shall not train dogs in this state at any time except during the legal small game hunting season: And provided further, That the person training said dogs does not have firearms or other implements in his possession during the closed season on such wild animals and wild birds, whereby wild animals or wild birds could be taken or killed;
(26) Conduct or participate in a field trial, shoot-to-retrieve field trial, water race or wild hunt hereafter referred to as trial: Provided, That any person, group of persons, club or organization may hold such trial at any time of the year upon obtaining such permit as is provided for in section fifty-six of this article. The person responsible for obtaining said permit shall prepare and keep an accurate record of the names and addresses of all persons participating in said trial, and make same readily available for inspection by any conservation officer upon request; and
(27) Except as provided in section four of this article, hunt, catch, take, kill or attempt to hunt, catch, take or kill any wild animal, wild bird or wild fowl except during the open season established by regulation rule of the director as authorized by subdivision (6), section seven, article one of this chapter.
§20-2-5b. Exceeding creel limit on trout; other violations of
code or rules for trout fishing; penalties.

Any person who exceeds the creel limit on trout or who otherwise violates any provisions of this code or any rules and regulations relating to trout fishing is guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than fifty dollars nor more than three hundred dollars, or imprisoned in the county jail not less than ten nor more than one hundred days, or both fined and imprisoned subject to the penalty set forth in subdivision (3), subsection (a), section nine, article seven of this chapter.
§20-2-12. Transportation of wildlife out of state; penalties.
No person shall at any time transport or have in his possession with the intention of transporting beyond the limits of the state, any species of wildlife or any part thereof killed, taken, captured or caught within this state: Provided, That a nonresident legally entitled to hunt and fish in this state may take with him personally, when leaving the state, any wildlife that he has lawfully taken or killed, not exceeding, during the open season, the number that any person may lawfully take or kill in any two days. This section shall not apply to persons legally entitled to propagate and sell wild animals, wild birds, fish, amphibians and other forms of aquatic life: Provided, however, That licensed resident hunters and trappers and resident and nonresident fur dealers may transport beyond the limits of the state pelts of game and fur-bearing animals taken during the legal season: Provided further, That hide, head, antlers and feet of a legally killed deer, and the hide, head, skull, organs and feet of a legally killed black bear may also be transported beyond the limits of the state. The director shall have authority to promulgate rules and regulations in accordance with chapter twenty-nine-a of this code, dealing with the transportation and tagging of wildlife and the skins thereof.
Notwithstanding any provision of this section, any person violating the provisions of this section by transporting or possessing with the intention of transporting beyond the limits of this state, deer or wild boar, shall be deemed to have committed a separate offense for each animal so transported or possessed. Any person violating the provisions of this section shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than twenty dollars nor more than three hundred dollars and be imprisoned in the county jail not less than ten nor more than sixty days subject to the penalty set forth in subdivision (4), subsection (a), section nine, article seven of this chapter.
§20-2-13. Importation of wildlife; certification and inspection

of imported wildlife.

No person shall transport into or have in his possession within this state any live wildlife or viable eggs thereof from without the state, except as authorized by an importation permit issued by the director: Provided, That the director shall not be authorized to issue a permit to any person to transport into this state any coyotes (Canis latrans). The director may issue at his discretion such permit as he is authorized to issue, fix the terms thereof and revoke it at his pleasure.
Importers of fish or viable eggs of the family salmondiae (trout, char, salmon) shall furnish a statement from a recognized fish pathologist certifying the source to be free of whirling disease, infectious pancreatic necrosis, viral hemorrhagic septicemia or other diseases which may threaten fish stocks within the state.
Importers of wildlife species shall furnish disease free certification from pathologists, or veterinarians, as the director deems necessary to protect native populations.
All imported wildlife shall be subject to inspection by authorized agents of the department division and such inspections may include biological examinations and the removal of a reasonable sample of fish or eggs for such purposes.
Any person violating any of the provisions of this section concerning coyotes shall be guilty of a misdemeanor, and, upon conviction thereof, shall for each offense be fined not less than one hundred nor more than three hundred dollars, or confined in jail not less than ten nor more than one hundred days, or be both fined and imprisoned within the limitations aforesaid subject to the penalty set forth in subdivision (5), subsection (a), section nine, article seven of this chapter.
§20-2-22a. Hunting, tagging and reporting bear; procedures
applicable to property destruction by bear; penalties.

(a) No person in any county of this state shall hunt, capture or kill any bear, or have in his possession any bear, or any part thereof, including fresh pelt, except during the hunting season for bear designated by rules and regulations to be promulgated by the department division of natural resources and at no other time nor in any other way than as herein and therein provided. A person on killing a bear shall, within twenty-four hours after killing, deliver the bear or fresh skin to a conservation officer or checking station for tagging. The bear shall have affixed thereto an appropriate tag provided by the department division before any part of the bear may be transported more than seventy-five miles from the point of kill. The checking tag shall remain on the skin until it is tanned or mounted. Any bear not properly tagged, or any part of such bear, shall be forfeited to the state for disposal to a charitable institution, or school, or as otherwise designated by the department division of natural resources.
It shall be unlawful:
(1) To hunt bear without a bear damage stamp as prescribed in section forty-four-b of this article, in addition to a hunting license as prescribed in this article;
(2) To hunt a bear with: (a) A shotgun using ammunition loaded with more than one solid ball; or (b) a rifle of less than twenty-five caliber using rimfire ammunition; or (c) a crossbow;
(3) To kill or attempt to kill any bear through the use of poison, or explosives, or through the use of snares, steel traps or deadfalls other than as authorized herein;
(4) To shoot at or kill a cub bear weighing less than one hundred pounds or to kill any bear accompanied by such cub;
(5) To have in possession any part of a bear not tagged in accordance with the provisions of this section;
(6) To enter a state game refuge with firearms for the purpose of pursuing or killing a bear except under the direct supervision of department division personnel;
(7) To hunt bear with dogs during seasons other than those designated for such purpose by the department division of natural resources; after a bear is spotted and the chase has begun, to pursue the bear with other than the pack of dogs in use at the beginning of the hunt;
(8) To train bear hunting dogs on bear or to cause dogs to chase bear at times other than those designated by the department division of natural resources for the hunting of bear;
(9) Notwithstanding the provisions of sections twenty-three and twenty-four of this article, for any person to organize for commercial purposes, or to professionally outfit a bear hunt or to give or receive any consideration whatsoever or any donation in money, goods or services in connection with a bear hunt;
(10) For any person, who is not a resident of this state, to hunt bear with dogs or to use dogs in any fashion for the purpose of hunting bear in this state, except in legally authorized hunts.
(b) The following shall apply to bear destroying property:
(1) Any property owner including a lessee, who has suffered damage to real or personal property including loss occasioned by the death of livestock or the injury thereto or the unborn issue thereof, caused by an act of a bear may complain to any conservation officer of the department division of natural resources, for the protection against such bear. Upon receipt of the complaint, such officer shall immediately proceed to investigate the circumstances giving rise to such complaint, and if such officer is unable to personally investigate the complaint, he shall designate a wildlife biologist to investigate on his or her behalf and if the complaint is found to be justified, such officer or designated person, may, together with the owner and other residents, proceed to hunt and destroy or capture the bear which is determined to have caused the property damage: Provided, That only the conservation officer or the wildlife biologist shall determine whether the bear shall be destroyed or captured. Notwithstanding any provision of this article, if it is determined that the complaint is justified, the officer or designated person may summon or use dogs from within or without this state to effectuate the hunting and destruction or capture of such bear: Provided, however, That in the event dogs from without this state are used in such hunt, the owners thereof shall be the only nonresidents permitted to participate in hunting such bear.
(2) When a property owner has suffered damage as the result of an act by a bear, such owner shall file a report with the director of the department division of natural resources, stating whether or not such bear was hunted and destroyed and if so, the sex, weight and estimated age of subject bear, and also submit to the department division an appraisal of the property damage occasioned by subject bear duly signed by three competent appraisers, fixing the value of the property lost. Such report shall be ruled upon and the alleged damages examined by a commission to which it shall be referred by the department division. The commission shall be composed of the complaining property owner, an officer of the department division and a person to be selected by the officer of the department division. and the complaining property owner The department division shall by rules and regulations to be promulgated, establish the procedures to be followed in presenting and deciding claims under this section and all such claims shall be paid in the first instance from the bear damage fund provided in section forty-four-b of this article, and in the event such fund is insufficient to pay all claims determined by the commission to be just and proper the remainder due to owners of lost or destroyed property shall be paid from the special revenue account of the department division of natural resources.
(3) In all cases where the act of the bear complained of by the property owner is the killing of livestock, the value to be established is the fair market value of the livestock at the date of death, and in cases where livestock killed is pregnant, the total value shall be the sum of the values of the mother and the unborn issue, with the value of the unborn issue to be determined on the basis of the fair market value of the issue, had it been born. In no event shall the fair market value of the livestock exceed twice the assessed value of the livestock for personal property taxes.
(c) Any person who kills a bear in violation of the provisions of this section shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than five hundred dollars nor more than one thousand dollars, or imprisoned in the county jail not less than thirty nor more than one hundred days, or both fined and imprisoned; and the suspension of the person's hunting and fishing licenses for one year subject to the penalty set forth in subdivision (6), subsection (a), section nine, article seven of this chapter.
§20-2-26. Same -- License fee; bond; revocation of license;
penalties.

When satisfied as to the applicant's qualifications for an outfitter's or guide's license and upon receipt of a fee of ten dollars therefor, the director shall issue such license which shall be for the calendar year therein designated.
Immediately upon the issuance of an outfitter's or guide's license and before any outfitter's or guide's services are offered or rendered thereunder, the licensee shall execute a surety bond in the penal sum of one thousand dollars payable to the state of West Virginia and conditioned upon the faithful and reliable discharge of his or her services under and pursuant to such license. Such bond shall be approved as to form by the attorney general and as to surety by the director, and when so executed and approved, shall be filed in the office of the director. Such bond shall be for the life of the license.
The director is hereby authorized to revoke and cancel any such license for failure of the licensee to give the bond herein required, for licensee's violation or disregard of any of the provisions of this chapter, upon licensee's conviction of crime, or for any other reason or cause justifying refusal of the license to the licensee upon a new application therefor. The director shall afford a licensee an opportunity to be heard upon the revocation and cancellation of the license.
No person shall act or serve as a guide or outfitter, as defined in this article, without procuring and having on his or her person at the time a valid license from the director authorizing him or her so to do. Any person violating this provision shall be guilty of a misdemeanor, and, upon conviction thereof, may be fined not exceeding one hundred dollars or confined in the county jail not exceeding ninety days, or, in the discretion of the court, be both fined and imprisoned within the limits herein prescribed shall be subject to the penalty set forth in subdivision (7), subsection (a), section nine, article seven of this chapter.
§20-2-57. Negligent shooting, wounding or killing of human being
or livestock while hunting; penalty.

It is unlawful for any person, while engaged in hunting, pursuing, taking or killing wild animals or wild birds, to carelessly or negligently shoot, wound or kill any human being or livestock, or to destroy or injure any other chattels or property.
Any person who, in the act of hunting, pursuing, taking or killing of wild animals or wild birds, in any manner injures any person or property shall file with the director a full description of the accident or other casualty, including such information as the director may require. Such report must be filed during a period not to exceed seventy-two hours following such incident.
Any person violating this section is guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than one thousand dollars nor more than ten thousand dollars, or imprisoned in the county jail not more than one year, or both fined and imprisoned. Restitution of the value of the livestock, chattel or property injured or destroyed shall be required upon conviction subject to the penalty set forth in subdivision (9), subsection (a), section nine, article seven of this chapter.
ARTICLE 7. LAW ENFORCEMENT, MOTORBOATING, LITTER.

§20-7-4. Powers and duties of conservation officers.

Conservation officers and all other persons authorized to enforce the provisions of this chapter shall be under the supervision and direction of the director in the performance of their duties as herein provided. The authority, powers and duties of the conservation officers shall be statewide and they shall have authority to:
(1) Arrest on sight, without warrant or other court process, any person or persons committing a criminal offense in violation of any of the laws of this state, in the presence of such officer, but no such arrest shall be made where any form of administrative procedure is prescribed by this chapter and administered in accordance with rules to be promulgated by the director for the enforcement of any of the particular provisions contained herein;
(2) Carry such arms and weapons as may be prescribed by the director in the course and performance of their duties, but no license or other authorization shall be required of such officers for this privilege;
(3) Search and examine, in the manner provided by law, any boat, vehicle, automobile, conveyance, express or railroad car, fish box, fish bucket or creel, game bag or game coat, or any other place in which hunting and fishing paraphernalia, wild animals, wild birds, fish, amphibians or other forms of aquatic life could be concealed, packed or conveyed whenever they have reason to believe that they would thereby secure or discover evidence of the violation of any provisions of this chapter;
(4) Execute and serve any search warrant, notice or any process of law issued under the authority of this chapter or any law relating to wildlife, forests, and all other natural resources, by a magistrate or any court having jurisdiction thereof, in the same manner, with the same authority, and with the same legal effect, as any sheriff can serve or execute such warrant, notice or process;
(5) Require the operator of any motor vehicle or other conveyance on or about the public highways or roadways, or in or near the fields and streams of this state, to stop for the purpose of allowing such officers to conduct game-kill surveys;
(6) Summon aid in making arrests or seizures or in executing any warrants, notices or processes, and they shall have the same rights and powers as sheriffs have in their respective counties in so doing;
(7) Enter private lands or waters within the state while engaged in the performance of their official duties hereunder; (8) Arrest on sight, without warrant or other court process, subject to the limitations set forth in subdivision (1) of this section, any person or persons committing a criminal offense in violation of any law of this state in the presence of any such officer on any state-owned lands and waters and lands and waters under lease by the division of natural resources and all national forest lands, waters and parks, and U.S. Corps of Army Engineers' properties within the boundaries of the state of West Virginia, and, in addition to any authority conferred in the other subdivisions of this section, execute all warrants of arrest on such state and national lands, waters and parks, and U.S. Corps of Army Engineers' properties, consistent with the provisions of article one, chapter sixty-two of this code;
(9) Arrest any person who enters upon the land or premises of another without written permission from the owner of the land or premises in order to cut, damage or carry away, or cause to be cut, damaged or carried away any timber, trees, logs, posts, fruit, nuts, growing plants or products of any growing plant. Any person convicted of the foregoing shall be liable to the owner in the amount of three times the value of the timber, trees, logs, posts, fruit, nuts, growing plants or products of any growing plant, which shall be in addition to and notwithstanding any other penalties by law provided by section thirteen, article three, chapter sixty-one of this code; and
(10) Do all things necessary to carry into effect the provisions of this chapter.
§20-7-8. Seizure and disposition of property used for illegal
purpose.

Any officer, when he or she arrests or otherwise takes a person into custody, or issues a civil administrative penalty for violating any provision or provisions of this chapter, is hereby also authorized and empowered to take and impound any property found in the possession of the accused and susceptible of use in committing the offense of which the person is accused. Such property shall include firearms, fishing equipment, traps, boats or any other device, appliance or conveyance, but shall not include dogs.
If the accused is acquitted the property seized shall be returned. If the accused is convicted and pays the fine, costs and other penalties, the property shall be returned, but if the accused fails to pay the fine and costs, the property shall be sold at public auction in such manner as the director may prescribe. The proceeds of the sale shall be applied toward the payment of the fine and costs. The remainder, if any, shall be paid to the owner of the seized property.
Whenever a person is convicted of a violation of this chapter a second time, the property seized at the time of arrest shall in any case be declared forfeited to the state and shall be sold in the manner provided by this section.
Property seized, the use of which is forbidden by this chapter, or which is unfit or unsafe for further use, shall be declared forfeited to the state and shall be disposed of by the director.
§20-7-9. Violations of chapter generally; penalties; civil
penalties.

(a) Any person violating any of the provisions of this chapter or rules and regulations promulgated under the provisions of this chapter, the punishment for which is not prescribed, shall be guilty of a misdemeanor, and, upon conviction thereof, shall for each offense be fined not less than twenty nor more than three hundred dollars, or confined in jail not less than ten nor more than one hundred days, or be both fined and imprisoned within the limitations aforesaid, and, in the case of a violation by a corporation, every officer or agent thereof directing or engaging in such violation shall be guilty of a misdemeanor, and, upon conviction thereof, shall be subject to the same penalties and punishment as herein provided. Provided, That any person violating subdivision three, section five, article two of this chapter shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than one hundred dollars nor more than five hundred dollars and shall be imprisoned for not less than ten days nor more than one hundred days: Provided, however, That any person violating sections forty-three and forty- five, article two of this chapter shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than fifty dollars nor more than three hundred dollars, or confined in jail not less than ten nor more than one hundred days, or both fined and imprisoned within the limitations aforesaid: Provided further, That any person violating any parking or speeding regulations as promulgated by the director on any state parks, state forests, public hunting and fishing areas and all other lands and waters owned, leased or under the control of the department of natural resources, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than two nor more than one hundred dollars, or imprisoned in the county jail not more than ten days, or both fined and imprisoned
(1) Use of artificial light in hunting, locating, attracting, taking, trapping or killing wild animals or wild birds. -- Any person violating the provisions of subdivision (3), section five, article two of this chapter is guilty of a misdemeanor, and, upon conviction thereof, shall for each offense be fined not less than one hundred dollars nor more than five hundred dollars and shall be imprisoned in the county jail for not less than ten days nor more than one hundred days. No administrative penalty may be assessed for violation of this section.
(2) Use of explosives or poisonous mixtures. -- Any person violating the provisions of subdivision (20), section five, article two of this chapter is guilty of a felony, and, upon conviction thereof, shall be fined not more than five hundred dollars or imprisoned for not less than six months nor more than three years, or both fined and imprisoned. No administrative penalty may be assessed for violation of this section.
(3) Exceeding creel limit on trout and other trout fishing violations. -- Any person violating the provisions of section five-b, article two of this chapter is guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than fifty dollars nor more than three hundred dollars, or imprisoned in the county jail not less than ten nor more than one hundred days, or both fined and imprisoned.
(4) Transporting of wildlife out of state. -- Any person violating the provisions of section twelve, article two of this chapter is guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than twenty dollars nor more than three hundred dollars and be imprisoned in the county jail not less than ten nor more than sixty days.
(5) Importation of coyotes. -- Any person violating the provisions of section thirteen, article two of this chapter is guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than one hundred nor more than three hundred dollars, or imprisoned in the county jail not less than ten nor more than one hundred days, or both fined and imprisoned.
(6) Bear hunting, tagging and reporting violations. -- Any person violating the provisions of section twenty-two-a, article two of this chapter is guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than five hundred dollars nor more than one thousand dollars, or imprisoned in the county jail not less than thirty nor more than one hundred days, or both fined and imprisoned. The person's hunting and fishing license shall also be suspended for one year.
(7) Violation of guide or outfitter license provision. -- Any person violating the provisions of section twenty-six, article two of this chapter is guilty of a misdemeanor, and, upon conviction thereof, shall be fined not more than one hundred dollars or confined in the county jail not more than ninety days, or both fined and imprisoned.
(8) Violations of nonresident license provisions. -- Any nonresident violating the provisions of sections forty-three and forty-five, article two of this chapter is guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than one hundred twenty-five dollars nor more than three hundred dollars, or confined in jail not less than ten nor more than one hundred days, or both fined and imprisoned.
(9) Negligent shooting, wounding or killing. -- Any person violating the provisions of section fifty-seven, article two of this chapter is guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than one thousand dollars nor more than ten thousand dollars, or imprisoned in the county jail not more than one year, or both fined and imprisoned. Restitution of the value of the livestock, chattel or property injured or destroyed shall be required upon conviction.
(10) Violation of parking or speeding rules on state facilities. -- (A) Any person violating any parking or speeding rule as promulgated by the director on any state parks, state forests, public hunting and fishing areas and all other lands and waters owned, leased or under the control of the division of natural resources is guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than two nor more than one hundred dollars, or imprisoned in the county jail not more than ten days, or both fined and imprisoned.
(B) Any person who violates any provision of this article or any license, permit, rule or order issued pursuant to this chapter is subject to a civil administrative penalty, to be levied by the director, of not more than five hundred dollars for each violation. In assessing any such penalty, the director shall take into account the seriousness of the violation and any good faith efforts to comply with applicable requirements as well as any other appropriate factors as may be established by the director by rules promulgated pursuant to this article and article three, chapter twenty-nine-a of this code. No assessment may be levied pursuant to this section until after the alleged violator has been notified by certified mail or personal service. The notice shall include a reference to the section of the statute, rule, order or statement of the license or permit term or condition that was allegedly violated, a concise statement of the facts alleged to constitute the violation, a statement of the amount of the penalty to be imposed and a statement of the alleged violator's right to an informal hearing. The alleged violator has twenty calendar days from receipt of the notice within which to deliver to the director a written request for an informal hearing. If no hearing is requested, the notice becomes a final order after the expiration of the twenty-day period. If a hearing is requested, the director shall inform the alleged violator of the time and place of the hearing. The director may appoint an assessment officer to conduct the informal hearing, who will then make a written recommendation to the director concerning the assessment of a civil administrative penalty. Within thirty days following the informal hearing, the director shall issue and furnish to the violator a written decision, and the reasons therefor, concerning the assessment of a civil administrative penalty. The authority to levy an administrative penalty is in addition to all other enforcement provisions of this article unless otherwise specified. However, the payment of any civil assessment precludes any criminal procedure from occurring. All administrative penalties shall be levied in accordance with rules to be promulgated by the director in accordance with the provisions of chapter twenty-nine-a of this code.
(b) The net proceeds of the assessments collected pursuant to this section shall be deposited in the nongame wildlife and national heritage fund of the division of natural resources created pursuant to section nineteen, article one, chapter twenty of this code. At the end of each fiscal year, any unexpended balance of such fund shall remain in the nongame wildlife and natural heritage fund.



NOTE: The purpose of this bill is to provide the agency with the flexibility to apply enforcement remedies appropriate to specific violations of this chapter. This bill consolidates and moves the penalty provisions of article two of this chapter to section nine, article seven of this chapter, and creates a new enforcement provision -- civil administrative penalties -- to supplement current remedies.

All net collections from the Civil Administrative Penalties will be credited to the Nongame Wildlife and Natural Heritage Fund.

§20-1-19 is new; therefore, strike-throughs and underscoring have been omitted.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.