Senate Bill No. 278
(By Senator Karnes)
[Originating in the Committee on
reported February 25, 2015.]
A BILL to amend and reenact §20-2-5, §20-2-5g, §20-2-22a and §20-2-42w of the Code of West Virginia, 1931, as amended, all relating to lawful and unlawful methods of hunting and fishing; prohibiting hunting with night vision technology, drone or other unmanned aircraft; clarifying when a person may carry certain firearms; permitting a person to carry a gun for self defense while in the woods; permitting hunting with crossbows with certain limitations; clarifying bear laws and Class Y permits; and making certain technical corrections.
Be it enacted by the Legislature of West Virginia:
That §20-2-5, §20-2-5g, §20-2-22a and §20-2-42w of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:
ARTICLE 2. WILDLIFE RESOURCES.
§20-2-5. Unlawful methods of hunting and fishing and other unlawful acts.
Except as authorized by the director or by law, it is unlawful at any time for any person to:
(1) Shoot at or to shoot any wild bird or wild animal unless it is plainly visible to him or her;
(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 rules promulgated by the director or by law;
(3) Make use of, or take advantage of, Use or attempt to use any artificial light or any night vision technology, including image intensification, thermal imaging or active illumination while in hunting, locating, attracting, taking, trapping or killing any wild bird or wild animal: or to attempt to do so, while having in his or her possession or subject to his or her control, or for any person accompanying him or her to have in his or her possession or subject to his or her 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 is lawful to hunt or take coyote, fox, raccoon, opossum or skunk by the use of artificial light or night vision technology. subject to the restrictions set forth in this subdivision. No person is guilty of a violation of this subdivision merely because he or she 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 the time he or she has in his or her 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 the 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 is guilty of a misdemeanor and, upon conviction thereof, shall for each offense be fined not less than $100 nor more than $500, and shall be confined in jail for not less than ten days nor more than one hundred days;
(4) Hunt for, take, kill, wound or shoot at wild animals or wild birds from an airplane or other airborne conveyance, a drone or other unmanned aircraft, an automobile or other land conveyance, or from a motor-driven water conveyance except as authorized by rules promulgated by the director;
(5) Use a drone or other unmanned aircraft to hunt, take or kill a wild bird or wild animal, or to use a drone or other unmanned aircraft to drive or herd any wild bird or wild animal for the purposes of hunting, trapping or killing;
(5) (6) Take any beaver or muskrat by any means other than by a trap;
(6) (7) Catch, capture, take or kill by seine, net, bait, trap or snare or like device of any kind any a bear, wild turkey, ruffed grouse, pheasant or quail;
(7) (8) Destroy or attempt to destroy needlessly or willfully the nest or eggs of any wild bird or have in his or her possession the nest or eggs unless accidental or authorized to do so under rules promulgated by or under a permit issued by the director;
(8) Except as provided in section six of this article, carry (9) Carry an uncased or loaded gun in any of the woods of this state except during the with the following permissible exceptions:
(A) A person in possession of a valid license or permit during open firearms hunting season for wild animals and nonmigratory wild birds; within any county of the state unless he or she has in his or her possession a permit in writing issued to him or her by the director: Provided, That this section does not prohibit
(B) A person 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;
(C) A person carrying a gun pursuant to sections six and six-a of this article; or
(D) A person carrying a deadly weapon for self defense who is not prohibited from possessing firearms by section seven, article seven, chapter sixty-one of this code;
(9) (10) Have in his or her possession a crossbow with a nocked bolt, a loaded firearm or a firearm from the magazine of which all shells and cartridges or rifle or shotgun with cartridges that have not been removed or a magazine that has not been detached, in or on any vehicle or conveyance, or its attachments, within the state, except as may otherwise be provided by law or regulation. For the purposes of this section, a rifle or shotgun whose magazine readily detaches is considered unloaded if the magazine is detached and no cartridges remain in the rifle or shotgun itself. Except as hereinafter provided, that between five o'clock post meridian of one day one and seven o'clock ante meridian, Eastern Standard Time, of the following day following, any unloaded firearm or crossbow, being lawfully carried in accordance with the foregoing provisions, may be so carried only when in a case or taken apart and securely wrapped. During the period from July 1 to September 30, inclusive, of each year, the foregoing requirements relative to carrying certain unloaded firearms are permissible only from eight-thirty o'clock post meridian to five o'clock ante meridian, Eastern Standard Time: Provided, That the time periods for carrying unloaded and uncased firearms are extended for one hour after the post meridian times and one hour before the ante meridian times established above in this subdivision, if a hunter is preparing to or in the process of person is transporting or transferring the firearms to or from a hunting site, campsite, home or other place of abode;
(10) (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 ante meridian on Sunday on private land without the written consent of the landowner any wild animals or wild birds except when a big game season opens on a Monday, the Sunday prior to that opening day will be closed for any taking of wild animals or birds after five o'clock ante meridian on that Sunday: Provided, That traps previously and legally set may be tended after the hour of five o'clock ante meridian on Sunday and the person so doing tending the traps may carry only a twenty-two caliber firearm firearms for the purpose of humanely dispatching trapped animals. Any person violating the provisions of this subdivision is guilty of a misdemeanor and, upon conviction thereof, in addition to any fines that may be imposed by this or other sections of this code, is subject to a an additional $100 fine;
(11) (12) Hunt, catch, take, kill, injure or pursue a wild animal or wild bird with the use of a ferret;
(12) (13) Buy raw furs, pelts or skins of fur-bearing animals unless licensed to do so;
(13) (14) 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 rules issued by the director: Provided, That snaring of any species of suckers, carp, fallfish and creek chubs shall at all times be is lawful;
(14) (15) Employ, or hire, or induce or persuade, by the use of with 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 in which there is no closed season; or to fish for, catch, take or kill any fish, amphibian or aquatic life which that is protected by the provisions of this chapter, or rules of the director by rule, or the sale of which is otherwise prohibited;
(15) (16) 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, August 16, 1916, and February 7, 1936, except during the time and in the manner and numbers prescribed except as permitted by the federal Migratory Bird Treaty Act, 16 U. S. C. §703, et seq., and its regulations made thereunder;
(16) (17) Kill, take, catch, sell, transport or have in his or her possession, living or dead, any wild bird other than a game bird; or expose for sale or transport within or without the state any bird except as aforesaid. No part of including the plumage, skin or body of any protected bird, may be sold or had in possession for sale except mounted or stuffed plumage, skin, bodies or heads of the birds legally taken and stuffed or mounted, irrespective of whether the bird was captured within or without in or out of this state, except the English or European sparrow (Passer domesticus), starling (Sturnus vulgaris) and cowbird (Molothrus ater), which may not be protected and the killing thereof at any time is lawful may be killed at any time;
(17) (18) Use dynamite, or any like explosive explosives or poisonous mixture placed any poison in any waters of the state for the purpose of killing or taking fish. Any person violating this subdivision is guilty of a felony and, upon conviction thereof, shall be fined not more than $500 or imprisoned for not less than six months nor more than three years, or both fined and imprisoned;
(18) (19) Have a bow and gun, or have a gun and any arrow or arrows, in the fields or woods at the same time;
(19) (20) Have a crossbow in the woods or fields or use a crossbow to hunt for, take or attempt to take any wildlife except as otherwise provided in section sections five-g and forty-two-w of this article;
(20) (21) Take or attempt to take turkey, bear, elk or deer with any arrow unless the arrow is equipped with a point having at least two sharp cutting edges measuring in excess of three fourths of an inch wide;
(21) (22) 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;
(22) (23) Shoot an arrow across any public highway or from aircraft, motor-driven watercraft, motor vehicle or other land conveyance;
(23) (24) Permit any dog owned by him or her or under his or her control to chase, pursue or follow upon the track the tracks of any wild animal or wild bird, either day or night, between May 1 and the August 15 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 or her bona fide tenant or tenants or upon the grounds or lands of another person with his or her written permission, or on public lands at any time: Provided, however, That nonresidents may not train dogs in this state at any time except during the legal small game hunting season: Provided further, That the person training said dogs does not have firearms or other implements in his or her possession during the closed season on wild animals and wild birds, whereby wild animals or wild birds could be taken or killed;
(24) (25) Conduct or participate in a trial, including 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 the a trial at any time of the year upon obtaining a permit as is provided in pursuant to section fifty-six of this article. The person responsible for obtaining the permit shall prepare and keep an accurate record of the names and addresses of all persons participating in said the trial and make same the records readily available for inspection by any natural resources police officer upon request;
(25) Except as provided in section four of this article, hunt (26) 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 seasons established by rule of the director as authorized by the Natural Resources Commission pursuant to subdivision (6), section seven, article one of this chapter;
(27) Hunting on public lands on Sunday after five o'clock ante meridian is prohibited;
(28) Hunt, catch, take, kill, trap, injure or pursue with firearms or other implement which wildlife can be taken, on private lands on Sunday after the hour of five o'clock ante meridian: Provided, That the provisions of this subdivision do not apply in any county until the county commission of the county holds an election on the question of whether the provisions of this subdivision prohibiting hunting on Sunday shall apply within the county and the voters approve the allowance of hunting on Sunday in the county. The election is determined by a vote of the resident voters of the county in which the hunting on Sunday is proposed to be authorized. The county commission of the county in which Sunday hunting is proposed shall give notice to the public of the election by publication of the notice as a Class II-0 legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code and the publication area for the publication is the county in which the election is to be held. The date of the last publication of the notice shall fall on a date within the period of the fourteen consecutive days next preceding the election.
On the local option election ballot shall be printed the following:
Shall hunting on Sunday be authorized on private lands only with the consent of the land owner in ________ County?
[ ] Yes
[ ] No
(Place a cross mark in the square opposite your choice.)
Any local option election to approve or disapprove of the proposed authorization of Sunday hunting within a county shall be in accordance with procedures adopted by the commission. The local option election may be held in conjunction with a primary or general election or at a special election. Approval shall be by a majority of the voters casting votes on the question of approval or disapproval of Sunday hunting at the election.
If a majority votes against allowing Sunday hunting, no an election on the issue may not be held for a period of one hundred four weeks. If a majority votes “yes”, no an election reconsidering the action may not be held for a period of five years. A local option election may thereafter be held if a written petition of qualified voters residing within the county equal to at least five percent of the number of persons who were registered to vote in the next preceding general election is received by the county commission of the county in which Sunday hunting is authorized. The petition may be in any number of counterparts. The election shall take place at the next primary or general election scheduled more than ninety days following receipt by the county commission of the petition required by this subsection: Provided, That the issue may not be placed on the ballot until all statutory notice requirements have been met. No local law or regulation providing any penalty, disability, restriction, regulation or prohibition of Sunday hunting may be enacted and the provisions of this article preempt all regulations, rules, ordinances and laws of any county or municipality in conflict with this subdivision. and
The amendments to this subdivision during the 2015 regular session of the Legislature shall have no effect on the results of elections held prior to the enactment of the amendments to this subdivision; and
(28) (29) Hunt or conduct hunts for a fee where the hunter when the person is not physically present in the same location as the wildlife being hunted within West Virginia.
§20-2-5g. Use of a crossbow to hunt.
(a) Notwithstanding any other provision of this code to the contrary, a person who possesses a valid Class Y permit in accordance with section forty-two-w of this article may, during the designated archery hunting season, any person lawfully entitled to hunt may hunt with a crossbow during big game firearms season. A person who possesses a valid Class Y permit may also hunt with a crossbow in accordance with section forty-two-w of this article. Further, the director shall designate a separate season for crossbow hunting and identify which species of wildlife may be hunted with a crossbow.
(b) Only crossbows meeting all of the following specifications may be used for hunting in West Virginia:
(1) The crossbow has a minimum draw weight of one hundred twenty-five pounds;
(2) The crossbow has a working safety; and
(3) The crossbow is used with bolts and arrows not less than eighteen inches in length with a broad head having at least two sharp cutting edges, measuring at least three fourths of an inch in width.
§20-2-22a. Hunting, tagging and reporting bear; procedures applicable to property destruction by bear; penalties.
(a) A person in any county of this state may not hunt, capture, or kill any bear, or have in his or her possession any bear or bear parts, except during the hunting season for bear and in the manner designated by rules promulgated by the Division of Natural Resources, and as provided in this section. For the purposes of this section, bear parts include, but are not limited to, the pelt, gallbladder, skull and claws of bear.
(b) A person who kills a bear shall, within twenty-four hours after the killing, deliver the bear or fresh skin to a natural resources police officer or checking station for tagging electronically register the bear. A division of Natural Resources tag shall be affixed to it before any part of the bear may be transported more than seventy-five miles from the point of kill. The division of Natural Resources tag shall remain on the skin until it is tanned or mounted. Any bear or bear parts not properly tagged shall be forfeited to the state for disposal to a charitable institution, school or as otherwise designated by the Division of Natural Resources director.
(c) It is 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, explosives, snares, steel traps or deadfalls other than as authorized in this section;
(4) To shoot at or kill:
(A) A bear weighing less than seventy-five pounds live weight or fifty pounds field dressed weight, after removal of all internal organs;
(B) Any bear accompanied by a cub; or
(C) Any bear cub so accompanied, regardless of its weight;
(5) To possess 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 division personnel;
(7) To hunt bear with dogs or to cause dogs to chase bear during seasons other than those designated by the division of Natural Resources for the hunting of bear;
(8) To pursue a bear with a pack of dogs other than the pack used at the beginning of the hunt once the bear is spotted and the chase has begun;
(9) To possess, harvest, sell or purchase bear parts obtained from bear killed in violation of this section;
(10) 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, notwithstanding the provisions of sections twenty-three and twenty-four of this article; or
(11) 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.
(d) The following provisions apply to bear destroying property:
(1) (A) Any property owner or lessee who has suffered damage to real or personal property, including loss occasioned by the death or injury of livestock or the unborn issue of livestock, caused by an act of a bear may complain to any natural resources police officer of the division of Natural Resources for protection against the bear.
(B) Upon receipt of the complaint, the officer shall immediately investigate the circumstances of the complaint. If the officer is unable to personally investigate the complaint, he or she shall designate a wildlife biologist to investigate on his or her behalf.
(C) If the complaint is found to be justified, the officer or designated person may, together with the owner and other residents, proceed to hunt, destroy or capture the bear that caused the property damage: Provided, That only the natural resources police officer or the wildlife biologist may determine whether to destroy or capture the bear and whether to use dogs to capture or destroy the bear: Provided, however, That, if out-of-state dogs are used in the hunt, the owners of the dogs are the only nonresidents permitted to participate in hunting the bear.
(2) (A) When a property owner has suffered damage to real or personal property as the result of an act by a bear, the owner shall file a report with the director of the division of Natural Resources. The report shall state whether or not the bear was hunted and destroyed and, if so, the sex, weight and estimated age of the bear. The report shall also include an appraisal of the property damage occasioned by the bear duly signed by three competent appraisers fixing the value of the property lost.
(B) The report shall be ruled upon and the alleged damages examined by a commission comprised of the complaining property owner, an officer of the division and a person to be jointly selected by the officer and the complaining property owner.
(C) The division shall establish the procedures to be followed in presenting and deciding claims under this section in accordance with article three, chapter twenty-nine-a of this code.
(D) All claims shall be paid in the first instance from the Bear Damage Fund provided in section forty-four-b of this article. In the event the 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 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. In cases where the livestock killed is pregnant, the total value is 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.
(e) Criminal penalties. – (1) Any person who commits a violation of the provisions of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $1,000 nor more than $5,000, which fine is not subject to suspension by the court, confined in jail not less than thirty nor more than one hundred days, or both fined and confined. Further, the person’s hunting and fishing licenses shall be suspended for two years.
(2) Any person who commits a second violation of the provisions of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $2,000 nor more than $7,500, which fine is not subject to suspension by the court, confined in jail not less than thirty days nor more than one year, or both fined and confined. The person’s hunting and fishing licenses shall be suspended for life.
(3) Any person who commits a third or subsequent violation of the provisions of this section is guilty of a felony and, upon conviction thereof, shall be fined not less than $5,000 nor more than $10,000, which fine is not subject to suspension by the court, imprisoned in a correctional facility not less than one year nor more than five years, or both fined and imprisoned.
§20-2-42w. Class Y special crossbow hunting permit for certain disable persons.
(a) On or after January 1, 2006, a A Class Y permit shall be is a special statewide hunting permit and shall entitle the permittee entitling a person to hunt all wildlife during established archery and firearm seasons An application shall be furnished by the director, and a Class Y permit allowing the holder to use a crossbow, during the archery hunting seasons, to applicants who meet if the person meets the following requirements:
(1) He or she holds a Class Q permit;
(2) He or she has a permanent and substantial loss of function in one or both hands while failing to meet the minimum standards of the upper extremity pinch, grip and nine-hole peg tests administered under the direction of a licensed physician; or
(3) A He or she has a permanent and substantial loss of function in one or both shoulders while failing to meet the minimum standards of the standard shoulder strength test administered under the direction of a licensed physician.
(b) The application form shall include a written statement or report prepared by a the physician, prepared conducting the test no more than six months preceding the application and verifying that the applicant is physically disabled as described in this section. As part of the application, the applicant shall authorize, by written release, an examination of all medical records regarding his or her qualifying disability. When completed, the permit form constitutes a Class Y permit. The Class Y permit and a completed license application shall be submitted to the Division, which will issue a wallet-sized card to the permittee. The card and all other documents and identification required to be carried by this article shall be in the permittee’s possession when hunting.
(c) A Class Y permit must be accompanied by a valid statewide hunting license or the applicant must be exempt from hunting licenses as provided in this chapter.