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Introduced Version Senate Bill 513 History

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Key: Green = existing Code. Red = new code to be enacted

WEST virginia legislature

2021 regular session

Introduced

Senate Bill 513

By Senator Woodrum

[Introduced March 1, 2021; referred
to them Committee on Natural Resources]

A BILL to repeal §20-2-5f of the Code of West Virginia, 1931, as amended; and to amend and reenact §20-1-2, §20-2-5, §20-2-22a, and §20-2-44b of said code, all relating to the regulation of natural resources; modifying definitions of “commissioner”, “game fish”, and “open season”; and relating to hunting dog training season, bear hunting dog training season, and the bear damage stamp.

Be it enacted by the Legislature of West Virginia:


ARTICLE 1. ORGANIZATION AND ADMINISTRATION.


§20-1-2. Definitions.


As used in this chapter, unless the context clearly requires a different meaning:

“Agency” means any branch, department, or unit of the state government, however designated or constituted.

“Alien” means any person not a citizen of the United States.

“Bag limit” or “creel limit” means the maximum number of wildlife which may be taken, caught, killed, or possessed by any person.

“Big game” means elk, deer, black bears, wild boars, and wild turkeys.

“Bona fide resident, tenant, or lessee” means a person who permanently resides on the land.

“Citizen” means any native-born citizen of the United States and foreign-born persons who have procured their final naturalization papers.

“Closed season” means the time or period during which it shall be is unlawful to take any wildlife as specified and limited by this chapter.

“Commission” means the Natural Resources Commission.

“Commissioner” means a member of the advisory commission of the Natural Resources Commission.

“Director” means the Director of the Division of Natural Resources.

“Fishing” or “to fish” means the taking, by any means, of fish, minnows, frogs or other amphibians, aquatic turtles and other forms of aquatic life used as fish bait.

“Fur-bearing animals” includes: (a) The mink; (b) the weasel; (c) the muskrat; (d) the beaver; (e) the opossum; (f) the skunk and civet cat, commonly called polecat; (g) the otter; (h) the red fox; (i) the gray fox; (j) the wildcat, bobcat, or bay lynx; (k) the raccoon; (l) the fisher; and (m) canis latrans var. more commonly known as the coyote.

“Game” means game animals, game birds, and game fish as herein defined.

“Game animals” includes: (a) The elk; (b) the deer; (c) the cottontail rabbits and hares; (d) the fox squirrels, commonly called red squirrels, and gray squirrels and all their color phases - red, gray, black or albino; (e) the raccoon; (f) the black bear; (g) the wild boar; and (h) the marmot monax, more commonly known as woodchuck or groundhog. The term “game animals” does not include captive cervids regulated pursuant to §19-2H-1 et seq. of this code.

“Game birds” includes: (a) The Anatidae, commonly known as swan, geese, brants and river and sea ducks; (b) the rallidae, commonly known as rails, sora, coots, mudhens and gallinule; (c) the limicolae, commonly known as shorebirds, plover, snipe, woodcock, sandpipers, yellow legs and curlews; (d) the galliformes, commonly known as wild turkey, grouse, pheasants, quails and partridges (both native and foreign species); (e) the columbidae, commonly known as doves; (f) the icteridae, commonly known as blackbirds, redwings and grackle; and (g) the corvidae, commonly known as crows.

“Game fish” includes: (a) Brook trout; (b) brown trout; (c) rainbow trout; (d) golden rainbow trout; (e) largemouth bass; (f) smallmouth bass; (g) spotted bass; (h) striped bass; (i) chain pickerel; (j) muskellunge; (k) walleye; (l) northern pike; (m) rock bass; (n) white bass; (o) white crappie; (p) black crappie; (q) all sunfish species; (r) channel catfish; (s) flathead catfish; (t) blue catfish; (u) sauger; and (v) all game fish hybrids; and (w) yellow perch.

“Hunt” means to pursue, chase, catch or take any wild birds or wild animals. However, the definition of “hunt” does not include an officially sanctioned and properly licensed field trial, water race or wild hunt as long as that field trial is not a shoot-to-retrieve field trial.

“Lands” means land, waters and all other appurtenances connected therewith.

“Migratory birds” means 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, known as the Migratory Bird Treaty Act, for the protection of migratory birds and game mammals concluded, respectively, August 16, 1916, and February 7, 1936.

“Nonresident” means any person who is a citizen of the United States and who has not been a domiciled resident of the State of West Virginia for a period of 30 consecutive days immediately prior to the date of his or her application for a license or permit except any full-time student of any college or university of this state, even though he or she is paying a nonresident tuition.

“Open season” means the time during which the various species of wildlife may be legally caught, taken, killed, or chased in a specified manner, including hunting dog training seasons, and shall include both the first and the last day of the season or period designated by the director.

“Person”, except as otherwise defined elsewhere in this chapter, means the plural “persons” and shall include individuals, partnerships, corporations or other legal entities.

“Preserve” means all duly licensed private game farmlands or private plants, ponds or areas where hunting or fishing is permitted under special licenses or seasons other than the regular public hunting or fishing seasons. The term “preserve” does not include captive cervid farming facilities regulated pursuant to §19-2H-1 et seq. of this code.

“Protected birds” means all wild birds not included within the definitions of “game birds” and “unprotected birds”.

“Resident” means any person who is a citizen of the United States and who has been a domiciled resident of the State of West Virginia for a period of consecutive days or more immediately prior to the date of his or her application for license or 30 permit. However, a member of the Armed Forces of the United States who is stationed beyond the territorial limits of this state, but who was a resident of this state at the time of his or her entry into such service and any full-time student of any college or university of this state, even though he or she is paying a nonresident tuition, shall be considered a resident under this chapter.

“Roadside menagerie” means any place of business, other than a commercial game farm, commercial fish preserve, place, or pond, where any wild bird, game bird, unprotected bird, game animal or fur-bearing animal is kept in confinement for the attraction and amusement of the people for commercial purposes.

“Small game” includes all game animals, fur-bearing animals and game birds except elk, deer, black bears, wild boars, and wild turkeys.

“Take” means to hunt, shoot, pursue, lure, kill, destroy, catch, capture, keep in captivity, gig, spear, trap, ensnare, wound, or injure any wildlife or attempt to do so. However, the definition of “take” does not include an officially sanctioned and properly licensed field trial, water race or wild hunt as long as that field trial is not a shoot-to-retrieve field trial.

“Unprotected birds” shall include: (a) The English sparrow; (b) the European starling; and (c) the cowbird.

“Wild animals” means all mammals native to the State of West Virginia occurring either in a natural state or in captivity, except house mice or rats, and includes coyotes and porcupines and all species of cervids. The term “wild animals” does not include captive cervids owned and possessed by persons licensed pursuant to §19-2H-1 et seq. of this code.

“Wild birds” shall include all birds other than: (a) Domestic poultry — chickens, ducks, geese, guinea fowl, peafowls, and turkeys; (b) psittacidae, commonly called parrots and parakeets; and (c) other foreign cage birds such as the common canary, exotic finches and ring dove. All wild birds, either: (i) Those occurring in a natural state in West Virginia; or (ii) those imported foreign game birds, such as waterfowl, pheasants, partridges, quail, and grouse, regardless of how long raised or held in captivity, shall remain wild birds under the meaning of this chapter.

“Wildlife” means wild birds, wild animals, game and fur-bearing animals, fish (including minnows), reptiles, amphibians, mollusks, crustaceans, and all forms of aquatic life used as fish bait, whether dead or alive. The term “wildlife” does not include captive cervids regulated pursuant to §19-2H-1 et seq. of this code.

“Wildlife refuge” means any land set aside by action of the director as an inviolate refuge or sanctuary for the protection of designated forms of wildlife.

ARTICLE 2. WILDLIFE RESOURCES.


§20-2-5. Unlawful methods of hunting and fishing and other unlawful acts.


(a) Except as authorized by the director or by law, it is unlawful at any time for any person to:

(1) Shoot at any wild bird or wild animal unless it is plainly visible;

(2) Dig out, cut out, 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;

(3) Use or attempt to use any artificial light or any night vision technology, including image intensification, thermal imaging, or active illumination while hunting, locating, attracting, taking, trapping, or killing any wild bird or wild 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, including image intensification, thermal imaging, or active illumination. Any person violating 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 10 days nor more than 100 days;

(4) Hunt, take, kill, wound, harass, 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;

(5) Use a drone or other unmanned aircraft to hunt, take, wound, harass, transport, 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;

(6) Take any beaver or muskrat by any means other than a trap;

(7) Catch, capture, take, hunt, or kill by seine, net, bait, trap, or snare or like device a wild turkey, ruffed grouse, pheasant, or quail;

(8) Intentionally destroy or attempt to destroy the nest or eggs of any wild bird or have in his or her possession the nest or eggs;

(9) Carry an uncased or loaded firearm in the woods of this state or in state parks, state forests, state wildlife management areas, or state rail trails 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 where hunting is lawful;

(B) A person hunting or taking unprotected species of wild animals, wild birds, and migratory wild birds during the open season, in the open fields, open water, and open marshes of the state where hunting is lawful;

(C) A person carrying a firearm pursuant to §20-2-6 of this code;

(D) A person carrying a firearm for self-defense who is not prohibited from possessing firearms under state or federal law; or

(E) A person carrying a rifle or shotgun for self-defense who is not prohibited from possessing firearms under state or federal law: Provided, That this exception does not apply to an uncased rifle or shotgun carried specifically in state park or state forest recreational facilities and marked trails within state park or state forest borders.

(10) Possess a loaded rifle or shotgun, a bow with a nocked arrow, or crossbow with a nocked bolt, in or on any vehicle or conveyance, or its attachments. A rifle or shotgun with cartridges that have not been removed or a magazine that has not been detached is considered loaded. 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;

(11) Carry any unloaded firearm, bow, or crossbow in or on any vehicle or conveyance, or its attachments, that is not in a case or taken apart and securely wrapped between 30 minutes after sunset until 30 minutes before sunrise: Provided, That the time periods for carrying unloaded and uncased firearms or crossbows are extended for one hour after sunset as established in this subdivision, if a person is transporting or transferring the firearms or crossbows to or from a hunting site, campsite, home, or other abode;

(12) Hunt, catch, take, kill, injure, or pursue a wild animal or wild bird with the use of a ferret;

(13) Buy raw furs, pelts, or skins of fur-bearing animals unless licensed to do so;

(14) Catch, take, kill, or attempt to catch, take, or kill any fish by any means other than by rod, line, and hooks with natural or artificial lures, unless otherwise authorized by the director: Provided, That snaring of any species of sucker, carp, fallfish, and creek chub and catching catfish by hand are lawful if done by a holder of a valid license issued pursuant to §20-2-1 et seq. of this code or is exempted from licensure pursuant to §20-2-27 or §20-2-28 of this code;

(15) Employ, hire, induce, or persuade, with money, things of value, or by any means, any person to hunt, take, catch, or kill any wild animal or wild bird except those species in which there is no closed season; or to fish for, catch, take, or kill any fish, amphibian or aquatic life that is protected by rule, or the sale of which is otherwise prohibited;

(16) Hunt, catch, take, kill, capture, pursue, transport, possess or use any migratory game or nongame birds except as permitted by the Migratory Bird Treaty Act, 16 U.S.C. §703, et seq. and its regulations;

(17) Kill, take, catch, sell, transport, or have in his or her possession, living or dead, any wild bird other than a game bird, including the plumage, skin or body of any protected bird, irrespective of whether the bird was captured in or out of this state, except the English or European sparrow (Passer domesticus), starling (Sturnus vulgaris), and cowbird (Molothrus ater), which may be killed at any time;

(18) Use dynamite, explosives, or 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 in a state correctional facility  for not less than six months nor more than three years, or both fined and imprisoned;

(19) Have a bow and gun or have a gun and any arrow, in the fields or woods at the same time;

(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 §20-2-5g and §20-2-42w of this code;

(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;

(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;

(23) Shoot an arrow across any public highway;

(24) Permit any dog owned or under his or her control to chase, pursue or follow the tracks of any wild animal or wild bird, day or night, between May 1 and August 15 except as provided in §20-2-54 and §20-2-56a of this code: Provided, That dogs may be trained on wild animals and wild birds, except deer and wild turkeys, during the hunting dog training seasons, and properly licensed field trials may be held or conducted on the grounds or lands of the owner, or by his or her bona fide tenant, or upon the grounds or lands of another person with his or her written permission, or on public lands at any time. Nonresidents may not train dogs in this state at any time except during the legal small game hunting season. A person training dogs may not have firearms or other implements for taking wildlife in his or her possession during the closed season on wild animals and wild birds, except a person carrying a firearm for self-defense who is not prohibited from possessing firearms under state or federal law;

(25) Conduct or participate in a trial, including a field trial, shoot-to-retrieve field trial, water race, or wild hunt: Provided, That any person, group of persons, club, or organization may hold a trial upon obtaining a permit pursuant to §20-2-56 of this code. The person responsible for obtaining the permit shall prepare and keep an accurate record of the names and addresses of all persons participating in the trial and make the records readily available for inspection by any natural resources police officer upon request;

(26) Hunt, catch, take, kill, or attempt to hunt, catch, take or kill any wild animal, wild bird or wild fowl except during the applicable open seasons;

(27) Hunt or conduct hunts for a fee when the person is not physically present in the same location as the wildlife being hunted within West Virginia; and

(28) Catch, take, kill, or attempt to catch, take or kill any fish by any means within 200 feet of division personnel engaged in stocking fish in public waters.

(b) Notwithstanding any ballot measure relating to Sunday hunting, it is lawful to hunt throughout the State of West Virginia on private lands on Sundays with the written consent of the private landowner pursuant to §20-2-7 of this code, and it is lawful to hunt throughout the State of West Virginia on federal land where hunting is permitted, in state forests, on land owned or leased by the state for wildlife purposes, and on land managed by the state for wildlife purposes pursuant to a cooperative agreement.


§20-2-5f. Nonresident dog training for coon hunting; training season.

[Repealed]


§20-2-22a. Hunting, tagging, and reporting bear; procedures applicable to property destruction by bear; penalties.


(a) A person 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 open seasons for bear in the manner designated by rule or law. 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 24 hours after the killing, electronically register the bear. A game tag number shall be issued to the person and recorded in writing with the person’s name and address, or on a field tag and 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 director.

(c) Training dogs on bears or pursuing bears with dogs is the hunting of bear for all purposes of this chapter, including all applicable regulations and license requirements.

(d) It is unlawful:

(1) To hunt bear without a bear damage stamp, as prescribed in §20-2-44b of this code, 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 25 caliber using rimfire ammunition;

(3) To hunt or attempt to hunt, kill or attempt to kill, or wound or attempt to wound, any bear through the use of bait, poison, explosives, traps, or deadfalls or to feed bears at any time. For purposes of this section, bait includes, but is not limited to, corn and other grains, animal carcasses or animal remains, grease, sugars in any form, scent attractants and other edible enticements, and any nonedible facsimile of an edible enticement, and an area is considered baited for 10 days after all bait has been removed;

(4) To shoot at or kill:

(A) A bear weighing less than 75 pounds live weight or 50 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 transport or possess any part of a bear not tagged in accordance with the provisions of this section;

(6) To possess, harvest, sell or purchase bear parts obtained from bear killed in violation of this section; or

(7) 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 §20-2-23 and §20-2-24 of this code.

(e) The following provisions apply to bear damaging or 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 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 wildlife biologist may issue a permit to kill the bear that caused the property damage or may authorize the owner and other residents to 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 recommend other measures to end or minimize property damage: 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. A bear damage report shall be completed by a representative of the division and shall state whether or not the bear was hunted and destroyed or killed under authorization of a depredation permit and, if so, the sex and weight shall be recorded and a premolar tooth collected from the bear, all of which shall be submitted with the report. The report shall also include an appraisal of the property damage occasioned by the bear fixing the value of the property lost. Bear damage claims will not be accepted for personal and real property which is commonly used for the purposes of feeding, baiting, observing or hunting wildlife, including, but not limited to, hunting blinds, tree stands, artificial feeders, game or trail cameras and crops planted for the purposes of feeding or baiting wildlife.

(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, issuing bear depredation permits and organizing bear hunts under this section in accordance with §29A-3 1 et seq. of this code.

(D) All claims shall be paid in the first instance from the Bear Damage Fund provided in §20-2-44b of this code: Provided, That the claimant shall submit accurate information as to whether he or she is insured for the damages caused by the acts of bear on forms prescribed by the director, and all damage claims shall first be made by the claimant against any insurance policies before payment may be approved from the Bear Damage Fund. Claims for an award of compensation from the Bear Damage Fund shall be reduced or denied in the amount the claimant is actually reimbursed by insurance for the economic loss upon which the claim is based. 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.

(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.

(f) Criminal penalties̶  (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 $500 nor more than $1,000, which is not subject to suspension by the court, confined in jail not less than 10 nor more than 30 days, or both fined and confined. Further, the person’s hunting and fishing licenses shall be assigned six points, however, the hunting and fishing licenses of any person convicted of a violation of this section which results in the killing or death of a bear 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 $1,000 nor more than $3,000, which is not subject to suspension by the court, confined in jail not less than 30 days nor more than 100 days, or both fined and confined. The persons hunting and fishing licenses shall be suspended for five years.

(3) Any person who commits a third or subsequent violation of the provisions of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $2,500 nor more than $5,000, which is not subject to suspension by the court, confined in jail not less than six months nor more than one year, or both fined and confined. The person’s hunting and fishing licenses shall be suspended for 10 years.

§20-2-44b. Bear damage stamp; proceeds to be paid into bear damage fund; purposes, etc.


To hunt a bear in this state, a licensed hunter shall have, in addition to a Class A, A-L, AB-L, X or XJ, in the case of a resident, or a Class C or EE, in the case of a nonresident, a bear damage stamp issued by the Division of Natural Resources. The fee for the stamp is $10. Any person who has filled his or her initial bear damage stamp and pursues additional bears or trains hunting dogs on bears pursuant to §20-2-5(24) of this code shall purchase an additional bear damage stamp: Provided, that a person who has met the season bag limit during any open bear season may not participate further in bear hunting or the training of hunting dogs on bear with a bow, cross bow, or firearm in his or her possession. All proceeds from the sale of stamps shall be paid into the bear damage fund which shall be maintained by the Division of Natural Resources for paying claims of property owners for damages to real and personal property caused by acts of bear and to cover the expense of black bear research programs within the state. This stamp requires that the licensee purchase the appropriate base license before participating in the activities specified in this section, except as noted.

NOTE: The purpose of this bill is to modify the definition of commissioner, game fish and open season, and to establish hunting dog training seasons, and specify bear damage stamp requirements for bear dog training.

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

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