WEST virginia legislature

2017 regular session

Committee Substitute

for

Senate Bill 472

By Senators Maynard, Stollings and Cline

[Originating in the Committee on Natural Resources; reported on March 20, 2017]

 

 

A BILL to amend and reenact §20-2-22a, §20-2-23, §20-2-24 and §20-2-26 of the Code of West Virginia, 1931, as amended, all relating to outfitters and guides; setting forth license fees; creating special bear outfitter guide license for certain areas; clarifying when license may be issued; and making technical corrections.

Be it enacted by the Legislature of West Virginia:

That §20-2-22a, §20-2-23, §20-2-24 and §20-2-26 of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:

ARTICLE 2. WILDLIFE RESOURCES.

§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 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 twenty-four 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 that 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 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;

(3) To 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 an area is considered baited for ten days after all bait has been removed;

(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 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 except as provided for in sections twenty-three, and twenty-four and twenty-six of this article.

(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 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: 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 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 $500 nor more than $1,000, which is not subject to suspension by the court, confined in jail not less than ten nor more than thirty 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 thirty days nor more than one hundred days, or both fined and confined. The person’s 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 ten years.

§20-2-23. Outfitters and guides—Generally; definitions.

(a) Services of outfitters and guides for the benefit and convenience of hunters, fishermen and others in this state are recognized as essential, and such outfitters and guides may be licensed and authorized to serve as provided in this article. The director is hereby authorized to promulgate rules and regulations on services of regarding outfitters and guides as herein authorized and defined.

(b) The term “outfitter” as used herein, means and includes any person who, operating from any temporary or permanent camp, private or public lodge, or private or incorporated home situate within in this state, provides for monetary profit or gain, saddle or pack animals or other animals, vehicles, boats, conveyances or equipment, or guide services for to any person or persons hunting game animals or game birds, fishing, or taking expeditions on both land and water in this state. The term “outfitter” shall not include, however, any person who occasionally, for accommodation or favor rather than profit or gain, rents equipment to hunters, fishermen or others as a service incidental to his or her principal occupation or business without advertising outfitter or guide services or holding out to the public the offering of such services. The term “guide”, as used herein, includes and embraces outfitter services and the term “outfitter” includes and embraces guide services, but the applicant for any license hereunder may in his or her application may elect to be designated as an outfitter or guide. A person may not provide outfitter or guide services to a person hunting bear without first obtaining a special bear outfitter guide license pursuant to subsection (b), section twenty-four of this article

(c) The term “commercial whitewater outfitter”, as used herein, means any person, partnership, corporation or other organization, or any combination thereof, duly authorized and operating from within or from without the state, which for monetary profit or gain, that provides whitewater expeditions or rents whitewater craft or equipment for profit for use in whitewater expeditions on any river, or portions of rivers, or waters of the state in accordance with this article.

(d) The term “commercial whitewater guide”, as used herein, means any person who is an owner, agent or employee of a commercial whitewater outfitter and who is qualified and authorized to provide services for whitewater expeditions in the state in accordance with this article.

§20-2-24. Outfitters and guides – qualifications; fees.

Each outfitter and guide licensed under the provisions hereof shall be a financially responsible citizen of the United States of America. He shall possess and inventory proper and adequate materials and equipment to provide for hunters, fishermen and others the services and conveniences he advertises. All such materials and equipment shall be safe and free of infection and conditions inimical to the health and well-being of hunters, fishermen, their traveling, camping and lodging companions.

(a) The director may issue licenses for outfitter and guide services for an annual fee of $50. This license authorizes the licensee to provide outfitter and guide services as provided for in section twenty-three of this article.

(b) The director may issue a special bear outfitter guide license for an annual fee of $100. This license authorizes the licensee to provide outfitter and guide services for bear hunts if the director determines it is necessary to control the bear population in the elk management area as defined in section five-h of this article.  The special bear outfitter guide license shall be valid only in the counties, or portions thereof, as designated by the director.

(c) An outfitter or guide licensed under the provisions of this article shall be financially sound and in good standing with the state. He or she shall provide equipment that is in good working order and that complies with all applicable safety standards and ratings.

(d) The director shall cause all review outfitter and guide applicants to be investigated and shall make a determination of determine if their qualifications are sufficient prior to the issuance or refusal of licenses thereto issuing or refusing to issue a license.

§20-2-26. Same -- License fee; Outfitters and guides— bond; revocation of license; criminal penalties.

When satisfied as to the applicant's qualifications for an outfitter's or guide's license and upon receipt of a fee of $10 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 $1,000 payable to the State of West Virginia and conditioned upon the faithful and reliable discharge of his 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.

(a) The director may issue a license for an outfitter or guide when satisfied with the applicant’s qualifications. The license may not be issued until a $1,000 surety bond is posted and the requisite annual fee paid.  The license is in effect for the current calendar year. 

(b) The director may refuse to issue or revoke any outfitter or guide license if: (1) The licensee fails to post bond; (2) the licensee violates a provision of the chapter; (3) the licensee is convicted of a crime; or (4) other just cause.  The director shall provide the licensee with an opportunity to be heard upon the refusal or revocation of a license.

 (c) 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 so to do. Any person violating this provision the provisions of this article shall be guilty of a misdemeanor and, upon conviction thereof, may be fined not exceeding $100 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 both fined and confined.

 

NOTE: The purpose of this bill is to permit bear hunting with guides.

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