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Introduced Version House Bill 2586 History

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


H. B. 2586


(By Mr. Speaker, Mr. Kiss (By Request),

and Delegate Keener)


[Introduced February 28, 2001 ; referred to the

Committee on Agriculture and Natural Resources then the Judiciary.]



A BILL to amend and reenact sections seven and seventeen, article one, chapter twenty of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to amend and reenact sections two and eight, article seven of said chapter, all relating to prohibiting the division of natural resources from increasing or enhancing penalties for violations involving hunting or fishing for longer than two years from the date of the violation; prohibiting division of natural resources seizing property to be forfeited upon conviction for a violation under certain circumstances; providing for review of the disposition of seized property or funds under certain conditions; requiring conservation officers to have certain four-year undergraduate degrees; deleting the provision providing that property seized from certain offenders is forfeited at the time of arrest; notifying persons convicted of violations of the date and time for an auction of seized property; and providing notice of proceeds collected from the sale of seized property in relation to fines and costs imposed.

Be it enacted by the Legislature of West Virginia:

That sections seven and seventeen, article one, chapter twenty of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; and that sections two and eight, article seven of said chapter be amended and reenacted, all to read as follows:

ARTICLE 1. ORGANIZATION AND ADMINISTRATION.

§20-1-7. Additional powers, duties and services of director.

In addition to all other powers, duties and responsibilities granted and assigned to the director in this chapter and elsewhere by law, the director is hereby authorized and empowered to:

(1) With the advice of the commission, prepare and administer, through the various divisions created by this chapter, a long-range comprehensive program for the conservation of the natural resources of the state which best effectuates the purpose of this chapter and which makes adequate provisions for the natural resources laws of
the state;
(2) Sign and execute in the name of the state by the "division of natural resources" any contract or agreement with the federal government or its departments or agencies, subdivisions of the state, corporations, associations, partnerships or individuals;

(3) Conduct research in improved conservation methods and disseminate information matters to the residents of the state;

(4) Conduct a continuous study and investigation of the habits of wildlife, and for purposes of control and protection, to classify by regulation the various species into such categories as may be established as necessary;

(5) Prescribe the locality in which the manner and method by which the various species of wildlife may be taken or chased, unless otherwise specified by this chapter;

(6) Hold at least six meetings each year at such time times and at such points within the state, as in the discretion of the natural resources commission may appear to be necessary and proper for the purpose of giving interested persons in the various sections of the state an opportunity to be heard concerning open season for their respective areas, and report the results of the meetings to the natural resources commission before such the season
and bag limits are fixed by it;
(7) Suspend open hunting season upon any or all wildlife in any or all counties of the state with the prior approval of the governor in case of an emergency such as a drought, forest fire hazard or epizootic disease among wildlife. The suspension shall continue during the existence of the emergency and until rescinded by the director. Suspension or reopening after such the suspension, of open seasons may be made upon twenty-four hours' notice by delivery of a copy of the order of suspension or reopening to the wire press agencies at the state capitol;

(8) Supervise the fiscal affairs and responsibilities of the division;

(9) Designate such localities as he or she shall determine to be necessary and desirable for the perpetuation of any species of wildlife;

(10) Enter private lands to make surveys or inspections for conservation purposes, to investigate for violations of provisions of this chapter, to serve and execute warrants and processes, to make arrests and to otherwise effectively enforce the provisions of this chapter;

(11) Acquire for the state in the name of the "division of
natural resources" by purchase, condemnation, lease or agreement, or accept or reject for the state, in the name of the division of natural resources, gifts, donations, contributions, bequests or devises of money, security or property, both real and personal, and any interest in such any property, including lands and waters, which he or she deems considers suitable for the following purposes:
(a) For state forests for the purpose of growing timber, demonstrating forestry, furnishing or protecting watersheds or providing public recreation;

(b) For state parks or recreation areas for the purpose of preserving scenic, aesthetic, scientific, cultural, archaeological or historical values or natural wonders, or providing public recreation;

(c) For public hunting, trapping or fishing grounds or waters for the purpose of providing areas in which the public may hunt, trap or fish, as permitted by the provisions of this chapter, and the rules issued hereunder;

(d) For fish hatcheries, game farms, wildlife research areas and feeding stations;

(e) For the extension and consolidation of lands or waters
suitable for the above purposes by exchange of other lands or waters under his or her supervision;
(f) For such other purposes as may be necessary to carry out the provisions of this chapter.

(12) Capture, propagate, transport, sell or exchange any species of wildlife as may be necessary to carry out the provisions of this chapter;

(13) Sell, with the approval in writing of the governor, timber for not less than the value thereof, as appraised by a qualified appraiser appointed by the director, from all lands under the jurisdiction and control of the director, except those lands that are designated as state parks and those in the Kanawha State Forest. The appraisal shall will be made within a reasonable time prior to any sale, reduced to writing, filed in the office of the director and shall be is available for public inspection. When the appraised value of the timber to be sold is more than five hundred dollars, the director, before making sale thereof, shall receive sealed bids therefor, after notice by publication as a Class II legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, and the publication area for such the publication shall be each county in which the timber
is located. The timber so advertised shall be sold at not less than the appraised value to the highest responsible bidder, who shall give bond for the proper performance of the sales contract as the director shall designate; but the director shall have the right to reject any and all bids and to readvertise for bids. If the foregoing provisions of this section have been complied with, and no bid equal to or in excess of the appraised value of the timber is received, the director may, at any time, during a period of six months after the opening of the bids, sell the timber in such a manner as he or she deems considers appropriate, but the sale price shall may not be less than the appraised value of the timber advertised. No contract for sale of timber made pursuant to this section shall extend for a period of more than ten years. And all contracts heretofore entered into by the state for the sale of timber shall may not be validated by this section if the same be otherwise invalid. The proceeds arising from the sale of the timber so sold, shall be is paid to the treasurer of the state of West Virginia, and shall be is credited to the division and used exclusively for the purposes of this chapter: Provided, That nothing contained herein shall prohibit the sale of timber which otherwise would be removed from rights-of-way necessary for and strictly incidental to the extraction of minerals;
(14) Sell or lease, with the approval in writing of the governor, coal, oil, gas, sand, gravel and any other minerals that may be found in the lands under the jurisdiction and control of the director, except those lands that are designated as state parks. The director, before making sale or lease thereof, shall receive sealed bids therefor, after notice by publication as a Class II legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, and the publication area for such the publication shall be each county in which such the lands are located. The minerals so advertised shall be sold or leased to the highest responsible bidder, who shall give bond for the proper performance of the sales contract or lease as the director shall designate; but the director shall have the right to reject any and all bids and to readvertise for bids. The proceeds arising from any such sale or lease shall be paid to the treasurer of the state of West Virginia and shall be credited to the division and used exclusively for the purposes of this chapter;

(15) Exercise the powers granted by this chapter for the protection of forests, and regulate fires and smoking in the woods or in their proximity at such times and in such localities as may
be necessary to reduce the danger of forest fires;
(16) Cooperate with departments and agencies of state, local and federal governments in the conservation of natural resources and the beautification of the state;

(17) Report to the governor each year all information relative to the operation and functions of the division and the director shall make such other reports and recommendations as may be required by the governor, including an annual financial report covering all receipts and disbursements of the division for each fiscal year, and he or she shall deliver such the report to the governor on or before the first day of December next after the end of the fiscal year so covered. A copy of such the report shall be delivered to each house of the Legislature when convened in January next following;

(18) Keep a complete and accurate record of all proceedings, record and file all bonds and contracts taken or entered into, and assume responsibility for the custody and preservation of all papers and documents pertaining to his or her office, except as otherwise provided by law;

(19) Offer and pay, in his or her discretion, rewards for information respecting the violation, or for the apprehension and
conviction of any violators, of any of the provisions of this chapter;
(20) Require such reports as he or she may deem consider to be necessary from any person issued a license or permit under the provisions of this chapter, but no person shall be required to disclose secret processes or confidential data of competitive significance;

(21) Purchase as provided by law all equipment necessary for the conduct of the division;

(22) Conduct and encourage research designed to further new and more extensive uses of the natural resources of this state and to publicize the findings of such the research;

(23) Encourage and cooperate with other public and private organizations or groups in their efforts to publicize the attractions of the state;

(24) Accept and expend, without the necessity of appropriation by the Legislature, any gift or grant of money made to the division for any and all purposes specified in this chapter, and he or she shall account for and report on all such receipts and expenditures to the governor;

(25) Cooperate with the state historian and other appropriate
state agencies in conducting research with reference to the establishment of state parks and monuments of historic, scenic and recreational value, and to take such steps as may be necessary in establishing such monuments or parks as he or she deems considers advisable;
(26) Maintain in his or her office at all times, properly indexed by subject matter, and also, in chronological sequence, all rules and regulations made or issued under the authority of this chapter. Such The records shall be available for public inspection on all business days during the business hours of working days;

(27) Delegate the powers and duties of his or her office, except the power to execute contracts, to appointees and employees of the division, who shall act under the direction and supervision of the director and for whose acts he or she shall will be responsible;

(28) Conduct schools, institutions and other educational programs, apart from or in cooperation with other governmental agencies, for instruction and training in all phases of the natural resources programs of the state;

(29) Authorize the payment of all or any part of the reasonable expenses incurred by an employee of the division in
moving his or her household furniture and effects as a result of a reassignment of the employee: Provided, That no part of the moving expenses of any one such employee shall be may be paid more frequently than once in twelve months; and
(30) Promulgate rules, in accordance with the provisions of chapter twenty-nine-a of this code, to implement and make effective the powers and duties vested in him or her by the provisions of this chapter and take such other steps as may be necessary in his or her discretion for the proper and effective enforcement of the provisions of this chapter: Provided, That no rule made under this section may require that a violation of this chapter involving hunting or fishing be used to increase or otherwise enhance any penalty, fine or cost authorized hereunder for a period longer than two years from the date of the violation, unless the violator fails or refuses to pay the fine or costs imposed for the conviction.

§20-1-17. Natural resources commission -- Organization and
services.

Members of the natural resources commission shall take and subscribe to the public officer's oath prescribed by the constitution before entering upon the duties of their office. All such executed oaths shall be filed in the office of the secretary of state. Members of the commission shall receive no compensation as such, but each shall be reimbursed for his or her actual and necessary traveling expenses incurred in the performance of his or her official duties.
The director of the department shall be an ex officio a member of the commission and its presiding officer. A majority of the commission shall constitute a quorum for transaction of business. Four regular meetings of the commission shall be are held each year commencing on the first Monday in the months of July, October, January and April. Special meetings may be convened by the governor, the director or by a majority of the commission. The meetings of the commission shall be are regularly held at the office of the director, but may be held at other points within the state when need therefor exists as explained in the call setting forth the time and place of the meeting. The director shall furnish all articles and supplies required by the commission in the performance of its duties and shall provide necessary stenographic, secretarial and clerical assistance therefor. All such materials and services shall be are paid for from department funds.
The director, at any regular or special meeting of the commission, may submit to the commission any program or policy matters on which he wishes to obtain the advice, counsel and opinion of the commission and may consult with members of the commission on functions, services, policies and practices of the department at any time. The commission shall serve as a body advisory to the director and shall perform all other duties assigned to it by law. It shall have the following powers and duties:
(1) To consider and study the entire field of legislation and administrative methods concerning the forests and their maintenance and development, the protection of fish and game, the beautification of the state and its highways, and the development of lands, minerals, waters and other natural resources;
(2) To advise with the director concerning the conservation problems of particular localities or districts of the state;
(3) To recommend policies and practices to the director relative to any duties imposed upon him by law;
(4) To investigate the work of the director, and for this purpose to have access at reasonable times to all official books, papers, documents and records;
(5) To advise or make recommendations to the governor relative to natural resources of the state;
(6) To keep minutes of the transactions of each session, regular or special, which shall be public records and filed with the director; and
(7) To fix by regulation which it is hereby empowered to promulgate, in accordance with the provisions of chapter twenty-nine-a of this code, the open seasons and the bag, creel, size, age, weight and sex limits with respect to wildlife in this state; and
(8) To review the disposition of all property seized or any funds received at public auction by the director pursuant to the director's authority as set forth in section eight, article seven of this chapter.
ARTICLE 7. LAW-ENFORCEMENT, MOTOR BOATING, LITTER.
§20-7-2. Qualifications, etc., of conservation officers; right
of retired officer to receive complete standard uniform; right of retired officer to acquire uniform; and right of retired officer to acquire badge.

In addition to civil service qualifications and requirements, persons selected as conservation officers shall have reached their eighteenth birthday at the time of appointment, attained an undergraduate degree in forestry or environmental conservation or closely related field of study from a four-year program existing in an accredited institution of higher education; be in good physical condition and of good moral character; temperate in habits; and, shall not have been convicted of a felony. Whenever possible and practicable, preference in selection of conservation officers shall be given honorably discharged United States military personnel. Each conservation officer, before entering upon the discharge of his or her duties, shall take and subscribe to the oath of office prescribed in article IV, section 5 five of the constitution of West Virginia, which executed oath shall be filed with the director.
The director shall prescribe the kind, style and material of uniforms to be worn by conservation officers. Uniforms and other equipment furnished to the conservation officers shall be and remain the property of the state, except as hereinafter provided in this section.
A conservation officer, upon honorable retirement, shall be authorized to maintain at his or her own cost a complete standard uniform from the law-enforcement agency of which he or she was a member, and shall be issued an identification card indicating his or her honorable retirement from the law-enforcement agency. The uniform may be worn by the officer in retirement only on the following occasions: Police Officer's Memorial Day, Law-Enforcement Appreciation Day, at the funeral of a law-enforcement officer or during any other police ceremony. The honorably retired officer is authorized to acquire a badge of the law-enforcement agency from which he or she is retired with the word "retired" placed on it.
§20-7-8. Seizure and disposition of property used for illegal
purpose.

(a) Any officer, when he or she arrests or otherwise takes a person into custody 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 The 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 a 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.
(b) In any instance when property seized under this section is to be sold at public auction, the director shall send notice of the time, date and place of the public auction to the person whose property was seized. The notice shall be by certified mail, return receipt requested, at least fourteen days prior to the date of the auction.
In any instance when property seized under this section is sold at public auction to any person other than the person from which it was seized, notice shall forthwith be sent to the person whose property was sold which shall include the following information: (1) The amount of proceeds received for the property; (2) a breakdown of the fine and costs involved relative to the collected proceeds; (3) the amount in excess of the fine and costs, if any, that the director is obligated to remit to the person whose property was seized and when the director intends to make the remittance.





NOTE: The purpose of this bill is to prohibit the Division of Natural Resources from making rules requiring enhancement of penalties based on hunting or fishing violations older than two years, or rules that allow seized property to be forfeited upon conviction of a Division of Natural Resources crime, unless a violator fails to pay the fine or costs imposed. It also provides that the natural resources commission review the disposition of property seized or funds received from auction of seized property. It further requires conservation officers to have four-year degrees in conservation or forestry. Another change would delete existing law which provides that property taken from persons twice convicted under chapter twenty is declared forfeited to the state at the time of arrest. The bill also requires the Division of Natural Resources to notify persons whose property was seized of the date, time and place of any auction planned to be held to sell the property. It also requires the Division of Natural Resources to notify the persons concerning the amount of proceeds collected from any auction in relation to any fines and costs imposed.

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