H. B. 4280
(By Delegate Reynolds)
[Introduced February 2, 2010; referred to the
Committee on Natural Resources then the Judiciary.]
A BILL to repeal §20-2-19a of the Code of West Virginia, 1931, as
amended; to amend and reenact §20-1-2 of said code; to amend
and reenact §20-2-5, §20-2-5c, §20-2-6, §20-2-6a, §20-2-37,
§20-2-42l, §20-2-42p and §20-2-46e of said code; to amend and
reenact §20-7-9 and §20-7-11 of said code; and to amend and
reenact §20-15-2 of said code, all relating to
the regulation
of carrying firearms; clarifying that hunting statutes
generally do not prohibit the otherwise lawful carrying of
handguns for self-defense purposes; clarifying that persons
who are licensed or otherwise authorized to lawfully carry
concealed weapons are not subject to limitations on how
firearms may be carried or transported in wooded areas or in
or on vehicles or vessels; providing additional lawful means
for the transportation of unloaded rifles or shotguns in or on
vehicles and vessels; consolidating and clarifying certain
criminal penalty provisions; defining terms relating to firearms; and consolidating certain definitions.
Be it enacted by the Legislature of West Virginia:
That §20-2-19a of the Code of West Virginia, 1931, as amended,
be repealed; that §20-1-2 of said code be amended and reenacted;
that §20-2-5, §20-2-5c, §20-2-6, §20-2-6a, §20-2-37, §20-2-42l,
§20-2-42p and §20-2-46e of said code be amended and reenacted; that
§20-7-9 and §20-7-11 of said code be amended and reenacted; and
that §20-15-2 of said code be amended and reenacted, all to read as
follows:
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.
"Aircraft" has the same meaning as in section one, article
two-a, chapter twenty-nine of this code.
"Alien" means any person not a citizen of the United States.
"All-terrain vehicle" and "ATV" have the same meaning as in
section nine, article one, chapter seventeen-f of this code.
"Ammunition" means ammunition or cartridge cases, primers,
bullets or propellent powder designed for use in any firearm.
"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 unlawful to take any wildlife as specified and limited by the
provisions of 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.
"Firearm" has the same meaning as in section two, article
seven, chapter sixty-one of this code.
"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" include: (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; and (l) the fisher.
"Game" means game animals, game birds and game fish as herein
those terms are defined in this section.
"Game animals" include: (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;
and (g) the wild boar.
"Game birds" include: (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" include: (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.
"Handgun" means any firearm which has a short stock and is
designed to be held and fired by the use of a single hand and
includes any pistol or revolver.
"Hunt" means to pursue, chase, catch or take any wild birds or
wild animals Provided, That the definition of "hunt" does not
include an except in any officially sanctioned and properly
licensed field trial, water race or wild hunt as long as that field
trial is not other than a shoot-to-retrieve field trial.
"Lands" means land, waters and all other appurtenances
connected therewith.
"Loaded," with respect to a firearm, means that the firearm:
(a) Has live, unexpended ammunition in the firing position or
a position whereby the manual operation of any mechanism once would
cause live, unexpended ammunition to be fired;
(b) Has live, unexpended ammunition in a magazine that is
locked in place in the firearm;
(c) Has live, unexpended ammunition anywhere in the cylinder,
if the firearm is a revolver; or
(d) If the firearm employs a percussion cap, flintlock or
other obsolete ignition system, the firearm is capped or primed and
has a powder charge and ball or shot in the barrel or cylinders.
"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, 16 U.S.C. §703 et seq
, for the protection of migratory birds and game mammals
concluded, respectively, August 16, 1916, and February 7, 1936.
"Motor vehicle" has the same meaning as in section one,
article one, chapter seventeen-a of this code.
"Motorboat" means any vessel propelled by an electrical,
steam, gas, diesel or other fuel propelled or driven motor, whether
or not the motor is the principal source of propulsion, but does
not include a vessel which has a valid marine document issued by
the Bureau of Customs of the United States government or any
federal agency successor thereto.
"Motorcycle" has the same meaning as in section one, article
one, chapter seventeen-a of this code.
"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 thirty 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 is not
a resident, as that term is defined in this section.
"Open season" means the time during which the various species
of wildlife may be legally caught, taken, killed or chased in a
specified manner 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 includes individuals, partnerships,
limited liability companies,
corporations or other legal entities.
"Personal watercraft" means:
(a) A small vessel of less than sixteen feet in length that:
(1) Uses an inboard motor powering a water jet pump as its
primary source of motive power; and
(2) Is designed to be operated by a person sitting, standing
or kneeling on the vessel, rather than the conventional manner of
sitting or standing inside the vessel; or
(b) "Specialty prop-crafts," which are vessels similar in
appearance and operation to a vessel described in paragraph (a) of
this definition, but which are powered by an outboard motor or
propeller driven motor.
"Pistol" has the same meaning as in section two, article
seven, chapter sixty-one of this code.
"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.
"Protected birds" means all wild birds not included within the
definition 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 thirty consecutive days or more
immediately prior to the date of his or her application for license or permit:
Provided, That 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 the service and any full-time student of any
college or university of this state
institution of higher
education, even though he or she is paying a nonresident tuition,
shall be is considered a resident under the provisions of this
chapter.
"Revolver" has the same meaning as in section two, article
seven, chapter sixty-one of this code.
"Rifle" means a firearm designed or redesigned, made or
remade, and intended to be fired from the shoulder and designed or
redesigned and made or remade to use the energy of an explosive to
fire only a single projectile through a rifled bore for each single
pull of the trigger.
"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 big game.
"Shotgun" means a firearm designed or redesigned, made or
remade, and intended to be fired from the shoulder and designed or redesigned and made or remade to use the energy of an explosive to
fire through a smooth bore either a number of ball shot or a single
projectile for each single pull of the trigger.
"State institution of higher education" has the same meaning
as in section two, article one, chapter eighteen-b of this code.
"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. Provided, That 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 other than a shoot-to-retrieve field trial.
"Unloaded," with respect to a firearm, means the state of a
firearm not being loaded, as that term is defined this section.
"Unprotected birds" shall include: (a) The English sparrow;
(b) the European starling; and (c) the cowbird.
"Vehicle" has the same meaning as in section four, article
one, chapter seventeen of this code.
"Vessel" means every description of watercraft, other than a
seaplane on the water, used or capable of being used as a means of
transportation on water.
"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.
"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.
"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, it is unlawful at
any time for any person to:
(1) Shoot
at or
attempt to shoot any wild bird or 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)
(A) Except as provided in paragraphs (B) and (C) of this
subdivision, make use of, or take advantage of, any artificial
light in hunting, locating, attracting, taking, trapping or killing
any wild bird or wild animal, or to attempt to do so, while having
in his or her possession or subject to his or her control, or
for
while any person accompanying him or her
to have has in his or her
possession or subject to his or her control, any
firearm rifle or
shotgun, whether cased or uncased, bow, arrow, or both, or other
implement or device,
other than handguns, suitable for taking,
killing or trapping a wild bird or animal.
Provided, That it is
lawful to
(B) Notwithstanding paragraph (A) of this subdivision, a
person may:
(i) Hunt or take raccoon, opossum or skunk by the use of
artificial light;
subject to the restrictions set forth in this
subdivision: Provided, however, That it is lawful to or
(ii) Hunt or take coyotes by the use of amber- or red-colored
artificial light.
subject to the restrictions set forth in this
subdivision.
(C) 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:
(i) At the time
he or she the person has in his or her
possession:
a firearm
(I) A rifle or shotgun, whether cased or uncased;
(II) A bow, arrow, or both; or
(III) Any other implement or device,
other than a handgun,
suitable for taking, killing or trapping a wild bird or wild
animal; or
unless
(ii) The artificial light (other than the head lamps of
an
automobile or other land conveyance a vehicle or all-terrain
vehicle) 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 one hundred dollars nor more
than five hundred dollars and shall be imprisoned in jail for not
less than ten days nor more than one hundred days a vehicle or all-
terrain vehicle;
(4) Hunt for, take, kill, wound,
shoot or
attempt to shoot
at
wild animals or wild birds from
an airplane, or other airborne
conveyance, an automobile, or other land conveyance, or from a
motor-driven water conveyance any aircraft, vehicle, all-terrain
vehicle or motorboat, except as authorized by
a Class Q permit or
rules promulgated by the director;
(5) Take any beaver or muskrat by any means other than by
trap;
(6) Catch, capture, take or kill by seine, net, bait, trap or
snare or like device of any kind any wild turkey, ruffed grouse,
pheasant or quail;
(7) Destroy or attempt to destroy needlessly or willfully the
nest or eggs of any wild bird or have
in his or her physical
possession
of the nest or eggs
of any wild bird unless 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 an
uncased or loaded
gun rifle or an uncased or loaded shotgun in any
of the woods of this state except during the open firearms hunting
season for wild animals and nonmigratory wild birds within any
county of the state unless
he or she has in his or her possession
the person:
(A) Has been issued a permit, in writing,
issued to him or her
by the director;
Provided, That this section shall not prohibit
(B) Is licensed under section four, article seven, chapter
sixty-one of this code to carry concealed deadly weapons;
(C) Is authorized by the laws of this state to carry a
concealed weapon without a license to carry concealed weapons;
(D) Is carrying the rifle or shotgun in accordance with the
provisions of section six of this article; or
(E) Is hunting or taking
of an unprotected species of wild
animals,
and wild birds
and or migratory wild birds, during the
open season, in the open fields, open water
and or open marshes of the state;
(9)
Have in his or her possession a Knowingly possess or
transport in or on any vehicle, all-terrain vehicle or vessel:
(A) A crossbow with a nocked bolt;
a loaded firearm or a
firearm from the magazine of which all shells and cartridges have
not been removed, in or on any vehicle or conveyance, or its
attachments, within the state, except as may otherwise be provided
by law or regulation. Except as hereinafter provided, between five
o'clock postmeridian of one day and seven o'clock antemeridian,
eastern standard time of the day following, any unloaded firearm or
crossbow, being lawfully carried in accordance with the foregoing
provisions, shall be so carried only when in a case or taken apart
and securely wrapped. During the period from the first day of July
to the thirtieth day of September, inclusive, of each year, the
foregoing requirements relative to carrying certain unloaded
firearms are permissible only from eight-thirty o'clock
postmeridian to five o'clock antemeridian, eastern standard time:
Provided, That the time periods for carrying unloaded and uncased
firearms are extended for one hour after the postmeridian times and
one hour before the antemeridian times established above if a
hunter is preparing to or in the process of transporting or
transferring the firearms to or from a hunting site, campsite, home
or other place of abode;
(10) Hunt, catch, take, kill, trap, injure or pursue with
firearms or other implement by which wildlife may be taken after the hour of five o'clock antemeridian on Sunday 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 antemeridian on that
Sunday: Provided, That traps previously and legally set may be
tended after the hour of five o'clock antemeridian on Sunday and
the person so doing may carry only a twenty-two caliber firearm for
the purpose of humanely dispatching trapped animals. 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, shall
be subject to a one hundred dollar fine; or
(B) Any rifle or shotgun, unless:
(i) The person is:
(I) Licensed under section four, article seven, chapter sixty-
one of this code to carry concealed weapons; or
(II) Authorized by the laws of this state to carry a concealed
weapon without a license to carry concealed weapons; or
(ii) The rifle or shotgun is unloaded and:
(I) Possessed or transported:
(aa) During the months of July, August or September, between
the hours of four o'clock antemeridian and nine-thirty o'clock
postmeridian if the person is preparing to or in the process of
transporting or transferring the rifle or shotgun to or from a hunting site, campsite, home or other place of abode or, otherwise,
between the hours of five o'clock antemeridian and eight-thirty
o'clock postmeridian;
(bb) During any month other than July, August or September,
between the hours of six o'clock antemeridian and six o'clock
postmeridian if the person is preparing to or in the process of
transporting or transferring the rifle or shotgun to or from a
hunting site, campsite, home or other place of abode or, otherwise,
between the hours of seven o'clock antemeridian and five o'clock
postmeridian; or
(II) Possessed or transported in one of the following ways:
(aa) In a closed package, box or case;
(bb) In a compartment that can be reached only by leaving the
vehicle or vessel;
(cc) In plain sight and secured in a rack or holder made for
the purpose; or
(dd) In plain sight with the action open or the weapon
stripped, or, if the rifle or shotgun is of a type on which the
action will not stay open or which cannot easily be stripped, in
plain sight.
(11) (10) Hunt with firearms or long bow while under the
influence of intoxicating liquor;
(12) (11) Hunt, catch, take, kill, injure or pursue a wild
animal or bird with the use of a ferret;
(13) (12) Buy raw furs, pelts or skins of fur-bearing animals unless licensed to do so;
(14) (13) 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 is at all
times be lawful;
(15) (14) Employ or hire, or induce or persuade, by the use of
money or other things of value, or by any means, any person to hunt,
take, catch or kill any wild animal or wild bird except those
species on which there is no closed season, or to fish for, catch,
take or kill any fish, amphibian or aquatic life which is protected
by the provisions of this chapter or rules of the director or the
sale of which is prohibited;
(16) (15) Hunt, catch, take, kill, capture, pursue, transport,
possess or use any migratory
game or nongame birds,
included in the
terms of conventions between the United States and Great Britain and
between the United States and United Mexican States for the
protection of migratory birds and wild mammals concluded,
respectively, the sixteenth day of August, one thousand nine hundred
sixteen, and the seventh day of February, one thousand nine hundred
thirty-six, except during the time and in the manner and numbers
prescribed by the federal Migratory Bird Treaty Act, 16 U.S.C.
§703,
et seq, and regulations made thereunder;
(17) (16) Kill, take, catch 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 the plumage, skin or body of any protected
bird shall be sold or had in possession for sale except mounted or
stuffed plumage, skin, bodies or heads of the birds legally taken
and stuffed or mounted, irrespective of whether the bird was
captured within or without 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;
(18) (17) Use dynamite or any like explosive or poisonous
mixture placed in any waters of the state for the purpose of killing
or taking fish;
Any person violating the provisions of this
subdivision is guilty of a felony and, upon conviction thereof,
shall be fined not more than five hundred dollars or imprisoned for
not less than six months nor more than three years, or both fined
and imprisoned;
(19) (18) Have
a bow and gun, or have a gun and any arrow or
arrows, in the fields or woods at the same time:
(A) A bow or any arrow or arrows; and
(B) A rifle or a shotgun;
(20) (19) Have a crossbow in the woods or fields or use a
crossbow to hunt,
for take or attempt to take any wildlife, unless
the person possesses a Class Y permit;
(21) (20) 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) (21) 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) (22) Shoot an arrow across any public highway or from
any
aircraft,
motor-driven watercraft, motor motorboat, vehicle,
all-
terrain vehicle or other land conveyance;
(24) (23) Permit any dog owned by him or her or under his or
her control to chase, pursue or follow upon the track of any wild
animal or wild bird, either day or night, between May 1 and 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 the dogs does not
have firearms or other implements
in his or her possession carry on or about his or her person during
the closed season on wild animals and wild birds, whereby wild
animals or wild birds could be taken or killed,
any rifle or shotgun
unless the person is licensed under section four, article seven, chapter sixty-one of this code to carry concealed weapons or
authorized by the laws of this state to carry a concealed deadly
weapon without a license to carry concealed weapons, or any
nonfirearm implement of hunting;
(25) (24) Conduct or participate in a field trial, shoot-to-
retrieve field trial, water race or wild hunt hereafter referred to
as trial:
Provided, That any person, group of persons, club or
organization may hold the trial at any time of the year upon
obtaining a permit as is provided in 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 trial and make same readily
available for inspection by any
conservation officer
authorized to
enforce the provisions of this chapter upon request;
(26) Except as provided in section four of this article,
(25) Hunt, catch, take, kill or attempt to hunt, catch, take
or kill any wild animal, wild bird or wild fowl except
as provided
in section four of this article or during the open season
established by rule of the director as authorized by
subdivision (6)
section seven, article one of this chapter;
(27) Hunting (26) Hunt, catch, take, kill or attempt to hunt,
catch, take or kill any wild animals or wild birds on public lands
on Sunday after five o'clock antemeridian
is prohibited and except
to tend traps previously and legally set;
(27) Hunt, catch, take, kill, trap or attempt to hunt, catch, take, kill or trap any wild animals or wild birds after the hour of
five o'clock antemeridian on Sunday if the following Monday is the
opening day of a big game hunting season, except to tend traps
previously and legally set;
(28) Hunt, catch, take, kill, trap or attempt to hunt, catch,
take, kill or trap any wild animals or wild birds after the hour of
five o'clock antemeridian on Sunday on private land without the
written consent of the landowner, except to tend traps previously
and legally set;
(28) (29)(A) Hunt, catch, take, kill, trap, injure or
pursue
with firearms or other implement which wildlife can be taken attempt
to hunt, catch, take, kill or trap any wild animals or wild birds
on private lands on Sunday after the hour of five o'clock
antemeridian,
Provided, That the provisions except to tend traps
previously and legally set.
(B) (i) Paragraph (A) of this subdivision
do does not apply in
any county until the county commission of the county holds an
election on the question of whether the provisions
paragraph (A) 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 shall be
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.
(ii) On the local option election ballot shall be printed the
following:
Shall hunting on Sunday be authorized in ________ County?
[ ] Yes[ ] No
(Place a cross mark in the square opposite your choice.)
(iii) 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.
(iv) If a majority votes against allowing Sunday hunting, no
election on the issue may be held for a period of one hundred four
weeks. If a majority votes "yes", no election reconsidering the
action may 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.
(30) While tending traps after the hour of five o'clock
antemeridian on Sundays as authorized by subdivisions (26) through
(28) of this section or paragraph (A), subdivision (29) of this
section, carry on or about his or her person any shotgun or any
rifle other than a twenty-two caliber firearm that is carried for
the purpose of humanely dispatching trapped animals, unless the
person is licensed under section four, article seven, chapter sixty-
one to carry concealed deadly weapons or authorized by the laws of
this state to carry a concealed weapon without a license to carry
concealed weapons; or
(29) (31) Hunt or conduct hunts for a fee where the hunter is
not physically present in the same location as the wildlife being
hunted within West Virginia.
(b) The Legislature fully occupies and preempts the field of regulation of all matters described in subdivisions (9), (26), (27),
(28), (29) and (30), subsection (a) of this section. Any rule of
the director or county or municipal ordinance, rule, resolution,
policy or administrative action in conflict with subdivisions (9),
(26), (27), (28), (29) and (30), subsection (a) of this section, is
void.
§20-2-5c. Protection of bald eagles and golden eagles; unlawful
acts; criminal penalties; forfeitures; license
revocation.
(a) It is unlawful at any time for any person to take, possess,
transport, import, export or process, sell or offer for sale, buy,
barter or trade or offer to buy, barter or trade at any time or in
any manner, any bald eagle, also commonly known as the American
eagle, or any golden eagle, alive or dead, or any part, nest or egg
thereof of the foregoing eagles, or to attempt to do any of these
acts.
(b) Anyone who violates the provisions of this section is
guilty of a misdemeanor and, upon conviction thereof, shall be fined
not less than $500 nor more than $5,000 or
imprisoned confined in
the county jail not less than sixty days nor more than one year, or
both fined and
imprisoned confined. One half of any fine imposed
shall be paid to any person or persons providing information that
leads to the arrest and conviction of anyone violating the
provisions of this section.
(c) For a second or subsequent conviction for a violation of
this section, a person is guilty of a felony and,
upon conviction
thereof, shall be fined not less than $5,000 nor more than $10,000
and imprisoned in
a the penitentiary correctional facility for not
less than one year nor more than two years. An amount equal to one
half of the fine imposed, not exceeding $2,500, shall be paid to the
person or persons providing information that leads to the arrest and
conviction of anyone for a second or subsequent violation of the
provisions of this section.
(d)
"Take" is defined as including In this section "take"
includes any means to pursue, hunt, wound, kill, capture, collect,
poison, or molest any bald eagle or golden eagle, or any part, nest
or egg
thereof of any bald eagle or golden eagle, or to knowingly
and willfully destroy the nest or eggs of any
such of these eagles.
(e)
Nothing in This section
may be construed to does not
prohibit the taking, possession or transportation of bald or golden
eagles legally under the current federal Eagle Protection Act, 16
USC § 668a, and the current federal regulations, 50 CFR
22.1 et seq.
Part 22.
(f) All wildlife, merchandise,
guns firearms, traps, nets and
other equipment, vessels, vehicles, aircraft and other means of
transportation used in taking, possessing, transporting, importing,
exporting, selling or offering for sale, purchasing or bartering or
offering to purchase or barter any bald or golden eagle or part,
nest, or egg thereof, or in attempting to do any of these acts in violation of this section shall be forfeited, at the time of
conviction, to the state.
(g) Upon conviction of taking, possessing, transporting,
importing, exporting or processing, selling or offering for sale,
buying, bartering or trading or offering to buy, barter or trade
any bald or golden eagle, alive or dead, or any part, nest or egg
thereof of
the foregoing these eagles, or of attempting to do any
of these acts, the hunting licenses of
such the person or persons
may be revoked and
such the person or persons
shall may not be
issued any new hunting licenses for a period of ten years from the
date of conviction.
§20-2-6. Carrying gun firearm on landowner's land.
Notwithstanding any
other provisions provision of this chapter
to the contrary, it
shall be is lawful for a bona fide resident
landowner of this state, any member of
said the landowner's family
and any bona fide tenant of
said the landowner, to carry an uncaged
gun firearm at any time,
whether the firearm is loaded or unloaded,
and whether
the landowner is accompanied by or without a dog, in
their the landowner's regular pursuits in caring for and looking
after
such the landowner's livestock or poultry on
his the
landowner's land and on any lands
leased or rented by him the
landowner leases or rents for livestock or poultry husbandry
purposes,
if that landowner is not prohibited by federal law or the
provisions of section seven, article seven, chapter sixty-one of
this code from possessing firearms and is not carrying the firearm in violation of any other provision of article seven, chapter sixty-
one of this code.
§20-2-6a. Carrying
a concealed handgun handguns by concealed
weapons licensees not prohibited; exceptions.
(a) Notwithstanding any provision of this
code chapter or rules
established by the director to the contrary, a person licensed
under
section four, article seven, chapter sixty-one of this code to carry
a concealed
weapon pursuant to the provisions of section four,
article seven, chapter sixty-one of this code who is not prohibited
at the time from possessing a firearm pursuant to the provisions of
section seven, article seven, chapter sixty-one of this code or by
any applicable federal law deadly weapons or authorized by the laws
of this state to carry a concealed weapon without a license to carry
concealed weapons may,
for self-defense and other lawful purposes,
own, possess, carry
a handgun in a concealed manner for self defense
purposes transfer, transport, store and keep loaded or unloaded
handguns and parts, components and ammunition for handguns, while
afield hunting,
fishing, hiking, camping, or in or on
a any all-
terrain vehicle, motor vehicle,
vehicle, personal water craft,
motorboat, vessel or any other means of transportation or conveyance
on land or water, or engaging in any other activity regulated by
this chapter or rules promulgated pursuant to this chapter.
(b) When a person owns, possesses, carries, transfers,
transports, stores or keeps handguns or parts, components or ammunition for handguns as provided by subsection (a) of this
section:
(1) The person is presumed to be owning, possessing, carrying,
transferring, transporting, storing or keeping the handguns and
parts, components and ammunition for handguns for self-defense or
another lawful purposes other than hunting; and
(2) The handguns and parts, components and ammunition for
handguns are presumed to not be an implement of hunting, unless the
person actually used a handgun for hunting purposes.
(c) The provisions of this section
shall do not exempt any
person
engaged in hunting or fishing from obtaining any hunting or
fishing license or stamp required by the Division of Natural
Resources.
(d) Notwithstanding any existing or future provision of this
chapter to the contrary, this section supersedes and preempts any
prohibition or restriction contained in or authorized by any other
provision of this chapter on the ownership, possession, carrying,
transfer, transportation, storage or keeping of handguns and parts,
components and ammunition for handguns. No future act of the
Legislature may be construed to amend, alter or abrogate this
section unless the act specifically and expressly amends or repeals
this section. This section is supplemental and additional to
existing rights to bear arms, and nothing in this section impairs
or diminishes these rights.
§20-2-37. Display of license, etc., by persons in possession of hunting, fishing, etc., paraphernalia.
(a) Any person having in his or her possession in or near the
fields or woods, or about the streams of this state, any dog,
gun
rifle, shotgun, fishing rod or other hunting, fishing or trapping
paraphernalia, shall, upon demand of any officer authorized to
enforce the provisions of this chapter:
(1) State his or her correct name and address; and
shall
(2) Exhibit for inspection:
(A) All applicable licenses and documents
set forth specified
in
subsection (a), section thirty-six of this article; and
(B) All
firearms rifles, shotguns and wildlife
which he or she
may have in his or her
immediate physical possession.
(b) Nothing in this section
may be construed as authorizing
authorizes searches that violate
article three, section six,
article
III of the West Virginia Constitution or the Fourth Amendment to the
Constitution of the United States, nor
may does anything in this
section
be construed as effecting effect a waiver of these
Constitutional provisions.
§20-2-42l. Class A-l small arms handgun hunting stamp.
Notwithstanding the provisions of section two, article seven,
chapter sixty-one of this code,
(a) A Class A-l stamp is a
small arms handgun hunting stamp.
To be eligible to get a Class A-l stamp, a person must
under federal
law and section seven, article seven, chapter sixty-one of this code, be
legally able to
legally possess
a firearm and transport
handguns. If a person is otherwise qualified, a Class A-l stamp may
be issued to a person
who is at least twenty-one years of age
or
older who holds a valid resident or nonresident hunting license, or
to a person who is a resident sixty-five years of age or older, but
a Class A-l stamp shall never be issued to a person who has been
convicted of a misdemeanor associated with the
use misuse of
firearms or dangerous weapons or who
has been convicted of a felony
is prohibited by federal law or section seven, article seven,
chapter sixty-one of this code from possessing or transporting a
handgun.
(b) A Class A-l stamp entitles the licensee to hunt, as
otherwise permitted by the provisions of this chapter, but only
during small game and big game seasons as established annually by
the director,
with either a revolver or pistol which a handgun that
has a barrel at least four inches in length. Unless otherwise
permitted by
the Code of West Virginia this code, or unless the
licensee is also licensed under section four, article seven, chapter
sixty-one of this code to carry concealed weapons or authorized by
the laws of this state to carry a concealed weapon without a license
to carry concealed weapons, a Class A-1 stamp entitles the licensee
to carry or have in his or her possession only one
revolver or
pistol handgun when going to and from his or her home or residence
and a place of hunting and while hunting:
Provided, That the Class
A-l stamp
may is not
be valid unless the licensee has in his or her possession a valid resident or nonresident hunting license or is a
resident sixty-five years of age or older.
Provided, however, That
at all times, when not actually hunting, the revolver or pistol
shall be unloaded. While hunting, the licensee shall carry the
revolver or pistol in an unconcealed and easily visible place
handgun with which the licensee is hunting in a manner that is not
concealed, as that term is defined in section two, article seven,
chapter sixty-one of this code, unless the licensee is also licensed
under section four of that article to carry concealed weapons or
otherwise authorized by the laws of this state to carry a concealed
weapon without a license to carry concealed weapons, or as otherwise
provided by this code. The fee for the stamp is $8.
(c) A lifetime Class A-1 stamp may be issued to anyone
otherwise qualified and holding a valid Class A-L or AB-L license
or to a resident sixty-five years of age or older. The lifetime
Class A-1 stamp will be issued in a form prescribed by the director.
The fee for a lifetime Class A-I stamp is $75.
(d) All fees collected for the issuance of the Class A-l and
lifetime Class A-l stamps shall be deposited in the state Treasury
and credited to the law-enforcement section of the Division of
Natural Resources. The fees collected shall be paid out of the
State Treasury on order of the director and used solely for law-
enforcement purposes.
(e) Any person convicted of a misdemeanor associated with the
use misuse of firearms or dangerous weapons
or convicted of a felony or any person who becomes
legally unable to possess a firearm
prohibited by federal law or section seven, article seven, chapter
sixty-one of this code from possessing or transporting a handgun,
shall immediately surrender the stamp to the Division of Natural
Resources. A holder of a Class A-l or lifetime Class A-l stamp is
required to purchase the appropriate base license before
participating in the activities specified in this section, except
as noted.
§20-2-42p. Class R. resident and Class RAG nonresident
gun firearm
deer hunting stamp for an additional deer.
The director has the authority to issue a Class R. resident and
a Class RAG nonresident
gun firearm deer hunting stamp when
deemed
considered essential for the proper management of the wildlife
resources. These stamps allow the licensee to hunt and take an
additional deer as designated by the director. The fee for a Class
R. stamp is $20 and the fee for a Class RAG stamp is $40. The
director may promulgate rules in accordance with article three,
chapter twenty-nine-a of this code governing the issuance and use
of these stamps. These stamps require that the licensee purchase
the appropriate base license before participating in the activities
specified in this section, except as noted.
§20-2-46e. Class Q special hunting permit for disabled persons.
(a) A Class Q permit is a special statewide hunting permit
entitling the permitted to hunt all legal species of game during the designated hunting seasons from a motor vehicle in accordance with
the provisions of this section.
(b) A permit form shall be furnished by the director to an
applicant who meets the following requirements:
(1) He or she is permanently disabled in the lower extremities;
and
(2) He or she holds a valid resident or nonresident statewide
hunting license, a senior citizens license or is otherwise exempt
from the license requirement.
(c) A licensed physician must certify the applicant's permanent
disability by completing the permit form. When completed, the
permit form constitutes a Class Q permit. The Class Q permit and
a completed license application shall be submitted to the division,
which will issue a wallet sized card to the permitted. The card and
all other documents and identification required to be carried by
this article shall be in the permitted's possession when hunting.
(d) A Class Q permit entitles the holder to hunt from a motor
vehicle and, notwithstanding the provisions of subdivision (9),
section five of this article, to possess a loaded
firearm rifle or
shotgun in
or on a motor vehicle, but only under the following
circumstances:
(1) The motor vehicle is stationary;
(2) The engine of the motor vehicle is not operating;
(3) The permitted and one individual, who is at least sixteen
years of age, to assist the permitted are the only occupants of the vehicle;
(4) The individual assisting the permitted may not hunt with
a firearm, bow or crossbow while assisting the permitted;
(5) The vehicle is not parked on the right-of-way of any public
road or highway; and
(6) The permitted observes all other pertinent laws and
regulations.
(e) The director may propose rules for legislative approval in
accordance with the provisions of article three, chapter twenty-
nine-a of this code setting forth the qualifications of applicants
and the permitting process.
ARTICLE 7. LAW ENFORCEMENT, MOTOR BOATING, LITTER.
§20-7-9. Violations of chapter generally; penalties.
(a) Any person violating any of the provisions who violates any
provision of this chapter or rules promulgated under the provisions
of this chapter, the punishment for which another punishment is not
prescribed, shall be is guilty of a misdemeanor and, upon conviction
thereof, shall for each offense be fined not less than $20 nor more
than $300 or confined in jail not less than ten or more than one
hundred days, or be both fined and imprisoned within the limitations
aforesaid confined and, in the case of a violation by a corporation,
every officer or agent thereof directing or engaging in such of the
corporation who directs or engages in the violation shall be is
guilty of a misdemeanor and, upon conviction thereof, shall be is subject to the same penalties and punishment as herein provided:
Provided, That provided in this subsection for a violation committed
by a natural person.
(b) Any person violating who violates subdivision (3), section
five, article two of this chapter shall be is guilty of a
misdemeanor and, upon conviction thereof, shall be fined not less
than $100 nor more than $500 and shall be imprisoned confined in
jail for not less than ten days nor more than one hundred days.
Provided, however, That
(c) Any person who violates subdivision (26), (27), (28) or
(29), section five, article two of this chapter is guilty of a
misdemeanor and, upon conviction thereof, shall be fined not less
than $20 nor more than $400, confined in jail for not less than ten
days nor more than one hundred days, or both.
(d) Any person who uses dynamite or any like explosive or
poisonous mixture placed in any waters of the state for the purpose
of killing or taking fish, in violation of subdivision (17), section
five, article two of this chapter is guilty of a felony and, upon
conviction thereof, shall be fined not more than $500, imprisoned
in a correctional facility for not less than one nor more than three
years, or both fined and confined.
(e) Any person who is in violation of violates section twenty-
seven, article two of this chapter as a result of their failure by
failing to have a valid Class E nonresident hunting and trapping
license, as defined by section forty-two-d of this article, or a valid Class EE nonresident bear hunting license, as defined by
section forty-two-e of this article, shall be is guilty of a
misdemeanor and, upon conviction thereof, shall be fined not less
than $250 nor more than $500, or confined in jail not less than ten
nor more than one hundred days, or both fined and imprisoned
confined.
Provided further, That
(f) Any person who is in violation of violates section twenty-
seven, article two of this chapter as a result of their failure by
failing to have a Class F nonresident fishing license, as defined
by section forty-two-f of this article, shall be is guilty of a
misdemeanor and, upon conviction thereof, fined not less than $100
nor more than $300 or confined in jail not less than ten nor more
than one hundred days, or both fined and imprisoned confined.
(g) Any person violating who violates any parking or speeding
regulations as promulgated by the director on any state parks, state
forests, public hunting and fishing areas and all other lands and
waters owned, leased or under the control of the Division of Natural
Resources shall be is guilty of a misdemeanor and, upon conviction
thereof, shall be fined not less than $2 nor more than $100 or
imprisoned confined in jail not more than ten days, or both fined
and imprisoned confined.
§20-7-11. Motorboats and other terms defined Definitions.
As used in this section and subsequent sections of this
article: unless the context clearly requires a different meaning
(1) "Vessel" means every description of water craft, other than
a seaplane on the water, used or capable of being used as a means
of transportation on water;
(2) "Motorboat" means any vessel propelled by an electrical,
steam, gas, diesel or other fuel propelled or driven motor, whether
or not the motor is the principal source of propulsion, but does not
include a vessel which has a valid marine document issued by the
bureau of customs of the United States government or any federal
agency successor thereto;
(1) "Commissioner" has the same meaning as in section one,
article one, chapter seventeen-a of this code; and
(3) (2) "Owner" means a person, other than a lienholder, having
the property in or title to a motorboat. The term includes a person
entitled to the use or possession of a motorboat subject to an
interest in another person, reserved or created by agreement and
securing payment or performance of an obligation, but the term
excludes a lessee under a lease not intended as security.
(4) "Commissioner" means the commissioner of the Division of
Motor Vehicles;
(5) "Director" means the director of the Division of Natural
Resources; and
(6) "Personal water craft" means a small vessel of less than
sixteen feet in length which uses an inboard motor powering a water
jet pump as its primary source of motive power and which is designed
to be operated by a person sitting, standing, or kneeling on the vessel, rather than the conventional manner of sitting or standing
inside the vessel. For purposes of this article, the term "personal
water craft" also includes "specialty prop-crafts" which are vessels
similar in appearance and operation to a personal water craft but
which are powered by an outboard motor or propeller driven motor.
ARTICLE 15. ATV RESPONSIBILITY ACT.
§20-15-2. Definitions.
The terms in this article have the following meaning, unless
the context clearly requires a different meaning:
(1) "All-terrain vehicle" or "ATV" means any motor vehicle
designed for off-highway use and designed to travel on not less than
three low-pressure tires, having a seat designed to be straddled by
the operator and handlebars for steering control and intended by the
manufacturer to be used by a single operator or by an operator and
no more than one passenger.
(2) "Authorized outfitter" or "licensee" means a commercial
outfitter, which is a person, partnership, limited liability company
("LLC"), corporation, other organization, or any combination
thereof, licensed by the Hatfield-McCoy Regional Recreation
Authority, who operates from any temporary or permanent camp,
private or public lodge, or private home, who provides guided tours
or the rental of all-terrain vehicles, utility-terrain vehicles or
motorcycles for use on assigned lands for monetary profit or gain.
(3) "Low-pressure tire" means every tire in which twenty pounds per square inch or less of compressed air is designed to support the
load.
(4) "Motorcycle" means any motor vehicle manufactured with no
more than two wheels and having a seat or saddle for the use of the
operator.
(5) "Participant" means any person using the facilities of the
Hatfield-McCoy Regional Recreation Authority.
(6) "Utility-terrain vehicle" or "UTV" means any motor vehicle
with four or more low-pressure tires designed for off-highway use
having bench or bucket seating for each occupant and a steering
wheel for control.
(1) "Authorized outfitter" or "licensee" means any person who:
(A) Is a commercial outfitter;
(B) Is licensed by the Hatfield-McCoy Regional Recreation
Authority;
(C) Operates from any temporary or permanent camp, private or
public lodge or private home; and
(D) Provides guided tours or the rental of all-terrain vehicles
or motorcycles for use on assigned lands for monetary profit or
gain.
(2) "Participant" means any person using the services or
equipment of an authorized outfitter or licensee, including
passengers of an all-terrain vehicle or motorcycle.
NOTE: The purpose of this bill is to clarify the applicability
of certain hunting regulations to the carrying of firearms. This
bill repeals limitations on how handguns may be carried in vehicles
or in wooded areas or while bowhunting and clarifies miscellaneous
other firearm regulations to only apply to rifles and shotguns.
This bill also exempts individuals licensed or otherwise authorized
to carry concealed weapons from certain regulations on the manner
in which other firearms may be carried or transported in wooded
areas or vehicles.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added