COMMITTEE SUBSTITUTE

FOR

H. B. 2309

 (By Mr. Speaker, Mr. Chambers, and Delegates Michael and
Martin)


(Originating in the House Committee on Agriculture and

Natural Resources)

[March 10, 1993]


A BILL to amend and reenact sections five and five-a, article two, chapter twenty of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to unlawful methods of hunting and fishing; prohibiting hunting, killing, possessing, selling and buying bald eagles and golden eagles; criminal penalties; forfeiture of equipment used in the unlawful taking; revocation of hunting license; replacement value for bald and golden eagles.

Be it enacted by the Legislature of West Virginia:
That sections five and five-a, article two, chapter twenty of the code of West Virginia, one thousand nine hundred thirty- one, as amended, be amended and reenacted to read as follows:
ARTICLE 2. WILDLIFE RESOURCES.

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

Except as authorized by the director, it is unlawful at any time for any person to:
(1) Shoot at or to shoot any wild bird or animal unless itis plainly visible to him;
(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 regulations promulgated by the director or by law;
(3) 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 possession or subject to his control, or for any person accompanying him to have in his possession or subject to his control, any firearm, whether cased or uncased, bow, arrow, or both, or other implement or device suitable for taking, killing or trapping a wild bird or animal: Provided, That it shall not be unlawful to hunt or take raccoon, opossum or skunk by the use of artificial lights. No person shall be guilty of a violation of this subdivision merely because he looks for, looks at, attracts or makes motionless a wild bird or wild animal with or by the use of an artificial light, unless at such time he has in his possession a firearm, whether cased or uncased, bow, arrow, or both, or other implement or device suitable for taking, killing or trapping a wild bird or wild animal, or unless such artificial light (other than the head lamps of an automobile or other land conveyance) is attached to, a part of, or used from within or upon an automobile or other land conveyance.
Any person violating the provisions of this subdivision shall be 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 thecounty jail for not less than ten days nor more than one hundred days;
(4) Hunt for, take, kill, wound or shoot at wild animals or wild birds from an airplane, or other airborne conveyance, an automobile, or other land conveyance, or from a motor-driven water conveyance, except as may be authorized by regulations 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 possession such nest or eggs unless authorized to do so under regulations or under a permit by the director;
(8) Except as provided in section six of this article, carry an uncased or loaded gun 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 has in his possession a permit in writing issued to him by the director: Provided, That this section shall not prohibit hunting or taking of unprotected species of wild animals and wild birds and migratory wild birds, during the open season, in the open fields, open water and open marshes of the state;
(9) Except as provided in section six of this article, carry an uncased or loaded gun after the hour of five o'clock antemeridian on Sunday in any woods or on any highway, railroadright-of-way, public road, field or stream of this state, except at a regularly used rifle, pistol, skeet, target or trapshooting ground or range;
(10) Have in his possession 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, 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 July first to September thirtieth, inclusive, of each year, the foregoing requirements relative to carrying certain unloaded firearms shall be permissible only from eight-thirty o'clock postmeridian to five o'clock antemeridian, eastern standard time;
(11) Hunt, catch, take, kill, trap, injure or pursue with firearms or other implement by which wildlife may be taken after the hour of five o'clock antemeridian on Sunday any wild animals or wild birds: 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.
(12) Hunt with firearms or long bow while under the influence of intoxicating liquor;
(13) Hunt, catch, take, kill, injure or pursue a wild animalor bird with the use of a ferret;
(14) Buy raw furs, pelts or skins of fur-bearing animals unless licensed to do so;
(15) Have in his possession or about his premises, without the written permission of the director, any hunting or fishing paraphernalia which cannot be used lawfully in this state for hunting or fishing, and any conservation officer shall remove and destroy such hunting and fishing paraphernalia, whenever found in this state, and the person or persons claiming ownership shall have no recourse at law against such confiscation and destruction;
(16) 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 regulation issued by the director: Provided, That snaring of any species of suckers, carp, fallfish and creek chubs shall at all times be lawful;
(17) 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 regulations of the director, or the sale of which is prohibited;
(18) 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 Statesfor the protection of migratory birds and wild mammals concluded, respectively, August sixteen, one thousand nine hundred sixteen, and February seven, one thousand nine hundred thirty-six, except during the time and in the manner and numbers prescribed by the Federal Migratory Bird Treaty Act and regulations made thereunder;
(19) Kill, take, catch or have in his possession, living or dead, any wild bird, other than a game bird; or expose for sale, or transport within or without the state any such 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 such birds legally taken and stuffed or mounted, irrespective of whether such bird was captured within or without this state, except the English or European sparrow (Passer domesticus), starling (Sturnus vulgaris), crow (Corvus brachyrhynchos) and cowbird (Molothrus ater), which shall not be protected and the killing thereof at any time is lawful;
(20) 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 shall be 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;
(21) Have a bow and gun, or have a gun and any arrow or arrows, in the fields or woods at the same time;
(22) Have a crossbow in the woods or fields or use acrossbow to hunt for, take or attempt to take any wildlife;
(23) Take or attempt to take turkey, bear, elk or deer with any arrow unless the same is equipped with a point having at least two sharp cutting edges measuring in excess of three fourths of an inch wide;
(24) 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;
(25) Shoot an arrow across any public highway or from aircraft, motor-driven watercraft, motor vehicle or other land conveyance;
(26) Permit any dog owned by him or under his control to chase, pursue or follow upon the track of any wild animal or wild bird, either day or night, between the first day of May and the fifteenth day of August 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 bona fide tenant or tenants or upon the grounds or lands of another person with his written permission or on public lands, at any time: Provided, however, That notwithstanding any of the above provisions, no person may train a dog in any county, or portion thereof, in which a legal bear hunting season has been established prior to the first day of July, one thousand nine hundred eighty-eight, except that residents may train dogs in such counties after the twenty-fourth day of August through the end of the legal small game hunting season: Provided further, That nonresidents shall not train dogs in this state at any time except during the legal small gamehunting season: And provided further, That the person training said dogs does not have firearms or other implements in his possession during the closed season on such wild animals and wild birds, whereby wild animals or wild birds could be taken or killed;
(27) 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 such trial at any time of the year upon obtaining such permit as is provided for in section fifty-six of this article. The person responsible for obtaining said 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 upon request; and
(28) Except as provided in section four of this article, hunt, catch, take, kill or attempt to hunt, catch, take or kill any wild animal, wild bird or wild fowl except during the open season established by regulation of the director as authorized by subdivision six, section seven, article one of this chapter; and
(29) 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.
Anyone who violates the provisions of this subdivision is guilty of a misdemeanor, and upon conviction thereof, shall befined not less than five hundred dollars nor more than five thousand dollars or imprisoned in the county jail not less than sixty days nor more than one year, or both fined and imprisoned. 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.
For a second or subsequent conviction for a violation of this subdivision, a person is guilty of a felony and shall be fined not less than five thousand dollars nor more than ten thousand dollars and imprisoned in the penitentiary for not less than one year nor more than two years. An amount equal to one half of the fine imposed, not exceeding two thousand five hundred dollars, 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 subdivision.
"Take" is defined as including any means to pursue, hunt, wound, kill, capture, collect, poison, molest, disturb or attempt to do these acts.
Nothing in this subdivision may be construed to prohibit the possession or transportation of eagles held legally under the current federal Eagle Protection Act, Statute 16 USC 668a Regulation 50 CFR 22.
All wildlife, merchandise, guns, traps, nets and other equipment, vessels, vehicles, aircraft and other means of transportation used to and in taking, possessing, transporting, importing, exporting, selling or offering for sale, purchasing or bartering or offering to purchase or barter any eagle or part,nest, or egg thereof in violation of this subdivision shall be forfeited, at the time of conviction, to the state.
Upon conviction of taking or attempting to take any eagle, the hunting licenses of such person or persons may be revoked and such person or persons shall not be issued any new hunting licenses for a period of ten years from the date of conviction.
§20-2-5a. Forfeiture by person causing injury, death or destruction of game or protected species of animal; replacement values thereof; forfeiture procedures.

Any person who is convicted of violating any criminal law of this state and the violation causes or results in the injury, death or destruction of game, as defined in section two, article one of this chapter, or a protected species of animal, in addition to any other penalty to which he is subject, shall forfeit the cost of replacing such game or protected species of animal to the state. For such purpose, replacement values for game and protected species of animals are as follows:
(1) For each game fish or each fish of a protected species taken illegally other than by pollution kill, five dollars for each pound and any fraction thereof;
(2) For each bear or elk, or eagle five hundred dollars;
(3) For each deer or raven, two hundred dollars;
(4) For each wild turkey, hawk or owl, one hundred dollars;
(5) For each beaver, otter or mink, twenty-five dollars;
(6) For each muskrat, raccoon, skunk or fox, fifteen dollars;
(7) For each rabbit, squirrel, opossum, duck, quail, woodcock, grouse or pheasant, ten dollars;
(8) For each wild boar, two hundred dollars; and
(9) For any other game or protected species of animal, ten dollars each;
(10) For each bald eagle, five thousand dollars each; and
(11) For each golden eagle, two thousand five-hundred dollars each.
The court upon convicting such person shall order him to forfeit to the state the proper amount based on the values set forth herein for the game or protected species of animal the injury, death or destruction of which he caused or which resulted from his criminal act. If two or more defendants are convicted for the same violation causing, or resulting in, the injury, death or destruction of game or protected species of animal, the forfeiture shall be declared against them jointly and equally. The forfeiture shall be paid by the person so convicted and ordered to pay the forfeiture within the time prescribed by the court, but not exceeding sixty days. In each instance, the court shall pay such forfeiture to the state treasury where it shall be credited to the department of natural resources to be used only for the replacement, habitat management or enforcement programs for injured, killed or destroyed game or protected species of animal.