COMMITTEE SUBSTITUTE
FOR
H. B. 2657
(By Mr. Speaker, Mr. Chambers, and
Delegates Compton and Vest
)
(Originating in the House Committee on Finance)
[April 1, 1993]
A BILL to amend article one, chapter twenty of the code of West
Virginia, one thousand nine hundred thirty-one, as amended,
by adding thereto a new section, designated section
nineteen; to amend and reenact sections two, two-a, five,
five-b, twelve, thirteen, twenty-two-a, twenty-three-d,
twenty-six, thirty-six-a, fifty-seven and sixty, article two
of said chapter; and to amend and reenact sections four,
eight and nine, article seven of said chapter, all relating
to wildlife resources; special fee assessed on state park,
state forest and state wildlife management area campsites,
cabins and lodge rooms; monies from special fees to be
divided equally between division of tourism and parks and
the nongame wildlife and natural heritage fund of one
thousand nine hundred ninety-three; requiring deposit of
proceeds in an appropriated special revenue account;
consolidation of article two criminal penalties with article
seven criminal penalties; powers and duties of conservation
officers; providing civil administrative penalties for
violations of chapter twenty; administrative hearings; and
monies from assessments to fund the nongame wildlife and
natural heritage program; and providing assessments to be
deposited in the nongame wildlife and natural heritage fund
of one thousand nine hundred ninety-three.
Be it enacted by the Legislature of West Virginia:
That article one, chapter twenty of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be
amended by adding thereto a new section, designated section
nineteen; that sections two, two-a, five, five-b, twelve,
thirteen, twenty-two-a, twenty-three-d, twenty-six, thirty-six-a,
fifty-seven and sixty, article two of said chapter be amended and
reenacted; and that sections four, eight and nine, article seven
of said chapter be amended and reenacted, all to read as follows:
ARTICLE 1. ORGANIZATION AND ADMINISTRATION.
§20-1-19. Special fees for use of state park, state forest and
state wildlife management area campground sites,
cabins and lodge rooms.
(a) Commencing on the first day of July, one thousand nine
hundred ninety-three, a special fee shall be assessed for use of
state park, state forest and state wildlife management area
campground sites, cabins and lodge rooms. The special fee shall
be assessed as follows:
(1) For a campground site, one dollar per night;
(2) For a lodge room, three dollars per night; or
(3) For a cabin, five dollars per night.
(b) The proceeds collected from this special fee shall bedivided equally between the division of tourism and parks, to
improve the infrastructure of the state park system, and the
division of natural resources:
Provided,
That the portion of the
fee which is to be credited to the division of natural resources
shall be deposited in the nongame wildlife and natural heritage
fund credited pursuant to subsection c of this section.
(c) There is hereby created in the state treasury a special
revenue account known as the "Nongame Wildlife and Natural
Heritage Fund of one thousand nine hundred ninety-three". All
monies deposited in this fund shall be expended for the purpose
of enhancement and perpetuation of the nongame wildlife and
natural heritage of this state:
Provided,
That notwithstanding
the provisions of section two, article two, chapter twelve of
this code, monies deposited in the fund shall only be expended
upon line item appropriation by the Legislature:
Provided,
however
That amounts collected which are found from time to time
to exceed funds needed for the purposes set forth in this
subsection, such funds may be transferred to other accounts or
funds and redesignated for other purposes by appropriation of the
Legislature.
(d) The is hereby created in the state treasury an
appropriated special revenue account knows as the "Parks
Infrastructure Fund". All monies collected pursuant to the
provisions of subsection a of this section attributable to the
division of tourism and parks shall be deposited in the fund and
shall be used to improve infrastructure at state parks,
recreation areas, state forests and wildlife management areas:
Provided,
That monies from the fund may only be expended uponline item by the Legislature:
Provided, however,
That amounts
collected which are found from time to time to exceed the funds
needed to effectuate the purposes set forth in this subsection,
such funds may be transferred to other accounts or funds and
redesignated for other purposes upon appropriation by the
Legislature.
ARTICLE 2. WILDLIFE RESOURCES.
§20-2-2. Violations of article.
When no specific punishment or penalty is otherwise provided
for violations of the provisions of this article, any person
violating any provision hereof shall be provision of this
article, any permit, order or rules issued or promulgated
hereunder is guilty of a misdemeanor, offense and, upon
conviction thereof, shall be subject to the punishment and
penalties prescribed in section nine, article seven of this
chapter.
§20-2-2a. Interference with hunters, trappers and fishermen.
A person may not willfully obstruct or impede the
participation of any individual in the lawful activity of
hunting, fishing or trapping. Any person violating the
provisions of this section shall be is guilty of a misdemeanor,
and, upon conviction thereof, shall be fined not less than one
hundred dollars nor more than five hundred dollars or imprisoned
in the county jail for not less than ten days nor more than one
hundred days or both fined and imprisoned. Also, any person
convicted of a subsequent violation of this section shall be
fined not more than one thousand dollars or imprisoned in the
county jail not more than one year or both fined and imprisonedbe subject to the penalties set forth in subdivision (1),
subsection (a), section nine, article seven of this chapter. For
the purpose of this section a subsequent violation is one which
has occurred within two years of any prior violation of this
section and which arises out of a separate set of circumstances.
Any person convicted of any violation of this section shall be
liable to the person, whom they interfered with, for all costs
and damages resulting therefrom and if such offender holds a West
Virginia hunting, fishing or trapping license at the time of
conviction, such license shall be revoked.
§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 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 regulations
rules 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 or her possession or subject to his or her control, or for
any person accompanying him or her to have in his or her
possession or subject to his or her 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 is not unlawful to huntor 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 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 at such time he or she
has in his or her 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 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 the county jail for not less than ten days nor more
than one hundred days be subject to the penalty set forth in
subdivision (2), subsection (a), section nine, article seven of
this chapter;
(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
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, ruffedgrouse, 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
possession such nest or eggs unless authorized to do so under
regulations rules 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
or she has in his or her possession a permit in writing issued to
him or her by the director:
Provided,
That this section shall
does 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 paragraph (11) below or 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, railroad right-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 or her 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, anyunloaded 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 are 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 alcohol or a controlled
substance as defined in chapter sixty-a of this code or under the
combined influence of alcohol and a controlled substance;
(13) Hunt, catch, take, kill, injure or pursue a wild animal
or 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 inthis state, and the person or persons claiming ownership shall
have no recourse at law against such confiscation and
destruction;
(16) (15) 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 is at all times be lawful;
(17) (16) 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) (17) 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, 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) (18) Kill, take, catch or have in his possession,
living or dead, any wild bird, other than a game bird; or exposefor 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 are not be protected and
the killing thereof at any time is lawful;
(20) (19) 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 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 subject to the penalty
set forth in subdivision (3), subsection (a), section nine,
article seven of this chapter;
(21) (20) Have a bow and gun, or have a gun and any arrow or
arrows, in the fields or woods at the same time;
(22) (21) Have a crossbow in the woods or fields or use a
crossbow to hunt for, take or attempt to take any wildlife;
(23) (22) 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) (23) Take or attempt to take any wildlife with an arrowhaving an explosive head or shaft, a poisoned arrow, or an arrow
which would affect wildlife by any chemical action;
(25) (24) Shoot an arrow across any public highway or from
aircraft, motor-driven watercraft, motor vehicle or other land
conveyance;
(26) (25) 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 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 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 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 game hunting 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) (26) 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) (27) 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 rule of the director as
authorized by subdivision (6), section seven, article one of this
chapter.
§20-2-5b. Exceeding creel limit on trout; other violations of
code or rules for trout fishing; penalties.
Any person who exceeds the creel limit on trout or who
otherwise violates any provisions of this code or any rules and
regulations relating to trout fishing is guilty of a misdemeanor,
and, upon conviction thereof, shall be fined not less than fifty
dollars nor more than three hundred dollars, or imprisoned in the
county jail not less than ten nor more than one hundred days, or
both fined and imprisoned subject to the penalty set forth in
subdivision (4), subsection (a), section nine, article seven of
this chapter.
§20-2-12. Transportation of wildlife out of state; penalties.
No person shall at any time transport or have in his or herpossession with the intention of transporting beyond the limits
of the state, any species of wildlife or any part thereof killed,
taken, captured or caught within this state:
Provided,
That a
nonresident legally entitled to hunt and fish in this state may
take with him or her personally, when leaving the state, any
wildlife that he or she has lawfully taken or killed, not
exceeding, during the open season, the number that any person may
lawfully take or kill in any two days. This section shall does
not apply to persons legally entitled to propagate and sell wild
animals, wild birds, fish, amphibians and other forms of aquatic
life:
Provided, however,
That licensed resident hunters and
trappers and resident and nonresident fur dealers may transport
beyond the limits of the state pelts of game and fur-bearing
animals taken during the legal season:
Provided further,
That
hide, head, antlers and feet of a legally killed deer, and the
hide, head, skull, organs and feet of a legally killed black bear
may also be transported beyond the limits of the state. The
director shall have has authority to promulgate rules and
regulations in accordance with chapter twenty-nine-a of this
code, dealing with the transportation and tagging of wildlife and
the skins thereof.
Notwithstanding any provision of this section, any person
violating the provisions of this section by transporting or
possessing with the intention of transporting beyond the limits
of this state, deer or wild boar, shall be is deemed to have
committed a separate offense for each animal so transported or
possessed. Any person violating the provisions of this section
shall be is guilty of a misdemeanor, and, upon convictionthereof, shall be fined not less than twenty dollars nor more
than three hundred dollars and be imprisoned in the county jail
not less than ten nor more than sixty days subject to the penalty
set forth in subdivision (5), subsection (a), section nine,
article seven of this chapter.
§20-2-13. Importation of wildlife; certification and
inspection of imported wildlife.
No person shall transport into or have in his or her
possession within this state any live wildlife or viable eggs
thereof from without the state, except as authorized by an
importation permit issued by the director:
Provided,
That the
director shall not be is not authorized to issue a permit to any
person to transport into this state any coyotes (Canis latrans).
The director may issue at his or her discretion such permit as he
or she is authorized to issue, fix the terms thereof and revoke
it at his or her pleasure.
Importers of fish or viable eggs of the family salmondiae
(trout, char, salmon) shall furnish a statement from a recognized
fish pathologist certifying the source to be free of whirling
disease, infectious pancreatic necrosis, viral hemorrhagic
septicemia or other diseases which may threaten fish stocks
within the state.
Importers of wildlife species shall furnish disease free
certification from pathologists, or veterinarians, as the
director deems necessary to protect native populations.
All imported wildlife shall be are subject to inspection by
authorized agents of the department division and such inspections
may include biological examinations and the removal of areasonable sample of fish or eggs for such purposes.
Any person violating any of the provisions of this section
concerning coyotes shall be is guilty of a misdemeanor, and, upon
conviction thereof, shall for each offense be fined not less than
one hundred nor more than three hundred dollars, or confined in
jail not less than ten nor more than one hundred days, or be both
fined and imprisoned within the limitations aforesaid subject to
the penalty set forth in subdivision (6), subsection (a), section
nine, article seven of this chapter.
§20-2-22a. Hunting, tagging and reporting bear; procedures
applicable to property destruction by bear;
penalties.
(a) No person in any county of this state shall hunt,
capture or kill any bear, or have in his possession any bear, or
any part thereof, including fresh pelt, except during the hunting
season for bear designated by rules and regulations to be
promulgated by the department division of natural resources and
at no other time nor in any other way than as herein and therein
provided. A person on killing a bear shall, within twenty-four
hours after killing, deliver the bear or fresh skin to a
conservation officer or checking station for tagging. The bear
shall have affixed thereto an appropriate tag provided by the
department division before any part of the bear may be
transported more than seventy-five miles from the point of kill.
The checking tag shall remain on the skin until it is tanned or
mounted. Any bear not properly tagged, or any part of such bear,
shall be forfeited to the state for disposal to a charitable
institution, or school, or as otherwise designated by thedepartment division of natural resources.
It shall be is unlawful:
(1) To hunt bear without a bear damage stamp as prescribed
in section forty-four-b of this article, in addition to a hunting
license as prescribed in this article;
(2) To hunt a bear with (a) a shotgun using ammunition
loaded with more than one solid ball, or (b) a rifle of less than
twenty-five caliber using rimfire ammunition or (c) a crossbow;
(3) To kill or attempt to kill any bear through the use of
poison, or explosives, or through the use of snares, steel traps
or deadfalls other than as authorized herein;
(4) To shoot at or kill a cub bear weighing less than one
hundred pounds or to kill any bear accompanied by such cub;
(5) To have in possession any part of a bear not tagged in
accordance with the provisions of this section;
(6) To enter a state game refuge with firearms for the
purpose of pursuing or killing a bear except under the direct
supervision of department division personnel;
(7) To hunt bear with dogs during seasons other than those
designated for such purpose by the department division of natural
resources; after a bear is spotted and the chase has begun, to
pursue the bear with other than the pack of dogs in use at the
beginning of the hunt;
(8) To train bear hunting dogs on bear or to cause dogs to
chase bear at times other than those designated by the department
division of natural resources for the hunting of bear;
(9) Notwithstanding the provisions of sections twenty-three
and twenty-four of this article, for any person to organize forcommercial purposes, or to professionally outfit a bear hunt or
to give or receive any consideration whatsoever or any donation
in money, goods or services in connection with a bear hunt;
(10) For any person, who is not a resident of this state, to
hunt bear with dogs or to use dogs in any fashion for the purpose
of hunting bear in this state, except in legally authorized
hunts.
(b) The following shall apply applies to bear destroying
property:
(1) Any property owner including a lessee, who has suffered
damage to real or personal property including loss occasioned by
the death of livestock or the injury thereto or the unborn issue
thereof, caused by an act of a bear may complain to any
conservation officer of the department division of natural
resources, for the protection against such bear. Upon receipt of
the complaint, such the officer shall immediately proceed to
investigate the circumstances giving rise to such the complaint,
and if such the officer is unable to personally investigate the
complaint, he or she shall designate a wildlife biologist to
investigate on his or her behalf and if the complaint is found to
be justified, such the officer or designated person, may,
together with the owner and other residents, proceed to hunt and
destroy or capture the bear which is determined to have caused
the property damage:
Provided,
That only the conservation
officer or the wildlife biologist shall determine whether the
bear shall may be destroyed or captured. Notwithstanding any
provision of this article, if it is determined that the complaint
is justified, the officer or designated person may summon or usedogs from within or without this state to effectuate the hunting
and destruction or capture of such the bear:
Provided, however,
That in the event dogs from without this state are used in such
hunt, the owners thereof shall be the only nonresidents permitted
to participate in hunting such the bear.
(2) When a property owner has suffered damage as the result
of an act by a bear, such the owner shall file a report with the
director of the department division of natural resources, stating
whether or not such the bear was hunted and destroyed and if so,
the sex, weight and estimated age of subject bear, and also
submit to the department division an appraisal of the property
damage occasioned by subject bear duly signed by three competent
appraisers, fixing the value of the property lost. Such The
report shall be ruled upon and the alleged damages examined by a
commission to which it shall be referred by the department
division. The commission shall be composed of the complaining
property owner, an officer of the department division and a
person to be selected by the officer of the department division
and the complaining property owner. The department division
shall by rules and regulations to be promulgated, establish the
procedures to be followed in presenting and deciding claims under
this section and all such claims shall be paid in the first
instance from the bear damage fund provided in section forty-
four-b of this article, and in the event such the fund is
insufficient to pay all claims determined by the commission to be
just and proper the remainder due to owners of lost or destroyed
property shall be paid from the special revenue account of the
department division of natural resources.
(3) In all cases where the act of the bear complained of by
the property owner is the killing of livestock, the value to be
established is the fair market value of the livestock at the date
of death, and in cases where livestock killed is pregnant, the
total value shall be the sum of the values of the mother and the
unborn issue, with the value of the unborn issue to be determined
on the basis of the fair market value of the issue, had it been
born. In no event shall the fair market value of the livestock
exceed twice the assessed value of the livestock for personal
property taxes.
(c) Any person who kills a bear in violation of the
provisions of this section shall be is guilty of a misdemeanor,
and, upon conviction thereof, shall be fined not less than five
hundred dollars nor more than one thousand dollars, or imprisoned
in the county jail not less than thirty nor more than one hundred
days, or both fined and imprisoned; and the suspension of the
person's hunting and fishing licenses for one year subject to the
penalty set forth in subdivision (7), subsection (a), section
nine, article seven of this chapter.
§20-2-23d. Bond; revocation of license; licensing carrying
requirement; criminal penalties.
(a) Immediately upon the issuance of a whitewater
outfitter's license and before any whitewater outfitter's
services are offered or rendered thereunder, the licensee shall
execute a surety bond in the penal sum of one thousand dollars
payable to the state of West Virginia and conditioned upon the
faithful and reliable discharge of his or her services under and
pursuant to the license. The bond shall be approved as to formby the attorney general and as to surety by the director, and
when so executed and approved, shall be filed in the office of
the director of the division of natural resources. The bond
shall be for the life of the license.
(b) The whitewater commission is hereby authorized to revoke
and cancel any whitewater outfitter's license for failure of the
licensee to give the bond required by this section, for a
licensee's violation or disregard of any of the provisions of
this chapter, upon a licensee's conviction of a crime, or for any
other reason or cause justifying refusal of the whitewater
outfitter's license to the licensee upon a new application
therefor. The commission shall afford a licensee an opportunity
to be heard upon the revocation and cancellation of the license.
(c) No person shall act or serve as a whitewater outfitter,
as defined in this article, without procuring and having on his
or her person at the time a valid whitewater outfitter's license
from the commission authorizing them to do so.
(d) Any person who violates any of the provisions of this
section or of section twenty-three-a of this article, or any rule
promulgated by the director of the division of natural resources
or who misrepresents any material fact in an application, record,
report or other document filed or required to be maintained under
the provisions of this article, or any rules promulgated
hereunder by the director of the division of natural resources,
is guilty of a misdemeanor, and upon conviction thereof, shall be
punished by a fine of not less than five hundred dollars per
violation not to exceed a total penalty of seventy-five hundred
dollars or by imprisonment in the county jail not exceeding sixmonths, or both fined and imprisoned be subject to the penalty
set forth in subdivision (8) subsection (a), section nine,
article seven of this chapter.
§20-2-26. Same -- License fee; bond; revocation of license;
penalties.
When satisfied as to the applicant's qualifications for an
outfitter's or guide's license and upon receipt of a fee of ten
dollars therefor, the director shall issue such the license which
shall be for the calendar year therein designated.
Immediately upon the issuance of an outfitter's or guide's
license and before any outfitter's or guide's services are
offered or rendered thereunder, the licensee shall execute a
surety bond in the penal sum of one thousand dollars payable to
the state of West Virginia and conditioned upon the faithful and
reliable discharge of his services under and pursuant to such
license. Such The bond shall be approved as to form by the
attorney general and as to surety by the director, and when so
executed and approved, shall be filed in the office of the
director. Such The bond shall be for the life of the license.
The director is hereby authorized to revoke and cancel any
such license for failure of the licensee to give the bond herein
required, for licensee's violation or disregard of any of the
provisions of this chapter, upon licensee's conviction of crime,
or for any other reason or cause justifying refusal of the
license to the licensee upon a new application therefor. The
director shall afford a licensee an opportunity to be heard upon
the revocation and cancellation of the license.
No person shall act or serve as a guide or outfitter, asdefined in this article, without procuring and having on his or
her person at the time a valid license from the director
authorizing him or her so to do. Any person violating this
provision shall be is guilty of a misdemeanor, and, upon
conviction thereof, may be fined not exceeding one hundred
dollars or confined in the county jail not exceeding ninety days,
or, in the discretion of the court, be both fined and imprisoned
within the limits herein prescribed shall be subject to the
penalty set forth in subdivision (9), subsection (a), section
nine, article seven of this chapter.
§20-2-36a. Hunting or fishing when license revoked; penalty.
Any person whose license to hunt or fish has been revoked,
who hunts or fishes during the period of revocation, 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, or be imprisoned in the county jail
for not less than ten days nor more than one hundred days, or
both fined and imprisoned be subject to the penalty set forth in
subdivision (10), subsection (a), section nine, article seven of
this chapter.
§20-2-57. Negligent shooting, wounding or killing of human
being or livestock while hunting; penalty.
It is unlawful for any person, while engaged in hunting,
pursuing, taking or killing wild animals or wild birds, to
carelessly or negligently shoot, wound or kill any human being or
livestock, or to destroy or injure any other chattels or
property.
Any person who, in the act of hunting, pursuing, taking orkilling of wild animals or wild birds, in any manner injures any
person or property shall file with the director a full
description of the accident or other casualty, including such
information as the director may require. Such The report must be
filed during a period not to exceed seventy-two hours following
such the incident.
Any person violating this section is guilty of a
misdemeanor, and, upon conviction thereof, shall be fined not
less than one thousand dollars nor more than ten thousand
dollars, or imprisoned in the county jail not more than one year,
or both fined and imprisoned. Restitution of the value of the
livestock, chattel or property injured or destroyed shall be
required upon conviction subject to the penalty set forth in
subdivision (12), subsection (a), section nine, article seven of
this chapter.
§20-2-60. Required attire for deer hunters; exemption; penalty.
Any person who hunts deer on public lands or the lands of
another during the period designated for firearms hunting of deer
shall wear a daylight fluorescent orange outer garment over at
least four hundred square inches of his person:
Provided,
That
persons engaged in agricultural occupations shall be exempt from
the provisions of this section while hunting deer on their own
property. Any person violating any provision of this section is
guilty of a misdemeanor, and, upon conviction thereof, shall be
fined not less than five dollars nor more than fifty dollars be
subject to the penalty set forth in subdivision (13), subsection
(a), section nine, article seven of this chapter.
ARTICLE 7. LAW ENFORCEMENT, MOTORBOATING, LITTER.
§20-7-4. Powers and duties of conservation officers.
Conservation officers and all other persons authorized to
enforce the provisions of this chapter shall be are under the
supervision and direction of the director in the performance of
their duties as herein provided. The authority, powers and
duties of the conservation officers shall be are statewide and
they shall have authority to:
(1) Arrest on sight, without warrant or other court process,
any person or persons committing a criminal offense in violation
of any of the laws of this state, in the presence of such the
officer, but no such arrest shall be made where any form of
administrative procedure is prescribed by this chapter and
administered in accordance with rules to be promulgated by the
director for the enforcement of any of the particular provisions
contained herein;
(2) Carry such arms and weapons as may be prescribed by the
director in the course and performance of their duties, upon
giving the bond required by the provisions of section five,
article seven, chapter sixty-one of this code, but no license or
other authorization shall be required of such the officers for
this privilege;
(3) Search and examine, in the manner provided by law, any
boat, vehicle, automobile, conveyance, express or railroad car,
fish box, fish bucket or creel, game bag or game coat, or any
other place in which hunting and fishing paraphernalia, wild
animals, wild birds, fish, amphibians or other forms of aquatic
life could be concealed, packed or conveyed whenever they have
reason to believe that they would thereby secure or discoverevidence of the violation of any provisions of this chapter;
(4) Execute and serve any search warrant, notice or any
process of law issued under the authority of this chapter or any
law relating to wildlife, forests, and all other natural
resources, by a magistrate or any court having jurisdiction
thereof, or copies of orders made and entered by the chief of the
division section of water resources, or, without fee, any
subpoena or subpoena duces tecum issued in accordance with the
provisions of article five-a of this chapter, in the same manner,
with the same authority, and with the same legal effect, as any
constable or sheriff can serve or execute such a warrant, notice
or process;
(5) Require the operator of any motor vehicle or other
conveyance on or about the public highways or roadways, or in or
near the fields and streams of this state, to stop for the
purpose of allowing such officers to conduct game-kill surveys;
(6) Summon aid in making arrests or seizures or in executing
any warrants, notices or processes, and they shall have the same
rights and powers as sheriffs have in their respective counties
in so doing;
(7) Enter private lands or waters within the state while
engaged in the performance of their official duties hereunder:
Provided,
That in connection with all surveys, examinations,
inspections, inquiries, investigations and studies needed in the
gathering of facts concerning water resources and their use or
the pollution thereof under article five or article five-a of
this chapter, such the conservation officers and all other
persons authorized to enforce the provisions of this chapter,shall act pursuant to and under the direction of the chief of the
division section of water resources or the state water resources
board, and such the officers and other persons shall be are
subject to the provisions of subsection (c), section five,
article five, and subsection (d), section three, article five-a
of this chapter;
(8) Arrest on sight, without warrant or other court process,
subject to the limitations set forth in subdivision (1) of this
section, any person or persons committing a criminal offense in
violation of any law of this state in the presence of any such
officer on any state-owned lands and waters and lands and waters
under lease by the division of natural resources and all national
forest lands, waters and parks, and U.S. Corps of Army Engineers'
properties within the boundaries of the state of West Virginia,
and, in addition to any authority conferred in the other
subdivisions of this section, execute all warrants of arrest on
such state and national lands, waters and parks, and U.S. Corps
of Army Engineers' properties, consistent with the provisions of
article one, chapter sixty-two of this code;
(9) Arrest any person who enters upon the land or premises
of another without written permission from the owner of the land
or premises in order to cut, damage, or carry away, or cause to
be cut, damaged, or carried away any timber, trees, logs, posts,
fruit, nuts, growing plants, or products of any growing plant.
Any person convicted of the foregoing shall be is liable to the
owner in the amount of three times the value of the timber,
trees, logs, posts, fruit, nuts, growing plants, or products of
any growing plant, which shall be in addition to andnotwithstanding any other penalties by law provided by section
thirteen, article three, chapter sixty-one of this code; and
(10) Do all things necessary to carry into effect the
provisions of this chapter.
§20-7-8. Seizure and disposition of property used for illegal
purpose.
Any officer, when he or she arrests or otherwise takes a
person into custody, or issues a civil administrative penalty 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 may 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 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 thischapter, or which is unfit or unsafe for further use, shall be
declared forfeited to the state and shall be disposed of by the
director.
§20-7-9. Violations of chapter generally; penalties; civil
penalties.
(a) Any person violating any of the provisions of this
chapter or rules and regulations promulgated under the provisions
of this chapter, the punishment for which is not prescribed,
shall be is guilty of a misdemeanor, and, upon conviction
thereof, shall for each offense be fined not less than twenty nor
more than three hundred dollars, or confined in jail not less
than ten nor more than one hundred days, or be both fined and
imprisoned within the limitations aforesaid, and, in the case of
a violation by a corporation, every officer or agent thereof
directing or engaging in such 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 any person violating subdivision three, section five,
article two of this chapter shall be guilty of a misdemeanor,
and, upon conviction thereof, shall be fined not less than one
hundred dollars nor more than five hundred dollars and shall be
imprisoned for not less than ten days nor more than one hundred
days: Provided, however, That any person violating sections
forty-three and forty- five, article two of this chapter shall be
guilty of a misdemeanor, and, upon conviction thereof, shall be
fined not less than fifty dollars nor more than three hundred
dollars, or confined in jail not less than ten nor more than one
hundred days, or both fined and imprisoned within the limitationsaforesaid: Provided further, That any person violating 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 department of natural resources, shall be guilty of a
misdemeanor, and, upon conviction thereof, shall be fined not
less than two nor more than one hundred dollars, or imprisoned in
the county jail not more than ten days, or both fined and
imprisoned.
(1) Interference with hunters, trappers and fishermen. --
Any person violating the provisions of section two-a, article two
of this chapter is guilty of a misdemeanor, and, upon conviction
thereof, shall be fined not less than one hundred dollars nor
more than five hundred dollars or imprisoned in the county jail
for not less than ten days nor more than one hundred days or both
fined and imprisoned. Also, any person convicted of a subsequent
violation of section two-a, article two of this chapter shall be
fined not more than one thousand dollars or imprisoned in the
county jail not more than one year or both fined and imprisoned.
For the purpose of section two-a, article two of this chapter, a
subsequent violation is one which has occurred within two years
of any prior violation of section two-a, article two of this
chapter, and which arises out of a separate set of circumstances.
(2) Use of artificial light in hunting, locating,
attracting, taking, trapping or killing wild animals or wild
birds. -- Any person violating the provisions of subdivision (3),
section five, article two of this chapter is guilty of a
misdemeanor, and, upon conviction thereof, shall for each offensebe fined not less than one hundred dollars nor more than five
hundred dollars and shall be imprisoned in the county jail for
not less than ten days nor more than one hundred days or both
fined and imprisoned. No administrative penalty may be assessed
for violation of this section.
(3) Use of explosives or poisonous mixtures. -- Any person
violating the provisions of subdivision (19), section five,
article two of this chapter 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. No administrative
penalty may be assessed for violation of this section.
(4) Exceeding creel limit on trout and other trout fishing
violations. -- Any person violating the provisions of section
five-b, article two of this chapter is guilty of a misdemeanor,
and, upon conviction thereof, shall be fined not less than fifty
dollars nor more than three hundred dollars, or imprisoned in the
county jail not less than ten nor more than one hundred days, or
both fined and imprisoned.
(5) Transporting of wildlife out of state. -- Any person
violating the provisions of section twelve, article two of this
chapter is guilty of a misdemeanor, and, upon conviction thereof,
shall be fined not less than twenty dollars nor more than three
hundred dollars and be imprisoned in the county jail not less
than ten nor more than sixty days or both fined and imprisoned.
(6) Importation of coyotes. -- Any person violating the
provisions of section thirteen, article two of this chapter is
guilty of a misdemeanor, and, upon conviction thereof, shall befined not less than one hundred nor more than three hundred
dollars, or imprisoned in the county jail not less than ten nor
more than one hundred days, or both fined and imprisoned.
(7) Bear hunting, tagging and reporting violations. -- Any
person violating the provisions of section twenty-two-a, article
two of this chapter is guilty of a misdemeanor, and, upon
conviction thereof, shall be fined not less than five hundred
dollars nor more than one thousand dollars, or imprisoned in the
county jail not less than thirty nor more than one hundred days,
or both fined and imprisoned. The person's hunting and fishing
license shall also be suspended for one year.
(8) Violation of whitewater outfitter license provision. --
Any person violating the provisions of sections twenty-three-a
and twenty-three-d, article two of this chapter is guilty of a
misdemeanor, and upon conviction thereof, shall be fined not less
than five hundred dollars per violation not to exceed a total
penalty of seventy-five hundred dollars or by imprisonment in the
county jail not exceeding six months, or both fined and
imprisoned.
(9) Violation of guide or outfitter license provision. --
Any person violating the provisions of section twenty-six,
article two of this chapter is guilty of a misdemeanor, and, upon
conviction thereof, shall be fined not more than one hundred
dollars or confined in the county jail not more than ninety days,
or both fined and imprisoned.
(10) Hunting or fishing with revoked license. -- Any person
violating the provisions of section thirty-six-a, article two of
this chapter is guilty of a misdemeanor, and, upon convictionthereof, shall be fined not less than one hundred dollars nor
more than five hundred dollars, or be imprisoned in the county
jail for not less than ten days nor more than one hundred days,
or both fined and imprisoned.
(11) Violations of nonresident license provisions. -- Any
nonresident violating the provisions of sections forty-three and
forty-five, article two of this chapter is guilty of a
misdemeanor, and, upon conviction thereof, shall be fined not
less than one hundred twenty-five dollars nor more than three
hundred dollars, or confined in jail not less than ten nor more
than one hundred days, or both fined and imprisoned.
(12) Negligent shooting, wounding or killing. -- Any person
violating the provisions of section fifty-seven, article two of
this chapter is guilty of a misdemeanor, and, upon conviction
thereof, shall be fined not less than one thousand dollars nor
more than ten thousand dollars, or imprisoned in the county jail
not more than one year, or both fined and imprisoned.
Restitution of the value of the livestock, chattel or property
injured or destroyed shall be required upon conviction. No
administrative penalty may be assessed for violation of this
section.
(13) Required attire for deer hunters. -- Any person
violating the provisions of section sixty, article two of this
chapter is guilty of a misdemeanor, and, upon conviction thereof,
shall be fined not less than five dollars nor more than fifty
dollars.
(14) Violation of parking or speeding rules on state
facilities. -- Any person violating any parking or speeding ruleas 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 is guilty of a misdemeanor, and, upon conviction
thereof, shall be fined not less than two dollars nor more than
one hundred dollars, or imprisoned in the county jail not more
than ten days, or both fined and imprisoned.
(b) Any person who violates any provision of this article or
any license, permit, rule or order issued pursuant to this
chapter is subject to a civil administrative penalty, to be
levied by the director, of not more than five hundred dollars for
each violation. In assessing any such penalty, the director
shall take into account the seriousness of the violation and any
good faith efforts to comply with applicable requirements as well
as any other appropriate factors as may be established by the
director by rules promulgated pursuant to this article and in
accordance with chapter twenty-nine-a of this code.
No assessment may be levied pursuant to this section until
after the alleged violator has been notified by registered mail
or personal service. The notice shall include a reference to the
section of the statute, rule, order or statement of the license
or permit term or condition that was allegedly violated; a
concise statement of the facts alleged to constitute the
violation; a statement of the amount of the penalty to be
imposed; and a statement of the alleged violator's right to an
informal hearing.
The alleged violator has twenty calendar days from receipt
of the notice within which to deliver to the director a writtenrequest for an informal hearing. If no hearing is requested, the
notice becomes a final order after the expiration of the twenty-
day period. If a hearing is requested, the director shall inform
the alleged violator of the time and place of the hearing:
Provided,
That the hearing can be held in the county of the
violation, an adjoining county, or another county by agreement
between the alleged violator and the assessment officer.
The director may appoint an assessment officer to conduct
the informal hearing, who will then make a written recommendation
to the director concerning the assessment of a civil
administrative penalty. Within thirty days following the
informal hearing, the director shall issue and furnish to the
violator a written decision, and the reasons therefor, concerning
the assessment of a civil administrative penalty. Within thirty
days after the decision by the assessment officer the person can
appeal the decision to the circuit court of the county where the
violation occurred.
The commissioners shall be paid fifty dollars per day while
they are seated hearing appeals.
The authority to levy an administrative penalty is in
addition to all other enforcement provisions of this article
unless otherwise specified:
Provided,
That the payment of any
civil assessment precludes any criminal procedure from occurring.
All administrative penalties shall be levied in accordance with
rules to be promulgated by the director in accordance with the
provisions of chapter twenty-nine-a of this code.
The net proceeds of the assessments collected pursuant to
this section shall be deposited in the nongame wildlife andnatural heritage fund of the division of natural resources
created pursuant to section nineteen, article one, chapter twenty
of this code.