COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 346
(By Senators Dittmar and Anderson)
____________
[Originating in the Committee on Natural Rsources;
reported February 21, 1994.]
____________
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, five, five-b,
twelve, thirteen, twenty-two-a, twenty-six and fifty-seven,
article two of said chapter; and to amend and reenact
sections four, eight and nine, article seven of said
chapter, all relating to natural resources; organization and
administration; nongame wildlife and natural heritage fund
created; establishment of civil administrative penalties;
directing deposit of civil administrative penalties into
said fund for the nongame wildlife and natural heritage
program; additional payments; wildlife resources; unlawful
methods of hunting and fishing; violations; criminal
penalties; powers and duties of conservation officers;
seizure and disposition of property used for illegal
purpose.
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, five, five-b, twelve, thirteen,
twenty-two-a, twenty-six and fifty-seven, 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. Nongame wildlife resources and natural heritage fund
created; payments to the regional jail and correctional
facility development fund; the crime victims compensation
fund; and the law-enforcement training special revenue
account.
(a) There is hereby created in the state treasury a special
revenue account known as the "nongame wildlife and natural
heritage fund." All moneys 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, moneys deposited in the fund shall
only be expended upon line item appropriation by the legislature.
(b) Every individual, business or corporation that is
required to pay a civil administrative penalty pursuant to the
provisions of section nine, article seven, chapter twenty of this
code, shall be required to pay an additional fifty-two dollar
payment: (1) forty dollars of which payment shall be depositedin the regional jail and prison development fund in the state
treasury; (2) ten dollars of which shall be deposited in the
crime victims compensation fund in the state treasury; and (3)
two dollars of which shall be deposited in the law enforcement
training special revenue account in the state treasury.
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 of, or rule promulgated pursuant to, this
article or the terms of any permit or order issued pursuant to
same shall be 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.
§20-2-5. Unlawful methods of hunting and fishing; other unlawful
acts.
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;
(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) 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 inhis 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 be subject to the penalty set forth in subdivision (1),
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 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, trapor 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 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
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 subdivision (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 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 rule. 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 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 bow while under the influence of
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) 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 rule issued by the director: Provided, That
snaring of any species of suckers, carp, fallfish and creek chubsshall at all times be lawful;
(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 rules of the
director, or the sale of which is prohibited;
(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;
(18) 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 (Molothrusater), which shall not be protected and the killing thereof at
any time is lawful;
(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 guilty of a felony, and, upon conviction
thereof, shall be subject to the penalty set forth in subdivision
(2), subsection (a), section nine, article seven of this chapter;
(20) Have a bow and gun, or have a gun and any arrow or
arrows, in the fields or woods at the same time;
(21) Have a crossbow in the woods or fields or use a
crossbow to hunt for, take or attempt to take any wildlife;
(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;
(23) 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;
(24) Shoot an arrow across any public highway or from
aircraft, motor-driven watercraft, motor vehicle or other land
conveyance;
(25) 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 groundsor 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 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;
(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
(27) Except as provided in section four of this article,
hunt, catch, take, kill or attempt to hunt, catch, take or killany wild animal, wild bird or wild fowl except during the open
season established by 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
relating to trout fishing is guilty of a misdemeanor, and, upon
conviction thereof, shall be subject to the penalty set forth in
subdivision (3), 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
possession 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 personally, when leaving the state, any wildlife
that he 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 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, organsand feet of a legally killed black bear may also be transported
beyond the limits of the state. The director shall have
authority to promulgate rules 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 deemed to have
committed a separate offense for each animal so transported or
possessed. Any person violating the provisions of this section
shall be guilty of a misdemeanor, and, upon conviction thereof,
shall be subject to the penalty set forth in subdivision (4),
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 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
authorized to issue a permit to any person to transport into this
state any coyotes (Canis latrans). The director may issue at his
discretion such permit as he is authorized to issue, fix the
terms thereof and revoke it at his 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 hemorrhagicsepticemia 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 subject to inspection by
authorized agents of the division and such inspections may
include biological examinations and the removal of a reasonable
sample of fish or eggs for such purposes.
Any person violating any of the provisions of this section
concerning coyotes shall be guilty of a misdemeanor, and, upon
conviction thereof, shall for each offense be subject to the
penalty set forth in subdivision (5), 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 promulgated by the 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 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 ormounted. 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 the
division of natural resources.
It shall be 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 division personnel;
(7) To hunt bear with dogs during seasons other than those
designated for such purpose by the 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 divisionof 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 for
commercial purposes, or to professionally outfit a bear hunt or
to give or receive any consideration whatsoever or any donation
in money, goods or services in connection with a bear hunt;
(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 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 division of natural resources, for
the protection against such bear. Upon receipt of the complaint,
such officer shall immediately proceed to investigate the
circumstances giving rise to such complaint, and if such officer
is unable to personally investigate the complaint, he shall
designate a wildlife biologist to investigate on his or her
behalf and if the complaint is found to be justified, such
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 be destroyed or captured.
Notwithstanding any provision of this article, if it isdetermined that the complaint is justified, the officer or
designated person may summon or use dogs from within or without
this state to effectuate the hunting and destruction or capture
of such 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 bear.
(2) When a property owner has suffered damage as the result
of an act by a bear, such owner shall file a report with the
director of the division of natural resources, stating whether or
not such bear was hunted and destroyed and if so, the sex, weight
and estimated age of subject bear, and also submit to the
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 report shall be ruled upon
and the alleged damages examined by a commission to which it
shall be referred by the division. The commission shall be
composed of the complaining property owner, an officer of the
division and a person to be selected by the officer of the
division. The division shall by rules 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 fund
is insufficient to pay all claims determined by the commission to
be just and proper the remainder due to owners of lost or
destroyed property shall be paid from the special revenue account
of the division 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 guilty of a misdemeanor, and,
upon conviction thereof, shall be subject to the penalty set
forth in subdivision (6), 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 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 or her services under and pursuant to
such license. Such bond shall be approved as to form by theattorney general and as to surety by the director, and when so
executed and approved, shall be filed in the office of the
director. Such bond shall be for the life of the license.
The director is hereby authorized to revoke and cancel any
such license for failure of the licensee to give the bond herein
required, for licensee's violation or disregard of any of the
provisions of this chapter, upon licensee's conviction of crime,
or for any other reason or cause justifying refusal of the
license to the licensee upon a new application therefor. The
director shall afford a licensee an opportunity to be heard upon
the revocation and cancellation of the license.
No person shall act or serve as a guide or outfitter, as
defined in this article, without procuring and having on his or
her person at the time a valid license from the director
authorizing him or her so to do. Any person violating this
provision shall be guilty of a misdemeanor, and, upon conviction
thereof, shall be subject to the penalty set forth in subdivision
(7), 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 or
killing of wild animals or wild birds, in any manner injures any
person or property shall file with the director a fulldescription of the accident or other casualty, including such
information as the director may require. Such report must be
filed during a period not to exceed seventy-two hours following
such incident.
Any person violating this section is guilty of a
misdemeanor, and, upon conviction thereof, shall be subject to
the penalty set forth in subdivision (9), 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 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 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
officer, but no such arrest shall be made where any form of
administrative procedure is prescribed and administered in
accordance with rules promulgated by the director for the
enforcement of any of the particular provisions contained herein.
The director shall promulgate rules pursuant to chapter twenty-
nine-a of this code establishing and regulating said
administrative procedure.
(2) Carry such arms and weapons as may be prescribed by the
director in the course and performance of their duties, upongiving 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 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 discover
evidence 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
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 sheriff can
serve or execute such 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 samerights 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 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 section
of water resources or the state water resources board, and such
officers and other persons shall be 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 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 and
notwithstanding 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
property shall include firearms, fishing equipment, traps, boats,
or any other device, appliance or conveyance, but shall not
include dogs.
If the accused is acquitted the property seized shall be
returned. If the accused is convicted and pays the fine or civil
adminstrative penality, costs and other penalties, the property
shall be returned, but if the accused fails to pay the fine andcosts or civil administrative penalty 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 this
chapter, or which is unfit or unsafe for further use, shall be
declared forfeited to the state and shall be disposed of by the
director.
§20-7-9. Violations of chapter; criminal penalties; civil
penalties.
(a) For violations of this chapter the following criminal
penalties shall apply:
(1) 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 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. No
administrative penalty may be assessed for violation of this
section.
(2) Use of explosives or poisonous mixtures. -- Any personviolating 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.
(3) 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.
(4) Transporting 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.
(5) 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 be
fined 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.
(6) 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, uponconviction 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.
(7) 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.
(8) Violation 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.
(9) 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.
(10) 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 nor more than one
hundred dollars, or imprisoned in the county jail not more than
ten days, or both fined and imprisoned.
(11) General Violations. -- Any person violating any
provisions of this chapter or rule promulgated hereunder, the
punishment for which is not prescribed, shall be 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 guilty of a misdemeanor, and, upon
conviction thereof, shall be subject to the same penalties and
punishment as herein provided.
(b) Any person who violates any provision of this article or
any license, permit, rule or order issued pursuant to this
chapter may, in the discretion of the director be subject to a
civil administrative penalty, to be assessed by the director in
lieu of filing of criminal charges. Provided, That the penalty
assessed pursuant to this subsection shall conform to the minimum
and maximum fines prescribed for the respective criminal
violations listed in subsection (a) of this section. In assessing
any such penalty, the director shall take into account theseriousness 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 article three, chapter
twenty-nine-a of this code. No penalty may be levied pursuant to
this section until after the alleged violator has been notified
by certified 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 a hearing. The alleged violator has twenty calendar days
from receipt of the notice within which to deliver to the
director a written request for a 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. The director may appoint a hearing examiner to
conduct the hearing, who will then make written recommended
findings to the director concerning the assessment of a civil
administrative penalty. Within thirty days following the
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. The authority to
assess an administrative penalty is in addition to all other
enforcement provisions of this article unless otherwise
specified. The payment of any civil penalty, however, precludesany criminal charge being made regarding the specific conduct for
which the penalty was assessed. All administrative penalties
shall be assessed in accordance with rules promulgated by the
director pursuant to the provisions of chapter twenty-nine-a of
this code.
(c) The net proceeds of the civil penalties collected
pursuant to this section shall be deposited in the nongame
wildlife and natural heritage fund of the division of natural
resources created pursuant to section nineteen, article one of
this chapter. At the end of each fiscal year, any unexpended
balance of such fund shall remain in the nongame wildlife and
natural heritage fund.