H. B. 2641
(By Delegate Kiss, By Request)
[Introduced March 20, 1997; referred to the
Committee on Agriculture and Natural Resources then the Judiciary.]
A BILL to amend and reenact sections seven and seventeen, article
one, chapter twenty of the code of West Virginia, one
thousand nine hundred thirty-one, as amended; and to amend
and reenact sections two and eight, article seven of said
chapter, all relating to prohibiting the division of natural
resources from increasing or enhancing penalties for
violations involving hunting or fishing for longer than two
years from the date of the violation; prohibiting division
of natural resources seizing property to be forfeited upon
conviction for a violation under certain circumstances;
providing for review of the disposition of seized property
or funds under certain conditions; requiring conservation
officers to have certain four-year undergraduate degrees;
deleting the provision providing that property seized from
certain offenders is forfeited at the time of arrest; notifying persons convicted of violations of the date and
time for an auction of seized property; and providing notice
of proceeds collected from the sale of seized property in
relation to fines and costs imposed.
Be it enacted by the Legislature of West Virginia:
That sections seven and seventeen, article one, chapter
twenty of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, be amended and reenacted; and that
sections two and eight, article seven of said chapter be amended
and reenacted, all to read as follows:
ARTICLE 1. ORGANIZATION AND ADMINISTRATION.
§20-1-7. Additional powers, duties and services of director.
In addition to all other powers, duties and responsibilities
granted and assigned to the director in this chapter and
elsewhere by law, the director is hereby authorized and empowered
to:
(1) With the advice of the commission, prepare and
administer, through the various divisions created by this
chapter, a long-range comprehensive program for the conservation
of the natural resources of the state which best effectuates the
purpose of this chapter and which makes adequate provisions for
the natural resources laws of the state;
(2) Sign and execute in the name of the state by the "division of natural resources" any contract or agreement with
the federal government or its departments or agencies,
subdivisions of the state, corporations, associations,
partnerships or individuals;
(3) Conduct research in improved conservation methods and
disseminate information matters to the residents of the state;
(4) Conduct a continuous study and investigation of the
habits of wildlife, and for purposes of control and protection,
to classify by regulation the various species into such
categories as may be established as necessary;
(5) Prescribe the locality in which the manner and method by
which the various species of wildlife may be taken, or chased,
unless otherwise specified by this chapter;
(6) Hold at least six meetings each year at such time and at
such points within the state, as in the discretion of the natural
resources commission may appear to be necessary and proper for
the purpose of giving interested persons in the various sections
of the state an opportunity to be heard concerning open season
for their respective areas, and report the results of the
meetings to the natural resources commission before such season
and bag limits are fixed by it;
(7) Suspend open hunting season upon any or all wildlife in
any or all counties of the state with the prior approval of the
governor in case of an emergency such as a drought, forest fire hazard or epizootic disease among wildlife. The suspension shall
continue during the existence of the emergency and until
rescinded by the director. Suspension, or reopening after such
suspension, of open seasons may be made upon twenty-four hours'
notice by delivery of a copy of the order of suspension or
reopening to the wire press agencies at the state capitol;
(8) Supervise the fiscal affairs and responsibilities of the
division;
(9) Designate such localities as he or she shall determine
to be necessary and desirable for the perpetuation of any species
of wildlife;
(10) Enter private lands to make surveys or inspections for
conservation purposes, to investigate for violations of
provisions of this chapter, to serve and execute warrants and
processes, to make arrests and to otherwise effectively enforce
the provisions of this chapter;
(11) Acquire for the state in the name of the "division of
natural resources" by purchase, condemnation, lease or agreement,
or accept or reject for the state, in the name of the division of
natural resources, gifts, donations, contributions, bequests or
devises of money, security or property, both real and personal,
and any interest in such property, including lands and waters,
which he or she deems suitable for the following purposes:
(a) For state forests for the purpose of growing timber, demonstrating forestry, furnishing or protecting watersheds or
providing public recreation;
(b) For state parks or recreation areas for the purpose of
preserving scenic, aesthetic, scientific, cultural,
archaeological or historical values or natural wonders, or
providing public recreation;
(c) For public hunting, trapping or fishing grounds or
waters for the purpose of providing areas in which the public may
hunt, trap or fish, as permitted by the provisions of this
chapter, and the rules issued hereunder;
(d) For fish hatcheries, game farms, wildlife research areas
and feeding stations;
(e) For the extension and consolidation of lands or waters
suitable for the above purposes by exchange of other lands or
waters under his or her supervision;
(f) For such other purposes as may be necessary to carry out
the provisions of this chapter.
(12) Capture, propagate, transport, sell or exchange any
species of wildlife as may be necessary to carry out the
provisions of this chapter;
(13) Sell, with the approval in writing of the governor,
timber for not less than the value thereof, as appraised by a
qualified appraiser appointed by the director, from all lands
under the jurisdiction and control of the director, except those lands that are designated as state parks and those in the Kanawha
State Forest. The appraisal shall be made within a reasonable
time prior to any sale, reduced to writing, filed in the office
of the director and shall be available for public inspection.
When the appraised value of the timber to be sold is more than
five hundred dollars, the director, before making sale thereof,
shall receive sealed bids therefor, after notice by publication
as a Class II legal advertisement in compliance with the
provisions of article three, chapter fifty-nine of this code, and
the publication area for such publication shall be each county in
which the timber is located. The timber so advertised shall be
sold at not less than the appraised value to the highest
responsible bidder, who shall give bond for the proper
performance of the sales contract as the director shall
designate; but the director shall have the right to reject any
and all bids and to readvertise for bids. If the foregoing
provisions of this section have been complied with, and no bid
equal to or in excess of the appraised value of the timber is
received, the director may, at any time, during a period of six
months after the opening of the bids, sell the timber in such
manner as he or she deems appropriate, but the sale price shall
not be less than the appraised value of the timber advertised.
No contract for sale of timber made pursuant to this section
shall extend for a period of more than ten years. And all contracts heretofore entered into by the state for the sale of
timber shall not be validated by this section if the same be
otherwise invalid. The proceeds arising from the sale of the
timber so sold, shall be paid to the treasurer of the state of
West Virginia, and shall be credited to the division and used
exclusively for the purposes of this chapter: Provided, That
nothing contained herein shall prohibit the sale of timber which
otherwise would be removed from rights-of-way necessary for and
strictly incidental to the extraction of minerals;
(14) Sell or lease, with the approval in writing of the
governor, coal, oil, gas, sand, gravel and any other minerals
that may be found in the lands under the jurisdiction and control
of the director, except those lands that are designated as state
parks. The director, before making sale or lease thereof, shall
receive sealed bids therefor, after notice by publication as a
Class II legal advertisement in compliance with the provisions of
article three, chapter fifty-nine of this code, and the
publication area for such publication shall be each county in
which such lands are located. The minerals so advertised shall
be sold or leased to the highest responsible bidder, who shall
give bond for the proper performance of the sales contract or
lease as the director shall designate; but the director shall
have the right to reject any and all bids and to readvertise for
bids. The proceeds arising from any such sale or lease shall be paid to the treasurer of the state of West Virginia and shall be
credited to the division and used exclusively for the purposes of
this chapter;
(15) Exercise the powers granted by this chapter for the
protection of forests, and regulate fires and smoking in the
woods or in their proximity at such times and in such localities
as may be necessary to reduce the danger of forest fires;
(16) Cooperate with departments and agencies of state, local
and federal governments in the conservation of natural resources
and the beautification of the state;
(17) Report to the governor each year all information
relative to the operation and functions of the division and the
director shall make such other reports and recommendations as may
be required by the governor, including an annual financial report
covering all receipts and disbursements of the division for each
fiscal year, and he or she shall deliver such report to the
governor on or before the first day of December next after the
end of the fiscal year so covered. A copy of such report shall
be delivered to each house of the Legislature when convened in
January next following;
(18) Keep a complete and accurate record of all proceedings,
record and file all bonds and contracts taken or entered into,
and assume responsibility for the custody and preservation of all
papers and documents pertaining to his or her office, except as otherwise provided by law;
(19) Offer and pay, in his or her discretion, rewards for
information respecting the violation, or for the apprehension and
conviction of any violators, of any of the provisions of this
chapter;
(20) Require such reports as he or she may deem to be
necessary from any person issued a license or permit under the
provisions of this chapter, but no person shall be required to
disclose secret processes or confidential data of competitive
significance;
(21) Purchase as provided by law all equipment necessary for
the conduct of the division;
(22) Conduct and encourage research designed to further new
and more extensive uses of the natural resources of this state
and to publicize the findings of such research;
(23) Encourage and cooperate with other public and private
organizations or groups in their efforts to publicize the
attractions of the state;
(24) Accept and expend, without the necessity of
appropriation by the Legislature, any gift or grant of money made
to the division for any and all purposes specified in this
chapter, and he or she shall account for and report on all such
receipts and expenditures to the governor;
(25) Cooperate with the state historian and other appropriate state agencies in conducting research with reference
to the establishment of state parks and monuments of historic,
scenic and recreational value, and to take such steps as may be
necessary in establishing such monuments or parks as he or she
deems advisable;
(26) Maintain in his or her office at all times, properly
indexed by subject matter, and also, in chronological sequence,
all rules and regulations made or issued under the authority of
this chapter. Such records shall be available for public
inspection on all business days during the business hours of
working days;
(27) Delegate the powers and duties of his or her office,
except the power to execute contracts, to appointees and
employees of the division, who shall act under the direction and
supervision of the director and for whose acts he or she shall be
responsible;
(28) Conduct schools, institutions and other educational
programs, apart from or in cooperation with other governmental
agencies, for instruction and training in all phases of the
natural resources programs of the state;
(29) Authorize the payment of all or any part of the
reasonable expenses incurred by an employee of the division in
moving his or her household furniture and effects as a result of
a reassignment of the employee: Provided, That no part of the moving expenses of any one such employee shall be paid more
frequently than once in twelve months; and
(30) Promulgate rules, in accordance with the provisions of
chapter twenty-nine-a of this code, to implement and make
effective the powers and duties vested in him or her by the
provisions of this chapter and take such other steps as may be
necessary in his or her discretion for the proper and effective
enforcement of the provisions of this chapter: Provided, That no
rule made under this section may require that a violation of this
chapter involving hunting or fishing be used to increase or
otherwise enhance any penalty, fine or cost authorized hereunder
for a period longer than two years from the date of such
violation, unless the violator fails or refuses to pay the fine
or costs imposed for such conviction.
§20-1-17. Natural resources commission -- Organization and
services.
Members of the natural resources commission shall take and
subscribe to the public officer's oath prescribed by the
Constitution before entering upon the duties of their office.
All such executed oaths shall be filed in the office of the
secretary of state. Members of the commission shall receive no
compensation as such, but each shall be reimbursed for his or her
actual and necessary traveling expenses incurred in the performance of his or her official duties.
The director of the department shall be an ex officio a
member of the commission and its presiding officer. A majority
of the commission shall constitute a quorum for transaction of
business. Four regular meetings of the commission shall be held
each year commencing on the first Monday in the months of July,
October, January and April. Special meetings may be convened by
the governor, the director or by a majority of the commission.
The meetings of the commission shall be regularly held at the
office of the director, but may be held at other points within
the state when need therefor exists as explained in the call
setting forth the time and place of the meeting. The director
shall furnish all articles and supplies required by the
commission in the performance of its duties and shall provide
necessary stenographic, secretarial and clerical assistance
therefor. All such materials and services shall be paid for from
department funds.
The director, at any regular or special meeting of the
commission, may submit to the commission any program or policy
matters on which he wishes to obtain the advice, counsel and
opinion of the commission and may consult with members of the
commission on functions, services, policies and practices of the
department at any time. The commission shall serve as a body
advisory to the director and shall perform all other duties assigned to it by law. It shall have the following powers and
duties:
(1) To consider and study the entire field of legislation
and administrative methods concerning the forests and their
maintenance and development, the protection of fish and game, the
beautification of the state and its highways, and the development
of lands, minerals, waters and other natural resources;
(2) To advise with the director concerning the conservation
problems of particular localities or districts of the state;
(3) To recommend policies and practices to the director
relative to any duties imposed upon him by law;
(4) To investigate the work of the director, and for this
purpose to have access at reasonable times to all official books,
papers, documents and records;
(5) To advise or make recommendations to the governor
relative to natural resources of the state;
(6) To keep minutes of the transactions of each session,
regular or special, which shall be public records and filed with
the director; and
(7) To fix by regulation which it is hereby empowered to
promulgate, in accordance with the provisions of chapter
twenty-nine-a of this code, the open seasons and the bag, creel,
size, age, weight and sex limits with respect to wildlife in this
state; and
(8) To review the disposition of all property seized or any
funds received at public auction by the director pursuant to the
director's authority as set forth in section eight, article seven
of this chapter.
ARTICLE 7. LAW-ENFORCEMENT, MOTORBOATING, LITTER.
§20-7-2. Qualifications, etc., of conservation officers; right of retired officer to receive complete standard
uniform; right of retired officer to acquire
uniform; and right of retired officer to acquire
badge.
In addition to civil service qualifications and requirements,
persons selected as conservation officers shall have reached
their eighteenth birthday at the time of appointment, attained an
undergraduate degree in forestry or environmental conservation or
closely related field of study from a four-year program existing
in an accredited institution of higher education be in good
physical condition and of good moral character, temperate in
habits and shall not have been convicted of a felony. Whenever
possible and practicable, preference in selection of conservation
officers shall be given honorably discharged United States
military personnel. Each conservation officer, before entering
upon the discharge of his duties, shall take and subscribe to the
oath of office prescribed in article IV, section 5 of the Constitution of West Virginia, which executed oath shall be filed
with the director.
The director shall prescribe the kind, style and material of
uniforms to be worn by conservation officers. Uniforms and other
equipment furnished to the conservation officers shall be and
remain the property of the state, except as hereinafter provided
in this section.
A conservation officer, upon honorable retirement, shall be
authorized to maintain at his or her own cost a complete standard
uniform from the law-enforcement agency of which he or she was a
member, and shall be issued an identification card indicating his
or her honorable retirement from the law-enforcement agency. The
uniform may be worn by the officer in retirement only on the
following occasions: Police Officer's Memorial Day, Law
Enforcement Appreciation Day, at the funeral of a law-enforcement
officer or during any other police ceremony. The honorably
retired officer is authorized to acquire a badge of the
law-enforcement agency from which he or she is retired with the
word "retired" placed on it.
§20-7-8. Seizure and disposition of property used for illegal
purpose.
(a) Any officer, when he arrests or otherwise takes a
person into custody for violating any provision or provisions of this chapter, is hereby also authorized and empowered to take and
impound any property found in the possession of the accused and
susceptible of use in committing the offense of which the person
is accused. Such property shall include firearms, fishing
equipment, traps, boats, or any other device, appliance or
conveyance, but shall not include dogs.
If the accused is acquitted the property seized shall be
returned. If the accused is convicted and pays the fine, costs
and other penalties, the property shall be returned, but if the
accused fails to pay the fine and costs, the property shall be
sold at public auction in such manner as the director may
prescribe. The proceeds of the sale shall be applied toward the
payment of the fine and costs. The remainder, if any, shall be
paid to the owner of the seized property.
Whenever a person is convicted of a violation of this
chapter a second time, the property seized at the time of arrest
shall in any case be declared forfeited to the state and shall be
sold in the manner provided by this section.
Property seized, the use of which is forbidden by this
chapter, or which is unfit or unsafe for further use, shall be
declared forfeited to the state and shall be disposed of by the
director.
(b) In any instance when property seized under this section
is to be sold at public auction, the director shall send notice of the time, date and place of the public auction to the person
whose property was seized. Such notice shall be by certified
mail, return receipt requested, at least fourteen days prior to
the date of such auction.
In any instance when property seized under this section is
sold at public auction to any person other than the person from
which it was seized, notice shall forthwith be sent to the person
whose property was sold which shall include the following
information: (1) The amount of proceeds received for the
property; (2) a breakdown of the fine and costs involved relative
to the collected proceeds; (3) the amount in excess of the fine
and costs, if any, that the director is obligated to remit to the
person whose property was seized and when the director intends to
make such remittance.
NOTE: The purpose of this bill is to prohibit the Division
of Natural Resources from making rules requiring enhancement of
penalties based on hunting or fishing violations older than two
years, or rules that allow seized property to be forfeited upon
conviction of a Division of Natural Resources crime, unless a
violator fails to pay the fine or costs imposed. It also
provides that the natural resources commission review the
disposition of property seized or funds received from auction of
seized property. It further requires conservation officers to
have four-year degrees in conservation or forestry. Another
change would delete existing law which provides that property
taken from persons twice convicted under chapter twenty is
declared forfeited to the state at the time of arrest. The bill
also requires the Division of Natural Resources to notify persons
whose property was seized of the date, time and place of any
auction planned to be held to sell the property. It also requires the Division of Natural Resources to notify such persons
concerning the amount of proceeds collected from any auction in
relation to any fines and costs imposed.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.