H. B. 4696
(By Mr. Speaker, Mr. Kiss)
[Introduced February 25, 2000; referred to the
Committee on Agriculture and Natural Resources then Finance.]
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 considers 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 consider 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, MOTOR BOATING, 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 or her duties, shall take and subscribe to the oath of office
prescribed in article IV, section 5 five 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 or she 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.