Legislature(2015 - 2016)BARNES 124
03/21/2016 01:00 PM House RESOURCES
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| Audio | Topic |
|---|---|
| Start | |
| HB247 | |
| HB286 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 247 | TELECONFERENCED | |
| *+ | HB 286 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 286-FISH & GAME: OFFENSES;LICENSES;PENALTIES
2:09:57 PM
CO-CHAIR TALERICO announced that the next order of business is
HOUSE BILL NO. 286, "An Act relating to sport fishing, hunting,
or trapping licenses, tags, or permits; relating to penalties
for certain sport fishing, hunting, and trapping license
violations; relating to restrictions on the issuance of sport
fishing, hunting, and trapping licenses; creating violations and
amending fines and restitution for certain fish and game
offenses; relating to commercial fishing violations; allowing
lost federal matching funds from the Pittman - Robertson,
Dingell - Johnson/Wallop - Breaux programs to be included in an
order of restitution; adding a definition of 'electronic form';
amending Rule 5(a)(4), Alaska Rules of Minor Offense Procedure;
and providing for an effective date."
KEVIN BROOKS, Deputy Commissioner, Office of the Commissioner,
Alaska Department of Fish & Game (ADF&G), introduced HB 286 on
behalf of the governor. He said the bill relates to fish and
game offenses, licenses, and penalties, and was developed in
collaboration with the Department of Public Safety (DPS) and the
Department of Law (DOL). He advised the committee that Major
Bernard Chastain will present the details of the bill.
2:11:52 PM
MAJOR BERNARD CHASTAIN, Deputy Director, Division of Alaska
Wildlife Troopers, Department of Public Safety (DPS), provided a
sectional analysis of HB 286 on behalf of the governor.
Referring to Section 1, he explained that under AS 16.05.330 a
person who is engaged in activities listed in paragraphs (1-5)
must have in their actual possession a license, tag, or permit
to legally engage in that activity. Section 1 reorders these
activities into two separate categories, with (1) and (2)
considered general activities and (3), (4), and (5) considered
commercial activities. The purpose for this reordering is
contained in Section 3 of the bill.
MAJOR CHASTAIN explained that Section 2 amends AS 16.05.330(d)
to make it unlawful for a person to purchase a license in Alaska
or another state if their license to hunt, fish or trap has been
revoked or suspended in Alaska or another state. Currently, the
statute directs that if a person's license is suspended or
revoked, the person is prohibited from purchasing or using the
privileges of that license only in another state, and
surprisingly it does not include the state of Alaska. This
change will align that statute with the intent of the law.
MAJOR CHASTAIN said Section 3 makes it an official correctable
citation when a person does not have his/her sport fishing,
hunting, or trapping license in possession while engaged in that
activity. Wildlife troopers realize that people sometimes
forget their licenses at home, in their car, or other locations.
For many years the wildlife troopers have given unofficial
correctable citations to most people in this situation. This
section will give the wildlife troopers the ability to cite a
person for not having his/her sport fishing, hunting, or
trapping license in possession and giving the person a period of
30 days to bring his/her license to any Department of Public
Safety office to have it signed off as a correctable citation.
Once signed off the citation is dismissed. If this provision is
passed it will be very similar to correctable citations used for
headlight requirements, proof of motor vehicle insurance, and
others. This section ensures that people engaging in the
activity of sport fishing, hunting, and trapping have a license
and it allows for some leeway for forgetting that license at
home. Section 3 does not include activities (3), (4), and (5)
because these are commercial activities and the belief is that
commercial activities have a higher burden to maintain licensure
than does the general citizen.
2:14:36 PM
MAJOR CHASTAIN specified that Section 4 removes a correctable
citation from AS 16.05.330(f) in the penalties portion of the
statute. Additionally Section 4 aligns other areas of Title 16
and appropriately makes the crimes listed class A misdemeanors.
MAJOR CHASTAIN advised that Section 5 creates two new
subsections [to AS 16.05.430]. New subsection (c) establishes
that a person may be charged with the violation offense if there
is no culpable mental state established and also maintains a
misdemeanor offense for more serious cases in this area of law
under subsection (a). He said subsection (d) provides the court
with the ability to impose additional restitution to the state
equal to the amount of lost federal matching funds from the
wildlife and sport fish restoration program, the Pitman-
Robertson, Dingell-Johnson/Wallop-Breaux programs, when the
state is defrauded by a defendant who does not purchase the
appropriate license or tag or claims residency when the person
is not a resident.
MAJOR CHASTAIN related that Section 6 of HB 286 increases the
strict liability commercial fishing fines under AS 16.05.722.
This [statute] was enacted in 1988 and has gone unchanged since
that time, and the fines currently in place are inadequate to
deter commercial fishing crime. The fine increase will serve as
both a deterrent and a tool for Alaska's wildlife troopers to
effectively enforce the state's most important fisheries worth
billions of dollars to the state.
2:16:10 PM
REPRESENTATIVE HERRON said he does not have an issue with the
amount [of the proposed fines], but would like to know what the
thought process was behind coming up with the proposed amounts
of $6,000, $12,000, and $15,000.
MAJOR CHASTAIN replied that the thought process has to do with
inflation rate. The 1988 fine of $3,000 equals almost exactly
$6,000 in today's dollar. Paragraph (3), which goes from $9,000
to $15,000, was a paragraph added in 1995 and so that $9,000 is
equal to about $15,000 in 2016 dollars.
MAJOR CHASTAIN continued his review of Section 6, explaining it
also ensures that commercial fishermen can participate in
fisheries by deterring illegal fishing that harms the industry.
MAJOR CHASTAIN said Section 7 creates a new subsection that
requires a court to transmit commercial convictions to the
Commercial Fisheries Entry Commission (CFEC).
REPRESENTATIVE SEATON requested further explanation of Section 6
in regard to Major Chastain's statement that it allows
commercial fishermen to participate.
MAJOR CHASTAIN responded that it has to do with the deterrence
factor in commercial fishing. The deterrence in violations is
important so the fishing industry can maintain its viability.
2:18:29 PM
MAJOR CHASTAIN explained that Section 8 removes a penalty from
[AS 16.05.782(a)], which cleans up the subsection and makes it
clearer as to what the penalty actually is.
REPRESENTATIVE JOSEPHSON inquired what the penalty becomes if it
is not a class A misdemeanor.
MAJOR CHASTAIN answered that the remaining subsections [of AS
16.05.782] deal with making two classes of violations. One
subsection will remain a class A misdemeanor if culpability can
be proved. If culpability cannot be proved it becomes a
violation offense and that can be found in Sections 9 and 10.
REPRESENTATIVE JOSEPHSON understood the subsequent sections
reference back to the earlier sections to say that these are all
fines or violations rather than something else.
MAJOR CHASTAIN replied that it sets two separate categories of
crime. If culpability can be proved, it maintains a Class A
misdemeanor and it allows for flexibility if culpability cannot
be proved. He said the subsequent crimes that he will be
reviewing also add a separate section for creating a violation,
which is a lesser offense.
REPRESENTATIVE JOSEPHSON understood that under Title 16 and
Title 5 of the Alaska Administrative Code (AAC) there are strict
liability offenses in wildlife cases. He asked whether this
gets rid of strict liability.
MAJOR CHASTAIN responded that all of those are still in place
and still available to charge. Title 16 statutes do not have
the ability to charge as strict liability, so essentially that
is created by this bill.
2:20:50 PM
REPRESENTATIVE SEATON observed that the language in Section 7
states: "(d) The court shall transmit notice of all convictions
under this section to the Alaska Commercial Fisheries Entry
Commission." He requested clarification regarding the executive
order transferring the administrative functions of the
Commercial Fisheries Entry Commission (CFEC) to the Department
of Fish & Game (ADF&G), which will be issuing licenses. He
suggested that either the definition be expanded to include
ADF&G or to change it.
MR. BROOKS answered that the administrative order would have no
impact on this provision in statute, this section is not
implicated by the administrative order. He explained that
someone with a commercial fishing violation gets points like
what is done with a driver's license. The reporting of those
points would still go to the CFEC and the department and the
commission would communicate on whether to issue a permit.
2:22:23 PM
MAJOR CHASTAIN stated that Section 9 relates to Section 8. It
removes an unnecessary reference to subsection (a) in Section 8.
MAJOR CHASTAIN specified that Sections 10-15, in general,
provide consistency across the board and create class A
misdemeanors for sections that the troopers can prove
culpability, and violations for sections that were not existence
prior to this bill.
MAJOR CHASTAIN noted that Section 16 increases the restitution
amounts [under AS 16.05.925] by 50 percent that a person
convicted of unlawfully taking big game may have to pay the
state if the court chooses to implement this restitution.
Alaska's game belongs to every person collectively. When big
game animals are unlawfully taken it defrauds the state of the
value of the animals to its citizens. This value varies greatly
depending upon the species of animal, the locations of the take,
the social value of the animal, the economic value of the
animal, and the food source value to the people of the state.
These restitution values may be imposed by a judge if the judge
thinks the case warrants applying restitution. In most cases it
does not make the state whole for the loss of the animal, but it
pays the state back for the illegal take and adds a deterrence
value to the illegal take. For example, several years ago a
very large Dall sheep was illegally shot on the Seward Highway
south of Anchorage. This area is closed to hunting for Dall
sheep. That animal was worth an unknown amount of money to the
state in tourism; many thousands of people took photos of this
sheep. There are many examples like this every year where the
value of the illegally taken resource may never be fully
recovered to the state. He explained that the proposed new fine
amounts in Section 16 were determined in the same manner as was
done for Section 6. [The statute] in Section 16 was enacted in
1996 and those dollars were applied to 2016 dollars.
MAJOR CHASTAIN, regarding Section 17, pointed out that there is
a drafting error on page 5, line 17. Rather than stating AS
16.05.925, this line should state AS 16.05.901. [Section 17 is
related to Section 16 - it provides the additional option of
charging a person with a violation offense when appropriate.]
2:25:20 PM
MAJOR CHASTAIN said Section 18 adds a definition of "electronic
form." He requested Mr. Brooks to elaborate.
MR. BROOKS said this proposal would add the definition of
"electronic form" so that a person can display his/her fishing
or hunting license on something like a smart phone, similar to
what can now be done with insurance. It would provide one more
convenience to the licensing public - a person not having the
license in paper form could display it on an electronic device.
REPRESENTATIVE OLSON inquired whether that would also apply to
the lifetime licenses.
MR. BROOKS answered no, the identification card for a permanent
license would still be required.
REPRESENTATIVE SEATON noted that oftentimes on fishing licenses
there are stamps or stickers or a reporting amount on the back
of the actual physical license. He asked whether those would
still need to be [provided in paper form] or would be allowed in
electronic form.
MR. BROOKS replied that when a person now buys his/her license
electronically a king salmon stamp is a number, so that would be
displayed on a mobile device. The licensee would still have to
get a harvest record. Currently for a permanent identification
card, if there is a harvest requirement the cardholder must get
a separate document from ADF&G and record that harvest, and it
is envisioned that that will continue the same way.
2:27:18 PM
REPRESENTATIVE TARR inquired about the definition of "culpable
mental state" and where that definition can be found.
AARON PETERSON, Assistant Attorney General Fish and Game, Office
of Special Prosecutions, Criminal Division, responded that
generally the culpable mental states are set out under Title 12
and that is reckless conduct and knowing its circumstances.
Section 17 does not lay out a specific mental state for this
offense and therefore it would revert to the general mental
state requirements set out in Title 12. It is a term of art
used, it does not mean that a defendant has the capability to do
it, it means that in this instance the defendant had the
required mental state that would make him/her criminally liable
for the offense.
REPRESENTATIVE TARR said she was thinking about instances where
a person is intoxicated but otherwise capable. She surmised
that because of the way this is defined the person would be
covered under that definition.
MR. PETERSON answered yes, as with driving under the influence,
there would be a very good chance that an intoxicated person
violating this law would still be criminally liable.
2:30:34 PM
REPRESENTATIVE JOSEPHSON observed that the last line on page 1
of the governor's transmittal letter states, "Currently, if a
person violates certain fish and game laws, they can only be
charged with a criminal offense." He recalled that when he
prosecuted these, often the same act could have been charged by
the fish and game officer as either a class A misdemeanor or a
violation and generally the sentence would be suspended anyway,
but there would be a change from perhaps a fine of over $1,000
to a fine of $300. He asked whether the statement in the
transmittal letter is correct that under current law these can
only be charged criminally.
MR. PETERSON replied that any time there is the corresponding
violation in the Alaska Administrative Code (AAC) there are
several ways that that can be charged. It can be charged as a
violation and oftentimes it can be charged as a misdemeanor
depending on exactly where it falls under the AAC because the
enacting statute will have different penalty ranges, different
charging ranges, for different parts of the code. Certain
things in Title 16 can only be charged as a misdemeanor because
they do not have a corresponding regulation in place. The
attempt here with HB 286 is to allow for that flexibility, allow
for the prosecutor or DPS in the field to charge as a violation
where appropriate. For the offenses included in this section
there is not currently that flexibility.
2:32:48 PM
MAJOR CHASTAIN returned to his sectional analysis. He explained
that Sections 19-26 do the same things mentioned by Mr.
Peterson. They generally standardize penalties in the statutes
listed by providing an additional option of charging a person
with a violation offense when appropriate. These sections
maintain the option of charging a person with a misdemeanor if
the crime is more serious. He pointed out a drafting error in
Section 23, page 6, line 9, noting that this line states "AS
16.10.090" but should state "AS 16.10.110".
MAJOR CHASTAIN related that Section 27 amends the uncodified
rules of the court of Alaska to make it clear that the court has
the authority to dismiss citations written for people failing to
have their license, tag, or permit in their actual possession.
MAJOR CHASTAIN said Section 28 amends the uncodified law of
Alaska to make it clear that the act applies [to offenses that
occur on or] after the effective date of the act.
MAJOR CHASTAIN stated that Section 29 provides for an effective
date of July 1, 2016.
2:34:11 PM
REPRESENTATIVE JOSEPHSON shared that when he is with a group
fishing for king salmon, the group takes it really seriously
that each person must have his/her king tag in possession. He
requested Major Chastain's opinion about why it is okay to relax
this requirement when it is built into the mindset of citizens.
MAJOR CHASTAIN understood Representative Josephson is asking why
it would be appropriate for troopers to make it correctable for
not having a king salmon stamp. He said there is still a
regulation that requires a person to have a king salmon stamp.
This proposed provision would only make it a correctable offense
if the person does not have a fishing license in possession.
REPRESENTATIVE SEATON asked whether that means it is excusable
for a person to not have his/her license in possession, but not
his/her king salmon stamp or the reporting form in possession.
MAJOR CHASTAIN responded that presently quite a few different
regulations are in statute. One requires having a license in
possession, another requires having a king salmon stamp, and
another requires that the king salmon stamp is signed. A
variety of regulations cover all of those. All HB 286 would do
is make it that if someone forgot his/her fishing license in a
vehicle or at home, the wildlife troopers could write a citation
to that person and could make it be a correctable offense
whereby the person could bring the citation to the office and it
could be signed off as a correctable offense. If a person was
king salmon fishing, the wildlife trooper could still decide
whether it was appropriate to write the person for not having
his/her king salmon stamp, which is not a correctable offense.
REPRESENTATIVE SEATON understood a person would still have to
have his/her king salmon stamp or reporting card in possession,
regardless of having his/her license in possession.
MAJOR CHASTAIN replied correct.
2:37:10 PM
REPRESENTATIVE TARR drew attention to Section 18 on page 5,
lines 20-22, which state: "(38) 'electronic form' means the
display of images on an electronic device such as a mobile
telephone, tablet, or computer." She noted that a camera is not
included in the list of devices and asked whether a camera
should be included and, if so, the best way to include it.
MR. BROOKS responded that the aforementioned was not intended to
be an exhaustive list. He said the language could be refined,
but added that he thinks "electronic device such as" covers a
broader list than what is written.
REPRESENTATIVE TARR suggested the opinion of Legislative Legal
and Research Services be sought so as to preclude any unintended
consequences. For example, whether to change the language to
state "including but not limited to" in order to indicate that
it is a not an exhaustive list.
MR. PETERSON clarified he is with the Department of Law, not
Legislative Legal and Research Services. He noted the language
"such as" is a cannon of construction that is on point here and
it essentially says that a thing would be known by those around
it. Here, it seems pretty clear that a camera would be an
electronic form and "such as" is just giving some guidance as to
what some of those might be. As a prosecutor, if somebody were
to say that he/she had it on a camera but it was not on the
list, he can certainly say that it is pretty clear how that
would be resolved.
REPRESENTATIVE TARR observed that the fiscal notes for HB 286
are zero. She inquired as to the overall value of these fines
based on information from the last several years.
MR. BROOKS answered he will get back to the committee with an
answer. He said he does not think ADF&G has an amount by
violation but he can provide an order of magnitude as far as how
much has been collected.
2:40:14 PM
REPRESENTATIVE CHENAULT understood that, except for a senior
exempt license, a king salmon tag is stuck to a person's actual
fishing license. He asked what the difference is between a king
salmon stamp and a tag for, say, a brown bear if a person does
not have that in possession at the time of kill.
MR. BROOKS replied that when purchased electronically from
ADF&G's store, a stamp is a number on the license, not a
sticker; but when purchased from a sports store it is a sticker.
The fixable part of this is that a person would have had this
previously, a person cannot just go out and buy it and fix the
ticket; a person has to have had ownership before he/she engaged
in hunting or fishing.
REPRESENTATIVE CHENAULT said he will not say that he knows
people who go out fishing and catch fish illegally, but he would
say that it does happen in the state. He recounted that he has
seen the excuse where a person has left his/her license at home
during dipnetting on the Kasilof River. While this proposed
provision is to cover the person who did honestly forget his/her
license in the car, he questioned whether there could be an
unintended consequence of a person going dipnetting, not taking
along his/her permit, getting caught, and saying the permit was
left at home. This person gets to keep the fish and brings the
permit in after filling it out and now cannot catch any more
fish. But, if the person doesn't get caught, that person can
continue to fish until caught versus the current situation of
where people know they are supposed to have the permit with them
and if they don't they get fined.
MR. BROOKS responded that the fixable license does not relieve
someone of his/her harvest reporting, so the person would still
be in violation on that if out without a permit and recording a
harvest. A person could still fix it if not having his/her
license along, but he/she could not fix the fact of not
reporting the harvest.
REPRESENTATIVE CHENAULT surmised there still would be a
possibility of the fine associated with not filling out a
harvest ticket or not actually having a king stamp along at the
time of catching the fish should a game warden be encountered.
MAJOR CHASTAIN answered that currently there are adequate
regulations and statutes available to wildlife troopers to deal
with all of the scenarios just presented by Representative
Chenault. Those are separate regulations and separate
responsibilities.
REPRESENTATIVE CHENAULT said he wants to ensure that another
avenue is not being opened.
2:44:57 PM
REPRESENTATIVE JOSEPHSON understood that generally there is a
top prosecutor working on these matters. He asked who questions
should be directed to if a committee member has questions.
MR. BROOKS replied that Seth Beausang, Assistant Attorney
General, Natural Resources Section, Civil Division, Department
of Law, Anchorage, advises ADF&G on fish and game related
matters, whereas Mr. Peterson is with the Criminal Division,
Department of Law.
2:45:53 PM
REPRESENTATIVE TARR inquired whether the proposed 50 percent
increase in fines would put Alaska on par with the fines imposed
by other states.
MAJOR CHASTAIN responded that two distinctions are to be made.
The 50 percent increase is the restitution amount and that can
be applied by the judge if the court believes that the crime is
serious enough to apply the restitution to that animal. For
instance, right now if someone takes a moose illegally, in
addition to any penalties that the court may impose for the
misdemeanor offense or the violation, the court may also impose
additional restitution of $1,000 for that moose, and that
represents the value of that animal to the State of Alaska. He
said he is unaware of other states and restitution amounts, but
he is aware that Alaska's fines levied by the court tend to be a
bit higher than other places in the U.S. It depends on the
crime, but adequately so because the animals in Alaska are
valued at a much higher level than other places in the Lower 48.
REPRESENTATIVE TARR remarked that what makes this of interest to
her is that it was mentioned that these numbers have not been
adjusted for a number of years, but the suggestion was that it
was inflation adjusting these restitution limits. Given these
issues are looked at fairly infrequently by the legislature, she
said she would like to make the effort to bring the state up to
speed with what would be comparable in other locations. She
requested that Major Chastain provide the committee with any
other information he might have in this regard.
CO-CHAIR TALERICO commented that in regard to Section 16, he
would say from personal experience that if a deer is worth $600
then a moose is worth $4,000 from a food source perspective.
REPRESENTATIVE HERRON pointed out that the co-chair does have
the ability to make these changes.
2:49:10 PM
MR. BROOKS thanked the committee for hearing HB 286 because it
is important to enforcement and to his department.
REPRESENTATIVE SEATON asked how the two drafting errors in
Sections 17 and 23 would be handled.
CO-CHAIR TALERICO responded that something will be brought
forward to correct those drafting errors, as well as taking a
look at what the appropriate language should be in Section 18.
He said he will also be looking over the value given to these
particular animals.
[HB 286 was held over.]