Legislature(2015 - 2016)BARNES 124
03/31/2016 01:00 PM House RESOURCES
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| Audio | Topic |
|---|---|
| Start | |
| HB253 | |
| HB286 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 253 | TELECONFERENCED | |
| += | HB 286 | TELECONFERENCED | |
| + | TELECONFERENCED |
HB 286-FISH & GAME: OFFENSES;LICENSES;PENALTIES
2:26:42 PM
CO-CHAIR TALERICO announced that the final 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."
2:27:09 PM
CO-CHAIR NAGEAK moved to adopt the proposed committee substitute
(CS) for HB 286, version 29-GH2958\E, Bullard, 3/30/16, as the
working document.
CO-CHAIR TALERICO objected for discussion purposes.
2:27:36 PM
KEVIN BROOKS, Deputy Commissioner, Office of the Commissioner,
Alaska Department of Fish & Game (ADFG), explained the changes
in Version E. Drawing attention to the title, page 1, line 5,
he advised that a semi-colon has been added that creates an
exemption from payment of restitution for certain unlawful
takings of big game animals. Referring to Section 3, page 2,
line 21, he noted that the words "tag or permit" were removed
from an item that can be correctable, and also removed is a
reference to the court. This change thereby allows a person to
correct a violation at any office of the Department of Public
Safety (DPS). He explained that the words "tag and permit" were
deleted after a Senate Resources Standing Committee hearing
wherein there was a fair amount of discussion about the ability
to fix a license, but a tag or permit have different purposes
such as recording harvest, and it appeared most appropriate to
remove the words tag and permit.
MR. BROOKS said the third change is in Section 17 on page 5,
line 6, where the words, "and (c) of this section," are added.
This comes into play in Section 18 as the changes are worked out
to AS 16.05.925. He turned to the fourth change, page 5, lines
14-25, and said those reflect changes that Co-Chair Talerico's
office recommended to the bill on the restitution amounts. The
fifth change is to page 5, line 26, where Section 17 was deleted
from the previous bill because there was a typo and it was a
redundant section. The sixth change on page 5, lines 26-31,
creates a new section that provides that a court may not order
restitution under Section 17 of this bill in a case where the
defendant voluntarily turns themselves in and is charged with a
violation offense. It also provides that a person must
voluntarily and immediately report to the Alaska Department of
Fish & Game or the Department of Public Safety the violation
that he/she committed in order to qualify for this affirmative
defense. This change is in response to testimony that was heard
and questions that were received about the bill. The seventh
change is on page 6, lines 21-22, and is a correction to a
typing error in the drafting. The eighth change is to page 7,
line 7, which deletes Section 27 of the original bill that
referenced a court rule. Through consultation with the court
system this was deemed unnecessary and so it was deleted.
2:31:43 PM
REPRESENTATIVE JOSEPHSON referred to Section 6 [page 3, lines
12-21], and said it appears that commercial fishing violations
would no longer be jailable offenses. He inquired as to why the
possibility of jail for a commercial fisheries violation was
altered.
MR. BROOKS deferred to Aaron Peterson, Department of Law.
AARON PETERSON, Assistant Attorney General, Criminal Division,
Department of Law (DOL), responded that there was not a
possibility of jail under AS 16.05.722 previously. There was
and still remains in AS 16.05.723 misdemeanor commercial fishing
penalties up to imprisonment for not more than one year or a
fine of up to $15,000, and that does still remain and is not
affected by the change in AS 16.05.722.
REPRESENTATIVE JOSEPHSON referred to Section 8, page 3, lines
25-29, and the taking a brown or grizzly bear within one-half
mile of a solid waste disposal facility. He noted the bill
removes the potential criminality of that action, and asked
whether it instead imposes a fine without culpable mental state.
MR. PETERSON answered that it takes out "with criminal
negligence" because the default mental state in Title 16
offenses is civil negligence. The Alaska Supreme Court found
that under State v. Rice, which was reaffirmed by the Court of
Appeals in 1999. To say that something required a mental state
of criminal negligence would actually raise the burden because
it is misdemeanors being talked about here. It's a Class A
misdemeanor and would be treated as such which carries a
potential jail sentence of up to one year. There is a potential
that it could be charged with a violation but, if it is charged
with a misdemeanor then it does carry a potential penalty of up
to one year.
2:35:59 PM
REPRESENTATIVE JOSEPHSON noted that the bill reads that hunting
violations within an X feet or yards from the Yukon to the
Arctic will no longer be jailable. He asked why that policy
decision is good, bad, or indifferent. He said Section 12 of
the original bill treated that type of offense in that
geographic region as a violation only, and Version E appears to
keep it at a misdemeanor.
MR. BROOKS offered that the prior Section 12 is now Section 13
in Version E.
REPRESENTATIVE JOSEPHSON concurred, and said the question
remains.
MR. BROOKS explained that it retains the original language and
adds this option so that law enforcement has the opportunity to
charge it as one or the other, it does not replace it but rather
adds the option.
2:37:46 PM
REPRESENTATIVE JOSEPHSON referred to Sections 15, 19, and 20, of
the original bill, and surmised that Section 15 makes it less of
a penalty to interfere with a salmon stream and it would no
longer be a jailable penalty. He asked what the bill does about
the criminality of interfering or deterring anadromous streams
in regard to the above sections.
MR. BROOKS replied that the bill is trying to make consistent
the charges for all of these infractions, and provide for the
opportunity to charge them in a more severe manner when there is
a culpable mental state. He deferred to Mr. Peterson.
MR. PETERSON responded that the entire purpose of most of these
changes is to add the ability to charge with violations where
appropriate. For example, under Section 15 the Department of
Public Safety and Department of Law would retain the ability to
charge and prosecute a Class A misdemeanor for AS 16.05.831. It
gives flexibility where necessary. Specifically, with respect
to Sections 15 and 20, it actually just changes the specific
penalties previously in place. For example, in Section 20 it
was previously a fine of not less than $100 and not more than
$500. Version E deletes that language and replaces it with the
standard Class A misdemeanor range which is a fine of up to
$10,000 and jail time up to one year. It allows uniformity in
prosecuting what would be expected from a Class A misdemeanor,
in addition to changing some of the other penalties and adding
in the ability to be charged where appropriate as a violation.
He reiterated it is already available in many of the charges in
Title 16 and in the Administrative Code, but for whatever reason
there was not that flexibility in several of the statutes and
that is what is being addressed here.
2:41:09 PM
REPRESENTATIVE JOSEPHSON noted the original bill provided that
if a person commits a violation, restitution may be imposed;
under Version E, if the person tells the authorities the person
may be shown some pity. He asked why, if the public understood
that, people would not just do that in record numbers.
MR. BROOKS answered that this amendment came from previous
testimony and it is trying to put the current practice into the
law. Currently, there is self-reporting which the Department of
Public Safety encourages, such that if a person takes a moose
and finds the rack is one-half inch too small to be legal, if
the person immediately takes action to self-report, the
department wants to recognize that action. That person will
still pay a fine and lose the moose, but the person would not be
punished to lose his/her weapons or other things that might have
happened under a different circumstance. It is absolutely meant
to act as an incentive to self-report where an accidental
violation has occurred.
BRUCE DALE, Director, Division of Wildlife Conservation, Alaska
Department of Fish & Game (ADF&G), said another requirement is
that the person must salvage and care for the meat and deliver
the meat to the state because it is property of the state, and
then the meat is put to use. So that is another reason that
restitution might not be required.
REPRESENTATIVE JOSEPHSON asked whether from a citizen's
standpoint there would be greater vulnerability in reporting
because now the Alaska Department of Fish & Game (ADFG) and
Department of Public Safety (DPS) would ask where the citizen
was located, would come to the citizen, and that person could
now be charged, theoretically jailed, and civilly fined. He
said that perhaps that strikes the proper balance in that
restitution would not be charged, the civil fine, and probably a
suspended jail sentence could be imposed.
MR. BROOKS replied that the person in the above scenario would
pay a fine and lose the animal, and not have anything more; so
it is trying to strike that balance being referred to.
2:44:52 PM
CO-CHAIR TALERICO commented that he understands what
Representative Josephson means when someone is pulled over at
1:30 a.m. headed down the highway with an illegal moose in the
back and the person's first response is that he was headed to
law enforcement to advise of the taking of the illegal moose.
He opined that there was a lot of judgement from the
municipality he previously served in as it had issues a few
times. He pointed out that the Department of Public Safety is
good at determining how accurate those statements might be.
CO-CHAIR TALERICO drew attention to page 5, lines 14-25, which
includes changes made by his office and commented that he had
thought about the actual meat values of some of these animals.
He pointed out that if the state is to discourage people from
doing this, the state should be closer to charging them full
value rather than a discount rate on volume.
2:46:47 PM
REPRESENTATIVE TARR observed that in comparison to the original
version of the bill almost all of the fines increased except the
black bear and wolverine. She asked the rationale.
CO-CHAIR TALERICO said he has seen poaching situations happen
where he lives and generally the black bear and wolverines are
not "hot items," whereas moose is the "big ticket item." He
posited that the general increases serve as a deterrent for
people to poach animals.
REPRESENTATIVE HERRON pointed out that in his district there is
no closed season on black bear, every Alaskan can take five, and
this species has actually become a nuisance to the moose calves.
The wolverine is hard to catch anywhere.
2:48:42 PM
CO-CHAIR TALERICO removed his objection to adopting Version E as
the working document. There being no further objection, Version
E was before the committee.
CO-CHAIR TALERICO opened public testimony on HB 286, Version E.
2:49:17 PM
AL BARRETTE related that he would like to see the word "sport"
removed from the words sport fishing. He commented that the
state has subsistence fishermen not required to have a license
to engage in subsistence fishing. Therefore, tens of thousands
of Alaskans are not paying in to the system and it falls upon
other users, such as sport fish and commercial fish, to make up
that loss of revenue. He then referred to Section 5, page 3,
lines 7-11, which read:
(d) In addition to any penalty imposed under (a)
or (b) of this section, a person may be ordered to pay
restitution to the state equal to the amount of any
lost state or federal matching funds from the Pittman
- Robertson, Dingell - Johnson/Wallop - Breaux
programs incurred from the person's violation of AS
16.05.330 - 16.05.420 or a regulation adopted under
this chapter, AS 16.20, or AS 16.40.
MR. BARRETTE suggested that instead of the money going to the
general fund, it go to the fish and game fund because that is
where money from those acts goes.
MR. BARRETTE turned to Section 6, page 3, lines 17-20, and noted
the fines were doubled for the first two convictions and did not
quite double for the third conviction. In Section 17, page 5,
lines 14-25, regarding restitution, he noted that bison, deer,
elk, goat, and moose are all over two times the original amount.
He asked why fish convictions are only doubled while several big
game species are more than two times the original amount.
2:51:13 PM
REPRESENTATIVE TARR requested the department to respond to Mr.
Barrette's suggestion of deleting "sport" from sport fish. She
understood that subsistence fishing is managed differently than
sport fishing or commercial fishing.
MR. BROOKS confirmed that the three types of fisheries certainly
are managed differently. Sport fishing has been in statute for
many years, he said. The department recognizes the different
types of fishing, such as sport, personal use, commercial, and
it is not a change the department would advocate.
MR. BROOKS addressed Mr. Barrette's other suggestions. He
clarified that the fines currently go into the fish and game
fund. There is a distinction between civil and criminal, but
they would go into the fish and game fund. He recalled previous
testimony by Major Chastain regarding how the fines were set,
and explained there was an attempt to tie those to [consumer
price index (CPI)] increases. Referring to the fines in Section
6, he explained that commercial fishing, as well as the original
restitution amounts, were tied to CPI adjustments.
CO-CHAIR TALERICO thanked Mr. Barrette for his testimony.
MR. BARRETTE referred to Section 18, page 5, line 29, which
states, "voluntarily and immediately reported the taking to the
department", and suggested a definition be given for how much
time is meant by "immediately" self-reporting.
CO-CHAIR TALERICO closed public testimony after ascertaining
that no one else wished to testify.
2:54:11 PM
REPRESENTATIVE JOSEPHSON moved to adopt Amendment 1, labeled 29-
GH2958\E.1, Bullard, 3/31/16, which read:
Page 5, following line 28:
Insert a new paragraph to read:
"(1) had the license, tag, and permit
required by AS 16.05.340 for the species of animal
taken;"
Renumber the following paragraphs accordingly.
[CO-CHAIR TALERICO objected to the amendment.]
REPRESENTATIVE JOSEPHSON explained Amendment 1. He said his
concern with affirmative defense, which allows someone to
voluntarily and immediately report an illegal taking to avoid
restitution, is that there should be the simple screen that the
person is already licensed, tagged, and permitted under Title 16
for the species taken. Otherwise, the committee is saying the
person can be in violation of fundamental Title 16 provisions.
He posited that a hunter without the license, tag, or permit
should be penalized because he/she is not playing fair or by the
social contract. Amendment 1 would create a new paragraph (1)
at page 5, after line 29, because coming to the plate and having
not followed the requirements is not worthy of restitution.
CO-CHAIR TALERICO clarified that he objected to Amendment 1. He
requested ADF&G to speak to the amendment.
MR. BROOKS explained that the department's interpretation of how
it would work is that if a person self-reported and didn't have
a license or tag, that person would have many other problems
besides the taking of an illegal animal. The department
believes it is implied and so the amendment is unnecessary, but
the amendment cannot hurt anything either.
2:57:12 PM
REPRESENTATIVE JOHNSON posited that someone hunting without a
license is unlikely to self-report anyway and so he does not see
a real need for the amendment.
REPRESENTATIVE HERRON described the amendment as a belts and
suspenders amendment and he thinks it is fine.
REPRESENTATIVE TARR understood that within this section a
defendant may not be ordered to pay restitution. She surmised
that through that process the person would not be charged with
an illegal taking if the person had a license, tag, or permit.
MR. BROOKS replied that a person could be guilty of an illegal
taking and not having a license, there would be multiple
infractions. He pointed out the word is "may" and so there is
that discretion. He reiterated that it would not be the
practice to provide for this if the person didn't already have
the appropriate license and tag.
REPRESENTATIVE SEATON stated he is not sure that this is a "may"
because Version E states "may not" and a "may not" does not have
flexibility as defined in the statutes. A "may not" means that
a person cannot be required to pay restitution if the person
fulfills these things. He said Amendment 1 ascertains that a
person has the required documentation because otherwise the
person could be required to pay restitution. The amendment
doesn't harm anything and does help.
2:59:52 PM
REPRESENTATIVE TARR posed a scenario in which the hunter has a
license, tag, or permit but takes an animal out-of-season or an
illegal female. She asked whether that would be a circumstance
where the person would potentially have to pay restitution.
MR. BROOKS answered that if a person is appropriately licensed
and takes an illegal animal, but then takes steps to immediately
report, that person would not be subject to restitution. He
advised that often someone has been in the field for a couple of
days tracking an animal and realizes it's an illegal animal, but
then someone else comes in and shoots it in front of them and
the first hunter will call it in. So, other people in the field
will report and there is cell phone coverage in many parts of
the state. There are ways the troopers have in determining the
effort taken to immediately report, such as whether the troopers
received a call from someone else before receiving a call from
the person who illegally took the animal and these things would
be factored in.
REPRESENTATIVE TARR surmised that a person would have to possess
the required license, tag, and permit, and also immediately
voluntarily report the taking to the department, and also
surrender to the department. She therefore inquired whether the
bill language needs to include the word "and" so that all
requirements are met and not an either or requirement.
MR. BROOKS asked whether Representative Tarr is suggesting an
amendment to the amendment to add the word "and".
REPRESENTATIVE SEATON pointed out that in sentence construction
if "or" is at the last then they are all "or"; if "and" is at
the last then they are all "and". So, in this case, all three
requirements would have to be met.
3:02:42 PM
CO-CHAIR TALERICO removed his objection to Amendment 1, saying
he thinks it would provide some clarity. There being no further
objection, Amendment 1 was adopted.
3:03:05 PM
REPRESENTATIVE JOHNSON asked how these proposed fines align with
other states in terms of the Interstate Wildlife Violators
Compact; for example, whether other states charge the same
amount or the same kind of parallels.
MR. DALE related that after the previous hearing, the department
investigated that issue and found that many western states have
restitution fees even higher than these. However, he continued,
there was enough variation that the department did not feel
comfortable having a defensive statement because, as of yet, not
many states have been polled.
REPRESENTATIVE JOHNSON suggested that while polling those states
the department might want to also ask how another state would
treat a resident violator from Alaska, and also consider how
Alaska would treat an out-of-state violator, because a lot of
discrepancy is given to the states in the Interstate Wildlife
Violators Compact.
3:05:01 PM
CO-CHAIR NAGEAK moved to report CSHB 286, Version 29-GH2958\E,
Bullard, 3/30/16, [as amended], out of committee with individual
recommendations and the accompanying fiscal notes. There being
no objection, CSHB 286(RES) was reported out of the House
Resources Standing Committee.
| Document Name | Date/Time | Subjects |
|---|---|---|
| CS HB 253 Amendments Ver. N Packet.PDF |
HRES 3/31/2016 1:00:00 PM |
HB 253 |
| CSHB 253 Version N.pdf |
HRES 3/31/2016 1:00:00 PM |
HB 253 |
| HB 253 Legal Memo.pdf |
HRES 3/31/2016 1:00:00 PM |
HB 253 |
| CS HB 286 Ver E 3 30 2016.pdf |
HRES 3/31/2016 1:00:00 PM |
HB 286 |
| HB0286 Fiscal Note -2-2-012916-DPS-N.PDF |
HRES 3/31/2016 1:00:00 PM |
HB 286 |
| HB0286 Fiscal Note-1-2-012916-DFG-N.PDF |
HRES 3/31/2016 1:00:00 PM |
HB 286 |
| HB286 - Sectional Analysis.pdf |
HRES 3/31/2016 1:00:00 PM |
HB 286 |
| HB286- Fiscal Note F&G-CO-2-2-16.pdf |
HRES 3/31/2016 1:00:00 PM |
HB 286 |
| HB286 Sponsor Statement - Governor's Transmittal Letter.pdf |
HRES 3/31/2016 1:00:00 PM |
HB 286 |
| HB286 ver A.pdf |
HRES 3/31/2016 1:00:00 PM |
HB 286 |