Legislature(2017 - 2018)BELTZ 105 (TSBldg)
03/22/2017 01:30 PM Senate JUDICIARY
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| Audio | Topic |
|---|---|
| Start | |
| SB60 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 69 | TELECONFERENCED | |
| + | SB 60 | TELECONFERENCED | |
| + | TELECONFERENCED |
SB 60-FISH & GAME: OFFENSES;LICENSES;PENALTIES
2:04:00 PM
CHAIR COGHILL announced the consideration of SB 60 and welcomed
Major Chastain to present the bill.
2:04:41 PM
MAJOR BERNARD CHASTAIN, Deputy Director, Alaska Wildlife
Troopers, Department of Public Safety (DPS), advised that the
bill has four primary points. First, it allows Alaska Wildlife
Troopers to issue a correctable citation for someone who has a
valid hunting, sport fishing or trapping license but does not
have it in their possession when they are engaged in such
activity. Second, it prohibits a person from obtaining a sport
fishing, hunting, or trapping license in Alaska if their right
to engage in such activity has been revoked or suspended in this
or any other state. Third, it increases restitution amounts for
unlawfully taking big game animals and increases strict
liability commercial fishing fines for first, second, and third
offenses. Fourth, it creates an option of charging Title 16
offenses as a violation or a misdemeanor and standardizes the
penalties in Title 16.
2:06:39 PM
MAJOR CHASTAIN provided a sectional analysis for SB 60 speaking
to the following prepared document:
Section 1 This section amends AS 16.05.330(a) to
include "permit" in addition to "license" and "tag"
for purposes of clarifying the proper types of
documentation a person must have in their actual
possession when engaging in certain activities, and
reorders the activities of "trapping" and "fur
dealing" to exclude the latter from being a
correctable citation.
Under AS 16.05.330, a person engaged in the activities
listed in 1-5 in section one, must have in their
actual possession a license, tag or permit to legally
engage in that activity. Section one re-orders the
activities into two separate categories; 1 and 2 are
considered sport activities and 3, 4 and 5 are
considered commercial activities. The purpose for this
is contained in section three of this bill.
Section 2 This section amends AS 16.05.330(d) to make
it unlawful for a person to obtain a sport fishing,
hunting, or trapping license if the person's rights to
engage in those activities is revoked or suspended in
Alaska.
Section 3 This section amends AS 16.05.330 by adding
three subsections:
(f) Provides that a person charged with failing to
have the appropriate sport fishing, hunting or
trapping license in their actual possession may not be
convicted if the person produces a license previously
issued to the person that was valid at the time of the
offense not later than 30 days after the issuance of
the citation.
(g) Allows that a license or permit may be in actual
possession in paper or electronic form.
(h) The third subsection specifically states any peace
officer presented with an electronic device under this
section shall be immune from any liability resulting
from damage to the device.
CHAIR COGHILL asked if there would be recourse if the officer
was a bad actor and dropped the device in the water.
MAJOR CHASTAIN replied he would think it could certainly be
reviewed.
Section 4 Under AS 16.05.430 fish and game penalties,
this section removes the specific fines and penalties
associated with an unclassified misdemeanor and
replaces it with a class A misdemeanor established
under AS 12.55.
Section 4 specifically exempts the correctable
citation section 16.05.330(f) from the penalties
portion of the statute. Additionally, it aligns other
areas of Title 16 and appropriately makes the crimes
listed a class A misdemeanor.
2:13:34 PM
Section 5 Related to section 4, this section adds a
new subsection and creates the ability to charge some
offenses as violations that are currently only allowed
to be charged as misdemeanors. It also addresses the
Pittman-Robertson Act and federal matching dollars
lost by the State of Alaska when the state is
defrauded by a defendant who does not purchase the
proper license and/or tag as required by law to
participate in a given hunt or fishery.
CHAIR COGHILL commented on the benefit of providing latitude to
charge an offense as a violation.
MAJOR CHASTAIN continued the sectional review of SB 60.
Section 5 of this bill creates two new subsections
within AS 16.05.430:
Subsection (c) establishes that a person may be
charged with the violation offence if there is no
culpable mental state established.
Subsection (d) provides the court with the ability to
impose additional restitution to the state of Alaska
equal to the amount of lost federal matching funds
from the Pittman-Robertson/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 they are not a resident. If
the court decides to implement the additional
restitution for the loss of federal funds, the court
will be instructed to deposit the restitution into the
fish and game fund.
SENATOR COSTELLO referenced page 4, line 24, and asked if
culpable mental state is defined.
CHAIR COGHILL said yes and suggested Major Chastain explain that
when he comes to it.
MAJOR CHASTAIN continued the sectional review of SB 60.
Section 6 This section raises the strict liability
commercial fishing violation fines from the amounts
established in 1988, when this section was enacted, to
the same amount adjusted for inflation. The fine
increase will serve as both a deterrent and tool for
Alaska Wildlife Troopers to effectively enforce the
states most important fisheries.
CHAIR COGHILL asked him to explain what that means here because
strict liability has to do with a culpable mental state.
MAJOR CHASTAIN explained that culpable mental state must be
proven in a court of law and it applies to conduct that is done
knowingly, intentionally, recklessly or with criminal
negligence. Strict liability means the individual is strictly
liable for the offense, regardless of intent. Without culpable
mental state is a violation offense that carries a maximum $500
penalty.
2:18:10 PM
SENATOR MEYER stated support for increasing the fine for a third
commercial fishing violation to $18,000 rather than $15,000.
MAJOR CHASTAIN replied it's a policy call for the legislature.
SENATOR MEYER asked how often someone is convicted of a
commercial fishing violation three times within ten years.
MAJOR CHASTAIN estimated that it happens several times a year,
typically in places such as Bristol Bay where the fishery is
very competitive.
MAJOR CHASTAIN continued the sectional review of SB 60.
Section 7 This section requires the court system to
transmit notice of all convictions under this section
to the Commercial Fisheries Entry Commission (CFEC).
Commercial fishers are applied points similar to
driver's licenses when a person is convicted of
certain commercial fishing offenses.
Section 8 Amends AS 16.05.782 and removes the penalty
section from (a) which cleans up the subsection and
makes it clearer. This section makes it clear that a
person may not take a brown or grizzly bear within
one-half mile of a solid waste disposal facility. The
penalties for this section will now be contained
within sections 9 and 10.
Section 9 Related to section 8, this section removes
the unnecessary reference to section (a) and maintains
the additional penalties of an additional fine for
failing to salvage the hide and skull of the Brown
Bear.
Sections 10-15 generally standardize penalties in the
statutes listed by providing an additional option of
charging a person with a violation offense when
appropriate:
Section 10 this section amends AS 16.05.782 and adds
two new subsections that establish the penalties as a
class A misdemeanor for a criminal offense and also
provide the additional option of charging a person
with a violation offense when appropriate.
Section 11 Under AS 16.05.783 "Same day airborne
hunting" statutes, this section removes the specific
fines and penalties associated with an unclassified
misdemeanor and replaces it with a class A misdemeanor
for consistency in penalties.
CHAIR COGHILL added that it still allows forfeiture.
MAJOR CHASTAIN agreed and continued the sectional review of SB
60.
Section 12 Under the "Prohibition of hunting adjacent
to highway between Yukon River and Arctic ocean"
statute, this section amends (b) and adds that the
penalties for violation of this section is a Class A
misdemeanor punishable as provided in AS 12.55.
Section 13 Related to section 12, this section adds a
new subsection under AS 16.05.789 (c). This section
provides the additional option of charging a person
with a violation offense when appropriate.
Section 14 Under AS 16.05.790 "Obstruction or
hindrance of lawful fishing, hunting or trapping"
statutes, this section adds a new subsection to allow
for charging some offenses of this section as a
violation offence when there is no culpable mental
state.
Section 15 Under AS 16.05.831(c) "Waste of salmon"
statute, this section removes the specific fines and
penalties associated with an unclassified misdemeanor
and replaces it with a class A misdemeanor.
Section 16 Under AS 16.05.901 a new subsection is
added in this section to provide for charging offenses
committed under AS 16.05.871-AS 16.05.896 as a
violation offence punishable as provided in AS 12.55.
Section 17 Under AS 16.05.925 "Penalty for
violations", subsection (a) is amended to provide
consistency in the penalties as provided under AS
12.55 and provides an exemption for a new subsection
added under (c).
Under AS 16.05.925 (b), this subsection provides for
restitution amounts that the court may impose for
illegally taken big game animals in Alaska. This
section increases the restitution amounts by at least
50% that a person convicted of unlawfully taking big
game may have to pay to the state if the court choses
to implement restitution. Alaska's game belongs to all
of us collectively. When a big game animal is
unlawfully taken, it defrauds the state of the value
of that animal to its citizens. This value varies
greatly depending on the species of animal, the
location 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 the court if the case
warrants applying restitution. In most cases, it does
not make the state "whole" for the loss of the animal,
but helps pay the state back for the illegal take.
Current restitution amounts were enacted in 1984 and
have gone untouched since then.
MAJOR CHASTAIN pointed out that the restitution amounts in this
bill reflect the changes that were made in committees when a
similar bill was heard last session. For example, restitution
for moose increased 150 percent. The standard increase for
inflation was 50 percent.
CHAIR COGHILL asked if the monies from restitution can be used
for habitat improvement.
MAJOR CHASTAIN deferred the question to the Department of Law.
He clarified that restitution is not a fine. It is an additional
amount that can be applied for the illegal take of an animal.
2:25:56 PM
MAJOR CHASTAIN continued the sectional review of SB 60.
Section 18 Under AS 16.05.925 a new subsection was
added relating to subsection (b). Subsection (c)
establishes that a defendant may not be ordered to pay
restitution to the state under this section if:
(1) The defendant voluntarily and immediately reports
the unlawful take of the animal to ADFG or a
state law enforcement officer engaged in fish and
wildlife protection; and
(2) Surrenders all salvaged portions of the animal
including the horns, antlers, hide and skull as
applicable.
This subsection will provide an incentive for persons
who have unlawfully taken a big game animal and wish
to turn themselves in. This protects hunters who want
to do the right thing from paying additional
restitution amounts.
MAJOR CHASTAIN highlighted that this committee passed that
amendment last year.
CHAIR COGHILL commented on honest mistakes versus scamming the
system.
MAJOR CHASTAIN continued the sectional review of SB 60.
Section 19 Under AS 16.05.940 (38) a new definition is
added. This paragraph defines "electronic form" as it
pertains to section 3 under AS 16.05.330(g). It
provides for display of [license] images on an
electronic device such as a mobile telephone, tablet
or computer that will satisfy the display of fishing
and hunting licenses.
CHAIR COGHILL asked if there is need to clarify that viewing the
license on an electronic device does not include any authority
for the officer to search the device.
MAJOR CHASTAIN replied it is generally accepted that the officer
only has permission to look at the license on the electronic
device.
2:29:29 PM
MAJOR CHASTAIN continued the sectional review of SB 60.
Section 20 Under AS 16.10.030 "penalty for violations
of AS 16.10.010-AS 16.10.050" this subsection is
amended to provide that a person who violates AS
16.10.010 through AS 16.10.050 is guilty of a Class A
misdemeanor as provided in AS 12.55.
Section 21 Under AS 16.10.030 "penalties for
violations" and relating to section 20, this
subsection provides for a person who violates AS
16.10.030 through AS 16.10.050 without any culpable
mental state is guilty of a violation offense as
provided in AS 12.55.
Section 22 Under AS 16.10.090 "penalties for violation
of AS 16.10.070", this section is amended to reflect
that a person who violates AS 16.10.070 is guilty of a
Class A misdemeanor as provided in AS 12.55.
Section 23 Under AS 16.10.090 "penalties for violation
of AS 16.10.070", this section provides that a person,
who without any culpable mental state violates AS
16.10.070 is guilty of a violation offence as provided in
AS 12.55.
Section 24 Under AS 16.10.110 penalty for violation of
AS 16.10.100, "Erection of fish traps" statutes, this
section removes the specific fines and penalties
associated with an unclassified misdemeanor and
replaces it with a class A misdemeanor as provided in
AS 12.55.
Section 25 Under As 16.10.110 and related to section
24, a new subsection has been added under AS 16.10.110
(b). This subsection establishes that a person who,
without any culpable mental state, violates AS
16.10.100 is guilty of a violation as provided in AS
12.55.
Section 26 Under AS 16.10.130, penalty for violations
of AS 16.10.120 and AS 16.10.125, this section removes
the penalties associated with an unclassified
misdemeanor and replaces it with a Class A misdemeanor
as provided in AS 12.55.
Section 27 Under AS 16.10.130 and related to section
26, a new subsection has been added under (b) that
establishes that a person who, without any culpable
mental state, violates AS 16.10.120 or AS 16.10.125 is
guilty of a violation as provided in AS 12.55.
Section 28 This section 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.
Section 29 Provides an effect July 1, 2017.
2:30:51 PM
CHAIR COGHILL asked Aaron Peterson to discuss culpable mental
states.
2:31:05 PM
AARON PETERSON, Assistant Attorney General, Office of Special
Prosecutions, Criminal Division, Department of Law, explained
that culpable mental states in Alaska law are intentional,
knowingly, recklessly, and criminal negligence. The culpable
mental state for fish and game offenses is referred to as
modified civil negligence. That is that the person knew or
should have known that what they were doing was a violation.
CHAIR COGHILL asked if the default is strict liability if a
violation doesn't have a specific mental state attached to it.
MR. PETERSON directed attention to the offenses covered under
16.05.925(a) that says a person who violates AS 16.05.920 or
regulations adopted under the chapter is guilty of a class A
misdemeanor. Mental state is not mentioned so based on the court
ruling in Rice the mental state would be modified civil
negligence. Several other places in AS 16.05 also criminalize
offenses and violators are guilty of a misdemeanor. Again, there
is no mental state mentioned so the standard is knew or should
have known.
CHAIR COGHILL summarized that they would need to know the
hunting area and have had the hunting regulations presented to
them.
MR. PETERSON replied the prosecution only has to prove that the
person should have known (that a season was closed for example)
because the hunting regulations are available in any number of
locations and online. The court came to this conclusion in part
because of the difficulty with proving somebody was aware of a
certain thing or intended a certain result.
2:36:36 PM
CHAIR COGHILL asked if restitution monies must go into the
general fund.
MR. PETERSON said in criminal cases with forfeiture the
restitution funds go to the general fund. When restitution is
due for damage to a resource (primarily fisheries) the funds go
into the criminal fund sub-fund and are used for the protection
of that resource.
CHAIR COGHILL discussed his intention to offer a committee
substitute.
SENATOR MEYER asked if he would entertain amendments.
CHAIR COGHILL answered yes.
2:41:23 PM
SENATOR MEYER said he believes the fine structure for the third
offense should be higher than $15,000.
CHAIR COGHILL responded that it's clear that Alaska is
permissive with regard to licensing issues and fines.
CHAIR COGHILL held SB 60 in committee for further consideration.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB 60 - Sectional Analysis (ver. A).pdf |
SJUD 3/22/2017 1:30:00 PM |
SB 60 |
| SB 60 - Transmittal Letter.pdf |
SJUD 3/22/2017 1:30:00 PM |
SB 60 |
| SB 60 - Letter of Opposition - Petersburg Vessel Owner's Association.pdf |
SJUD 3/22/2017 1:30:00 PM |
SB 60 |
| SB 60 - Letter of Opposition - United Southeast Alaska Gillnetters.pdf |
SJUD 3/22/2017 1:30:00 PM |
SB 60 |