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.