Legislature(2015 - 2016)BUTROVICH 205
02/22/2016 03:30 PM Senate RESOURCES
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| Audio | Topic |
|---|---|
| Start | |
| Confirmation Hearing | |
| SB164 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| + | TELECONFERENCED | ||
| *+ | SB 164 | TELECONFERENCED | |
| *+ | SB 172 | TELECONFERENCED | |
| + | TELECONFERENCED |
SB 164-FISH & GAME: OFFENSES;LICENSES;PENALTIES
4:00:42 PM
CHAIR GIESSEL called the meeting back to order and announced the
consideration of SB 164.
MAJOR BERNARD CHASTAIN, Deputy Director, Alaska Wildlife
Troopers, Department of Public Safety (DPS), Juneau, Alaska,
said he would provide a sectional analysis of SB 164.
BRUCE DALE, Director, Wildlife Conservation Division, Alaska
Department of Fish and Game (ADF&G), Juneau, Alaska, offered to
answer questions related to SB 164.
4:02:48 PM
MAJOR CHASTAIN provided the sectional analysis of SB 164 as
follows:
Sec. 1 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.
Sec. 2 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 has had their rights to engage in those activities
revoked or suspended in Alaska. Currently the statute directs
that if a person's license is suspended or revoked, they are
prohibited from purchasing or using the privileges of that
license only in another state. Surprisingly, this does not
include the State of Alaska. This change will actually align the
statute with the intent of the law.
SENATOR WIELECHOWSKI asked if a person is banned from hunting,
would that prohibit him from getting a sport fishing license or
just a hunting license.
MAJOR CHASTAIN replied that normally it depends on the activity
that is suspended. If a person is suspended from sportfishing in
another state or this state, he is prohibited from purchasing a
sportfishing license in this or another state.
SENATOR WIELECHOWSKI asked how people who are banned from
getting a sportfishing license in Alaska are able to get them in
other states. Is that happening or is it just a hypothetical
event he is trying to prohibit?
MAJOR CHASTAIN answered that it happens, for example, when
people with a suspended license in another state come to Alaska
and purchases a license. Alaska currently has a wildlife
violator's compact that establishes reciprocity with a number of
states across the U.S., and that prohibits a person from
utilizing the privileges of that license. This bill prohibits
them from purchasing it. So, if their license is suspended or
revoked in another state, they cannot come to Alaska and
purchase a like license.
SENATOR WIELECHOWSKI remarked that he thought the current law
already says that.
4:05:42 PM
MAJOR CHASTAIN explained that state law currently prohibits the
use of a sportfishing license, but it doesn't prohibit
purchasing one. The problem is that a wildlife trooper has no
way of knowing a license is suspended or revoked out in the
field. That is why Alaska is being added as a state where a
license can't be purchased.
Sec. 3 makes it an official citation to not have a sportfishing,
hunting or trapping license in one's possession. Sometimes
people forget them in the cars or at home, and now they have to
have it in their possession to participate in those things. This
means a person can bring their correctible citation to any
Department of Public Safety (DPS) office and have it signed off
when they show that they had a valid license before they were
cited.
SENATOR MICCICHE said he supported the concepts in sec. 3
generally, but he didn't understand how a tag or permit could be
correctable. He has heard of folks who have creatively harvested
more than their game species by not punching a tag.
MAJOR CHASTAIN responded that there is another possibility.
Under regulation people are required to notch their harvest
ticket and have it in their possession. If they don't have their
tag in their possession and they have an animal, that is a
violation in and of itself. In this situation, if they contacted
someone who maybe hadn't taken an animal yet and they were just
hunting and didn't have the tag that could be an official
correctable citation.
4:09:55 PM
SENATOR MICCICHE said he could still see issues with the tag or
permit language.
MR. DALE added that staff gave this a considerable amount of
thought, and in the case where someone forgot their license,
tag, permit, and/or harvest ticket, if they were asked by an
enforcement officer what they were doing, they thought that
would be an officially correctable citation like the license is,
if it could be presented later at a DPS office. But that would
have to be clarified in separate regulations that are not
correctable. Hunters still have to comply with regulations on
harvesting animals, but the simple person who just can't find
their tag can correct that violation.
SENATOR MICCICHE said it's not illegal to hike around with a
rifle, but it becomes an issue when a person takes an animal.
It's confusing if the person thinks it is a correctable
citation.
MAJOR CHASTAIN said he would look at that language again.
4:12:37 PM
SENATOR WIELECHOWSKI noted that sec. (f) on line 19 says a
person charged with violating (a)(1) or (2) of this section may
not be convicted if the person produces "in court or in the
office of the arresting or citing officer". He envisioned a
scenario where someone from Anchorage goes out to western Alaska
and gets cited by someone from western Alaska. Under this
language, the court is probably going to be in western Alaska
and the arresting officer might be based somewhere out there,
too. He asked if that language could be changed so that the
person could go to an DPS office on Raspberry Road in Anchorage
or somewhere in Fairbanks. Is it important that they go to the
office of the arresting officer?
MAJOR CHASTAIN replied the intent is that they can go to any
office of the issuing agency. They don't want to clog the court
system by having the clerk of the court validate licenses, tags
and permits.
4:14:07 PM
He continued explaining that sec. 4 removes a correctable
citation section under AS 16.05.330(f) from the penalties
portion of the statute and aligns other areas of Title 16 and
appropriately makes the crimes listed class A misdemeanors.
Sec. 5 creates two new subsections. Subsection (c) establishes
that a person may be charged with a violation offense if a
culpable mental state cannot be established and it maintains a
misdemeanor offense for more serious cases under subsection (a).
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 Sportfish
Restoration Program, Pittman Robertson (PR) and Dingle 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.
He explained that in this scenario they are talking about non-
residents coming to Alaska and purchasing resident licenses.
Investigations have found that this often happens over a period
of years, and the non-resident not only purchases a hunting
license and a fishing license, but they get dipnet permits and
locking tags and shoot a brown bear and go Dall sheep hunting.
By the time they are caught, the offenses have added up and they
have defrauded the State of Alaska, not only in the cost
difference between the resident license versus a non-resident
license and the tags differences, but also in the Pittman
Robertson funds and all the matching funds Alaska gets from the
federal government.
MR. DALE explained that the state's Fish and Game (F&G) Fund
(receipts from hunting and trapping licenses and tags) are
matched with the federal Wildlife Sportfish Restoration Program
at a rate of three federal dollars for every state F&G Fund
dollar. The concept of this change is that over time the state
not only loses the value of the license that the person should
have bought, but the ability to leverage into federal funds.
This provides the court a way, in appropriate cases, to restore
some of those funds.
SENATOR STOLTZE asked if this is a revenue bill or a deterrence
bill.
4:17:43 PM
MAJOR CHASTAIN answered that SB 164 does three things: the first
is housekeeping to make statute reflects intent; the second is
increasing restitution amounts; and third, the statute is being
made more flexible in determining the seriousness of an offense.
SENATOR STOLTZE asked if he heard correctly that part of it is
restorative justice.
MAJOR CHASTAIN answered yes.
SENATOR STOLTZE asked if he had looked at inflation indexes for
inflation-proofing theft and felony activities as a mechanism
for determining escalating or de-escalating commodities market
values.
MAJOR CHASTAIN answered no.
CHAIR GIESSEL said she assumed that not all F&G funds get
matching federal funds.
MR. DALE said that was correct, but it would be easier for the
courts to retrieve some of the lost revenues with this language
change.
SENATOR MICCICHE said he expected those to be smaller quantities
of dollars. He asked if it's more of a figurative gesture than
having any real value.
4:20:59 PM
MAJOR CHASTAIN replied that most of the time the cases are
small, but several cases per year result from multiple years of
abuse of that resident privilege and amount to tens of thousands
of dollars. For instance, if a non-resident gets multiple
resident harvest tickets where they should have purchased a non-
resident license and multiple non-resident locking tags - for a
brown bear it is $500, and that is matched three to one by PR
funds.
4:21:56 PM
MAJOR CHASTAIN said sec. 6 raises the strict liability
commercial fishing violation fines under AS 16.05.722 that was
enacted in 1988 and has gone unchanged since then. These fine
increases will act as a deterrent and a tool for Alaska Wildlife
Troopers to effectively enforce the state's most important
fisheries worth billions of dollars. It ensures that more
commercial fishermen can participate in the fisheries by
deterring illegal fishing that harms the industry. The fines for
strict liability have gone up from $3000 to $6000, and $3000 in
1988 dollars equals about $6050 in 2016 dollars.
SENATOR MICCICHE said he assumed those 50 percent increases are
from 1995.
4:23:34 PM
MAJOR CHASTAIN said his research showed 1996 is when that was
enacted.
SENATOR MICCICHE asked if the 100 percent adjustment was applied
to commercial numbers that were adopted in 1988.
MAJOR CHASTAIN replied that he did not do that for the
restitution amounts, but that could be done with the committee's
support.
SENATOR MICCICHE said when Major Chastain talked about inflation
adjusted from 1988, it's about $6,000. So, the bail schedule for
the wildlife, as well, in sec. 16 looks like a similar
adjustment, because that bail schedule was revised in 1996
(versus 1988). He would like to keep the numbers consistent, but
said the details could be worked out later.
CHAIR GIESSEL asked if these fines go into the general fund (GF)
or F&G Fund.
MAJOR CHASTAIN replied that the strict liability fines go into
the General Fund.
JOHN SKIDMORE, Director, Criminal Division, Department of Law
(DOL), Anchorage, Alaska, said the fines in sec. 6 of the bill
go into the GF. The restitution amounts in sec. 16 go into the
F&G fund.
CHAIR GIESSEL asked if the matching funds that would be
reimbursed go to the F&G fund or the GF.
MR. SKIDMORE answered those funds actually go into the F&G Fund;
the federal matching funds are earmarked to be used for purposes
of conservation, so they couldn't simply go into the GF.
SENATOR STOLTZE commented that other sections of law sometimes
take away unrelated professional licenses if the fines don't
work for multiple offenses against access to a commonly owned
resource.
4:27:17 PM
MAJOR CHASTAIN responded that these are strict liability
offenses, which means that a person is strictly liable for the
offense regardless of the intent. Under these circumstances, the
department doesn't have to prove a "culpable mental state." They
still have the ability to charge commercial fishing violations
as a misdemeanor, and in those situations when the case is
serious, it is brought before a court that can deal with the
offender's license or their permit. In addition, misdemeanors
for certain offenses can accrue points through the Commercial
Fisheries Entry Commission (CFEC), and just like a driver's
license, once a certain number of points is reached, their
permit can be suspended for a period of time.
MAJOR CHASTAIN said sec. 7 creates a new subsection requiring
the court system to transmit notice of all convictions to the
CFEC. The importance of misdemeanor commercial fishing cases is
that those permits accrue points, and it's important to transmit
those to the CFEC so they can be tracked and appropriate action
taken.
SENATOR WIELECHOWSKI said the governor just issued a
proclamation transferring some duties of CFEC to ADF&G and asked
if notice needs to be transmitted to ADF&G also.
MR. DALE answered no; the CFEC will still remain a separate
entity; its functions are limited to IT, licensing, and
administration.
MAJOR CHASTAIN said sections 8 - 15 standardize across-the-board
violations for consistency and creates them all as a class A
misdemeanor. It also provides for a mechanism to charge each
violation appropriately. Right now there is no mechanism to
charge as violations. This will enable officers to charge either
as a violation or as a class A misdemeanor.
4:30:26 PM
SENATOR WIELECHOWSKI asked him to explain the inter-relationship
of sec. 8 with sec. 9, which talks about making taking a brown
or grizzly bear within a half-mile of a solid waste disposal
facility a violation instead of a class A misdemeanor, and the
additional fine of up to $10,000 in sec. 9 for the same action.
MAJOR CHASTAIN explained that sec. 8 creates a section that
removes a class A misdemeanor and makes taking a brown or
grizzly bear within a half-mile of a solid waste disposal
facility a violation offense if the department cannot prove a
culpable mental state. It's still a misdemeanor if it's
intentional or if it can be proved they knew that the solid
waste disposal facility was there. Sec. 9 (on page 3, lines 30-
31 to page 4, lines 1-3) was put in place by the legislature,
and he wasn't sure why they chose to address [AS 16.05.] 782(b)
in that manner. But they made it very clear that it was an
additional $10,000 fine.
SENATOR WIELECHOWSKI said maybe the DOL could explain that. Then
he asked which part of the statute talks about the culpable
state and being guilty of a criminal violation.
4:32:33 PM
MAJOR CHASTAIN explained that the additional penalty in sec. 9
is for when that person fails to salvage that animal.
SENATOR WIELECHOWSKI asked what section of law sec. 8 was
relying on and what the penalty is for violating .782(a).
KACI SCHROEDER, Assistant Attorney General, Department of Law
(DOL), Juneau, Alaska, asked him to clarify if he was asking
where the penalty provisions are for sec. 8.
SENATOR WIELECHOWSKI said he wanted to know what the penalty is
under the new sec. 8 and then he wanted to know if you do it
with a culpable state of mind - intentionally, recklessly -is
there a criminal penalty to that.
MS. SCHROEDER said the answers to both of his questions are yes
and are found in sec. 10 of the bill. If a person acts with
criminal negligence, it's a class A misdemeanor, and if a person
has no culpable mental state, it's a violation.
SENATOR WIELECHOWSKI asked if you don't act with criminal
negligence, but act with recklessness or intentionally do it, do
you fall under this section as well.
MS. SCHROEDER answered yes, you would. Criminal negligence is
the lowest mental state required, so anything above that would
be the same.
SENATOR STOLTZE asked if sec. 11 make any changes to
administrative forfeitures and forfeitures before a presumption
of guilt. Is the forfeiture process only after a court action?
MS. SCHROEDER answered that sec. 11 itself does not make any
changes to the forfeiture statutes or the forfeiture process.
She deferred to Mr. Skidmore for a more detailed description of
the forfeiture process.
4:36:25 PM
MR. SKIDMORE explained that this statute does not change
anything in the law. The aircraft or the equipment used is only
done after a conviction in a case. The forfeiture Senator
Stoltze was referring to is of meat. In those cases when meat is
seized, because of the constitutional provisions requiring all
game in the State of Alaska be used to the greatest benefit of
the citizens and because these cases often can take a
significant period of time to be resolved, there is practice
that is supported through the interpretation of the law that
allows the meat to be to be given to those who can consume it so
that it is not wasted. Later, should that taking of the meat
have deemed to have been inappropriate, then it is replaced with
an equal quantity of meat from the person from whom it was
taken.
SENATOR STOLTZE asked if the person loses stewardship of the
equipment at any time prior to a disposition of his court case.
MAJOR CHASTAIN answered that equipment is seized under a
criminal seizure warrant issued by a judge and it's held pending
court until the judge decides what happens with that item. A
provision allows someone to come to court (under a remission
hearing) and portray why their item should be returned to them.
If the court decides that it needs to be held, the judge has
that ability.
SENATOR STOLTZE said he appreciated the clarification and
remarked that equipment like an airplane could be held for quite
a while in a pre-conviction forfeiture.
MAJOR CHASTAIN answered that it varies depending upon lots of
different things. For instance, the length of time it takes a
case to get to court, the number of motions filed by both sides,
and the court calendar.
MAJOR CHASTAIN said that sec. 16 increases restitution amounts
by 50 percent that a person convicted of unlawfully taking big
game may have to pay to the state if the court so chooses to
implement this restitution. The judge can apply these
restitution values in addition to the fine, if he decides that
the unlawfully taken big game animal defrauds the state of the
value of that animal to its citizens. The value varies greatly
depending on the species of animal, the location of the take,
the social value of the animal, economic value of the animal and
the food source value to the people of the state. In most cases
it does not make the state whole for the loss of the animal, but
it does help pay the state back in some measure.
As an example of this, he said 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 the sheep.
There are many examples like this every year where the illegally
taken resource may never be fully recovered by the state. So,
this is an ability for the judge to impose additional amounts
above and beyond the fine. The restitution goes back to the F&G
fund.
4:41:13 PM
SENATOR STOLTZE commented that Major Chastain just put a
subjective value on game on the record.
SENATOR WIELECHOWSKI said the current law says if you violate
that provision you are guilty of a misdemeanor, and upon
conviction punishable by a fine of not more than $5,000, or by
imprisonment for not more than a year or both, but sec. 11 takes
out the fine provision, making it less of a penalty. Or is it
changed somewhere else?
MAJOR CHASTAIN replied that actually cleans up that section. The
class A misdemeanor is the penalty, and that has a penalty of
$10,000 and a year in jail.
SENATOR WIELECHOWSKI said current language lowers the penalty
from $10,000 to $5,000, and now under some other section not
cited here, the court can go ahead by virtue of a class A
misdemeanor and fine the person up to $10,000.
MAJOR CHASTAIN said that was correct. He pointed out two
drafting errors, the first one in sec. 17 should say "AS
16.05.901" instead of "AS 16.05.925". The reason is the penalty
provision for AS 16.05.871 and AS 16.05.896 is AS 16.05.901.
He said sec. 18 adds a definition of "electronic form." Language
in an earlier section mentions an "electronic form" and this
creates a definition of that.
MR. DALE explained that currently the Divisions of Wildlife and
Sportfish don't have electronic license forms, so this language
will enable that to be done in the future. Currently the
regulations, especially for wildlife and some sportfish, require
that either something is recorded on a license and/or validated
on a permit or harvest ticket; by regulation it requires hard
copies. But in the future, validation will be done with a
digital application, or app, on personal devices. It may be
especially useful for things like non-residents buying one-day
or three-day fishing licenses and having them in hand and not
have to get to a printer and spend half a day on a charter boat.
4:45:48 PM
SENATOR MICCICHE asked if sec. 17 language is in reference to
Article 8 violations (the protection of waterways for anadromous
fish).
MAJOR CHASTAIN answered that AS 16.05.871 is Article 8, which is
protection of waterways for anadromous fish, .871 is for
protection of fish and game, and .881 is construction without
approval prohibited, and .891 goes on through that section.
SENATOR MICCICHE asked him to clarify what punishable under AS
12.55 means.
4:47:03 PM
MR. SKIDMORE answered that previously AS 16.05.896 indicated
that offenses were punishable as a misdemeanor for those various
sections. Sec. 17 of SB 164 allows a violation to be charged
instead of a misdemeanor, and a violation under AS 12.55 would
be punishable up to $500.
SENATOR MICCICHE asked if that is a significant reduction in the
level of charge.
MR. SKIDMORE answered that this language does not reduce a
charge from a misdemeanor to a violation. It allows charging a
violation when a culpable mental state can't be proved,
consistent with the rest of the bill. It's an easier way to
prove the case, which is why there is also a lower penalty. But
if there is an appropriate mental state, it remains a
misdemeanor punishable the same as it was previously.
4:48:57 PM
MAJOR CHASTAIN said sections 19-26 in general standardize
penalties as is done throughout the bill. All these sections
create standardization for charging as misdemeanors but also
gives the ability to charge as a violation when appropriate.
MAJOR CHASTAIN said sec. 27 amends the court rule, which allows
the department to create a correctable citation. Right now there
is no mechanism in place to make a correctable citation.
Sec. 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, and sec. 29 provides for an effective date of
July 1, 2016.
CHAIR GIESSEL said he mentioned there were two typos and one was
in sec. 17, and asked where the other typo is.
MAJOR CHASTAIN said it is in sec. 23, on line 9. Now it reads:
"16.10.010" and it should say "16.10.110".
4:51:19 PM
SENATOR MICCICHE asked if the sportfish bail schedules had been
adjusted or if they are remaining the same.
MAJOR CHASTAIN answered that bail schedules have changed over
the years, and six to eight years ago, they were changed to a
flat fee with an additional amount per fish. Those bail
schedules are published in statute. In some situations, more can
be charged for a more serious offense.
SENATOR MICCICHE pointed out that a different value was put on
different species in sec. 16 depending on whether or not there
are return problems.
SENATOR STEDMAN asked what penalty a licensed hunter is facing
who has tags and shoots a game animal on private property
without permission and doesn't collect the animal.
MAJOR CHASTAIN said that would be difficult to answer because of
the hypotheticals, but in general, they would investigate the
case to determine what actually happened. If that person did not
have permission to be on private property, it's likely that
animal, in consultation with the District Attorney's Office,
would be seized and the person would be charged.
SENATOR STEDMAN said he didn't run into that situation too often
in the Southeast Alaska. If the animal isn't harvested, it would
most likely be a wanton waste issue and become another potential
concern about taking a game animal on private property without
permission.
MAJOR CHASTAIN said that was correct; the offender would look at
wanton waste charges or failed to salvage charges, depending on
the severity, along with any additional crimes they would
discover throughout their investigation.
SENATOR STOLTZE asked if the Department of Public Safety, ADF&G,
and the Department of Law look at self-reporting as a mitigater
in the case where someone self-reports they made an inadvertent
act.
MAJOR CHASTAIN said self-report, in general, is a major topic
they deal with every year. Quite a few people self-report
hunting violations throughout the state, and in his view, the
department had done a phenomenal job of encouraging people to do
that and not waste animals. This has been accomplished through
targeted and direct interface with the hunters to make sure they
understand that they are going to be treated dramatically
different when they come into an Alaska Wildlife Troopers office
and bring that animal in in good condition than if they are
discovered in the field or waste the animal by leaving it there
and not salvaging it.
SENATOR STOLTZE asked if that is done on a discretionary basis
or if a lesser penalty is codified if a person self-reports.
MAJOR CHASTAIN answered that it is up to the State Trooper's
discretion to consider someone a self-turn-in, but turning
themselves into a Wildlife Trooper who pulls up to their camp on
a four-wheeler is not going to cut it.
CHAIR GIESSEL thanked everyone for presenting the bill and set
it aside for another hearing. She
| Document Name | Date/Time | Subjects |
|---|---|---|
| Resume-Turner-BOG.pdf |
SRES 2/22/2016 3:30:00 PM |
Board of Game Confirmations |
| SB164 ver A.pdf |
SRES 2/22/2016 3:30:00 PM |
SB 164 |
| SB164 Sponsor Statement - Governor's Transmittal letter.pdf |
SRES 2/22/2016 3:30:00 PM |
SB 164 |
| SB164 - Sectional Analysis.pdf |
SRES 2/22/2016 3:30:00 PM |
SB 164 |
| SB164-F&G-CO-2-2-16.pdf |
SRES 2/22/2016 3:30:00 PM |
SB 164 |
| SB172 Sponsor Statement - Governor's Transmittal letter.pdf |
SRES 2/22/2016 3:30:00 PM |
SB 172 |
| SB172 ver A.pdf |
SRES 2/22/2016 3:30:00 PM |
SB 172 |
| SB172- Sectional Analysis.pdf |
SRES 2/22/2016 3:30:00 PM |
SB 172 |
| SB172-DFG-CF-2-5-16.pdf |
SRES 2/22/2016 3:30:00 PM |
SB 172 |
| SB164-Fiscal Note-DPS-1-29-2016.pdf |
SRES 2/22/2016 3:30:00 PM |
SB 164 |
| Turner-BOG-Letter of Support-SCI-.pdf |
SRES 2/22/2016 3:30:00 PM |
Board of Game Appointments |
| BOG Nominee Nate Turner-Comment-Douglas Malone.pdf |
SRES 2/22/2016 3:30:00 PM |
Board of Game-Turner |