HB 129-FISH & GAME: OFFENSES;LICENSES;PENALTIES  1:34:07 PM CHAIR CLAMAN announced that the only order of business would be HOUSE BILL NO. 129, "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; creating an exemption from payment of restitution for certain unlawful takings of big game animals; 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'; and providing for an effective date." 1:34:46 PM MAJOR BERNARD CHASTAIN, Deputy Director, Division of Alaska Wildlife Troopers, Department of Public Safety, turned to Section 1 of the sectional analysis, and explained that the primary focus of HB 129 is four main points: First, it allows the person who receives a citation for not having the appropriate sport fishing, hunting, or trapping license in their immediate possession to present those licenses to the Department of Public Safety (DPS) because it could be a correctable citation. Second, it becomes unlawful for a person to obtain a sport fishing, hunting, or trapping license if the person's rights to engage in those activities had been revoked or suspended in Alaska. Third, it increases the restitution amounts for unlawfully taken big game animals, and it increases strict liability commercial fishing fines for first, second, and third offenses. Fourth, it creates the option of charging for a violation or misdemeanor offense for most statutes contained under AS 16.05 and 10.10. He explained that this clarifies the proper documentation a person must have on their person when engaging in certain activities, and it reorders the activities of trapping and fur dealings to exclude the latter from being a correctable citation. This legislation, he advised, "reorders some of these so that the first three are sport activities, and 4 and 5 are considered commercial activities." This is important, and it is contained in Section 3 of the bill, he pointed out. 1:37:07 PM MAJOR CHASTAIN advised that Section 2 is amended, and it actually includes the words "this or another state." In the event a person is revoked or suspended from hunting, fishing, or trapping in Alaska, the person is revoked or suspended to hunt, fish, or trap in another state, territory, or country and vice versa. However, it does not include "this or another state." He explained, "So, actually including Alaska as one of those options, so if you're suspended in Alaska, you are also prohibited from purchasing a license here in Alaska." 1:37:38 PM MAJOR CHASTAIN explained that Section 3 creates a correctable violation. He explained [AS 16.05.330(f)] to mean that if a person is charged with violating this section for failure to have a license in their actual possession. The person will not be convicted if they produce in the office of the arresting or citing agency no later than 30-days after the issuance of a citation, a license previously issued to the person that was valid at the time of the offense. He related that this is similar to correctable citations for vehicle insurance and other types of situations. MAJOR CHASTAIN explained that [AS 16.05.330(g)] read that a license in actual possession may be in paper or electronic form because the Alaska Department of Fish & Game (DF&G) desires to create a situation where electronic licenses are allowed, and it will develop that process and put it forward. MAJOR CHASTAIN explained that [AS 16.05.330(h)] specifically states any peace officer presented with an electronic device under (g) of this section shall be immune from any liability resulting from damage to the device. 1:39:44 PM MAJOR CHASTAIN explained that Sections 4-5 are the first sections that reorder and align penalties in Title 16. He advised that, "Throughout this bill, I'm going to talk about what that means. And, whenever I talk about reordering and aligning the penalties, it means this same thing." He advised that under Title 16, there are a variety of different types of misdemeanor offenses and this bill attempts to align those offenses with AS 12.55 as a class A misdemeanor. In the event AS 12.55 changes, or the legislatures chooses to change the penalties associated with a class A misdemeanor, those will also change according to whatever changes take place under AS 12.55. MAJOR CHASTAIN offered that this bill allows prosecutors to charge offenses as a violation in the event that is more appropriate. It creates two separate categories of crimes under 5 AAC and Title 16, a misdemeanor or a violation offense depending upon the seriousness of the offense, which offers more tools to prosecutors when determining the appropriate charge. 1:41:32 PM MAJOR CHASTAIN advised that Section 6 raises the strict liability commercial fishing offense fines from the amounts established in 1988. These fines are given to a convicted defendant, and these are the maximum fines allowed under that penalty for that offense. Under current law, he pointed out, there is a maximum of $3,000 for a first offense; a maximum of $6,000 for a second offense; and a maximum of $9,000 for third or subsequent convictions. These fines are increased accordingly, he explained, and they primarily represent inflation changes from 1988 dollars to 2016 dollars. Strict liability commercial fishing violations are not criminal offenses, and they are considered violations with a higher dollar amount, he said. 1:42:43 PM MAJOR CHASTAIN advised that Section 7 amends AS 16.05.722 by adding a new subsection requiring a court system to transmit notice of all of the convictions under this section to the Commercial Fisheries Entry Commission (CFEC). Similar to driver's licenses, commercial fishermen are applied points to their licenses. When a person is convicted of certain commercial fishing offenses it is important that those points are applied to that license, and that the commercial fishing convictions are conveyed to the agency responsible for keeping track of the total points applied to an individual, he said. 1:43:16 PM MAJOR CHASTAIN advised that Sections 8-16 align the offenses within Title 16. Sections 8-16 remove unclassified and different types of misdemeanors, aligns them all with class A misdemeanors, and creates a separate section for violations to be charged under those sections. MAJOR CHASTAIN advised that Section 17(b) provides for restitution amounts; these amounts are put in place when a person is convicted by a court of law for illegally taking an animal. In the event the animal is taken illegally, the court may impose restitution in addition to the fines or penalties associated by the court. He explained that in 1984, these were put in place primarily because the animals and fish belong to Alaskans collectively, and when someone takes an animal or fish illegally, the victim is the state. The restitution amounts listed attempt to make the state whole for the value of the resource taken illegally, and some animals reflect an increase in fines due to the inflationary rate from the 1984 dollars to today's dollars, or they reflect changes made in previous committees, he explained. 1:45:19 PM MAJOR CHASTAIN advised that Section 18 adds a new subsection and he paraphrased as follows: "a defendant may not be ordered to pay restitution under (b) of this section if the defendant voluntarily turns themselves in to law enforcement." He advised that several hundred people each year turn themselves in because they killed an animal that they believed was legal at the time yet turned out to be illegal. Under this section and in that circumstances, he said, if all of the meat is salvaged, and they turned themselves into the state troopers and are charged with a violation offense, the court may not impose restitution. Thereby, he related, it offers an incentive for the person to actually turn themselves in rather than leaving an animal in the field to waste. 1:46:13 PM MAJOR CHASTAIN advised that Section 19 defines the "electronic form" as it pertains to Section 3 under AS 16.05.330(g), wherein the electronic form provides for a display of images on an electronic device, such as a mobile telephone, tablet, or computer. MAJOR CHASTAIN advised that Sections 21-26 change the penalties associated in Title 16, and it aligns those penalties accordingly. MAJOR CHASTAIN advised that Section 27 is amended by adding a new subsection, and it aligns penalties under AS 16.10.130. Sections 28-29 are amended by adding a new section for the applicability and the effective date of the act. 1:47:21 PM REPRESENTATIVE MILLETT referred to electronic licenses and asked whether the process would be that folks take a picture of their license and keep it on their phones, or whether the person would receive an electronic license from the Department of Fish & Game. MAJOR CHASTAIN said that whatever format the Department of Fish & Game (ADF&G) decides is appropriate for licensing will also work for the enforcement side. He noted that there are pieces of licensing that requires recording items on licenses, such as a king salmon tag or the harvest tickets on the back of the license itself. There must be a process in place to make sure those are represented in an electronic format. There have been recent discussions with the Department of Fish & Game (ADF&G) as to how that might look, but it requires ADF&G to develop the process first, "before that is something that is acceptable," he said. 1:48:36 PM REPRESENTATIVE MILLETT noted that currently, subsequent to receiving her king salmon tag she is required to write where the king salmon was harvested and the date. She asked whether there would be an electronic submission for that information or would it still be on the honor system as to the location she lands her king salmon, noting that that is why the picture would seem to be more accurate. MAJOR CHASTAIN reiterated that he could only answer as to enforcement purposes, and his division will enforce whatever is the appropriate license type the Department of Fish & Game (ADF&G) says is "okay to present." REPRESENTATIVE MILLETT commented that perhaps that could be a friendly amendment to include at some point. 1:49:51 PM REPRESENTATIVE KREISS-TOMKINS referred to Section 17, noting two zero fiscal notes, and questioned that with the increases in restitution it would seem that this bill would have a positive fiscal note. MAJOR CHASTAIN advised that this money would be an increase to the state and go into the general fund, there is no fiscal note to the Department of Public Safety (DPS) as it will not receive any money from the increases in restitution. 1:50:46 PM REPRESENTATIVE KREISS-TOMKINS asked Major Chastain what the projected increase from restitutions to the general fund is expected to be and offered that he could provide that answer at a later date. The percentage increases in restitution amounts for the different game animals vary so it is not a straight inflationary adjustment, he pointed out. He then asked Major Chastain to speak to the rationale as why restitution for a moose more than doubles, whereas a black bear increases 33 percent. Relatedly, he asked whether DPS would have objections to language that may automatically inflation adjust these restitution amounts going into the future. MAJOR CHASTAIN responded that as far as the restitution amounts go from an enforcement standpoint, if the troopers are doing a good job at enforcement, and part of that is education, the state will have less animals taken illegally over time. It is difficult to put a number on what the DPS thinks the increase of restitution dollars would be because it varies from year-to- year. He pointed out that it is the view of DPS that if it is doing its job, it is preventing some of these violations from occurring. As to the increase in restitution amounts, he said, in the House Resources Standing Committee and the Senate Resources Standing Committee there was a lot of discussion about, "what is the value of these animals to the citizens of the state." He noted that different legislators offered different values depending upon the area the legislator represents, the food source value to their community, and what they believe the value would be for that animal in the area they represent. He reiterated that the value itself changed for some of those animals due to the amendments passed in the committees. As to inflation proofing, he opined that inflation proofing would be appropriate because the fines have not changed for quite some time and putting some sort of inflation in there keeps some sort of a standard in place. 1:53:30 PM CHAIR CLAMAN asked whether the information regarding restitution dollars the state had received over the last ten years was available, and whether those figures could be available for the next hearing. MAJOR CHASTAIN responded that he was unsure how those restitution dollars are organized, but he would perform research and if the information was available, he would provide it to the committee. 1:53:54 PM REPRESENTATIVE EASTMAN referred to Section 18 and described a scenario where the DPS made contact with an individual who advised that they were reporting the kill voluntarily. He asked whether there is an assumption that because the hunter "did not do it on their own" before the department contacted them that they are guilty, or whether it is more the idea that "they said they did it voluntarily, so we'll just take them at their word." MAJOR CHASTAIN answered that the DPS deals with a wide variety of those types of scenarios each year. The general belief is that it requires a lot of fortitude on the part of the person making the phone call when turning themselves into the state troopers. That, he offered, is a tough call to make because oftentimes people are ashamed of their mistake in having committed that violation, but they want to do what is right for that situation, and the DPS treats them accordingly. On the other side, he commented, the DPS also deals with those people who have no intention of turning themselves in until the DPS catches them in the field with an illegal animal. Those people then say, "I'm so glad you're here, I was just about to turn myself in." The DPS investigates that situation as it would any other crime, and if it has every reason to believe the person was going to turn themselves in, the person would be treated accordingly. 1:55:54 PM REPRESENTATIVE EASTMAN referred to Sections 10, 13, 14, 16, 21, 23, 25, and 27, noting that those sections stipulate that the violations are strict liability, and asked that in the event someone accidentally violated, why the state would still hold them fully accountable. MAJOR CHASTAIN noted that there is a lengthy answer to that question and summarized that fish & game violations are unlike many other violations because his division must be able to catch people committing these violations, and many times no culpable mental state is required. Certainly, under 5 AAC and a lot of other regulations the Board of Fish and the Board of Game create, the culpable mental state is simply negligence that the person violated, similar to a speeding ticket. Therefore, under Title 16, this would allow a prosecutor to decide whether it was more appropriate to charge someone with a maximum of $500 fine violation versus charging them with a misdemeanor offense. It aligns that decision accordingly in statute with the penalties under AS 12.55. He explained that it is defined as a violation under AS 12.55, it is also defined as a class A misdemeanor as defined under AS 12.55, as well. 1:57:46 PM CHAIR CLAMAN commented that to a large extent, the strict liability nature of certain fish & game offenses is not a change in the current law, it is the law today. MAJOR CHASTAIN commented that Chair Claman was correct, in that almost all fish & game violations under 5 AAC that are created by the Board of Fish and the Board of Game, the standard is strict liability. CHAIR CLAMAN surmised that this is not a bill in which there would be a change in the standard, it is just changing some of the penalties related to those violations. MAJOR CHASTAIN clarified that HB 129 creates two different categories of charging, wherein it creates an additional charging scheme of strict liability in statute which does not currently exist. 1:58:24 PM AARON PETERSON, Assistant Attorney General, Office of Special Prosecutions, Criminal Division, Department of Law, responded that all of the sections Representative Eastman referenced create the ability to reduce offenses to violations that currently, can only be charged as misdemeanors, (audio difficulties) uniform throughout the bill. Currently, if the Department of Law (DOL) receives a case that can only be charged as a misdemeanor, which under Title 16 means there is a mental state involved, the state has to prove that the mental state is negligence as the major (audio difficulties). Sometimes, he noted, the state troopers or DOL might believe it is appropriate, given the circumstances, to reduce it to a strict liability violation. Under Title 16, currently, several of the offenses cannot be reduced, so this bill would remedy that requirement and give the prosecutor the discretion to reduce the offense to the lesser offense. 1:59:44 PM REPRESENTATIVE EASTMAN requested the rationale for creating the strict liability component and the value of having strict liability. MR. PETERSON reiterated that it is dependent upon any circumstance and whether it may be appropriate to have a lower level charge. He pointed out that this is not necessarily a proof problem to be remedied here, it is an attempt through the legislature to give the DOL and the DPS the ability to have a lower level charge for someone who may have made an honest mistake but was still negligent. Yet, given the totality of the circumstances, the appropriate resolution might be a strict liability violation. This legislation, he explained, would give prosecutors and the DPS the ability to either make that the initial charging decision or the ultimate resolution of a case, which is on a case-by-case basis, so it would just be another tool. 2:01:35 PM REPRESENTATIVE LEDOUX referred to the fiscal notes, noting that the increase in dollars for fines goes into the general fund so the department does not have a fiscal note. She asked what would happen if the amount of dollars for fines decreased and less money went to the general fund, and whether there would still be no fiscal notes. She further asked whether there is a way of knowing when something goes into the general fund, whether it will cost the state or benefit the state. MAJOR CHASTAIN responded that DPS is unique in this situation in that it is squarely in the middle of the line here because it does not receive any funding or any benefits from the increased fines. REPRESENTATIVE LEDOUX expressed that that was not a criticism of DPS, she was simply trying to determine whether there was any way this committee could know whether something would benefit the state in terms of revenue or the opposite. 2:03:49 PM BRUCE DALE, Director, Division of Wildlife Conservation, Department of Fish & Game, advised that he was unaware why that would be a zero fiscal note and he would get back to the committee with an answer. 2:04:06 PM REPRESENTATIVE MILLETT referred to Section 2 and asked about the communications between states, and how they know whether someone's license had been suspended or revoked. MAJOR CHASTAIN advised that Alaska is part of the Inter-State Wildlife Violators Compact, with approximately 38-39-member states currently. There is reciprocity with all of those states for suspended licenses, just like a driver's license, except not all states belong to the compact. He offered that Alaska is one of the few states with this statute on its books that discusses suspension of licenses. Many other states do not have this statute and they rely on the Inter-State Wildlife Violators Compact as part of the reciprocity to determine whether a license had been suspended or revoked. In the event someone is suspended in one of the other member states, he advised that that member state enters the license into the compact database, and all of the states belonging to the compact have access to that database. 2:05:21 PM REPRESENTATIVE MILLETT offered a scenario where someone obtains a resident fish & game license, but they also have one in another state, and asked whether DPS has that same database. MAJOR CHASTAIN responded that the DPS has access to other states, mainly through law enforcement, but it is not a database similar to the Alaska Public Safety Information Network (APSIN) or National Crime Information Center (NCIC) to determine that information. The DPS does have access to Alaska's own database to determine licensing through the Department of Fish & Game (ADF&G). Many times, he offered, investigating a residency situation involves a law enforcement officer contacting that other agency to ask them to run the person for licenses in that state. The DPS will then receive certified documents from those states regarding the person's licensing and then conducts its investigation, he said. 2:06:13 PM CHAIR CLAMAN referred to Section 2, and noted that existing law is, "you are already looking for other states and this allows us to look at Alaska, as well." He said he found it interesting that the legislature was not doing that for purposes of Alaska licenses. 2:06:26 PM REPRESENTATIVE EASTMAN suggested asking the Department of Revenue (DOR) to provide a fiscal note on HB 129. CHAIR CLAMAN pointed out that he had addressed that issue earlier when he asked Major Chastain to obtain the figures on the restitution the state has received over the last 10 years, and that he hoped the figures would be available for the next meeting. 2:07:02 PM REPRESENTATIVE KOPP asked whether it is a prima facia offense if a person is caught in possession of more fish is allowable or is in possession of an out-of-season animal. He asked whether it is necessary to establish mental state because it is possession alone as a prima facia offense. MAJOR CHASTAIN responded that the answer is "yes and no." Many times, he said, there are other issues allowing someone to possess that animal or fish, such as a proxy. There are also "seasons that are out there" that are outside of normal seasons or permits that allow people to sometimes possess game. He explained that the DPS still has to establish whether the season is, in fact, open or closed, and whether they have a legal reason to have that animal. But, he remarked, if that is all true, there is a regulation dealing with legal possession and transportation, which deals primarily with the person simply possessing the animal. 2:08:18 PM REPRESENTATIVE KOPP surmised that there is due process even on prima facia offenses, and there could be justification in the law that a person would otherwise be guilty "but for" a number of things that can make it justified. MAJOR CHASTAIN said that Representative Kopp was correct. 2:08:41 PM REPRESENTATIVE KOPP referred to Section 8, dealing with taking brown bears at landfills. He asked whether there was a particular issue wherein the criminal negligence mental state was removed. He pointed out that "is the one where if a person is within 1/2 mile of a landfill," and "now we're just saying" if you take a brown or grizzly bear period, the person is guilty of the offense. He asked whether there was a surge in brown bear taking near these solid waste disposal sites. MAJOR CHASTAIN related that that section basically creates two separate categories to charge: either under a class A misdemeanor or a violation, the same as the other sections. He noted that when that statute was put in place, it had to do with brown bears being attracted to solid waste disposal sites. Obviously, he said, when bears are attracted to a site they are much easier to kill so people were hanging out at the dump shooting brown bears, and the legislature at the time did not want that happening. 2:10:05 PM REPRESENTATIVE KOPP referred to Section 14, adding a new subsection regarding a person "without any culpable mental state," and noted that the section begins with "Intentionally, but we're not removing that." He referred to AS 16.05.790 and asked that Major Chastain talk the committee through that involved section and subsections. MAJOR CHASTAIN explained that AS 16.05.790 was put in place in 1991, and it primarily relates to obstructing someone's ability to take or view game. He referred to Section 14, AS 16.05.790(g), which read as follows: (g) A person who, without any culpable mental state, violates this section is guilty of a violation punishable as provided in AS 12.55. MAJOR CHASTAIN explained that that is the same as what is being done in other sections. Since, he commented, it already includes that DPS could charge a person with a misdemeanor if it was a serious violation, this creates a section in which the DPS could charge the offense as a violation if it was determined to not be as serious as a misdemeanor offense. This section is a complicated requirement, he acknowledged, and certain things have to be in place before the DPS can charge someone with that offense. It says that it does not have to do with normal competitive practices, such as two people going after the same moose, and that certain things have to be in place in order to be charged with this offense, he explained. REPRESENTATIVE KOPP commented that there appears to be several mental states in that same section, and it is a bit complicated. He surmised that Major Chastain was saying that this gives an option for the lowest level of violation to be charged if it appears that a mental state is an issue that may not be able to be established. MAJOR CHASTAIN answered in the affirmative. 2:12:37 PM REPRESENTATIVE EASTMAN returned to Section 8, noting that the bill creates two separate categories where a person could be found guilty. He asked whether the strict liability option being created distinguishes between the group using brown bears as target practice close to a dump versus someone trying to defend themselves from a bear attack. He asked whether that strict liability still leaves open making that distinction or whether it closes that off. MAJOR CHASTAIN answered that there is a separate regulation regarding defense of life and property, a person is legally justified in defending themselves, another person, or their property. In that situation, he advised, under the regulation and the guidelines in that regulation, it is not prosecutable, and the person is legally justified in defending themselves. 2:13:59 PM CHAIR CLAMAN referred to Section 6 and the fines for the commercial fishing violations. He pointed out that under AS 16.05.722(a)(1) and (2), the fines are double, except under AS 16.05.722(a)(3) the maximum fine was not double the prior amount. He said that in his mind, third or subsequent convictions would be more culpable than paragraphs (1) and (2) offenders and asked why the paragraph (3) fine was not double. MAJOR CHASTAIN responded that paragraph (3) was added later than the original statute. Wherein, he explained, the fine associated with paragraph (3), $15,000 fine represents the 50 percent increase over the original statute that was put in place. He noted that paragraphs (1) and (2) were first into statute, and paragraph (3) was added sometime later. CHAIR CLAMAN surmised that the inflation adjustment calculated that $15,000 was the inflation adjustment for when $9,000 became the maximum. MAJOR CHASTAIN answered in the affirmative. 2:15:24 PM CHAIR CLAMAN opened public testimony on HB 129. 2:15:48 PM NICK STEEN advised he was testifying on his own behalf because he would like to see the permanent revocation of hunting and fishing privileges for any individual convicted of a (audio difficulties), and particularly, commercial operators making a living off of the public's resources. He related that an individual was convicted of fishing in closed waters, 25 miles from the nearest open area, and asked why that person should ever be allowed to commercially fish in Alaska again. He then related the following incidents regarding hunting game: a game guide was convicted of harvesting three brown bears in an area in which he had a permit for just one bear; another guide buried a harvested brown bear so his clients could harvest a larger animal; and a guide was convicted of conducting hunts for non- residents in an area closed to non-residential hunting. And yet, "we as a state" are not opposed to removing a CDL license for traffic violations or removing a medical license from doctors who mis-prescribe barbiturates, and so forth. He asked why the state does not remove these licenses (audio difficulties) livelihood while flagrant violators (audio difficulties) whether hunting or fishing, they are stealing (audio difficulties.) REPRESENTATIVE KREISS-TOMKINS asked Mr. Steen to send his written comments to the committee due to audio difficulties. MR. STEEN advised that he will forward his testimony to the committee. 2:18:44 PM MARK RICHARDS, Executive Director, Resident Hunters of Alaska, related that the Resident Hunters of Alaska fully supports HB 129, and he thanked Governor Walker for introducing these changes as the Resident Hunters of Alaska fully supports the higher fees. He referred to Section 3, [AS 16.05.330(h), page 2, lines 25-26] regarding providing a license in an electronic form and noted that it is similar to Representative Sadler's recently introduced HB 260. Currently, he commented, a person can apply on line for a hunting (audio difficulties) license, pay online, receive a PDF file, and print their licenses at home, which is "pretty much" available in an electronic form. It was his belief that the department would not be able to duplicate duck or salmon stamps, so the Resident Hunters of Alaska view it "more as a redundant license" because the person already has their duck and salmon stamps on their paper licenses. Also, he added, a person will always have to carry a harvest ticket in paper form because they have to cut out the dates and months of the harvest immediately after harvesting. CHAIR CLAMAN, after ascertaining no one wished to testify, closed public testimony on HB 129. [HB 129 was held over.]