HB 286-FISH & GAME: OFFENSES;LICENSES;PENALTIES  2:09:57 PM CO-CHAIR TALERICO announced that the next 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." KEVIN BROOKS, Deputy Commissioner, Office of the Commissioner, Alaska Department of Fish & Game (ADF&G), introduced HB 286 on behalf of the governor. He said the bill relates to fish and game offenses, licenses, and penalties, and was developed in collaboration with the Department of Public Safety (DPS) and the Department of Law (DOL). He advised the committee that Major Bernard Chastain will present the details of the bill. 2:11:52 PM MAJOR BERNARD CHASTAIN, Deputy Director, Division of Alaska Wildlife Troopers, Department of Public Safety (DPS), provided a sectional analysis of HB 286 on behalf of the governor. Referring to Section 1, he explained that under AS 16.05.330 a person who is engaged in activities listed in paragraphs (1-5) must have in their actual possession a license, tag, or permit to legally engage in that activity. Section 1 reorders these activities into two separate categories, with (1) and (2) considered general activities and (3), (4), and (5) considered commercial activities. The purpose for this reordering is contained in Section 3 of the bill. MAJOR CHASTAIN explained that Section 2 amends AS 16.05.330(d) to make it unlawful for a person to purchase a license in Alaska or another state if their license to hunt, fish or trap has been revoked or suspended in Alaska or another state. Currently, the statute directs that if a person's license is suspended or revoked, the person is prohibited from purchasing or using the privileges of that license only in another state, and surprisingly it does not include the state of Alaska. This change will align that statute with the intent of the law. MAJOR CHASTAIN said Section 3 makes it an official correctable citation when a person does not have his/her sport fishing, hunting, or trapping license in possession while engaged in that activity. Wildlife troopers realize that people sometimes forget their licenses at home, in their car, or other locations. For many years the wildlife troopers have given unofficial correctable citations to most people in this situation. This section will give the wildlife troopers the ability to cite a person for not having his/her sport fishing, hunting, or trapping license in possession and giving the person a period of 30 days to bring his/her license to any Department of Public Safety office to have it signed off as a correctable citation. Once signed off the citation is dismissed. If this provision is passed it will be very similar to correctable citations used for headlight requirements, proof of motor vehicle insurance, and others. This section ensures that people engaging in the activity of sport fishing, hunting, and trapping have a license and it allows for some leeway for forgetting that license at home. Section 3 does not include activities (3), (4), and (5) because these are commercial activities and the belief is that commercial activities have a higher burden to maintain licensure than does the general citizen. 2:14:36 PM MAJOR CHASTAIN specified that Section 4 removes a correctable citation from AS 16.05.330(f) in the penalties portion of the statute. Additionally Section 4 aligns other areas of Title 16 and appropriately makes the crimes listed class A misdemeanors. MAJOR CHASTAIN advised that Section 5 creates two new subsections [to AS 16.05.430]. New subsection (c) establishes that a person may be charged with the violation offense if there is no culpable mental state established and also maintains a misdemeanor offense for more serious cases in this area of law under subsection (a). He said 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 sport fish restoration program, the Pitman- Robertson, Dingell-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 the person is not a resident. MAJOR CHASTAIN related that Section 6 of HB 286 increases the strict liability commercial fishing fines under AS 16.05.722. This [statute] was enacted in 1988 and has gone unchanged since that time, and the fines currently in place are inadequate to deter commercial fishing crime. The fine increase will serve as both a deterrent and a tool for Alaska's wildlife troopers to effectively enforce the state's most important fisheries worth billions of dollars to the state. 2:16:10 PM REPRESENTATIVE HERRON said he does not have an issue with the amount [of the proposed fines], but would like to know what the thought process was behind coming up with the proposed amounts of $6,000, $12,000, and $15,000. MAJOR CHASTAIN replied that the thought process has to do with inflation rate. The 1988 fine of $3,000 equals almost exactly $6,000 in today's dollar. Paragraph (3), which goes from $9,000 to $15,000, was a paragraph added in 1995 and so that $9,000 is equal to about $15,000 in 2016 dollars. MAJOR CHASTAIN continued his review of Section 6, explaining it also ensures that commercial fishermen can participate in fisheries by deterring illegal fishing that harms the industry. MAJOR CHASTAIN said Section 7 creates a new subsection that requires a court to transmit commercial convictions to the Commercial Fisheries Entry Commission (CFEC). REPRESENTATIVE SEATON requested further explanation of Section 6 in regard to Major Chastain's statement that it allows commercial fishermen to participate. MAJOR CHASTAIN responded that it has to do with the deterrence factor in commercial fishing. The deterrence in violations is important so the fishing industry can maintain its viability. 2:18:29 PM MAJOR CHASTAIN explained that Section 8 removes a penalty from [AS 16.05.782(a)], which cleans up the subsection and makes it clearer as to what the penalty actually is. REPRESENTATIVE JOSEPHSON inquired what the penalty becomes if it is not a class A misdemeanor. MAJOR CHASTAIN answered that the remaining subsections [of AS 16.05.782] deal with making two classes of violations. One subsection will remain a class A misdemeanor if culpability can be proved. If culpability cannot be proved it becomes a violation offense and that can be found in Sections 9 and 10. REPRESENTATIVE JOSEPHSON understood the subsequent sections reference back to the earlier sections to say that these are all fines or violations rather than something else. MAJOR CHASTAIN replied that it sets two separate categories of crime. If culpability can be proved, it maintains a Class A misdemeanor and it allows for flexibility if culpability cannot be proved. He said the subsequent crimes that he will be reviewing also add a separate section for creating a violation, which is a lesser offense. REPRESENTATIVE JOSEPHSON understood that under Title 16 and Title 5 of the Alaska Administrative Code (AAC) there are strict liability offenses in wildlife cases. He asked whether this gets rid of strict liability. MAJOR CHASTAIN responded that all of those are still in place and still available to charge. Title 16 statutes do not have the ability to charge as strict liability, so essentially that is created by this bill. 2:20:50 PM REPRESENTATIVE SEATON observed that the language in Section 7 states: "(d) The court shall transmit notice of all convictions under this section to the Alaska Commercial Fisheries Entry Commission." He requested clarification regarding the executive order transferring the administrative functions of the Commercial Fisheries Entry Commission (CFEC) to the Department of Fish & Game (ADF&G), which will be issuing licenses. He suggested that either the definition be expanded to include ADF&G or to change it. MR. BROOKS answered that the administrative order would have no impact on this provision in statute, this section is not implicated by the administrative order. He explained that someone with a commercial fishing violation gets points like what is done with a driver's license. The reporting of those points would still go to the CFEC and the department and the commission would communicate on whether to issue a permit. 2:22:23 PM MAJOR CHASTAIN stated that Section 9 relates to Section 8. It removes an unnecessary reference to subsection (a) in Section 8. MAJOR CHASTAIN specified that Sections 10-15, in general, provide consistency across the board and create class A misdemeanors for sections that the troopers can prove culpability, and violations for sections that were not existence prior to this bill. MAJOR CHASTAIN noted that Section 16 increases the restitution amounts [under AS 16.05.925] by 50 percent that a person convicted of unlawfully taking big game may have to pay the state if the court chooses to implement this restitution. Alaska's game belongs to every person collectively. When big game animals are unlawfully taken it defrauds the state of the value of the animals to its citizens. This value varies greatly depending upon the species of animal, the locations 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 a judge if the judge thinks the case warrants applying restitution. In most cases it does not make the state whole for the loss of the animal, but it pays the state back for the illegal take and adds a deterrence value to the illegal take. For example, 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 this sheep. There are many examples like this every year where the value of the illegally taken resource may never be fully recovered to the state. He explained that the proposed new fine amounts in Section 16 were determined in the same manner as was done for Section 6. [The statute] in Section 16 was enacted in 1996 and those dollars were applied to 2016 dollars. MAJOR CHASTAIN, regarding Section 17, pointed out that there is a drafting error on page 5, line 17. Rather than stating AS 16.05.925, this line should state AS 16.05.901. [Section 17 is related to Section 16 - it provides the additional option of charging a person with a violation offense when appropriate.] 2:25:20 PM MAJOR CHASTAIN said Section 18 adds a definition of "electronic form." He requested Mr. Brooks to elaborate. MR. BROOKS said this proposal would add the definition of "electronic form" so that a person can display his/her fishing or hunting license on something like a smart phone, similar to what can now be done with insurance. It would provide one more convenience to the licensing public - a person not having the license in paper form could display it on an electronic device. REPRESENTATIVE OLSON inquired whether that would also apply to the lifetime licenses. MR. BROOKS answered no, the identification card for a permanent license would still be required. REPRESENTATIVE SEATON noted that oftentimes on fishing licenses there are stamps or stickers or a reporting amount on the back of the actual physical license. He asked whether those would still need to be [provided in paper form] or would be allowed in electronic form. MR. BROOKS replied that when a person now buys his/her license electronically a king salmon stamp is a number, so that would be displayed on a mobile device. The licensee would still have to get a harvest record. Currently for a permanent identification card, if there is a harvest requirement the cardholder must get a separate document from ADF&G and record that harvest, and it is envisioned that that will continue the same way. 2:27:18 PM REPRESENTATIVE TARR inquired about the definition of "culpable mental state" and where that definition can be found. AARON PETERSON, Assistant Attorney General Fish and Game, Office of Special Prosecutions, Criminal Division, responded that generally the culpable mental states are set out under Title 12 and that is reckless conduct and knowing its circumstances. Section 17 does not lay out a specific mental state for this offense and therefore it would revert to the general mental state requirements set out in Title 12. It is a term of art used, it does not mean that a defendant has the capability to do it, it means that in this instance the defendant had the required mental state that would make him/her criminally liable for the offense. REPRESENTATIVE TARR said she was thinking about instances where a person is intoxicated but otherwise capable. She surmised that because of the way this is defined the person would be covered under that definition. MR. PETERSON answered yes, as with driving under the influence, there would be a very good chance that an intoxicated person violating this law would still be criminally liable. 2:30:34 PM REPRESENTATIVE JOSEPHSON observed that the last line on page 1 of the governor's transmittal letter states, "Currently, if a person violates certain fish and game laws, they can only be charged with a criminal offense." He recalled that when he prosecuted these, often the same act could have been charged by the fish and game officer as either a class A misdemeanor or a violation and generally the sentence would be suspended anyway, but there would be a change from perhaps a fine of over $1,000 to a fine of $300. He asked whether the statement in the transmittal letter is correct that under current law these can only be charged criminally. MR. PETERSON replied that any time there is the corresponding violation in the Alaska Administrative Code (AAC) there are several ways that that can be charged. It can be charged as a violation and oftentimes it can be charged as a misdemeanor depending on exactly where it falls under the AAC because the enacting statute will have different penalty ranges, different charging ranges, for different parts of the code. Certain things in Title 16 can only be charged as a misdemeanor because they do not have a corresponding regulation in place. The attempt here with HB 286 is to allow for that flexibility, allow for the prosecutor or DPS in the field to charge as a violation where appropriate. For the offenses included in this section there is not currently that flexibility. 2:32:48 PM MAJOR CHASTAIN returned to his sectional analysis. He explained that Sections 19-26 do the same things mentioned by Mr. Peterson. They generally standardize penalties in the statutes listed by providing an additional option of charging a person with a violation offense when appropriate. These sections maintain the option of charging a person with a misdemeanor if the crime is more serious. He pointed out a drafting error in Section 23, page 6, line 9, noting that this line states "AS 16.10.090" but should state "AS 16.10.110". MAJOR CHASTAIN related that Section 27 amends the uncodified rules of the court of Alaska to make it clear that the court has the authority to dismiss citations written for people failing to have their license, tag, or permit in their actual possession. MAJOR CHASTAIN said Section 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 of the act. MAJOR CHASTAIN stated that Section 29 provides for an effective date of July 1, 2016. 2:34:11 PM REPRESENTATIVE JOSEPHSON shared that when he is with a group fishing for king salmon, the group takes it really seriously that each person must have his/her king tag in possession. He requested Major Chastain's opinion about why it is okay to relax this requirement when it is built into the mindset of citizens. MAJOR CHASTAIN understood Representative Josephson is asking why it would be appropriate for troopers to make it correctable for not having a king salmon stamp. He said there is still a regulation that requires a person to have a king salmon stamp. This proposed provision would only make it a correctable offense if the person does not have a fishing license in possession. REPRESENTATIVE SEATON asked whether that means it is excusable for a person to not have his/her license in possession, but not his/her king salmon stamp or the reporting form in possession. MAJOR CHASTAIN responded that presently quite a few different regulations are in statute. One requires having a license in possession, another requires having a king salmon stamp, and another requires that the king salmon stamp is signed. A variety of regulations cover all of those. All HB 286 would do is make it that if someone forgot his/her fishing license in a vehicle or at home, the wildlife troopers could write a citation to that person and could make it be a correctable offense whereby the person could bring the citation to the office and it could be signed off as a correctable offense. If a person was king salmon fishing, the wildlife trooper could still decide whether it was appropriate to write the person for not having his/her king salmon stamp, which is not a correctable offense. REPRESENTATIVE SEATON understood a person would still have to have his/her king salmon stamp or reporting card in possession, regardless of having his/her license in possession. MAJOR CHASTAIN replied correct. 2:37:10 PM REPRESENTATIVE TARR drew attention to Section 18 on page 5, lines 20-22, which state: "(38) 'electronic form' means the display of images on an electronic device such as a mobile telephone, tablet, or computer." She noted that a camera is not included in the list of devices and asked whether a camera should be included and, if so, the best way to include it. MR. BROOKS responded that the aforementioned was not intended to be an exhaustive list. He said the language could be refined, but added that he thinks "electronic device such as" covers a broader list than what is written. REPRESENTATIVE TARR suggested the opinion of Legislative Legal and Research Services be sought so as to preclude any unintended consequences. For example, whether to change the language to state "including but not limited to" in order to indicate that it is a not an exhaustive list. MR. PETERSON clarified he is with the Department of Law, not Legislative Legal and Research Services. He noted the language "such as" is a cannon of construction that is on point here and it essentially says that a thing would be known by those around it. Here, it seems pretty clear that a camera would be an electronic form and "such as" is just giving some guidance as to what some of those might be. As a prosecutor, if somebody were to say that he/she had it on a camera but it was not on the list, he can certainly say that it is pretty clear how that would be resolved. REPRESENTATIVE TARR observed that the fiscal notes for HB 286 are zero. She inquired as to the overall value of these fines based on information from the last several years. MR. BROOKS answered he will get back to the committee with an answer. He said he does not think ADF&G has an amount by violation but he can provide an order of magnitude as far as how much has been collected. 2:40:14 PM REPRESENTATIVE CHENAULT understood that, except for a senior exempt license, a king salmon tag is stuck to a person's actual fishing license. He asked what the difference is between a king salmon stamp and a tag for, say, a brown bear if a person does not have that in possession at the time of kill. MR. BROOKS replied that when purchased electronically from ADF&G's store, a stamp is a number on the license, not a sticker; but when purchased from a sports store it is a sticker. The fixable part of this is that a person would have had this previously, a person cannot just go out and buy it and fix the ticket; a person has to have had ownership before he/she engaged in hunting or fishing. REPRESENTATIVE CHENAULT said he will not say that he knows people who go out fishing and catch fish illegally, but he would say that it does happen in the state. He recounted that he has seen the excuse where a person has left his/her license at home during dipnetting on the Kasilof River. While this proposed provision is to cover the person who did honestly forget his/her license in the car, he questioned whether there could be an unintended consequence of a person going dipnetting, not taking along his/her permit, getting caught, and saying the permit was left at home. This person gets to keep the fish and brings the permit in after filling it out and now cannot catch any more fish. But, if the person doesn't get caught, that person can continue to fish until caught versus the current situation of where people know they are supposed to have the permit with them and if they don't they get fined. MR. BROOKS responded that the fixable license does not relieve someone of his/her harvest reporting, so the person would still be in violation on that if out without a permit and recording a harvest. A person could still fix it if not having his/her license along, but he/she could not fix the fact of not reporting the harvest. REPRESENTATIVE CHENAULT surmised there still would be a possibility of the fine associated with not filling out a harvest ticket or not actually having a king stamp along at the time of catching the fish should a game warden be encountered. MAJOR CHASTAIN answered that currently there are adequate regulations and statutes available to wildlife troopers to deal with all of the scenarios just presented by Representative Chenault. Those are separate regulations and separate responsibilities. REPRESENTATIVE CHENAULT said he wants to ensure that another avenue is not being opened. 2:44:57 PM REPRESENTATIVE JOSEPHSON understood that generally there is a top prosecutor working on these matters. He asked who questions should be directed to if a committee member has questions. MR. BROOKS replied that Seth Beausang, Assistant Attorney General, Natural Resources Section, Civil Division, Department of Law, Anchorage, advises ADF&G on fish and game related matters, whereas Mr. Peterson is with the Criminal Division, Department of Law. 2:45:53 PM REPRESENTATIVE TARR inquired whether the proposed 50 percent increase in fines would put Alaska on par with the fines imposed by other states. MAJOR CHASTAIN responded that two distinctions are to be made. The 50 percent increase is the restitution amount and that can be applied by the judge if the court believes that the crime is serious enough to apply the restitution to that animal. For instance, right now if someone takes a moose illegally, in addition to any penalties that the court may impose for the misdemeanor offense or the violation, the court may also impose additional restitution of $1,000 for that moose, and that represents the value of that animal to the State of Alaska. He said he is unaware of other states and restitution amounts, but he is aware that Alaska's fines levied by the court tend to be a bit higher than other places in the U.S. It depends on the crime, but adequately so because the animals in Alaska are valued at a much higher level than other places in the Lower 48. REPRESENTATIVE TARR remarked that what makes this of interest to her is that it was mentioned that these numbers have not been adjusted for a number of years, but the suggestion was that it was inflation adjusting these restitution limits. Given these issues are looked at fairly infrequently by the legislature, she said she would like to make the effort to bring the state up to speed with what would be comparable in other locations. She requested that Major Chastain provide the committee with any other information he might have in this regard. CO-CHAIR TALERICO commented that in regard to Section 16, he would say from personal experience that if a deer is worth $600 then a moose is worth $4,000 from a food source perspective. REPRESENTATIVE HERRON pointed out that the co-chair does have the ability to make these changes. 2:49:10 PM MR. BROOKS thanked the committee for hearing HB 286 because it is important to enforcement and to his department. REPRESENTATIVE SEATON asked how the two drafting errors in Sections 17 and 23 would be handled. CO-CHAIR TALERICO responded that something will be brought forward to correct those drafting errors, as well as taking a look at what the appropriate language should be in Section 18. He said he will also be looking over the value given to these particular animals. [HB 286 was held over.]