HB 129-FISH & GAME: OFFENSES;LICENSES;PENALTIES  5:11:44 PM CO-CHAIR JOSEPHSON announced that the last 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." 5:12:50 PM MAJOR BERNARD CHASTAIN, deputy director, Division of Alaska Wildlife Troopers (AWT), Department of Public Safety, introduced HB 129 [on behalf of Governor Walker]. Major Chastain said HB 129 accomplishes four primary goals. First, he explained, the bill would allow for issuing a correctable citation to a person who does not have the appropriate sport fishing, hunting, or trapping license in his or her actual possession. This is similar to [citations issued for] correctable headlights or correctable vehicle insurance. Second, he said, the bill would make it unlawful for a person to obtain a sport fishing, hunting, or trapping license if that person has had his or her rights to engage in those activities revoked or suspended in any other state, and including Alaska. Third, he continued, the bill would increase restitution amounts for unlawfully taking big game animals and would increase strict liability commercial fishing fines for first, second, and third offenses. Fourth, he stated, the majority of the bill would standardize penalties within Title 16 and would create an option for charging as a class A misdemeanor, which most are already but this would also give troopers an option for charging as a violation offense. 5:14:22 PM MAJOR CHASTAIN explained that section 1 of HB 129 would amend AS 16.05.330(a) to include the word "permit" in addition to "license" and "tag" for purposes of clarifying the proper types of documentation a person must have in his or her actual possession. Thus, a person would have to have a permit, license, and tag in his or her actual possession. Additionally, section 1 would renumber [the activities listed in] 1 through 5. They are renumbered, he said, because 1 and 2 are sport offenses and 3, 4, and 5 are considered commercial activities. MAJOR CHASTAIN stated that section 2 would amend AS 16.05.330(d) to make it unlawful for a person to purchase a sport fishing, hunting, or trapping license if his or her rights to engage in those activities have been revoked or suspended in "this or" another state. Current statute directs that a person who applies for a sport fishing, hunting, or trapping license or other permit or tag issued under this section, shall sign a statement that his or her right to obtain or exercise a privilege is not revoked or suspended in another state. Surprisingly, he pointed out, this statute does not include Alaska; adding the words "this or" makes the statute include Alaska. 5:15:54 PM REPRESENTATIVE WESTLAKE directed attention to the bill on page 2, line 7 which read: (5) control of nuisance wild birds and nuisance wild small mammals for compensation. REPRESENTATIVE WESTLAKE said in villages, and sometimes in Kotzebue, there are bird strikes with planes and he asked whether this provision would make it illegal for a person to scare off nuisance birds when someone else buys the shells for this purpose, but does not compensate the person for scaring off the birds. MAJOR CHASTAIN replied the requirement states that a license or permit is required in order to do that activity. While troopers do not encounter this very often, there are folks who do that around the state for compensation. There are businesses that do this, he continued, and they must have that permit from the Alaska Department of Fish & Game (ADFG). MAJOR CHASTAIN resumed his sectional analysis. He said section 3 would amend AS 16.05.330 by adding three subsections. The first proposed new subsection would make it a correctable offense by providing that a person charged with failing to have the appropriate sport fishing, hunting, or trapping license in his or her actual possession may not be convicted if no later than 30 days after the issuance of the citation the person produces a license previously issued to that individual that was valid at the time of the offense. The official correctable citation would be brought in to any office of the Division of Alaska State Troopers, Department of Public Safety, within the state, it would be signed off within 30 days, and it would not go on the record. It would basically be considered a warning to the person for not having a license [in actual possession], he said. Licenses are sometimes forgotten at home or in a vehicle and currently if an individual does not have a license on his or her person troopers must decide whether the person actually does have a license since people don't always tell the truth. A correctable citation would make it much easier for the person who does have a license and this person doesn't have to pay anything. 5:18:30 PM MAJOR CHASTAIN explained that the second proposed new subsection in section 3 would allow for actual possession to include electronic form. At some point in the future, he related, ADFG desires to have a system of electronic licensing and this provision would allow a hunter, fisher, or trapper to decide whether to carry his or her license electronically instead of in paper format. MAJOR CHASTAIN stated that the third proposed new subsection in section 3 would hold the peace officer inspecting an electronic license in the field immune from liability if damage occurs to the device in the process of inspection. Hunting, fishing, and trapping licenses are often inspected in adverse conditions aboard boats in violent seas or while hands are contaminated with fish or game parts in remote locations. If something happens to the device in the short time that the peace officer is inspecting the license, this subsection would hold the agency immune, he continued. If this subsection is implemented, these resource users will have the ability to carry their licenses in either paper or electronic format. MAJOR CHASTAIN related that section 4 would remove under AS 16.05.430, fish and game penalties, the specific fine of $1,000 and penalties associated with an unclassified misdemeanor, and would replace it with a class A misdemeanor. MAJOR CHASTAIN noted that onward from section 4 he is going to lump together a number of sections because they all follow the same pattern. Over the years within Title 16, he explained, a series of penalties have been added by the legislature somewhat piecemeal. Some of those penalties are less than a class A misdemeanor, and some are more. The bill would align the penalties to class A misdemeanors and point to Title 12, which defines a misdemeanor. For lesser offenses, he said, the bill would allow troopers to charge a violation offense, which is a maximum [fine] of $500. In all the regulations created by the Board of Game and the Board of Fisheries that govern hunting and fishing, he continued, troopers are allowed to reduce crimes to a violation offense. Troopers can decide through the district attorney's office whether the violation is not as serious as a misdemeanor, and instead charge it as a violation offense, which is a reduced offense. In fact, a violation is not considered a criminal offense and does not go on a person's criminal record, he explained. It is basically a ticket that is paid like a traffic ticket. Thus, the bill would align penalties as class A misdemeanors, and create sections for violations to be charged. 5:21:15 PM MAJOR CHASTAIN noted section 5 relates to section 4. He said section 5 would [amend AS 16.05.430 by adding two subsections] and would create the ability to charge some of the offenses as violations, as well as misdemeanors. MAJOR CHASTAIN said section 6 [would amend AS 16.05.722(a) in relation to fines for] strict liability commercial fishing violations. Strict liability, he explained, means a person is strictly liable for his or her offense regardless of the culpable mental state. He posed an example involving a road traffic situation: If a person is going 75 miles per hour in a 55 mile per hour zone, the police officer does not have to show that the driver knew the speed limit was 55, and does not have to show the driver knew his or her speed was 75. The police officer only needs to show the driver was doing 75 miles per hour. The driver is strictly liable for that offense and no culpable mental state is required to prove that. The two types of violations in commercial fishing, he stated, are strict liability commercial fishing violations, which are not criminal offenses, and class A misdemeanors. MAJOR CHASTAIN said the [increased] fine amounts proposed in section 6 for first-, second-, and third-time strict liability commercial fishing offenses within a 10-year period are the maximum amounts the court could impose if the commercial fisher is found guilty. The current fine amounts were established in 1988 when the Alaska State Legislature enacted this section, he pointed out. While the proposed amounts look like the fines have gone up, it is actually an adjustment for inflation to 2016 dollars. The fines for first- and second-time offenses would go up by 50 percent and the third-time offense, which was enacted after 1988, would go up [less than 50 percent]. MAJOR CHASTAIN explained section 7 would amend [AS 16.05.722] by adding a new subsection that would require the court to transmit notice of all convictions under this section to the Alaska Commercial Fisheries Entry Commission (CFEC), which is the keeper of commercial fishing points. Like with a driver's license, he continued, a commercial fisher can get points on his or her commercial licenses and if a certain amount of points are accumulated on the license over a 10-year period of time, the CFEC can revoke or suspend that person's commercial fishing license. The points would be transferred with the conviction and CFEC would then apply those points. MAJOR CHASTAIN stated that sections 8, 9, 10, 11, 12, 13, 14, 15, and 16 are all adjustments to class A misdemeanors and violations; penalties within each section are adjusted and a [subsection] for violations to be charged is created with each section. 5:24:31 PM CO-CHAIR JOSEPHSON related that for a couple years he did Title 16 and Title 5 under [Alaska] Administrative Code prosecutions. He said it seemed like there was frequently an opportunity to charge something as a Title 5 violation instead of a Title 16 misdemeanor. He asked what the change is for offenses such as failure to salvage and wanton waste. MAJOR CHASTAIN requested confirmation that the aforementioned question is about when [a trooper] decides that a violation is appropriate or that a misdemeanor is appropriate. CO-CHAIR JOSEPHSON replied yes, and further asked whether that discretion hasn't already been available where a trooper could either charge as a criminal offense or as an infraction. MAJOR CHASTAIN responded that currently within the [Alaska Administrative Code (AAC)], within the regulations the Board of Fisheries and the Board of Game create, [troopers] do have the ability to reduce to a violation. However, he explained, [troopers] do not currently have that ability in Title 16 and, if passed, HB 129 would provide that ability and would give [troopers] two different charging options in Title 16. MAJOR CHASTAIN returned to his sectional analysis. He said section 17 proposes to amend [AS 16.05.925], penalty for violations, to provide consistency in the penalties as provided under AS 12.55. Drawing attention to the dollar figures for big game animals included within this section, he noted that the court could impose these restitution values when someone is convicted and the case warrants applying restitution. These animals belong to the state's citizens collectively, he said, so when a big game animal is unlawfully taken it defrauds the state and its citizens of the value of the animal. The values vary greatly, he continued, depending on the species of the animal, the location of the take, the social value of the animal, the economic value of the animal, and the food source value to the people of the state. In most cases it does not make the state whole for the loss of the animal, he noted, but it helps repay the state for the illegal take. MAJOR CHASTAIN pointed out that the current restitution amounts were enacted by the legislature in 1984 and have gone untouched since then. He explained that a previous version of HB 129 submitted to the legislature in 2016 would have increased restitution amounts by 50 percent from the base amounts in statute. In that version, some of the restitution amounts were changed in House and Senate committees and HB 129 reflects those changes. Because the previous version died in the House last year, the bill is being resubmitted this year [as HB 129]. Some of the amounts have gone up more than 50 percent, he continued, and represent the equivalent to 2016 dollars. [The restitution amount for] moose, for instance, has gone from $1,000 to $2,500. These are maximum amounts imposed at the discretion of a judge, and in addition to any fines or penalties. 5:27:49 PM REPRESENTATIVE WESTLAKE asked how the restitution valuations were derived. MAJOR CHASTAIN answered that the original determination was just for inflation, which is about 50 percent more than the 1984 numbers, and those were the numbers originally submitted. However, he continued, during the committee process in 2016, amendments [were adopted] that changed those numbers to be higher than what was originally submitted. REPRESENTATIVE WESTLAKE observed that the bison restitution figure in section 17 was inflated more than any of the others. 5:28:34 PM MAJOR CHASTAIN resumed his sectional analysis. He said section 18 would add a new subsection [to AS 16.05.925] that relates to [AS 16.05.925(b)]. The new subsection, he explained, would establish that a defendant may not be ordered to pay restitution if the defendant takes an animal, realizes the animal is not legal, and then voluntarily and immediately reports the unlawful take of the animal to a state law enforcement officer or ADFG and surrenders all salvaged portions of the animal, including its horns, antlers, hide, and skull, as applicable. The person would be charged with a violation of fact, would get a ticket [costing] a couple hundred dollars, and would not be charged with a misdemeanor, would not lose his or her hunting rifle, and would not lose his or her hunting license or the equipment that was used. REPRESENTATIVE WESTLAKE observed that the bill on page 5, line 28, uses the word "may" rather than "will". He asked whether this wording is used because it will be up to the purview of the judge. MAJOR CHASTAIN said the word "may" is directive to the court, so the court may not [order a defendant to pay restitution under (b) of this section]. 5:30:47 PM REPRESENTATIVE PARISH posed a scenario in which an out-of-state hunter unlawfully kills a bear without having bothered to get a permit. He questioned whether this hunter could only be charged with violations if he or she surrenders the salvaged portions of the bear. MAJOR CHASTAIN responded that that is not entirely true; this is only in the situation where the hunter has "immediately notified" and doesn't have to do with permitting or licensing or any of the rest of that. It is basically that if a person takes a game animal that is not legal for that scenario. [In Representative Parish's scenario] there would be additional violations, such as no locking tag, no permit, no hunting license, and none of the other things that are associated with what the hunter must have. Plus, to take a brown bear a nonresident hunter must also have a guide or be accompanied by someone with a second degree of kindred [to the hunter]. 5:31:46 PM CO-CHAIR JOSEPHSON offered his understanding that this proposed provision is just a way to mitigate the restitution portion. MAJOR CHASTAIN answered correct and noted that Senator Coghill added this provision last year. [The Alaska Wildlife Troopers (AWT)] fully supports this provision, he said, and operates under it to begin with. However, there is inconsistency within the court system, he explained. [AWT] seeks to create a situation where people turn themselves in and AWT doesn't want to punish people for calling when they've made a mistake. This section would allow AWT to deal with the situation of people turning themselves in and then not having to worry about what other penalties may come down the road from the court with restitution. 5:32:40 PM REPRESENTATIVE PARISH asked whether calculations have been done to determine the amount of restitution it would take to make the state whole for the big game animals [listed in section 17]. MAJOR CHASTAIN replied that each big game animal means something different to different people. For example, there is a dramatic difference between what a moose means to someone relying on that animal for subsistence, compared to what a moose means to someone paying to come to Alaska to take the animal. Therefore, he said, he does not have an answer. 5:33:28 PM MAJOR CHASTAIN returned to his sectional analysis and addressed section 19, which would [amend AS 16.05.940] by adding a definition of "electronic form" as it pertains to section 3 of the bill. Electronic form would mean the display of license images on an electronic device such as a mobile telephone, tablet, or computer that will satisfy the display of fishing and hunting licenses. He reiterated that ADFG is working toward the idea of being able to display things on a telephone or tablet. However, he noted, there are still going to be times when the actual paper form will still be necessary; for example, to validate an actual tag, to record a king salmon on the back of a license, and a number of other things that must be recorded. MAJOR CHASTAIN stated that sections 20-27 would align penalties for a class A misdemeanor and would provide that AST be able to charge for violations for these types of offenses. MAJOR CHASTAIN said section 28 would amend the uncodified law of Alaska to make it clear that the Act applies to offenses committed on or after the effective date of the Act. MAJOR CHASTAIN concluded by relating that section 29 would provide for an effective date of July 1, 2017. 5:34:59 PM CO-CHAIR TARR, regarding the penalties provided in [sections 20- 27], asked why the language is more specific in making them class A misdemeanors. She further asked whether the removal of language related to imprisonment is because class A misdemeanors cannot have jailtime associated with them. MAJOR CHASTAIN recalled Senate Bill 91 [passed in the Twenty- Ninth Alaska State Legislature] and the alignment of those penalties. Continuing, he explained that Title 12 is the definition of a misdemeanor, and therefore the language in the aforementioned sections points everything to Title 12 as the definition of a misdemeanor. Under Senate Bill 91, he said, a class A misdemeanor went up to $25,000 and jailtime is associated with it possibly. A whole bunch of things could happen as a misdemeanor, but because these were separated out and piecemealed, this language points it to Title 12 and says this is what a misdemeanor is. As well, it allows for AST to charge for violations. CO-CHAIR JOSEPHSON asked whether the previously mentioned restitution issue that failed in the legislature was House Bill 137. UNKNOWN SPEAKER replied no. 5:36:06 PM CO-CHAIR TARR, in regard to the proposed restitution amounts, inquired as to how frequently these types of infractions are occurring. She further inquired whether there are other actions that committee members should consider as a means to try to limit how frequently these types of infractions occur. MAJOR CHASTAIN replied that strict liability commercial fishing violations are "the bread and butter for commercial fishing violations around the state." The majority of these happen in Bristol Bay, but they do happen all over the state. This is the easiest way for the state to deal with a somewhat minor infraction that happens in commercial fishing; but, if it is thought to be a more serious offense, AWT has the ability to charge a class A misdemeanor. Regarding how often, he said a couple hundred per year occur in Bristol Bay and his guess for statewide is around 500 commercial fishing violations a year. About 150-200 self-reported violations are turned in each year to AWT. A variety of other things are also enforced by AWT. So, AWT does deal with this fairly frequently. CO-CHAIR TARR, in regard to self-reporting of violations, asked whether it is usually a mistaken estimation of the animal's size that is realized after the animal has been shot. MAJOR CHASTAIN confirmed the aforementioned is exactly right for the majority of these violations. For example, the regulation is 50 inches for moose antlers, but upon shooting the animal it is found to be 45 inches, or the hunter may think the moose has a certain number of brow tines or that it is a full-curl sheep, but it is not. Also, he continued, AWT gets a fair number of reports from hunters who thought it was a bull moose, but it was actually a cow. [AWT] tries to handle these consistently, he explained further, and offers appreciation to the hunters who self-report because it takes a lot of intestinal fortitude to call the troopers and say they made a mistake. [AWT] wants to make sure these people are treated appropriately instead of letting the meat go to waste in the field. CO-CHAIR TARR inquired whether the fines associated with the aforementioned are high enough to discourage that kind of behavior. She surmised that having to turn over the salvaged meat would be somewhat of a deterrent. She further inquired whether any issues are seen in the guided-hunting community. MAJOR CHASTAIN responded that taking apart a moose is a substantial process and he thinks that the penalty is pretty good of having to take the moose apart to salvage the meat, taking the meat out of the field, keeping it clean, and bringing it in to turn yourself in. The fines through the court are typically around $300 for this offense, he said, which he thinks is appropriate for this type of offense. Over the years AWT has refined this process and people know they will get a citation, they cannot keep the meat, the meat will go to a charity, and that they cannot shoot another moose in the same year. 5:41:22 PM REPRESENTATIVE PARISH directed attention to the bill on page 6, lines 1-2, which read: (2) surrendered to the department all salvaged portions of the animal, including its horns, antlers, hide, and skull, as applicable. REPRESENTATIVE PARISH asked whether this language suggests that failing to surrender portions of the animal that were not salvaged is not a disqualifying characteristic. MAJOR CHASTAIN understood Representative Parish to be asking whether failure to bring out all those items would be a disqualifier. REPRESENTATIVE PARISH surmised that under a very strict and narrow reading of the aforementioned language, if a person failed to salvage the meat they wouldn't be in trouble. CO-CHAIR JOSEPHSON stated that this may need an amendment and will be looked at in further detail. 5:43:23 PM REPRESENTATIVE TALERICO offered his understanding that when a person makes a big mistake under section 18, that person could still be charged with a violation, and will have to pay a small penalty; it is just the restitution that the person wouldn't be charged with. He opined there should be no free pass when an animal is taken. Representative Talerico stated that he is a hunter and "when you make that mistake you have to pay for it because that will make you more careful the next time you put your finger on the trigger." MAJOR CHASTAIN confirmed the violation would remain in place and that it is the restitution from the court that would be prohibited. [HB 129 was held over.]