5126-S

AN ACT Relating to recovery of moneys pursuant to forfeitures or court-ordered restitution; amending RCW 75.08.230, 75.10.030, 77.12.170, and 77.21.010; and creating a new section.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. The legislature finds that the reasonable costs of seizing and forfeiting property involved in wildlife, food fish, and shellfish violations should be recoverable, leaving allocated funds to be used for conservation and propagation. The legislature further finds that court-ordered restitution to the department of fish and wildlife should not be required to be deposited to the general fund, but should be used as intended by the court. Such restitution funds shall be used for fish and wildlife restoration projects and not for department administration.

Sec. 2. RCW 75.08.230 and 1993 c 340 s 48 are each amended to read as follows:

(1) Except as provided in this section, state and county officers receiving the following moneys shall deposit them in the state general fund:

(a) The sale of licenses required under this title;

(b) The ((~~sale of~~)) net proceeds from property seized or confiscated under this title;

(c) Fines and forfeitures collected under this title, except that restitution costs ordered by a court shall be deposited in the fish habitat restoration fund, which is hereby created in the custody of the state treasurer. Moneys in the fish habitat restoration fund may be expended by the department for the purposes of protection, rehabilitation, preservation, or conservation of the state fish resources, including their habitats. Only the director or the director's designee may authorize expenditures from the fund. The fund is subject to allotment procedures under chapter 43.88 RCW, but no appropriation is required for expenditures;

(d) The sale of real or personal property held for department purposes;

(e) Rentals or concessions of the department;

(f) Moneys received for damages to food fish, shellfish or department property; and

(g) Gifts.

(2) The director shall make weekly remittances to the state treasurer of moneys collected by the department.

(3) All fines and forfeitures collected or assessed by a district court for a violation of this title or rule of the director shall be remitted as provided in chapter 3.62 RCW.

(4) Proceeds from the sale of food fish or shellfish taken in test fishing conducted by the department, to the extent that these proceeds exceed the estimates in the budget approved by the legislature, may be allocated as unanticipated receipts under RCW 43.79.270 to reimburse the department for unanticipated costs for test fishing operations in excess of the allowance in the budget approved by the legislature.

(5) Proceeds from the sale of salmon and salmon eggs by the department, to the extent these proceeds exceed estimates in the budget approved by the legislature, may be allocated as unanticipated receipts under RCW 43.79.270. Allocations under this subsection shall be made only for hatchery operations partially or wholly financed by sources other than state general revenues or for purposes of processing human consumable salmon for disposal.

(6) Moneys received by the director under RCW 75.08.045, to the extent these moneys exceed estimates in the budget approved by the legislature, may be allocated as unanticipated receipts under RCW 43.79.270. Allocations under this subsection shall be made only for the specific purpose for which the moneys were received, unless the moneys were received in settlement of a claim for damages to food fish or shellfish, in which case the moneys may be expended for the conservation of these resources.

(7) Proceeds from the sale of herring spawn on kelp fishery licenses by the department, to the extent those proceeds exceed estimates in the budget approved by the legislature, may be allocated as unanticipated receipts under RCW 43.79.270. Allocations under this subsection shall be made only for herring management, enhancement, and enforcement.

Sec. 3. RCW 75.10.030 and 1990 c 144 s 5 are each amended to read as follows:

(1) Fisheries patrol officers and ex officio fisheries patrol officers may seize without warrant food fish or shellfish they have reason to believe have been taken, killed, transported, or possessed in violation of this title or rule of the director and may seize without warrant boats, vehicles, gear, appliances, or other articles they have reason to believe ((~~is [are]~~)) are held with intent to violate or ((~~has [have]~~)) have been used in violation of this title or rule of the director. The articles seized shall be subject to forfeiture to the state, regardless of ownership. Articles seized may be recovered by their owner by depositing into court a cash bond equal to the value of the seized articles but not more than twenty-five thousand dollars. The cash bond is subject to forfeiture to the state in lieu of the seized article.

(2)(a) In the event of a seizure of an article under subsection (1) of this section, proceedings for forfeiture shall be deemed commenced by the seizure. Within fifteen days following the seizure, the seizing authority shall serve notice on the owner of the property seized and on any person having any known right or interest in the property seized. Notice may be served by any method authorized by law or court rule, including service by certified mail with return receipt requested. Service by mail shall be deemed complete upon mailing within the fifteen-day period following the seizure.

(b) If no person notifies the department in writing of the person's claim of ownership or right to possession of the articles seized under subsection (1) of this section within forty-five days of the seizure, the articles shall be deemed forfeited.

(c) If any person notifies the department in writing within forty-five days of the seizure, the person shall be afforded an opportunity to be heard as to the claim or right. The hearing shall be before the director or the director's designee, or before an administrative law judge appointed under chapter 34.12 RCW, except that a person asserting a claim or right may remove the matter to a court of competent jurisdiction if the aggregate value of the articles seized is more than five thousand dollars. The department hearing and any subsequent appeal shall be as provided for in Title 34 RCW. The burden of producing evidence shall be upon the person claiming to be the lawful owner or person claiming lawful right of possession of the articles seized. The department shall promptly return the seized articles to the claimant upon a determination by the director or the director's designee, an administrative law judge, or a court that the claimant is the present lawful owner or is lawfully entitled to possession of the articles seized, and that the seized articles were improperly seized.

(d)(i) No conveyance, including vessels, vehicles, or aircraft, is subject to forfeiture under this section by reason of any act or omission established by the owner of the conveyance to have been committed or omitted without the owner's knowledge or consent.

(ii) A forfeiture of a conveyance encumbered by a perfected security interest is subject to the interest of the secured party if the secured party neither had knowledge nor consented to the act or omission.

(e) When seized property is forfeited under this section the department may retain it for official use unless the property is required to be destroyed, or upon application by any law enforcement agency of the state, release such property to the agency for the use of enforcing this title, or sell such property, and deposit the net proceeds to the state general fund, as provided for in RCW 75.08.230.

(f) The net proceeds of the sale of forfeited property is the value of the interest remaining after deducting first, the bona fide security interest and second, the cost of sale and the expenses incurred by the department for investigation and prosecution of the forfeiture.

Sec. 4. RCW 77.12.170 and 1989 c 314 s 4 are each amended to read as follows:

(1) There is established in the state treasury the state wildlife fund which consists of moneys received from:

(a) Rentals or concessions of the department;

(b) The sale of real or personal property held for department purposes;

(d) Fees for informational materials published by the department;

(e) Fees for personalized vehicle license plates as provided in chapter 46.16 RCW;

(f) Articles or wildlife sold by the director under this title;

(g) Compensation for wildlife losses ((or)) and gifts or grants received under RCW 77.12.320, or reimbursements for big game losses received under RCW 77.21.070;

(h) Excise tax on anadromous game fish collected under chapter 82.27 RCW; ((~~and~~))

(i) The sale of personal property seized by the department for wildlife violations; and

(j) Restitution moneys for violation of this title ordered by courts to be paid to the department.

(2) State and county officers receiving any moneys listed in subsection (1) of this section shall deposit them in the state treasury to be credited to the state wildlife fund.

Sec. 5. RCW 77.21.010 and 1988 c 265 s 3 are each amended to read as follows:

(1) A person violating RCW 77.16.040, 77.16.050, 77.16.060, 77.16.080, 77.16.210, 77.16.220, 77.16.310, 77.16.320, or 77.32.211, or committing a violation of RCW 77.16.020 or 77.16.120 involving 77.16.210, 77.16.220, 77.16.310, 77.16.320, 77.16.340, or 77.32.211, or committing a violation of RCW 77.16.020 or 77.16.120 involving big game or an endangered species is guilty of a gross misdemeanor and shall be punished by a fine of not less than two hundred fifty dollars and not more than one thousand dollars or by imprisonment in the county jail for not less than thirty days and not more than one year or by both the fine and imprisonment. Each subsequent violation within a five-year period of RCW 77.16.040, 77.16.050, or 77.16.060, or of RCW 77.16.020 or 77.16.120 involving big game or an endangered species, as defined by the commission under the authority of RCW 77.04.090, shall be prosecuted and punished as a class C felony as defined in RCW 9A.20.020. In connection with each such felony prosecution, the director shall provide the court with an inventory of all articles or devices seized under this title in connection with the violation. Inventoried articles or devices shall be disposed of pursuant to RCW 77.21.040.

(2) A person violating or failing to comply with this title or rules adopted pursuant to this title for which no penalty is otherwise provided is guilty of a misdemeanor and shall be punished for each offense by a fine of five hundred dollars or by imprisonment for not more than ninety days in the county jail or by both the fine and imprisonment. The commission may provide, when not inconsistent with applicable statutes, that violation of a specific rule is an infraction under chapter 7.84 RCW.

(3) A person placing traps on private property without permission of the owner, lessee, or tenant where the land is improved and apparently used, or where the land is fenced or enclosed in a manner designed to exclude intruders or to indicate a property boundary line, or where notice is given by posting in a conspicuous manner, is guilty of the misdemeanor of trespass as defined and established in RCW 9A.52.010 and 9A.52.080 and shall be punished for each offense by a fine of not less than two hundred fifty dollars.

(4) Persons convicted of a violation shall pay the costs of prosecution and the penalty assessment in addition to the fine or imprisonment.

(5) The unlawful killing, taking, or possession of each wildlife member constitutes a separate offense.

(6) District courts have jurisdiction concurrent with the superior courts ((of)) over misdemeanors and gross misdemeanors committed in violation of this title or rules adopted pursuant to this title and may impose the punishment provided for these offenses. Fines imposed and collected by the district courts shall be disposed as provided for in RCW 3.62.020, except restitution moneys for violation of this title ordered by the court to be paid to the department and reimbursements received under RCW 77.21.070 are to be deposited to the state wildlife fund as provided for in RCW 77.12.170. Superior courts have jurisdiction over felonies committed in violation of this title.