BILL REQ. #:  S-0086.1 

Read first time 01/13/2003.   Referred to Committee on Parks, Fish & Wildlife.

     AN ACT Relating to civil forfeiture of property used for fish and wildlife code violations; and amending RCW 77.15.070 and 77.15.100.

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

Sec. 1   RCW 77.15.070 and 2000 c 107 s 231 are each amended to read as follows:
     (1) Fish and wildlife officers and ex officio fish and wildlife officers may seize without warrant boats, airplanes, vehicles, motorized implements, conveyances, gear, appliances, or other articles they have probable cause to believe have been held with intent to violate or used in violation of this title ((or rule of the commission or director)). However, fish and wildlife officers or ex officio fish and wildlife officers may not seize any item or article, other than for evidence, if under the circumstances, it is reasonable to conclude that the violation was inadvertent. The property seized is subject to forfeiture to the state under this section regardless of ownership. Property seized may be recovered by its owner by depositing into court a cash bond equal to the fair market value of the seized property but not more than twenty-five thousand dollars. Such cash bond is subject to forfeiture in lieu of the property. Forfeiture of property seized under this section is a civil forfeiture against property and is intended to be a remedial civil sanction.
     (2) In the event of a seizure of property under this section, jurisdiction to begin the forfeiture proceedings shall commence upon seizure. Within fifteen days following the seizure, the seizing authority shall serve a written notice of intent to forfeit property 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 is deemed complete upon mailing ((within the fifteen-day period following the seizure)).
     (3) Persons claiming a right of ownership or right to possession of property are entitled to a hearing to contest forfeiture. Such a claim shall specify the claim of ownership or possession and shall be made in writing and served on the director within forty-five days of the seizure. The claim may be served by any method authorized by law or court rule, including service by certified mail with return receipt requested. Service by mail is deemed complete upon mailing. If the seizing authority has complied with notice requirements and there is no claim made within forty-five days, then the property shall be forfeited to the state.
     (4) If any person timely serves the director with a claim to property, the person shall be afforded an opportunity to be heard as to the person's claim or right. The hearing shall be ((before the director or 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 property seized is more than five thousand dollars. Removal may only be accomplished according to the rules of civil procedure.
     (5) The hearing to contest forfeiture and any subsequent appeal shall be as provided for in chapter 34.05 RCW((, the administrative procedure act)). The seizing authority has the burden ((to demonstrate that it had reason to believe)) of production and proof by a preponderance of the evidence that the property was held with intent to violate or was used in violation of this title ((or rule of the commission or director. The person contesting forfeiture has the burden of production and proof by a preponderance of evidence)). It is a defense that the person owns or has a right to possess the property and:
     (a) That the property was not held with intent to violate or used in violation of this title; or
     (b) ((If the property is a boat, airplane, or vehicle,)) That the illegal use or planned illegal use of the ((boat, airplane, or vehicle)) property occurred without the owner's knowledge or consent, and that the owner acted reasonably to prevent illegal uses of ((such boat, airplane, or vehicle)) the property.
     (6) A forfeiture of ((a conveyance)) property encumbered by a perfected security interest is subject to the interest of the secured party if the secured party neither had knowledge of nor consented to the act or omission. No security interest in seized property may be perfected after seizure.
     (7) If seized property is forfeited under this section, the department ((may retain it for official use unless the)) shall destroy property that 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)) all other forfeited property, and deposit the proceeds to the wildlife fund, as provided for in RCW 77.12.170.
     (8) The department shall promptly return all property to the claimant upon a determination by the administrative law judge or court that the claimant is the present owner or is legally entitled to possession of the seized property.
     (9) In any proceeding to forfeit property under this title, where the claimant substantially prevails, the claimant is entitled to reasonable attorneys' fees reasonably incurred by the claimant.

Sec. 2   RCW 77.15.100 and 2000 c 107 s 235 are each amended to read as follows:
     (1) Unless otherwise provided in this title, fish, shellfish, or wildlife unlawfully taken or possessed, or involved in a violation shall be forfeited to the state upon conviction. Unless already held by, sold, destroyed, or disposed of by the department, the court shall order such fish or wildlife to be delivered to the department. Where delay will cause loss to the value of the property and a ready wholesale buying market exists, the department may sell property to a wholesale buyer at a fair market value.
     (2) When seized property is forfeited to the department, the department ((may retain it for official use unless the)) shall destroy property that is required to be destroyed, ((or upon application by any law enforcement agency of the state, release the property to the agency for the use of enforcing this title, or)) sell ((such)) all other forfeited property, and deposit the proceeds into the state wildlife fund established under RCW 77.12.170. Any sale of other property shall be at public auction or after public advertisement reasonably designed to obtain the highest price. The time, place, and manner of holding the sale shall be determined by the director. The director may contract for the sale to be through the department of general administration as state surplus property, or, except where not justifiable by the value of the property, the director shall publish notice of the sale once a week for at least two consecutive weeks before the sale in at least one newspaper of general circulation in the county in which the sale is to be held.