BILL REQ. #:  S-1226.1 



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SENATE BILL 5683
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State of Washington59th Legislature2005 Regular Session

By Senators Oke, Jacobsen, Kastama, Swecker, Berkey, Schoesler, Morton, Delvin, Shin and Rasmussen

Read first time 02/02/2005.   Referred to Committee on Natural Resources, Ocean & Recreation.



     AN ACT Relating to enhanced fish and wildlife penalties; amending RCW 77.15.070, 77.15.370, 77.15.380, 77.15.410, 77.15.420, and 77.15.450; adding a new section to chapter 77.15 RCW; and prescribing penalties.

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

NEW SECTION.  Sec. 1   A new section is added to chapter 77.15 RCW to read as follows:
     The fish and wildlife enforcement reward account is created in the custody of the state treasurer. All receipts from criminal wildlife penalty assessments under RCW 77.15.420 must be deposited into the account. The department may accept money or personal property from persons under conditions requiring the property or money to be used consistent with the intent of expenditures from the fish and wildlife enforcement reward account. Expenditures from the account may be used only for investigation and prosecution of fish and wildlife offenses, to provide rewards to persons informing the department about violations of this title and rules adopted under this title, and for other valid enforcement uses as determined by the commission. Only the director or the director's designee may authorize expenditures from the account. The account is subject to allotment procedures under chapter 43.88 RCW, but an appropriation is not required for expenditures.

Sec. 2   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 with the department or into court a cash bond or equivalent security equal to the value of the seized property but not more than ((twenty-five)) one hundred thousand dollars. Such cash bond or security 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. 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. The department may settle a person's claim of ownership prior to the administrative hearing.
     (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 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 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 occurred without the owner's knowledge or consent, and that the owner acted reasonably to prevent illegal uses of such boat, airplane, or vehicle.
     (6) 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 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 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 proceeds to the wildlife fund, as provided for in RCW 77.12.170.

Sec. 3   RCW 77.15.370 and 2001 c 253 s 38 are each amended to read as follows:
     (1) A person is guilty of unlawful recreational fishing in the first degree if:
     (a) The person takes, possesses, or retains two times or more than the bag limit or possession limit of fish or shellfish allowed by any rule of the director or commission setting the amount of food fish, game fish, or shellfish that can be taken, possessed, or retained for noncommercial use;
     (b) The person fishes in a fishway; ((or))
     (c) The person shoots, gaffs, snags, snares, spears, dipnets, or stones fish or shellfish in state waters, or possesses fish or shellfish taken by such means, unless such means are authorized by express rule of the commission or director; or
     (d) The person fishes for or possesses a fish listed as threatened or endangered in 50 C.F.R. Sec. 17.11 (2002), unless fishing for or possession of such fish is specifically allowed under federal or state law.
     (2) Unlawful recreational fishing in the first degree is a gross misdemeanor.

Sec. 4   RCW 77.15.380 and 2001 c 253 s 39 are each amended to read as follows:
     (1) A person is guilty of unlawful recreational fishing in the second degree if the person fishes for, takes, possesses, or harvests fish or shellfish and:
     (a) The person does not have and possess the license or the catch record card required by chapter 77.32 RCW for such activity; or
     (b) The action violates any rule of the commission or the director regarding seasons, bag or possession limits but less than two times the bag or possession limit, closed areas, closed times, or any other rule addressing the manner or method of fishing or possession of fish, except for:
     (i) Use of a net to take fish as provided for in RCW 77.15.580; or
     (ii) Fishing for or possession of a fish listed as threatened or endangered in 50 C.F.R. Sec. 17.11 (2002), unless fishing for or possession of such fish is specifically allowed under federal or state law.
     (2) Unlawful recreational fishing in the second degree is a misdemeanor.

Sec. 5   RCW 77.15.410 and 1999 c 258 s 3 are each amended to read as follows:
     (1) A person is guilty of unlawful hunting of big game in the second degree if the person:
     (a) Hunts for, takes, or possesses big game and the person does not have and possess all licenses, tags, or permits required under this title;
     (b) Violates any rule of the commission or director regarding seasons, bag or possession limits, closed areas including game reserves, closed times, or any other rule governing the hunting, taking, or possession of big game; or
     (c) Possesses big game taken during a closed season for that big game or taken from a closed area for that big game.
     (2) A person is guilty of unlawful hunting of big game in the first degree if the person was previously convicted of any crime under this title involving unlawful hunting, killing, possessing, or taking big game, and within five years of the date that the prior conviction was entered the person:
     (a) Hunts for big game and does not have and possess all licenses, tags, or permits required under this title;
     (b) Acts in violation of any rule of the commission or director regarding seasons, bag or possession limits, closed areas including game reserves, or closed times; or
     (c) Possesses big game taken during a closed season for that big game or taken from a closed area for that big game.
     (3)(a) Unlawful hunting of big game in the second degree is a gross misdemeanor. Upon conviction of an offense involving killing or possession of big game taken during closed season or in excess of the bag or possession limit, the department shall revoke all hunting licenses and tags and order a suspension of hunting privileges for two years.
     (b) Unlawful hunting of big game in the first degree is a class C felony. Upon conviction, the department shall revoke all hunting licenses or tags ((involved in the crime)) and the department shall order the person's hunting privileges suspended for ((two)) ten years.

Sec. 6   RCW 77.15.420 and 1998 c 190 s 62 are each amended to read as follows:
     (1) If a person is convicted of violating RCW 77.15.410 and that violation results in the death of wildlife listed in this section, the court shall require payment of the following amounts for each animal killed or possessed. This shall be a criminal wildlife penalty assessment that shall be paid to the clerk of the court and distributed each month to the state treasurer for deposit in the ((public safety and education)) fish and wildlife enforcement reward account created in section 1 of this act.

(a)Moose, mountain sheep, mountain goat, and all wildlife species classified as endangered by rule of the commission, except for mountain caribou and grizzly bear as listed under (d) of this
     subsection . . . . . . . . . . . .




$((4,000))
8,000
(b)Elk, deer, black bear, and cougar . . . . . . . . . . . . $((2,000))
4,000
(i)However, upon the accidental shooting of a nontrophy elk, deer, black bear, or cougar during an open season for the species when the shooter reports the shooting to the department within twenty-four hours and surrenders the animal to the department, the shooter is not subject to a fine or a loss of hunting privileges. 
(ii)A hunter who accidentally shoots a nontrophy elk, deer, black bear, or cougar during an open season for the species, but fails to meet the requirements of (b)(i) of this subsection, is subject to both a five hundred dollar fine and a one year revocation of hunting privileges. 
(c)Trophy animal elk and deer . . . . . . . . . . . . $((6,000))
12,000
(d)Mountain caribou, grizzly bear, and trophy animal mountain sheep . . . . . . . . . . . .
$((12,000))
24,000

     (2) For the purposes of subsection (1)(a) through (d) of this section, except for an accidental shooting under subsection (1)(b) of this section, if the shooter: (a) Reports the shooting to the department within twenty-four hours; (b) admits guilt; and (c) surrenders the animal, then the shooter is required to pay only one-half of the fine required under subsection (1)(a) through (d) of this section, and have the shooter's hunting privileges revoked for one year.
     (3) No forfeiture of bail may be less than the amount of the bail established for hunting during closed season plus the amount of the criminal wildlife penalty assessment in subsection (1) of this section.
     (((3))) (4) For the purpose of this section a "trophy animal" is:
     (a) A buck deer with four or more antler points on both sides, not including eyeguards;
     (b) A bull elk with five or more antler points on both sides, not including eyeguards; or
     (c) A mountain sheep with a horn curl of three-quarter curl or greater.
     For purposes of this subsection, "eyeguard" means an antler protrusion on the main beam of the antler closest to the eye of the animal.
     (((4))) (5) If two or more persons are convicted of illegally possessing wildlife in subsection (1) of this section, the criminal wildlife penalty assessment shall be imposed on them jointly and separately.
     (((5))) (6) The criminal wildlife penalty assessment shall be imposed regardless of and in addition to any sentence, fines, or costs otherwise provided for violating any provision of this title. The criminal wildlife penalty assessment shall be included by the court in any pronouncement of sentence and may not be suspended, waived, modified, or deferred in any respect. This section may not be construed to abridge or alter alternative rights of action or remedies in equity or under common law or statutory law, criminal or civil.
     (((6))) (7) A defaulted criminal wildlife penalty assessment may be collected by any means authorized by law for the enforcement of orders of the court or collection of a fine or costs, including but not limited to vacation of a deferral of sentencing or vacation of a suspension of sentence.
     (((7))) (8) A person assessed a criminal wildlife penalty assessment under this section shall have his or her hunting license revoked and all hunting privileges suspended until the penalty assessment is paid through the registry of the court in which the penalty assessment was assessed.

Sec. 7   RCW 77.15.450 and 1998 c 190 s 27 are each amended to read as follows:
     (1) A person is guilty of spotlighting big game in the second degree if the person hunts big game with the aid of a spotlight or other artificial light while in possession or control of a firearm, bow and arrow, or cross bow.
     (2) A person is guilty of spotlighting big game in the first degree if:
     (a) The person has any prior conviction for gross misdemeanor or felony for a crime under this title involving big game including but not limited to subsection (1) of this section or RCW 77.15.410; and
     (b) Within ten years of the date that such prior conviction was entered the person commits the act described by subsection (1) of this section.
     (3)(a) Spotlighting big game in the second degree is a gross misdemeanor. Upon conviction, the department shall revoke all hunting licenses and tags and order a suspension of the person's hunting privileges for two years.
     (b) Spotlighting big game in the first degree is a class C felony. Upon conviction, the department shall order suspension of all privileges to hunt wildlife for a period of ((two)) ten years.

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