HOUSE BILL REPORT

SSB 6377

BYSenate Committee on Environment & Natural Resources (originally sponsored by Senators Metcalf, DeJarnatt, Vognild and Kreidler)

Creating penalties for violations of fisheries laws.

House Committe on Fisheries & Wildlife

Majority Report:  Do pass as amended.  (11)

      Signed by Representatives R. King, Chair; Morris, Vice Chair; S. Wilson, Ranking Republican Member; Basich, Bowman, Brooks, Cole, Haugen, Smith, Spanel and Vekich.

House Staff:Pamela Madson (786-7310)

AS PASSED HOUSE FEBRUARY 27, 1990

BACKGROUND:

Most violations of fisheries' statutes or rules carry the same penalty. With few exceptions, the violations are treated as criminal and are punishable as gross misdemeanors.

One exception allows the director of the Department of Fisheries to designate certain rule violations as infractions which are subject to civil penalties.  Civil penalties do not include confinement but allow monetary fines that range from $10 to $500.

The state criminal code classifies crimes as felonies (class A, B, and C), gross misdemeanors, and misdemeanors with penalties that vary according the seriousness of the crime.  Felonies are the most serious and misdemeanors are the least serious.

The penalty for a gross misdemeanor as defined in the fisheries' statute differs from that defined under the state criminal code.  In the criminal code, a gross misdemeanor is punishable by not more than one year in the county jail, or a maximum fine of $5,000, or both.  The penalty under the fisheries' statute includes confinement in the county jail ranging from 30 days to one year, or a fine ranging from $25 to $1,000, or both.

Class C felonies, under the state's criminal code, are punishable by a maximum of five years in prison, or a fine of $10,000, or both.

Fisheries patrol officers may seize boats, vehicles, gear, or other articles used in the violation of the Department of Fisheries' statutes or rules. Articles may be recovered by the owner by posting a bond of up to $5,000.  There are no provisions in statute for notifying the owner of seized articles or for holding a hearing prior to forfeiture.

The court may, and in some cases must, forfeit a person's license to fish upon conviction of any violation.  The director may prohibit the issuance of a license to someone convicted of two or more violations in a five- year period, or may condition the issuance of a license.

SUMMARY:

Certain violations involving recreational fishers are categorized as infractions, misdemeanors, gross misdemeanors, and class C felonies.  Certain violations involving commercial fishers are categorized as misdemeanors, gross misdemeanors, and class C felonies. Fishery habitat violations and purchase and sale violations are categorized as gross misdemeanors and class C felonies.

Unspecified violations are designated as gross misdemeanors.  All violations, except infractions, are punishable under the state's criminal statutes.

Seizure of articles used in fisheries violations is subject to the following provisions:  (1)  Notice to the owner or lawful possessor of the articles; (2)  Opportunity for a hearing prior to forfeiture; (3)  No forfeiture if the owner had no knowledge of or did not consent to the unlawful act; and (4)  Authority to use or sell the forfeited articles with proceeds going to the general fund.  The owner may recover seized property by depositing a cash bond of up to $25,000 with the court.

The director may prohibit the issuance of licenses to a commercial fisher for a period of one year if the person is convicted of two or more gross misdemeanors or class C felonies in a five-year period.  The director may revoke or condition all fishing licenses, recreational and commercial, of a person convicted of four gross misdemeanors or class C felony violations in a 12 year period.  Fishing licenses cannot be reissued by the director of the Department of Fisheries for at least two years and may be reissued thereafter at the discretion of the director. Conviction includes a bail forfeiture of $250 or more, payment of a fine, a plea of guilty, or a finding of guilty.

The court no longer is required to forfeit a person's license upon two convictions in a five-year period or upon conviction of length, depth, or construction of fishing gear violations.

Fiscal Note:      No Impact.

House Committee ‑ Testified For:    Director Joe Blum, Department of Fisheries; Sgt. Dayna Matthews, Department of Fisheries; and Phil Anderson, Washington State Charter Boat Association.

House Committee - Testified Against:      Steve Arbaugh, Puget Sound Gillnetters' Association; and Don Stewart, Salmon for Washington.

House Committee - Testimony For:    The bill addresses three basic problems:  (1) A better matching of penalties to violations; (2) Providing more effective deterrents through stronger penalties for more serious violations; and (3) Protecting personal property owners whose property has been seized by providing notice and due process protections.  Currently, a barbed hook violation is a gross misdemeanor as is fishing illegally with 1,200 crab pots in the Pacific Ocean.  The resulting illegal crab harvest is worth $52,000.  The penalty for a gross misdemeanor does not deter illegal fishing because of the profit potential.  Illegally caught fish count against allocation quotas thus rewarding the illegal fisher and punishing the honest fisher.

This bill does not increase the department's authority to seize property. It does allow for notification to the owner of property that has been seized.

Most of our fisheries' resources are being exploited at their maximum rate, making the reporting of harvest and sale vital to the management of the fisheries.  The bill recognizes the importance of reporting these catches.  There is a need for more enforcement capability.

House Committee - Testimony Against:      This bill takes infractions and upgrades them to misdemeanor or gross misdemeanor status.  There is a 16 percent clerical error ratio in all fish tickets that the department receives from commercial fishers. These violations should remain infractions and not be made criminal violations.  Some commercial fishers would like to work on this bill during the interim and come up with an agreed upon version that the industry could support.

This bill is fatally flawed.  Criminal law usually requires an act and intent.  Some violations can be committed without intent.  Fishing in closed waters can result from equipment malfunction or tide changes. These are now gross misdemeanors.  Intentionally fishing in closed areas becomes a class C felony.  If a fisher fishes five minutes into a closed time period, this person can be prosecuted for a felony violation and the only thing that stands between this person and conviction of a felony is intent.  Law enforcement can put a fisher to a great deal of expense. Closed area lines are arbitrarily drawn on the surface of the water. Fifty feet over an arbitrary line can result in prosecution of a felony.