MINUTES OF THE ASSEMBLY COMMITTEE ON NATURAL RESOURCES, AGRICULTURE AND MINING Sixty-eighth Session May 8, 1995 The Committee on Natural Resources, Agriculture and Mining was called to order at 1:15 p.m., on Monday, May 8, 1995, Chairman Marcia de Braga presiding in Room 321 of the Legislative Building, Carson City, Nevada. Exhibit A is the Agenda. Exhibit B is the Attendance Roster. COMMITTEE MEMBERS PRESENT: Mr. John C. Carpenter, Chairman Mrs. Marcia de Braga, Chairman Mr. Max Bennett, Vice Chairman Mrs. Genie Ohrenschall, Vice Chairman Mr. Douglas A. Bache Mr. Thomas A. Fettic Mr. David E. Humke Mr. P.M. Roy Neighbors Mr. Brian Sandoval Mrs. Gene Wines Segerblom STAFF MEMBERS PRESENT: David S. Ziegler, Senior Research Analyst OTHERS PRESENT: Steve Albert, Division of Wildlife; Willie Molini, Division of Wildlife; Elsie Dupree, Nevada Wildlife Federation; Larry Johnson, Coalition for Nevada Wildlife; Joe Johnson, Toiyabe Chapter Sierra Club; Ira Hansen. The meeting was called to order by Chairman Marcia de Braga. The roll call was taken. ASSEMBLY BILL 537 - Establishes system of demerit points for violations of provisions relating to wildlife. Mr. David Humke, Assemblyman, District 26, Washoe County, gave an explanation of the bill. He stated many of the members were interested in the way the Division of Wildlife regulates and carries out its function. The bill was the result of some frustration with many violations of law the Division of Wildlife regulates. The first step would require a court date, and the second step involved the Division of Wildlife. The Wildlife Division could take your hunting license or cease your hunting privileges, etc, for a violation. There were 137 separate violations in the divisions code. When the violation reached the second tier the commission makes the decision whether one should lose their license or have it suspended for a certain time. A.B. 537 attempts to bring an organization to the process so the division can follow a set policy. The proponent of the bill Mr. Ira Hansen, Sparks, Nevada, has been working directly with the Wildlife Commission and has achieved some compromises and would offer some amendments to the bill. Mr. Hansen said the main purpose of the bill would be to introduce a demerit system concept to the license revocation process as carried out by the State Wildlife Commission and the Division of Wildlife. He had worked extensively with the Wildlife Division and noted the division was supportive of the concept with some amendments. Mr. Hansen referred to (Exhibit C), noting some of the reasons he felt the bill was necessary. He read from the bottom of page 2, a., and said it was then the commission policy and the division policy came into effect to prosecute all people who were violators of gross misdemeanor statutes, which would be the big game poachers. Attached was a list of individuals who had received gross misdemeanor citations from the division. In the third column under revoked, it states if their license was revoked or not. Up to 1988 all people who received gross misdemeanor citations from the department had their licenses revoked, after that it became hit and miss. There were 48 individuals on the list and twenty did not have their licenses revoked. Two of the twenty had more than one citation issued to them. They had poached more than one animal. The commission was shocked as they thought their policy had been followed by the department. They thought all those who had received gross misdemeanor citations had their licenses revoked. Mr. Hansen gave an example of the disparity in issuing citations and the difference in revocation of license. Mr. Hansen met with Mr. Molini to work out a system which would be fair to the people involved as well as the law enforcement branches. When Mr. Hansen met with the commission on Saturday, they directed Mr. Molini and Mr. Crawforth to meet with him. The amendments (Exhibit D) were discussed by Mr. Hansen for the committee. He noted there were a whole list of violations of sections of NRS with recommended demerits in the bill. The section would be deleted and those demerits would be left up to the commission, rather than try and put it in statute it would be handled administratively. The violation classification and coding (Exhibit E), includes a great number of violations for fish and game. To determine an equitable demerit system would be excessive and time consuming by the Assembly. It would be better to leave the demerit system in the administrative arena. Mr. Hansen went through the various changes in the bill. Mr. Fettic asked if you were baiting a hook for someone could you technically be given a ticket. Mr. Hansen said as long as both had a license there was not a problem. Mr. Neighbors said the term, "reasonable," concerning Section 11, Subsection 3, (a), was an open door for harassment, etc. If something was observed it would be fine, but he did not like the language. Mr. Hansen asked if physically observed would be better. Mr. Neighbors said yes, if you could really see something would be better. Mr. Hansen said he would like the record to reflect, on Saturday, Chairman Mahlon Brown of the State Wildlife Commission, former Justice of the Peace in Clark County, also came out very strongly and supported the wording as it now exists. Mr. Hansen would not object to leaving the wording like it was. Mrs. Segerblom asked if the commission had seen the changes or agreed to them. Mr. Hansen said no, the changes were just made and Chairman Brown had assigned Mr. Molini and Mr. Crawforth to work through the amendments and liked the concepts. The main concern was on the demerits themselves being left up to the commission and to the sportsmen. Mr. Larry Johnson, Coalition for Nevada's Wildlife, stated they had received the wording for the original draft last Monday and had not been able to go through all of the violations to establish demerits. The bill has broad based support as far as the concept of establishing a demerit system for violations. They did agree the exact demerits would be best worked out by the Wildlife Commission Subcommittee, which normally included a number of sportsmen groups. A comment on page 5, section 3, a, which would include as an example rifle shots over the hill, out of season, which can not be seen but would lead to an activity going on without physically observing it. The "reasonable belief" was extremely broad, but the main thing sportsmen would like to see, would be violators caught and prosecuted and punished. Mr. Johnson's testimony was a broad based support of the overall concept. Mrs. Ohrenschall had a comment for the committee on the question of physically observing. She stated as far as the rules of evidence in English common law was concerned, anything which was capable of being observed by any of the senses was considered a physically observation and to have the same degree of reliability whether you see it, hear it, smell it, or any of the direct perception by one of the five senses, would have the same degree of reliability and admissibility in any court. Mrs. de Braga asked why the demerit system was needed. Mr. Johnson said the present regulation reads with any combination of three violations your license can be revoked. He said they felt some of the violations were extremely minor and some being extremely serious. Some with a major violation should have their license revoked whereas an individual with a very minor infraction should not be receiving the same level of prosecution. Mr. Sandoval questioned the due process procedure for someone receiving demerits. Mr. Johnson understood there was a judicial process by which the alleged violator appeared in court, was tried and fined accordingly. In addition, if he was found guilty of a certain number of violations within a certain time period his license would also be subject to revocation through the Wildlife Commission proceeding. There would be both a judicial and Wildlife Commission process. Mr. Sandoval noted he was interested in the administrative proceeding rather than the criminal proceeding. Mr. Johnson said there would be a hearing before the Wildlife Commission and the individual was free to give testimony and give his side of the conviction and then the commission would rule. Mr. Hansen said N.R.S. 501.387 showed the need for this bill. Except as otherwise provided by specific statute upon a conviction of a violation of any provision of title or any regulation adopted pursuant thereto in addition to the penalty provided for the violation, the court may require the immediate surrender of all licenses issued, and under 1(b), said the commission on its own initiative on any violation, any regulation they adopt, may revoke or suspend any license issued pursuant to the provisions of this title or a regulation adopted pursuant thereto for any violation thereof, and to refuse to issue any subsequent license to the convicted person for any period not to exceed two years. The Division of Wildlife has complete authority for any violation. The division was initially opposed to it because they felt their policy covered it. When Mr. Hansen pointed out that 20 out of the 48 big game poachers had not been brought before them, and the division was not following the commission's own policy, they felt it would be wise to put these things into statute. On Mr. Sandoval's question on due process they normally ask the judge for a specific recommendation. However, it was not mandatory, the commission has complete authority, and the division determines who will or will not be brought before the commission. There was no time frame, it could be many months before one could appeal the decision before the commission. The commission needs guidance. Mr. Fettic asked about the names on the exhibit Mr. Hansen produced for the committee. Were the names individuals who appeared before the commission or information the commission received from the courts. All the people who were submitted to the commission, 99 percent, with rare exception, had their license revoked. Mr. Fettic said first the individual goes to court, then the court takes action. Now does the court relay the action to NDOW. Mr. Hansen said they could, but it was not mandatory. In addition to that NDOW itself could take action. Mr. Fettic said the list was action NDOW did or did not take based on individuals, and not convictions they received from courts. Mr. Hansen said the individuals on the list were all convicted in court. Mr. Fettic asked if the list was of court convictions or was it a list of what the commission itself had taken. Mr. Hansen replied court convictions, all of them have been found guilty by a court of law. Mr. Fettic asked about the revocation portion of the list. Mr. Hansen said he had gone through the commission minutes and the names brought up for revocation were listed and those with "no," under revocation, had never been brought before the commission. He was asked who was responsible to bring them before the commission. Mr. Hansen answered the Division of Wildlife. Mr. Fettic asked when a conviction was made by a court, the division was made aware of the conviction, and then it was up to the division to bring the person before the commission. Mr. Hansen agreed with Mr. Fettic's analogy. Mr. Joe Johnson, Toiyabe Chapter of the Sierra Club, supported the premise of establishing a demerit system. We had similar views on the initial bill which was proposed but agree with all of the proposed amendments. Mr. Johnson pointed out if there was a not guilty plea, NDOW would have to appear. If the individual pleaded guilty NDOW might not have had record of the recommendation from the courts. Mr. Johnson said they were in support of the amended bill. Mrs. de Braga asked for those in opposition of A.B. 537. Mr. Willie Molini and Mr. Steve Albert testified in opposition to A.B. 537. Mr. Molini said he was not necessarily opposed to the bill, we have worked with Mr. Hansen for a bill which would be workable and the division could work with. The bill as initially constructed did not meet favorably with the division. Mr. Hansen brought the bill before the commission and they directed Mr. Crawforth and Mr. Molini to meet with Mr. Hansen and come up with a workable conclusion. He favored the resolutions reached by Mr. Crawforth and Mr. Hansen for the most part, but did have a concern. He favored a demerit system to take the subjectivity out of the violations. The idea behind revocation was to take consistent violators out of business for awhile to get their attention. The commission by regulation should develop the list of demerits through public hearings to the sportsmen of Nevada to have ample input for what would be the most serious violations and attach the number of demerits. He continued on with his concerns and proceeded with the way the violations would be handled. He referred to the area in the bill regarding private lands by wildlife enforcement officers. One would be major duck clubs which the Wildlife Division routinely visits. Mr. Molini was a little concerned they might become more restrictive than we should in the overall protection of the wildlife resource. Mr. Bennett mentioned subjectivity in the penalty system. He agreed some subjectivity was needed, as an example, the person who takes a deer to feed his family. How would that be handled in this bill. Mr. Molini agreed it would be ideal to have some method to consider those kinds of situations. He was not sure how they would handle the subjectivity with the demerit system. Mr. Sandoval was still confused about the due process issue. He asked if a person was given a citation by an officer of the Wildlife Division and went through a criminal proceeding, if the criminal proceeding resulted in a conviction or a guilty plea, would there be a revocation of the hunting license. Mr. Albert said the court may suspend a license, immediately acquire it from the individual, and the court would forward it to the division. The Wildlife Division would have to propose to the commission, the individual's license be revoked, and would have to articulate and justify the revocation to the commission. The individual would have to request a hearing before the commission and they would determine if the license were to be suspended or revoked. Mr. Sandoval said line 14 of page 4, was a very limited scope of hearing. Mr. Albert said it did not take into consideration any circumstances or the gravity involved. Mr. Albert felt it was very limiting to both the party cited and the division's presentation. Mr. Bache asked Mr. Molini if the revocation hearings were subject to the Administrative Procedure Act 233B. Mr. Molini said absolutely, they were duly noticed, the potential revocee would be served by certified letter and has the opportunity to appear with counsel. All facets of the administrative procedures act would be followed. Mr. Fettic asked if there was no revocation without a judicial finding. Mr. Molini said there must be a judicial conviction. Mr. Fettic referred to page 5, line 20 (a), normally he was jealous over privately owned land. He referred to the Elbow which was privately owned land and one would have to walk a long way before finding a working hand or a foreman. If Mr. Fettic was fishing and observed a person taking 20-30 fish, and a Wildlife warden came by, and he told him about the 20-30 fish, he could not do anything, as he had not personally observed the excessive taking of fish. Mr. Fettic would have to make a citizens arrest. He was nervous about the "physically observed." There were too many places which were private lands. Littering would be another area where the warden would have to see it to ticket the person. He felt page 5, line 20 (a) would not work in this state. Mr. Albert felt this section in the bill needed a considerable amount of work. There was a substantial body of case law on the issue and they should carefully look at this section. Mr. Neighbors asked what the policy was on mountain lions. Mr. Albert noted they were a game species and were hunted by tag. Mr. Molini said they had liberalized the taking of lions. They set internally a gold level harvest by management area. The division issues an unlimited number of tags but a permit would be needed for each area. Once a harvest quota was reached in a given area, the area would be closed, and no permits would be allowed in the area. The division would continue to issue permits for other areas. In 1994 the harvest was 232 lions. Mr. Neighbors asked about camping near waterfalls. Mr. Albert said the law was for livestock and wildlife so they have access to the water. Most problems were handled with a contact, explaining the need to move camp. He said in the 15 years he had been with the department only one citation had been given for not moving a camp. Chairman de Braga asked if the proposed amendments were Mr. Molini's. This morning in a meeting with Mr. Hansen, the amendments were agreed to. He did indicate he would like to look at a couple of sections to see if they would work for everyone. He felt the concept Mr. Hansen had was a good one but was a little concerned with the restriction of officers in an open field on private property. If the amendments were adopted, it would be a starting point. Mrs. de Braga said, what we would be left with would be a demerit system, but not one which was spelled out. It would be up to a committee or something to establish what the demerits would be. We retain provisions which would say for such a number of demerits this would happen. We would be deleting references to the acts of assistance, which she felt would open a can of worms, would that be correct. Mr. Molini said he did not see a problem with that. This would leave a real question regarding section 11, subsection 3. Mrs. de Braga asked if that would be what was left if the amendments were adopted, along with some discussion on further amendments. Mr. Fettic asked Mr. Molini if this could be accomplished this legislative session. Mr. Molini said they could set up the statutory structure this session to allow the commission to begin working on a regulation to implement a demerit system. He would like a little more time to visit the language. Mr. Fettic said he did not think this could be a small step. Mr. Molini agreed with him. Mrs. de Braga asked the interested parties to get with Mr. Sandoval and work out the other amendments prior to a work session. Ms. Elsie Dupree, Nevada Wildlife Federation, said the bill had been discussed at a board meeting. She noted as a lay person and lay people discussing the bill they did have concern the demerit system would be set about by legislation. With the Wildlife Commission setting the demerit system it would solve any problems the board had. The main concern was the extra work, if the warden was bogged down with extra work. Would more secretaries or personnel be hired to operate the system. Would the warden be able to do his work in the field or bogged down with paper work. The demerit system itself was a good idea, but she felt the sportsmen should have a say in it. Mrs. de Braga said Mrs. Dupree had brought up a good point and there was a fiscal note but none had been prepared and she did not know if it was generic or not. The hearing was closed on A.B. 537. SENATE BILL 176 - Revises provisions governing certain unlawful activities related to hunting, trapping, possession, sale or training of birds of prey. Mr. Willie Molini, Administrator, Division of Wildlife and Mr. Steve Albert, Staff Game Warden, Division of Wildlife gave the presentation on S.B. 176. The purpose of the bill was to give the commission authority to adopt regulations concerning licensing of people who possess raptors. Worldwide there were about 300 species of raptors. The way legislation was written now the Wildlife Division was responsible for over sighting all species without exception. They had asked that the commission have the ability to adopt regulations which would put in place an exempt list of raptors which did not need to be regulated. Those species would be ones outside of North America, because all North American species were protected by Federal law. It would give the department latitude for entertainers who come into the state, as they do in Las Vegas fairly routinely. He said on Section 4 of page 1, lines 22-24, a portion would be deleted. It may be permissible to take or kill an endangered species for specific scientific study. A permit would have to be authorized through the Federal government first regarding endangered species. The division did not have to authorize the take but would give them the ability to authorize the take for a specific study. Mrs. Ohrenschall asked about the term "raptors." Mr. Albert said "raptors" were birds of prey. ASSEMBLYMAN SANDOVAL MOVED TO DO PASS S.B. 176. ASSEMBLYMAN OHRENSCHALL SECONDED THE MOTION. MOTION CARRIED UNANIMOUSLY BY THOSE PRESENT. (ASSEMBLYMAN HUMKE WAS ABSENT AT THE TIME OF THE VOTE.) SENATE BILL 230 - Establishes wildlife heritage trust account in state general fund. Mr. Willie Molini, Administrator, Division of Wildlife, noted the bill was a good non controversial bill. The bill proposed to set up a wildlife heritage trust account within the state general fund. Currently the division has five separate accounts. The bill proposed to allow the Board of Wildlife Commissioners to auction up to 15 big game tags. Currently six tags have been auctioned, two big horn sheep, two mule deer and one Rocky Mountain Elk and one antelope. This would give flexibility to the commission depending on an annual basis, if the population of those particular species were doing well, and they could set the number to be auctioned in any given year. The receipt of the monies from those auctions would be deposited in the wildlife heritage trust account. The second source of revenue was addressed on page 3, subsection 6, lines 1-6, which would allow the commission to establish a "partnership in wildlife drawing," or a second chance drawing for big game tags. The number would be set annually by the commission, but would be a small number. The recommendation which came from the Idea Team stated there would be 22 deer tags available statewide during any of the open seasons, archery, muzzle loader or rifle. The idea was if an applicant was unsuccessful they could elect, instead of taking a refund for their tag fee, leave it in the pot, and essentially take a chance at getting another tag, and there would be no refund on the tag fee. On elk, antelope or bighorn sheep, where there were only a few tags, the division would retain one half of the tag fee. These would be promulgated in commission regulations. Between auctions and the "partnership in wildlife drawing," revenue would be generated in the neighborhood of $500,000 a year and could be greater. This would be deposited in the wildlife heritage trust account from which the division could take 18 percent as an overhead for the division's cost and management of the account. Mrs. de Braga asked what was done with the money from the present auction. Mr. Molini said they had in the past used the money to purchase a used helicopter. Right now the money had been banked because they had been looking at buying another helicopter. However, because of a proposal to co-locate wildlife's air operation with that of the Division of Forestry, the division did not see a need for another helicopter at this time. He noted they would start using the money for habitat improvement for big game species primarily, since that was where most of the money was derived. Chairman de Braga said he had discussed using 18 percent for overhead administrative costs, then the interest only could be used after administrative costs were deducted. Mr. Molini said the bill stated, 18 percent for overhead administrative costs, "may be deposited to the wildlife account." The Board of Wildlife Commissioners as being essentially the trustees of this account would have to justify annually the amount of administrative overhead the division needed not to exceed 18 percent. Mrs. Segerblom asked how much would be gained from an auction. Mr. Molini said it was variable by species. In February the Safari Club International, Las Vegas Chapter auctioned one of the Bighorn Sheep tags for $101 thousand. He noted it was the most they had ever received. The second tag was auctioned by Nevada Bighorn Unlimited which brought $98 thousand. These two tags were normally higher than usual. Deer tags bring between $5 and $10 thousand, and would be the same for antelope. Elk tags were in the $20 to $25 thousand range. Mr. Neighbors asked how long was the bighorn sheep season. Mr. Molini said it was a month long in January. The amount of money in the fund at this time was about $742 thousand. Mr. Neighbors asked if he was able to transfer some of that money into other accounts. Mr. Molini said to some extent they have broad authorization in their gift and grant account. He said they had asked for $300 thousand expenditure authorization and a $100 thousand in their habitat mitigation account. If bigger projects were considered the wildlife department would have to go to the interim finance committee to increase the authorization to expend more of those funds. Mrs. Elsie Dupree, Nevada Wildlife Federation, stated they did not have a problem with S.B. 230 and would like to see the bill passed. Mr. Larry Johnson, Nevada Bighorn Unlimited and Coalition for Nevada Wildlife, noted they only received $90 thousand for the sheep tag. He had worked with NDOW and the Idea Team on the proposal, shipped out questionnaires to sportsmen all over the state and this was one of the most broad based supported bills. It would be a great opportunity to save money for habitat programs and special projects which wildlife had not had the financial ability to do in the past. Mr. Johnson also talked about the "partnership in wildlife." Mr. Johnson would ask for an amendment on section 3, subsection 5, line 42, the 18 percent of the total money received from bid or auction. His groups felt 18 percent was an excessive amount particularly since a fund was being built for the interest to go to programs sportsmen really wanted to have accomplished. Mr. Johnson felt they would prefer the wording of up to 10 percent rather than 18 percent. Mr. Sandoval asked Mr. Johnson where the $90 thousand went from the auction of the bighorn sheep tag. He emphasized the money did not go to the Bighorns Unlimited. The Department of Taxation letter being distributed to non profit groups said sales tax had to be charged on all auction items for non profit organizations. The group made sure the money did not go through the hands of any of the Bighorn Unlimited organization. Normally the check would be written to the group auctioning the tag and by April 15 the money had to be transferred to the Division of Wildlife. This year the purchaser wired the money directly to the Division of Wildlife. Mr. Joe Johnson, representing the Toiyabe Chapter of the Sierra Club, testified on S.B. 230. He spoke in support of the bill and would have liked to have seen two accounts. Mr. Johnson was not in opposition of the narrowing of language for the money to be used to gain fish, game or mammals. They would have liked to have seen a second fund set for those people who would by inheritance or gifts or grants contribute money to a broader purpose. Chairman de Braga asked Mr. Molini to come forward to discuss the proposal on the administrative deduction. He said they had a fairly active discussion at the Coalition for Nevada Wildlife meeting a month ago on this issue. One particular group felt very strongly 18 percent was too much, and the Division of Wildlife did not dispute having 10 percent, but had predicted up to 18 percent on what the division has charged the Federal government on overhead. The Federal government has a serious review of the Dingall-Johnson, Pittman-Robertson funds as to the allowability of the amount of overhead. The statement "may be charged and not to exceed that amount," would allow the commission if justifiable to go to 18 percent, but not go to a lesser amount. He did not have tremendous difficulty with 10 percent but felt more comfortable leaving it at 18 percent. Mr. Bennett asked Mr. Molini who would determine if it was justifiable or not. The Board of Wildlife Commissioners would go with recommendation and justification of what we wished to subtract on an annual basis for overhead. Mr. Bennett said the language needed to say who would approve the annual percent for overhead. Mr. Molini said the language on page 1, section 1, subsection 5, lines 22 and 23 could include section 3, subsection 5. Mr. Fettic noted he did not agree with the language on the percentage overhead. He would rather have the "up to 18 percent" and the "must" be deposited with the state treasurer kept in the bill. Mr. Fettic explained his theory on the language. Mr. Neighbors asked where the fine money goes. Mr. Molini noted all fine money went to the state distributive school fund in the county in which the violation occurred. The Division of Wildlife did not receive any of the fine money. Mr. Carpenter asked about the wording for use of the money in Section 1, subsection 1 and felt it had not mentioned habitat. Mr. Molini said the money was to be used for any of the things covered in their mission. Initially it said of wildlife and was changed on the Senate side. If they wished to study elk habitat or fur bearers or stock fish the language was broad for what it could be used for. Mr. Carpenter had understood it was to be used mainly for habitat restoration. Mr. Molini said his strong feeling was that the bulk of it would be used for habitat but not restricted to only habitat. He felt it spoke mainly to other areas of management other than habitat enhancement or restoration. Mr. Molini said the language was taken out of enabling statutes which essentially lines out the mission of the division. Mrs. de Braga said if we could come to some compromise on the admistrative percentage we could act on the bill. Mr. Carpenter proposed an amendment to S.B. 230 in section 1, subsection 1, that language be added to include habitat enhancement. In section 3, subsection 5 the percentage of administrative costs be not more than 12 percent. ASSEMBLYMAN CARPENTER MOVED TO AMEND AND DO PASS S.B. 230. ASSEMBLYMAN BENNETT SECONDED THE MOTION. THE MOTION PASSED UNANIMOUSLY BY THOSE PRESENT. (ASSEMBLYMAN HUMKE WAS ABSENT AT THE TIME OF THE VOTE.) The meeting was adjourned at 3:10 p.m. RESPECTFULLY SUBMITTED: Pat Menath, Committee Secretary APPROVED BY: Assemblyman John C. Carpenter, Chairman Assemblyman Marcia de Braga, Chairman Assembly Committee on Natural Resources, Agriculture and Mining May 8, 1995 Page