The number of violations cited by North Dakota Game and Fish Department wardens increased in 2012, especially in the western part of the state. Teamed with that increase were requests from hunters and anglers calling for greater penalties, mandatory sentencing and new laws.
This is nothing new as these types of calls typically follow when violators receive lesser sentences than what outdoor enthusiasts may have anticipated.
However, not every problem can be solved by revising an existing law or creating a new one. The first step is defining a problem that needs addressing. Perhaps there is an existing law that already addresses the issue, or could address it with some minor adjustment.
And if there is a need for a new law, would it be understandable and enforceable?
Answering these questions usually provides a good indication of whether to start the process of proposing a new a law, which of course has to go through the legislative process, with final approval by lawmakers.
Before addressing higher penalties and mandatory sentencing, it’s important to understand that in all cases the burden of proof is on the state, not the defendant, and in criminal actions the evidence must be beyond reasonable doubt. This is a high standard, requiring significant effort from the warden and state’s attorney.
Even so, it’s a good thing, as the state should meet high standards within legal boundaries before charging a citizen with a crime.
Issues of increased penalties and mandatory sentencing are, to a degree, similar. State law classifies offenses ranging from noncriminal through AA felony, and sets the maximum penalty for each class. For example, a Class B misdemeanor has a maximum penalty of 30 days in jail and $1,000 fine, with additional court costs of $225.
Upon conviction or a guilty plea for a criminal offense, judges may impose any sentence they feel appropriate, up to and including the maximum allowed. For game and fish related criminal violations, the court can also suspend hunting, fishing and trapping privileges and confiscate equipment used in commission of the crime.
Mandatory sentencing is used to set a minimum sentence that the court must impose, though few laws have mandatory sentencing. One game and fish violation that does is hunting on posted property without permission, which carries a mandatory suspension of all hunting, fishing and trapping privileges for one year for a first offense.
When I was a new, young game warden, I was generally in favor of mandatory sentencing. However, my philosophy changed as I gained experience and encountered different people who committed the same offense, but with widely varying circumstances. Judges should have the ability to consider these circumstances in each case and determine an appropriate sentence within the law, especially with first offenses.
I am less opposed to mandatory sentencing for repeat offenders, especially when it appears that something was missed.
Case in point: In fall 2009, as a result of a Report All Poachers report, our game wardens caught a person exceeding the walleye limit while fishing the Missouri River in Burleigh County. The angler had taken twice the daily limit, commonly known as double dipping, and was charged with a Class B misdemeanor, and the case was turned into the county state’s attorney’s office.
The ensuing sentence was a $250 RAP donation, six months unsupervised probation, confiscation of fishing rod and reel, and $225 in court fees.
In 2012, the same person was again caught exceeding the walleye limit on the Missouri River. That time he had 14 fish, almost three times the daily limit, and was charged with a Class B misdemeanor. The case was turned into the county state’s attorney’s office, who was notified that this was a second offense.
The sentence was deferred imposition for one year, unsupervised probation for one year, and $250 in court fees, which was a lesser sentence than for the first offense. In this case, a mandatory minimum for repeat offenders would most likely have meant a more severe sentence.
Before trying to change the law to move penalties up in classification, one should look at what penalties are available under current law. Most all game and fish violations are either Class B or A noncriminal or criminal misdemeanors. Also, within very limited circumstances, a game and fish violation could be charged as a Class C felony.
What are the maximum penalties allowed under law that the court could impose? For noncriminal violations it is a fee only ranging from $25 to $250. A Class B misdemeanor is 30 days in jail, $1,000 fine, $250 in court fees, and suspension of hunting, fishing and trapping privileges for three years, and confiscation of equipment used in the crime. Because North Dakota is a member of the Interstate Wildlife Violator Compact, the suspension of hunting, fishing and trapping privileges could potentially be enforced in 35 other states.
A Class A misdemeanor is the same as a Class B for suspension and confiscation, but has a maximum of one year in jail, $2,000 fine and $350 in court fees, which are substantial penalties. The typical first offense sentence for a criminal game and fish violation, based on our records, includes only court fees, or court fees with $100 to $200 fine. Typically, the sentence does not include suspension (unless mandatory), confiscation and actual imprisonment. Repeat offenses, or Class A big game cases, tend to include suspension and confiscation and higher fines, and generally no actual jail served.
Overall, the maximum sentence is never imposed. So why is this? Let’s first go through how the system works. To begin, it’s the game warden’s job to investigate the case, gather evidence, and cite or present the case to the county state’s attorney for charging. Once charges are filed, it’s in the hands of the state’s attorney, who is central to the system, as he or she determines what and how cases proceed. The state’s attorney, upon review of the case, may request to dismiss, enter into a plea agreement, proceed to trial, or if charges have not been filed, decline to prosecute. Motions (requests) to dismiss, or plea agreements, must be approved by the judge assigned the case before becoming final.
Most game and fish cases are settled by plea agreement. North Dakota has 53 counties and each one has a state’s attorney. Depending on the county, the positions range from full-time, with a number of assistant state’s attorneys and staff, to part-time positions, with little or no staff. While a number of factors can influence why a case is settled in a certain way, work load, which leads to prioritizing, is near or at the top of the list. Sometimes there just isn’t enough time to go to trial on every case, especially if the plea agreement involves a sentence that is close to what would have likely occurred if the case had gone to trial.
The scenario for most criminal game and fish violations is relatively similar to what happens with other crimes. While all have maximum penalties under existing law, a final sentence might fall well below that, depending on the circumstances.
The ability for the state’s attorney to recommend, and the court to impose more significant penalties, is in almost all cases currently available under existing law.
Each year the North Dakota Chapter of the Wildlife Society, an organization of professionals in the wildlife field, gives an award for the top enforcement case of the year. The award honors Chuck Pulver, a chapter member and North Dakota Game and Fish Department warden who died of a heart attack while on duty in 1995.
The following is the top case of the year.
Chuck Pulver Memorial Case of the Year
On November 12, 2011, Game and Fish Department warden Jeff Violett received an anonymous report that a hunter found an untagged, field-dressed deer along the Cannonball River.
Violett went to the location and found a mule deer buck. True to the report, the buck was field-dressed and propped open with a stick and placed in the undergrowth of some trees.
Violett felt the person or persons would be back for the untagged buck, considering they had taken the time to dress and cool the animal. He put a radio transmitter in the carcass and marked the antler, then left for the day after checking some nearby hunters coming off the river.
Unable to get a transmitter signal when he returned to the area November 14, Violett hiked to the spot where the buck was last seen and found game cart tracks, blood, but no animal.
Violett then started searching for the transmitter signal and found it south of Bismarck. He then obtained a search warrant for the address where the signal was strongest.
Violett, along with warden supervisor Dan Hoenke and warden Bill Schaller, staked out the house until someone came home. Violett knocked on the door, but no one answered. He then went to the garage and the garage door opened.
The buck was hanging in the garage, tagged with the license of the teenage son who lived at the address. However, the license was for a whitetail, not a mule deer.
Violett learned the mother and son were hunting together, sitting on a rock pile. The son was dozing off when his mom called his name, he looked up, saw the buck and shot it. When they approached the deer, they saw that it was a mule deer.
After field-dressing the deer, the mom and son went to town to see if they could find someone to tag the animal. Later they returned to continue hunting, didn’t see anything to shoot, and tagged the buck and took it home so it would not go to waste.
The teenager was ordered to pay $250 restitution for the deer, $225 in court fees, which were waived, one year probation and one year deferred imposition.
2012 Summary of Violations
|Failure to accompany/transport other’s game||2|
|Failure to wear florescent orange||4|
|Killing wrong species or sex||11|
|Hunting in closed season||2|
|Shining (using artificial light)||3|
|Other big game violations||80|
|Using gun able to hold more than 3 shells||75|
|Hunting in closed season||3|
|Unlawful transportation of game||2|
|Failure to leave identification or sex of game||65|
|Killing wrong sex or species||14|
|Failure to accompany/transport other’s game||5|
|Nontoxic shot violation||2|
|Failure to HIP register||1|
|Hunting without federal waterfowl stamp||5|
|Failure to carry federal waterfowl stamp||12|
|Other small game violations||16|
|Use of unlicensed or unnumbered boat||101|
|Failure to display boat registration||30|
|Operating without lights at night||32|
|Inadequate number of PFDs||170|
|Water skiing violations||64|
|Reckless or negligent operation||15|
|Operating vessel under influence/intoxicated||15|
|Other boating violations||72|
|Fishing with excessive lines||35|
|Fishing in closed/restricted area||11|
|Failure to attend lines||8|
|No identification on fish house||4|
|Failure to remove fish house||2|
|Violation of bait restrictions||15|
|Other fishing violations||40|
|Shining (using artificial light)||10|
|Harassing furbearers with motor vehicle||1|
|Hunting/trapping in closed season||5|
|Other furbearer violations||21|
|Use of motor vehicle off established trail||17|
|Use of motor vehicle in restricted area||34|
|Prohibited use of motor vehicles||47|
|Harassing wildlife with motor vehicle||2|
|Hunting on posted land without permission||36|
|Hunting before/after legal hours||18|
|Aid in concealment of unlawful game||18|
|Hunting in wrong unit/closed area||22|
|Loaded firearm in motor vehicle||90|
|Discharge of firearm within/on motor vehicle||5|
|440 yard violation||9|
|Other general violations||17|
|Failure to sign/affix stamp||22|
|Hunting/fishing/trapping without proper license||339|
|Failure to carry license on person||278|
|Guide/outfitter without license||19|
|Misrepresentation on license or application||38|
|Other licensing violations||5|
Wildlife Management Areas/Refuge
|Failure to obey posted regulations||42|
|Tree stand violations||1|
|Possession of glass beverage containers||85|
|Baiting on WMA||1|
|Possession/discharge of fireworks||9|
|Other WMA/refuge violations||2|
|Possession of controlled substance||10|
|Possession of drug paraphernalia||12|
|Minor in possession||65|
|Fleeing or attempting to elude||8|