West Virginia Code

Email: Chapter 20

CHAPTER 20. NATURAL RESOURCES.

ARTICLE 1. ORGANIZATION AND ADMINISTRATION.

§20-1-1. Purposes and objects of chapter; how chapter cited.

This chapter is enacted to provide a comprehensive program for the exploration, conservation, development, protection, enjoyment and use of the natural resources of the State of West Virginia and may be cited as the state Natural Resources Law.

§20-1-2. Definitions.

As used in this chapter, unless the context clearly requires a different meaning:

“Agency” means any branch, department or unit of the state government, however designated or constituted.

“Alien” means any person not a citizen of the United States.

“Bag limit” or “creel limit” means the maximum number of wildlife which may be taken, caught, killed or possessed by any person.

“Big game” means elk, deer, black bears, wild boars and wild turkeys.

“Bona fide resident, tenant or lessee” means a person who permanently resides on the land.

“Citizen” means any native-born citizen of the United States and foreign-born persons who have procured their final naturalization papers.

“Closed season” means the time or period during which it shall be unlawful to take any wildlife as specified and limited by this chapter.

“Commission” means the Natural Resources Commission.

“Commissioner” means a member of the advisory commission of the Natural Resources Commission.

“Director” means the Director of the Division of Natural Resources.

“Fishing” or “to fish” means the taking, by any means, of fish, minnows, frogs or other amphibians, aquatic turtles and other forms of aquatic life used as fish bait.

“Fur-bearing animals” includes: (a) The mink; (b) the weasel; (c) the muskrat; (d) the beaver; (e) the opossum; (f) the skunk and civet cat, commonly called polecat; (g) the otter; (h) the red fox; (i) the gray fox; (j) the wildcat, bobcat or bay lynx; (k) the raccoon; (l) the fisher; and (m) canis latrans var., more commonly known as the coyote.

“Game” means game animals, game birds and game fish as herein defined.

“Game animals” includes: (a) The elk; (b) the deer; (c) the cottontail rabbits and hares; (d) the fox squirrels, commonly called red squirrels, and gray squirrels and all their color phases - red, gray, black or albino; (e) the raccoon; (f) the black bear; (g) the wild boar; and (h) the marmot monax, more commonly known as woodchuck or groundhog. The term “game animals” does not include captive cervids regulated pursuant to article two-h, chapter nineteen of this code.

“Game birds” includes: (a) The anatidae, commonly known as swan, geese, brants and river and sea ducks; (b) the rallidae, commonly known as rails, sora, coots, mudhens and gallinule; (c) the limicolae, commonly known as shorebirds, plover, snipe, woodcock, sandpipers, yellow legs and curlews; (d) the galliformes, commonly known as wild turkey, grouse, pheasants, quails and partridges (both native and foreign species); (e) the columbidae, commonly known as doves; (f) the icteridae, commonly known as blackbirds, redwings and grackle; and (g) the corvidae, commonly known as crows.

“Game fish” includes: (a) Brook trout; (b) brown trout; (c) rainbow trout; (d) golden rainbow trout; (e) largemouth bass; (f) smallmouth bass; (g) spotted bass; (h) striped bass; (i) chain pickerel; (j) muskellunge; (k) walleye; (l) northern pike; (m) rock bass; (n) white bass; (o) white crappie; (p) black crappie; (q) all sunfish species; (r) channel catfish; (s) flathead catfish; (t) blue catfish; (u) sauger; and (v) all game fish hybrids.

“Hunt” means to pursue, chase, catch or take any wild birds or wild animals. However, the definition of “hunt” does not include an officially sanctioned and properly licensed field trial, water race or wild hunt as long as that field trial is not a shoot-to-retrieve field trial.

“Lands” means land, waters and all other appurtenances connected therewith.

“Migratory birds” means any migratory game or nongame birds included in the terms of conventions between the United States and Great Britain and between the United States and United Mexican States, known as the Migratory Bird Treaty Act, for the protection of migratory birds and game mammals concluded, respectively, August 16, 1916, and February 7, 1936.

“Nonresident” means any person who is a citizen of the United States and who has not been a domiciled resident of the State of West Virginia for a period of thirty consecutive days immediately prior to the date of his or her application for a license or permit except any full-time student of any college or university of this state, even though he or she is paying a nonresident tuition.

“Open season” means the time during which the various species of wildlife may be legally caught, taken, killed or chased in a specified manner and shall include both the first and the last day of the season or period designated by the director.

“Person”, except as otherwise defined elsewhere in this chapter, means the plural “persons” and shall include individuals, partnerships, corporations or other legal entities.

“Preserve” means all duly licensed private game farmlands, or private plants, ponds or areas, where hunting or fishing is permitted under special licenses or seasons other than the regular public hunting or fishing seasons. The term “preserve” does not include captive cervid farming facilities regulated pursuant to article two-h, chapter nineteen of this code.

“Protected birds” means all wild birds not included within the definitions of “game birds” and “unprotected birds”.

“Resident” means any person who is a citizen of the United States and who has been a domiciled resident of the State of West Virginia for a period of thirty consecutive days or more immediately prior to the date of his or her application for license or permit. However, a member of the Armed Forces of the United States who is stationed beyond the territorial limits of this state, but who was a resident of this state at the time of his or her entry into such service and any full-time student of any college or university of this state, even though he or she is paying a nonresident tuition, shall be considered a resident under this chapter.

“Roadside menagerie” means any place of business, other than a commercial game farm, commercial fish preserve, place or pond, where any wild bird, game bird, unprotected bird, game animal or fur-bearing animal is kept in confinement for the attraction and amusement of the people for commercial purposes.

“Small game” includes all game animals, fur-bearing animals and game birds except elk, deer, black bears, wild boars and wild turkeys.

“Take” means to hunt, shoot, pursue, lure, kill, destroy, catch, capture, keep in captivity, gig, spear, trap, ensnare, wound or injure any wildlife, or attempt to do so. However, the definition of “take” does not include an officially sanctioned and properly licensed field trial, water race or wild hunt as long as that field trial is not a shoot-to-retrieve field trial.

“Unprotected birds” shall include: (a) The English sparrow; (b) the European starling; and (c) the cowbird.

“Wild animals” means all mammals native to the State of West Virginia occurring either in a natural state or in captivity, except house mice or rats, and includes coyotes and porcupines and all species of cervids. The term “wild animals” does not include captive cervids owned and possessed by persons licensed pursuant to article two-h, chapter nineteen of this code.

“Wild birds” shall include all birds other than: (a) Domestic poultry — chickens, ducks, geese, guinea fowl, peafowls and turkeys; (b) psittacidae, commonly called parrots and parakeets; and (c) other foreign cage birds such as the common canary, exotic finches and ring dove. All wild birds, either: (i) Those occurring in a natural state in West Virginia; or (ii) those imported foreign game birds, such as waterfowl, pheasants, partridges, quail and grouse, regardless of how long raised or held in captivity, shall remain wild birds under the meaning of this chapter.

“Wildlife” means wild birds, wild animals, game and fur-bearing animals, fish (including minnows), reptiles, amphibians, mollusks, crustaceans and all forms of aquatic life used as fish bait, whether dead or alive. The term “wildlife” does not include captive cervids regulated pursuant to article two-h, chapter nineteen of this code.

“Wildlife refuge” means any land set aside by action of the director as an inviolate refuge or sanctuary for the protection of designated forms of wildlife.

§20-1-3. Division of natural resources, office of director and commission established.

A Division of Natural Resources, the office of director of the Division of Natural Resources and a natural resources commission are hereby created and established in the state government with jurisdiction, powers, functions, services and enforcement processes as provided in this chapter and elsewhere by law.

§20-1-4. Director to be chief executive officer; appointment, term and qualifications; vacancy; removal.

The director shall be the chief executive officer of the department. Subject to provisions of law, he shall organize the department into such offices, divisions, agencies and other units of activity as may be found by him necessary and desirable in the orderly, efficient and economical administration of the department for the accomplishment of its objects and purposes.

The director shall be appointed by the Governor, by and with the advice and consent of the Senate, and shall continue to serve until his successor is appointed and qualified as provided. On or before July 1, 1961, the Governor shall appoint the director for a term ending on December 31, 1962. Upon the expiration of such term, the Governor shall appoint the director for a term of four years commencing on January 1, 1963, and, upon the expiration thereof, for successive terms of four years each next thereafter. A vacancy occurring in the office during any term thereof shall be filled by appointment as herein provided for the remainder of such term.

The director may be removed from office by the Governor for cause as provided in the Constitution. At the time of his initial appointment, he shall be at least thirty years old and shall be selected with special reference and consideration given to his training, experience, capacity and interest in the natural resources program as herein embraced. He shall not be a candidate for or hold any other public office, shall not be a member of any political party committee, and shall immediately forfeit and vacate his office as director in the event he becomes a candidate for or accepts appointment to any other public office or political party committee.

§20-1-5. Salary, expenses, oath and bond of director.

The director shall receive an annual salary as provided in section two-a, article seven, chapter six of this code, payable at least twice per month and shall be allowed and paid necessary expenses incident to the performance of his or her official duties. Prior to the assumption of the duties of his or her office, he or she shall take and subscribe to the oath required of public officers by the Constitution of West Virginia and shall execute a bond, with surety approved by the Governor, in the penal sum of $10,000, which executed oath and bond shall be filed in the office of the Secretary of State. Premiums on the bond shall be paid from division funds.

§20-1-6. Offices and office hours.

The director shall arrange with the General Services Division of the department of finance and administration for adequate office space, accommodations and facilities for the department of natural resources in the State Capitol offices. The department of finance and administration shall make such office accommodations and facilities available and shall provide for orderly servicing and maintenance thereof. The offices of the director and of the department shall be opened and staffed for business transactions and services during regular hours.

§20-1-7. Additional powers, duties and services of director.

NOTE: West Virginia Code §20-1-17 was amended by two bills passed during the 2020 Regular Session of the Legislature. When two acts of the Legislature amend the same section of the Code without express recognition in the bill of the action of the other bill, the Legislative Manager makes no determination as to the appropriate, legal effect of the two acts. Therefore, both versions of this section are set out below.

Senate Bill 586 (passed last on February 28, 2020) amended West Virginia Code §20-1-17 to read as follows:

In addition to all other powers, duties, and responsibilities granted and assigned to the director in this chapter and elsewhere by law, the director may:

(1) With the advice of the commission, prepare and administer, through the various divisions created by this chapter, a long-range comprehensive program for the conservation of the natural resources of the state which best effectuates the purpose of this chapter and which makes adequate provisions for the natural resources laws of the state;

(2) Sign and execute in the name of the state by the Division of Natural Resources any contract or agreement with the federal government or its departments or agencies, subdivisions of the state, corporations, associations, partnerships, or individuals: Provided, That intergovernmental cooperative agreements and agreements with nongovernmental organizations in furtherance of providing a comprehensive program for the exploration, conservation, development, protection, enjoyment, and use of the natural resources of the state are exempt from the provisions of §5A-3-1 et seq. of this code: Provided, however, That repair, renovation and rehabilitation of existing facilities, buildings, amenities, and infrastructure necessary to protect public health or safety or to provide uninterrupted enjoyment and public use of state parks, state forests, wildlife management areas, and state natural areas under the jurisdiction of the Division of Natural Resources are exempt from the provisions of §5A-3-1 et seq. of this code. Nothing in this section authorizes new construction of buildings and new construction of recreational facilities as defined in §20-5-4 of this code without complying with the provisions of §5A-3-1 et seq. of this code.

(3) Conduct research in improved conservation methods and disseminate information matters to the residents of the state;

(4) Conduct a continuous study and investigation of the habits of wildlife and, for purposes of control and protection, to classify by regulation the various species into such categories as may be established as necessary;

(5) Prescribe the locality in which the manner and method by which the various species of wildlife may be taken, or chased, unless otherwise specified by this chapter.

(6) Hold at least six meetings each year at such time and at such points within the state, as in the discretion of the Natural Resources Commission may appear to be necessary and proper for the purpose of giving interested persons in the various sections of the state an opportunity to be heard concerning open season for their respective areas, and report the results of the meetings to the Natural Resources Commission before the season and bag limits are fixed by it;

(7) Suspend open hunting season upon any or all wildlife in any or all counties of the state with the prior approval of the Governor in case of an emergency such as a drought, forest fire hazard, or epizootic disease among wildlife. The suspension shall continue during the existence of the emergency and until rescinded by the director. Suspension, or reopening after such suspension, of open seasons may be made upon 24 hours’ notice by delivery of a copy of the order of suspension or reopening to the wire press agencies at the state capitol;

(8) Supervise the fiscal affairs and responsibilities of the division;

(9) Designate such localities as he or she shall determine to be necessary and desirable for the perpetuation of any species of wildlife;

(10) Enter private lands to make surveys or inspections for conservation purposes, to investigate for violations of provisions of this chapter, to serve and execute warrants and processes, to make arrests, and to otherwise effectively enforce the provisions of this chapter;

(11) Acquire for the state in the name of the Division of Natural Resources by purchase, condemnation, lease or agreement, or accept or reject for the state, in the name of the Division of Natural Resources, gifts, donations, contributions, bequests, or devises of money, security or property, both real and personal, and any interest in such property, including lands and waters, which he or she deems suitable for the following purposes:

(a) For state forests for the purpose of growing timber, demonstrating forestry, furnishing or protecting watersheds, or providing public recreation;

(b) For state parks or recreation areas for the purpose of preserving scenic, aesthetic, scientific, cultural, archaeological, or historical values or natural wonders, or providing public recreation;

(c) For public hunting, trapping, or fishing grounds or waters for the purpose of providing areas in which the public may hunt, trap, or fish, as permitted by the provisions of this chapter and the rules issued hereunder;

(d) For fish hatcheries, game farms, wildlife research areas, and feeding stations;

(e) For the extension and consolidation of lands or waters suitable for the above purposes by exchange of other lands or waters under his or her supervision;

(f) For such other purposes as may be necessary to carry out the provisions of this chapter;

(12) Capture, propagate, transport, sell, or exchange any species of wildlife as may be necessary to carry out the provisions of this chapter;

(13) Sell timber for not less than the value thereof, as appraised by a qualified appraiser appointed by the director, from all lands under the jurisdiction and control of the director, except those lands that are designated as state parks and those in the Kanawha State Forest. The appraisal shall be made within a reasonable time prior to any sale, reduced to writing, filed in the office of the director and shall be available for public inspection. The director must obtain the written permission of the Governor to sell timber when the appraised value is more than $5,000. The director shall receive sealed bids therefor, after notice by publication as a Class II legal advertisement in compliance with the provisions of §59-3-1 et seq. of this code and the publication area for the publication shall be each county in which the timber is located. The timber so advertised shall be sold at not less than the appraised value to the highest responsible bidder, who shall give bond for the proper performance of the sales contract as the director shall designate; but the director may reject any and all bids and re-advertise for bids. If the foregoing provisions of this section have been complied with and no bid equal to or in excess of the appraised value of the timber is received, the director may, at any time, during a period of six months after the opening of the bids, sell the timber in such manner as he or she deems appropriate, but the sale price may not be less than the appraised value of the timber advertised. No contract for sale of timber made pursuant to this section may extend for a period of more than 10 years. And all contracts heretofore entered into by the state for the sale of timber may not be validated by this section if a contract is otherwise invalid. The proceeds arising from the sale of the timber so sold shall be paid to the Treasurer of the State of West Virginia and shall be credited to the division and used exclusively for the purposes of this chapter: Provided, That nothing contained herein may prohibit the sale of timber which otherwise would be removed from rights-of-way necessary for and strictly incidental to the extraction of minerals;

(14) Sell or lease, with the approval in writing of the Governor, coal, oil, gas, sand, gravel, and any other minerals that may be found in the lands under the jurisdiction and control of the director, except those lands that are designated as state parks. The director, before making sale or lease thereof, shall receive sealed bids therefor, after notice by publication as a Class II legal advertisement in compliance with the provisions of §59-3-1 et seq. of this code, and the publication area for such publication shall be each county in which such lands are located. The minerals so advertised shall be sold or leased to the highest responsible bidder, who shall give bond for the proper performance of the sales contract or lease as the director shall designate; but the director may reject any and all bids and re-advertise for bids. The proceeds arising from any such sale or lease shall be paid to the Treasurer of the State of West Virginia and shall be credited to the division and used exclusively for the purposes of this chapter;

(15) Exercise the powers granted by this chapter for the protection of forests and regulate fires and smoking in the woods or in their proximity at such times and in such localities as may be necessary to reduce the danger of forest fires;

(16) Cooperate with departments and agencies of state, local, and federal governments in the conservation of natural resources and the beautification of the state;

(17) Report to the Governor each year all information relative to the operation and functions of the division and the director shall make such other reports and recommendations as may be required by the Governor, including an annual financial report covering all receipts and disbursements of the division for each fiscal year, and he or she shall deliver the report to the Governor on or before December 1 next after the end of the fiscal year so covered. A copy of the report shall be delivered to each house of the Legislature when convened in January next following;

(18) Keep a complete and accurate record of all proceedings, record and file all bonds and contracts taken or entered into, and assume responsibility for the custody and preservation of all papers and documents pertaining to his or her office, except as otherwise provided by law;

(19) Offer and pay, in his or her discretion, rewards for information respecting the violation, or for the apprehension and conviction of any violators, of any of the provisions of this chapter;

(20) Require such reports as he or she may determine to be necessary from any person issued a license or permit under the provisions of this chapter, but no person may be required to disclose secret processes or confidential data of competitive significance;

(21) Purchase as provided by law all equipment necessary for the conduct of the division;

(22) Conduct and encourage research designed to further new and more extensive uses of the natural resources of this state and to publicize the findings of the research;

(23) Encourage and cooperate with other public and private organizations or groups in their efforts to publicize the attractions of the state including, completing the feasibility study for the Beech Fork State Park Lodge as follows:

(a) The director shall convene, prior to October 1, 2019, two public hearings:

(i) An initial public hearing shall be for the purpose of seeking public input regarding options for the construction of a lodge and a conference center, including all available public, private, or public-private partnership (PPP) funding and financing options; and

(ii) A subsequent public hearing at which the feasibility study and any recommendation shall be available for public comment;

(b) The public hearings required by this subdivision must be held in a suitable location reasonably close to Beech Fork State Park so as to accommodate public participation from the citizens of Cabell, Lincoln, and Wayne counties; and

(c) Upon completion of the feasibility study it shall be submitted by the director to the Joint Committee on Government and Finance on or before December 1, 2019;

(24) Accept and expend, without the necessity of appropriation by the Legislature, any gift or grant of money made to the division for all purposes specified in this chapter and he or she shall account for and report on all such receipts and expenditures to the Governor;

(25) Cooperate with the state historian and other appropriate state agencies in conducting research with reference to the establishment of state parks and monuments of historic, scenic, and recreational value and to take such steps as may be necessary in establishing the monuments or parks as he or she deems advisable;

(26) Maintain in his or her office at all times, properly indexed by subject matter and also in chronological sequence, all rules made or issued under the authority of this chapter. The records shall be available for public inspection on all business days during the business hours of working days;

(27) Delegate the powers and duties of his or her office, except the power to execute contracts not related to land and stream management, to appointees and employees of the division, who shall act under the direction and supervision of the director and for whose acts he or she shall be responsible;

(28) Conduct schools, institutions, and other educational programs, apart from or in cooperation with other governmental agencies, for instruction and training in all phases of the natural resources programs of the state;

(29) Authorize the payment of all or any part of the reasonable expenses incurred by an employee of the division in moving his or her household furniture and effects as a result of a reassignment of the employee: Provided, That no part of the moving expenses of any one such employee may be paid more frequently than once in 12 months;

(30) Establishing procedures and fee schedule for individuals applying for limited permit hunts;

(31) Promulgate rules, in accordance with the provisions of §29A-1-1 et seq. of this code, to implement and make effective the powers and duties vested in him or her by the provisions of this chapter and take such other steps as may be necessary in his or her discretion for the proper and effective enforcement of the provisions of this chapter;

(32) Exempt designated sections within the Division of Natural Resources from the requirement that all payments must be deposited in a bank within 24 hours for amounts less than $500, notwithstanding any other provision of this code to the contrary: Provided, That such designated sections shall make a deposit in any amount no less than every seven working days; and

(33) Cooperate with the State Resiliency Office to the fullest extent practicable to assist that office in fulfilling its duties.

Senate Bill 487 (passed last on February 11, 2020) amended West Virginia Code §20-1-17 to read as follows:

In addition to all other powers, duties, and responsibilities granted and assigned to the director in this chapter and elsewhere by law, the director may:

(2) Sign and execute in the name of the state by the Division of Natural Resources any contract or agreement with the federal government or its departments or agencies, subdivisions of the state, corporations, associations, partnerships, or individuals: Provided, That intergovernmental cooperative agreements and agreements with nongovernmental organizations in furtherance of providing a comprehensive program for the exploration, conservation, development, protection, enjoyment, and use of the natural resources of the state are exempt from the provisions of §5A-3-1 et seq. of this code: Provided, however, That repair, renovation, and rehabilitation of existing facilities, buildings, amenities, and infrastructure necessary to protect public health or safety or to provide uninterrupted enjoyment and public use of state parks, state forests, wildlife management areas, and state natural areas under the jurisdiction of the Division of Natural Resources are exempt from the provisions of §5A-3-1 et seq. of this code. Nothing in this section authorizes new construction of buildings and new construction of recreational facilities as defined in §20-5-4 of this code without complying with the provisions of §5A-3-1 et seq. of this code;

(3) Conduct research in improved conservation methods and disseminate information matters to the residents of the state;

(5) Prescribe the locality in which the manner and method by which the various species of wildlife may be taken, or chased, unless otherwise specified by this chapter;

(6) Hold at least six meetings each year at such time and at such points within the state as, in the discretion of the Natural Resources Commission, may appear to be necessary and proper for the purpose of giving interested persons in the various sections of the state an opportunity to be heard concerning open season for their respective areas, and report the results of the meetings to the Natural Resources Commission before the season and bag limits are fixed by it;

(8) Supervise the fiscal affairs and responsibilities of the division;

(9) Designate such localities as he or she shall determine to be necessary and desirable for the perpetuation of any species of wildlife;

(11) Acquire for the state in the name of the Division of Natural Resources by purchase, condemnation, lease or agreement, or accept or reject for the state, in the name of the Division of Natural Resources, gifts, donations, contributions, bequests, or devises of money, security, or property, both real and personal, and any interest in such property, including lands and waters, which he or she deems suitable for the following purposes:

(A) For state forests for the purpose of growing timber, demonstrating forestry, furnishing or protecting watersheds, or providing public recreation;

(B) For state parks or recreation areas for the purpose of preserving scenic, aesthetic, scientific, cultural, archaeological, or historical values or natural wonders, or providing public recreation;

(C) For public hunting, trapping, or fishing grounds or waters for the purpose of providing areas in which the public may hunt, trap, or fish, as permitted by the provisions of this chapter and the rules issued hereunder;

(D) For fish hatcheries, game farms, wildlife research areas, and feeding stations;

(E) For the extension and consolidation of lands or waters suitable for the above purposes by exchange of other lands or waters under his or her supervision;

(F) For such other purposes as may be necessary to carry out the provisions of this chapter;

(12) Capture, propagate, transport, sell, or exchange any species of wildlife as may be necessary to carry out the provisions of this chapter;

(13) Sell timber for not less than the value thereof, as appraised by a qualified appraiser appointed by the director, from all lands under the jurisdiction and control of the director, except those lands that are designated as state parks and those in the Kanawha State Forest. The appraisal shall be made within a reasonable time prior to any sale, reduced to writing, filed in the office of the director and shall be available for public inspection. The director must obtain the written permission of the Governor to sell timber when the appraised value is more than $5,000. The director shall receive sealed bids therefor, after notice by publication as a Class II legal advertisement in compliance with the provisions of §59-3-1 et seq. of this code and the publication area for the publication shall be each county in which the timber is located. The timber so advertised shall be sold at not less than the appraised value to the highest responsible bidder, who shall give bond for the proper performance of the sales contract as the director shall designate; but the director may reject any and all bids and readvertise for bids. If the foregoing provisions of this section have been complied with and no bid equal to or in excess of the appraised value of the timber is received, the director may, at any time, during a period of six months after the opening of the bids, sell the timber in such manner as he or she deems appropriate, but the sale price may not be less than the appraised value of the timber advertised. No contract for sale of timber made pursuant to this section may extend for a period of more than 10 years. And all contracts heretofore entered into by the state for the sale of timber may not be validated by this section if a contract is otherwise invalid. The proceeds arising from the sale of the timber so sold shall be paid to the Treasurer of the State of West Virginia and shall be credited to the division and used exclusively for the purposes of this chapter: Provided, That nothing contained herein may prohibit the sale of timber which otherwise would be removed from rights-of-way necessary for and strictly incidental to the extraction of minerals;

(14) Sell or lease, with the approval in writing of the Governor, coal, oil, gas, sand, gravel, and any other minerals that may be found in the lands under the jurisdiction and control of the director, except those lands that are designated as state parks. The director, before making sale or lease thereof, shall receive sealed bids therefor, after notice by publication as a Class II legal advertisement in compliance with the provisions of §59-3-1 et seq. of this code, and the publication area for such publication shall be each county in which such lands are located. The minerals so advertised shall be sold or leased to the highest responsible bidder, who shall give bond for the proper performance of the sales contract or lease as the director shall designate; but the director may reject any and all bids and readvertise for bids. The proceeds arising from any such sale or lease shall be paid to the Treasurer of the State of West Virginia and shall be credited to the division and used exclusively for the purposes of this chapter;

(16) Cooperate with departments and agencies of state, local, and federal governments in the conservation of natural resources and the beautification of the state;

(17) Report to the Governor each year all information relative to the operation and functions of the division, and the director shall make such other reports and recommendations as may be required by the Governor, including an annual financial report covering all receipts and disbursements of the division for each fiscal year, and he or she shall deliver the report to the Governor on or before December 1 next after the end of the fiscal year so covered. A copy of the report shall be delivered to each house of the Legislature when convened in January next following;

(19) Offer and pay, in his or her discretion, rewards for information respecting the violation, or for the apprehension and conviction of any violators, of any of the provisions of this chapter;

(21) Purchase as provided by law all equipment necessary for the conduct of the division;

(22) Conduct and encourage research designed to further new and more extensive uses of the natural resources of this state and to publicize the findings of the research;

(23) Encourage and cooperate with other public and private organizations or groups in their efforts to publicize the attractions of the state, including completing the feasibility study for the Beech Fork State Park Lodge as follows:

(A) The director shall convene, prior to October 1, 2019, two public hearings:

(ii) A subsequent public hearing at which the feasibility study and any recommendation shall be available for public comment;

(B) The public hearings required by this subdivision must be held in a suitable location reasonably close to Beech Fork State Park so as to accommodate public participation from the citizens of Cabell, Lincoln, and Wayne counties; and

(C) Upon completion of the feasibility study, it shall be submitted by the director to the Joint Committee on Government and Finance on or before December 1, 2019;

(24) Accept and expend, without the necessity of appropriation by the Legislature, any gift or grant of money made to the division for all purposes specified in this chapter, and he or she shall account for and report on all such receipts and expenditures to the Governor;

(25) Cooperate with the state historian and other appropriate state agencies in conducting research with reference to the establishment of state parks and monuments of historic, scenic, and recreational value, and to take such steps as may be necessary in establishing the monuments or parks as he or she deems advisable;

(30) Establish procedures and fee schedules for individuals applying for limited permit hunts;

(31) Exempt designated sections within the Division of Natural Resources from the requirement that all payments must be deposited in a bank within 24 hours for amounts less than $500, notwithstanding any other provision of this code to the contrary: Provided, That such designated sections shall make a deposit in any amount no less than every seven working days; and

(32) Promulgate rules, in accordance with the provisions of §29A-1-1 et seq. of this code, to implement and make effective the powers and duties vested in him or her by the provisions of this chapter and take such other steps as may be necessary in his or her discretion for the proper and effective enforcement of the provisions of this chapter.

§20-1-8. Personnel management.

A merit system of personnel management shall be established and maintained for all personnel of the department in order to ensure and provide for impartial selection of competent and qualified personnel and to accord to all department employees rights of tenure and advancement during satisfactory discharge of their duties.

In lieu of establishment of a merit system of personnel management for the department, the director may resort to and rely upon the civil service commission and civil service system for personnel and personnel services of the department.

The director may select a personal secretary and two deputy directors of the department to serve at the director's will and pleasure. The director shall fix the compensation of the secretary and the two deputy directors and shall prescribe their duties and responsibilities. The director, the secretary and the two deputy directors shall not have and enjoy merit system status, as herein provided, but any deputy director, when selected from department personnel ranks, shall retain and be accorded all of the rights of his merit system status regardless of his selection and tenure as deputy director.

The director shall select and designate a competent and qualified person as department personnel officer who shall be responsible for personnel management, personnel records and general personnel services. The personnel officer, under supervision of the director and subject to merit system rules, regulations and requirements, shall prescribe qualifications, classifications and salary scales for department personnel. He shall furnish to the director information and data relating to qualified personnel available for the various offices, positions and places of employment and may make recommendations concerning the selection, retention and advancement of personnel of the department.

§20-1-9. Fiscal management.

Subject to any controlling rules and regulations of the department of finance and administration relating to state fiscal management policies and practices, the director shall establish in the department an adequate budget, finance and accounting system which will currently and accurately reflect the fiscal operations and conditions of the department at all times. The department's accounting and auditing services shall be on a fiscal-year basis.

The director shall select and designate a competent and qualified person as department fiscal officer who, under the supervision of the director, shall be responsible for all budget, finance and accounting services of the department. All moneys received by the department shall be recorded and shall be paid as special revenue to the department of natural resources, as provided in subdivision (i), section two, article two, chapter twelve of this code, except in cases wherein certain receipts of the department are by specific provisions of this chapter required to be paid into some special fund or funds.

§20-1-10. Property management.

(a) The division shall maintain at all times an accurate record of all of its lands, interests in lands, buildings, structures, equipment and other tangible properties and assets. The record shall reflect the location, utility, condition and estimated value of all such properties and assets. The division shall provide for the maintenance, preservation and custody of all such properties and assets.

(b) Subject to the provisions of §20-1-19 of this code, when any item or items or lands are deemed obsolete or are no longer needed the division shall have the authority, with the approval in writing of the Secretary of Commerce, to sell, lease, or otherwise dispose of property that is under the jurisdiction and control of the director. The director may convey property in exchange for money, security or property, both real and personal, and any interest in such property, including lands and waters, which he or she deems suitable for the purposes of the division.

(c) The director shall select and designate a competent and qualified person as division property officer, who shall be responsible for the division’s records relating to its properties and assets and for the maintenance, preservation, custody and disposition of all such properties and assets as herein provided.

(d) Subject to valid existing rights, division owned wildlife management area lands shall be open to access and use for recreational hunting and shooting except as limited by the division for reasons of public safety, fish and wildlife management or homeland security or as otherwise limited by law.

(e) The division shall exercise its authority consistent with subsection (d) to support, promote and enhance recreational hunting and shooting opportunities, to the extent authorized by statute. The division shall give preference to hunting and shooting over other uses of division owned wildlife management area lands.

(f) Division land management decisions and actions may not result in a net loss of habitat land acreage available for hunting and shooting opportunities on division owned wildlife management area lands that exists on the effective date of this section.

(g) On or before December 1, the division shall submit an annual report to the Governor and to the Joint Committee on Government and Finance, including the following:

(1) The acreage administered by the division that has been closed during the previous year to recreational hunting and the reasons for the closures; and

(2) The acreage administered by the division that, in order to comply with the provisions of subsection (f) was opened to recreational hunting to compensate for that acreage.

§20-1-10a. Authority to convey land to county board of education for educational purposes.

To further an appreciation and understanding of the outdoors by the youth of this state, the director is hereby authorized to enter into long-term agreements, with the written approval of the Governor, leasing unto the county board of education of any county wherein are situate lands belonging to the department of natural resources, for nominal consideration, one parcel of rural land not exceeding in size one acre for each five hundred students registered in the public schools of the county at the time of the lease. Such land shall be used by the county board of education exclusively to establish and maintain an outdoor education program and for no other purpose. By a multicounty agreement, the county boards of education of any county or counties in which no land belonging to the department of natural resources is located may join with any other county or counties in which such land is located to establish and maintain a joint outdoor education program and the combined student enrollment of the counties joining into such an agreement shall determine the maximum acreage that may be leased by the department of natural resources for such purposes.

If the department of natural resources makes a finding that land leased pursuant to this section has ceased to be used for the purposes set forth herein for a period of three consecutive years, the director shall notify the affected county board or boards of education of such a finding in writing. Upon the expiration of sixty days from receipt of said notice, such lease shall become null and void and control of such leased land shall revert to the department of natural resources unless the affected board or boards of education have petitioned the circuit court of the county wherein the land or the greater portion thereof lies for review of the said finding.

Upon petition and hearing, the said circuit court shall determine whether the land has ceased to be used for the purposes set forth in this section. Periodic or incidental use of the land for less than six months of each calendar year shall not be sufficient to support a finding that the land has ceased to be used for the purposes set forth herein. If the said circuit court determines that the land has ceased to be used for the purposes set forth herein, the court shall, by written order, declare the lease null and void and reinstate control of the leased land in the department of natural resources.

§20-1-11. Public relations.

The department shall collect, organize and from time to time distribute to the public, through news media or otherwise, interesting facts, information and data concerning the natural resources of the state and the functions and services of the department. The director may organize and promote lectures, demonstrations, symposiums, schools and other educational programs relating to the state's natural resources. Motion pictures, slide films and other photographic services may be provided for instruction on natural resources for schools, other governmental agencies, and civic organizations under such rules and regulations as may be prescribed by the director.

The director shall select and designate a competent and qualified person as department public relations officer, who shall be responsible for the organization and management of the department's public relations program. He may prepare and distribute from time to time pamphlet materials and other compilations and publications of the department and may cooperate with other governmental agencies in the publication and distribution of such materials.

§20-1-12. Surveys and planning.

As departmental projects or in cooperation with other governmental or private agencies, the director may organize and promote surveys and explorations relating to the state's natural resources, their utility, development and protection. The state geological and economic survey commission, the department of mines, the Department of Agriculture, the Department of Commerce and other governmental agencies and activities shall cooperate, whenever and wherever practicable to do so, with the department in its survey and exploration work.

The director shall select and designate a competent and qualified person as department surveys officer who shall be responsible for the organization, promotion and correlation of the surveys and explorations as herein provided. He shall work closely with other offices and divisions of the department in order to effect maximum development, utilization, protection and enjoyment of the state's natural resources.

§20-1-13. Law enforcement and legal services.

The director shall select and designate a competent and qualified person to be the chief natural resources police officer, who has the title of colonel and who is responsible for the prompt, orderly and effective enforcement of all of the provisions of this chapter. Under the supervision of the director and subject to personnel qualifications and requirements otherwise prescribed in this chapter, the chief natural resources police officer is responsible for the selection, training, assignment, distribution and discipline of natural resources police officers and the effective discharge of their duties in carrying out the law-enforcement policies, practices and programs of the division in compliance with the provisions of article seven of this chapter and other controlling laws. Except as otherwise provided in this chapter, natural resources police officers are authorized to enter into and upon private lands and waters to investigate complaints and reports of conditions, conduct, practices and activities considered to be adverse to and violative of the provisions of this chapter and to execute writs and warrants and make arrests thereupon.

The Attorney General and his or her assistants and the prosecuting attorneys of the several counties shall render to the director, without additional compensation, legal services as the director may require of them in the discharge of his or her duties and the execution of his or her powers under and his or her enforcement of the provisions of this chapter. The director, in an emergency and with prior approval of the Attorney General, may employ an attorney to act in proceedings wherein criminal charges are brought against personnel of the department because of action in line of duty. For the attorney services, a reasonable sum, not exceeding $2,500, may be expended by the director in any one case.

The director, if he or she considers the action necessary, may request the Attorney General to appoint an assistant attorney general, who shall perform, under the supervision and direction of the Attorney General, the duties as may be required of him or her by the director. The Attorney General, in pursuance of the request, may select and appoint an assistant attorney general to serve at the will and pleasure of the Attorney General, and the assistant shall receive a salary to be paid out of any funds made available for that purpose by the Legislature to the department.

§20-1-14. Sections within division.

Sections of wildlife resources and of law enforcement are hereby continued within the Division of Natural Resources. Subject to provisions of law, the director of the Division of Natural Resources shall allocate the functions and services of the division to the sections, offices and activities thereof and may from time to time establish and abolish other sections, offices and activities within the division in order to carry out fully and in an orderly manner the powers, duties and responsibilities of the office as director. The director shall select and designate a competent and qualified person to be chief of each section. The chief is the principal administrative officer of that section and is accountable and responsible for the orderly and efficient performance of the duties, functions and services thereof.

§20-1-15.

Repealed.

Acts, 1989 Reg. Sess., Ch. 135.

§20-1-16. Natural Resources Commission - generally.

(a) The Natural Resources Commission, created and established by §20-1-3 of this code, shall be a public benefit corporation and as such may sue and be sued, plead and be impleaded, contract and be contracted with, and have and use a common seal. It shall be a commission advisory to the director and to the Division of Natural Resources. The commission shall be composed of seven members, known as commissioners, one from each division of natural resources district and the remainder from the state at large, and shall be appointed to provide the broadest geographic distribution possible so that each commissioner shall attend the division sectional meetings established in §20-1-7(6) of this code within his or her respective district.

(b) The Governor, with the advice and consent of the Senate, shall appoint the seven members for the following terms beginning July 1, 2021:

(1) Three for a term of four years;

(2) Two for a term of three years; and

(3) Two for a term of two years.

(4) Successors to appointed members whose terms expire shall be appointed for terms of four years. Any commissioner whose term has expired shall serve until his or her successor has been appointed. An appointed commissioner may not serve more than two consecutive terms. Vacancies shall be filled for any unexpired term. Appointment to fill a vacancy shall not be considered as one of two full terms. Any commissioner who has served two or more consecutive terms immediately preceding the effective date of this section shall not be excluded from consideration for initial appointment under this section.

(c) The members of the commission shall be citizens and residents of the state, and shall be selected with special emphasis on his or her interest in the conservation of the natural resources of the state. No member of the commission shall be a candidate for or hold any public office other than that of member of the commission; nor shall he or she be a member of any committee of a political party. In case a member becomes a candidate for or accepts appointment to any public office or political party committee, his or her position as member of the commission shall be immediately vacated. The Director of the Division of Natural Resources may submit recommendations to the Governor for the appointment of the commissioners.

(d) Commissioners are not entitled to compensation for services performed for the commission, but may be reimbursed by the Division of Natural Resources for actual and necessary expenses incurred for each day in which he or she is engaged in the discharge of official duties, the actual expenses not to exceed the amount paid similar reimbursement to members of the Legislature.

§20-1-17. Natural Resources Commission -- Organization and services.

(a) Members of the Natural Resources Commission shall take and subscribe to the public officer's oath prescribed by the Constitution before entering upon the duties of their office. All such executed oaths shall be filed in the office of the Secretary of State. Members of the Commission shall receive no compensation as such, but each shall be reimbursed for his or her actual and necessary traveling expenses incurred in the performance of his or her official duties.

(b) The Director of the Division shall be ex officio a member of the Commission and its presiding officer. A majority of the Commission shall constitute a quorum for transaction of business. Four regular meetings of the Commission shall be held each year One meeting shall be held in each quarter of the calender year. The date of the meeting shall be at the discretion of the Director of the Division of Natural Resources. Special meetings may be convened by the Governor, the Director or by a majority of the Commission. The meetings of the Commission shall be regularly held at locations designated by the Director. The time and place of the meeting shall be announced in accordance with section one, article nine-a, chapter six, et seq., of this code. The Director shall furnish all articles and supplies required by the Commission in the performance of its duties and shall provide necessary stenographic, secretarial and clerical assistance therefor. All such materials and services shall be paid for from Department funds.

The Director, at any regular or special meeting of the Commission, may submit to the Commission any program or policy matters on which he or she wishes to obtain the advice, counsel and opinion of the Commission and may consult with members of the Commission on functions, services, policies and practices of the Department at any time. The Commission shall serve as a body advisory to the Director and shall perform all other duties assigned to it by law. It shall have the following powers and duties:

(1) To consider and study the entire field of legislation and administrative methods concerning the forests and their maintenance and development, the protection of fish and game, the beautification of the state and its highways, and the development of lands, minerals, waters and other natural resources;

(2) To advise with the Director concerning the conservation problems of particular localities or districts of the state;

(3) To recommend policies and practices to the Director relative to any duties imposed upon him or her by law;

(4) To investigate the work of the Director, and for this purpose to have access at reasonable times to all official books, papers, documents and records;

(5) To advise or make recommendations to the Governor relative to natural resources of the state;

(6) To keep minutes of the transactions of each session, regular or special, which shall be public records and filed with the Director; and

(7) To fix by regulation which it is hereby empowered to promulgate, in accordance with the provisions of chapter twenty-nine-a of this code, the open seasons and the bag, creel, size, age, weight and sex limits with respect to wildlife in this state.

§20-1-18. Government cooperation; projects; finances; properties.

In addition to all other powers and authority vested in the director, he is hereby authorized and empowered to represent and advance the interests of the State of West Virginia under provisions of acts of Congress now in force or hereafter enacted providing for cooperation between the governments of the United States and of the several states in the exploration, development, conservation, use and enjoyment of natural resources. He may acquire by purchase or lease, as in this chapter provided, such lands, interests in lands, forests, parks, recreational facilities, wildlife and water areas and such other properties within this state as may be required in cooperative programs with any other government or governments, and, with the approval of the Governor, may negotiate and effect self-liquidating loans with the government of the United States or any agency or agencies thereof for the procurement, development and use of all such properties. All such projects shall be in the interest and for the benefit of the state and may be geared and timed to relieve economic hardship and unemployment.

In order to consolidate forest tracts under either state or federal administration, the director may sell, purchase or exchange stumpage or lands within or adjacent to any national forest purchase area.

The director shall study the land and water boundary areas of the state and, where practicable, cooperate with adjacent states in programs for the development, conservation and use of waters, forests, minerals, wildlife and other natural resources.

§20-1-18a. Cooperation with federal government in wildlife restoration and management.

The state of West Virginia hereby assents to the provisions of the act of Congress entitled, "An act to provide that the United States shall aid the states in wildlife restoration projects and for other purposes," approved September 2, 1937 (Public Law number four hundred fifteen, seventy-fifth Congress), and the director is hereby authorized, empowered and directed to perform such acts as may be necessary to the conduct and establishment of cooperative wildlife restoration projects, as defined in said act of Congress, in compliance with said act and with rules and regulations promulgated by the secretary of the interior thereunder. Funds accruing to the state from license fees paid by hunters shall not be diverted for any other purposes than those stated in section thirty-four, article two of this chapter.

§20-1-18b. Cooperation with federal government in fish restoration and management.

The state of West Virginia hereby assents to the provisions of the act of Congress entitled, "An act to provide that the United States shall aid the states in fish restoration and management projects and for other purposes," (Public Law number six hundred eighty-one, eighty-first Congress), and the director is hereby authorized, empowered and directed to perform such acts as may be necessary to the conduct and establishment of fish restoration and management projects as defined in said act of Congress, in compliance with said act and with rules and regulations promulgated by the secretary of the interior thereunder. Funds accruing to the state from license fees paid by fishermen shall not be diverted for any purposes other than those stated in section thirty-four, article two of this chapter.

§20-1-18c. Cooperation with federal government in management of federal lands within the state.

The Legislature recognizes that there are large areas of this state that are owned by or under the control of the government of the United States. In order to cooperate with the various federal agencies which have jurisdiction over these areas and to effectively enforce rules and regulations to protect these areas, the Legislature hereby authorizes the director to adopt such rules and regulations as are necessary to cooperate in all law enforcement activities with the various federal agencies. Such rules and regulations shall be adopted according to the administrative procedures act as provided in chapter twenty-one-a of this code. To the extent that any rules and regulations adopted by the director are identical to existing federal rules and regulations, they may be promulgated without the procedures required under the administrative procedures act except that there shall be public notice of the adoption of such regulations and they shall be filed in the office of the Secretary of State.

§20-1-18d.

Repealed.

Acts, 2010 Reg. Sess., Ch. 32.

§20-1-19. West Virginia state parks and state forests.

(a) The state parks of West Virginia are:

(1) Audra; (2) Babcock; (3) Beartown; (4) Beech Fork; (5) Berkeley Springs; (6) Blackwater Falls; (7) Blennerhassett Island Historical; (8) Bluestone; (9) Cacapon Resort; (10) Camp Creek; (11) Canaan Valley Resort; (12) Carnifex Ferry Battlefield; (13) Cass Scenic Railroad; (14) Cathedral; (15) Cedar Creek; (16) Chief Logan; (17) Droop Mountain Battlefield; (18) Fairfax Stone Historical Monument; (19) Hawks Nest; (20) Holly River; (21) Little Beaver; (22) Lost River; (23) Moncove Lake; (24) North Bend; (25) Pinnacle Rock; (26) Pipestem Resort; (27) Prickett’s Fort; (28) Stonewall Resort; (29) Summersville Lake; (30) Tomlinson Run; (31) Tu-Endie-Wei (Point Pleasant Battle Monument); (32) Twin Falls Resort; (33) Tygart Lake; (34) Valley Falls; (35) Watoga; and (36) Watters Smith Memorial.

(b) The state forests of West Virginia are:

(1) Cabwaylingo; (2) Calvin Price; (3) Camp Creek; (4) Coopers Rock; (5) Greenbrier; (6) Kanawha; (7) Kumbrabow; (8) Panther Forest/WMA, consisting of approximately twenty-six acres containing park facilities; and (9) Seneca.

(c) Neither the director nor any officer, employee or agent of the Division of Natural Resources may close, change the name or the designated use of a state park or state forest without statutory authorization.

§20-1-20. Limitations on state parks and state forests; exceptions.

(a)(1) The Legislature finds that the acquisition of land to construct new or expand existing state parks and state forests is costly. After these areas are constructed, they must be maintained and personnel must be employed to operate the facilities. These costs continue to increase and place a burden on state revenues.

(2) The Legislature declares that there is an ultimate limit to how many state parks and state forests, based upon its size, population and financial resources, the State of West Virginia can support. Further, the Legislature hereby declares that it is within its authority to establish, provide for and maintain limits on state parks and state forests.

(b) Without written notice to the Joint Committee on Government and Finance, neither the director nor an officer, employee or agent of the Division of Natural Resources may:

(1) Acquire, or authorize the acquisition of, land for any new state park or state forest; or

(2) Construct, or authorize the construction of, any new facility or building in any state park or state forest.

(c) Notice to the Joint Committee on Government and Finance is not required for the following acquisitions and construction projects:

(1) The director may authorize the construction of any new facility or building that is constructed with donated funds, materials and labor in an existing state park or state forest; and

(2) The director may construct or authorize the construction of any new facility or building built by state employees when the total cost of materials does not exceed $25,000.

(d) Nothing in this section shall prohibit the director from expending any appropriations that are designated to complete land acquisitions or the construction of facilities and buildings, including electric, water and sewage systems for state parks and state forests.

(e) The director shall require that any new building has a roof of sufficient slope in accordance with the current state building code.

§20-1-21.

Repealed.

§20-2-1. Declaration of policy.

It is declared to be the public policy of the State of West Virginia that the wildlife resources of this state shall be protected for the use and enjoyment of all the citizens of this state. All species of wildlife shall be maintained for values which may be either intrinsic or ecological or of benefit to man. Such benefits shall include (1) hunting, fishing and other diversified recreational uses; (2) economic contributions in the best interests of the people of this state; and (3) scientific and educational uses.

§20-2-1a. Wildlife resources division; organization and administration.

The chief of the division of wildlife resources shall be primarily responsible for the execution and administration of the provisions of this article as an integral part of the natural resources program of the state as defined and constituted in this chapter. He shall organize the division and select competent and qualified personnel therefor so as to effect an orderly, efficient and economical division organization.

§20-2-2. Violations of article.

When no specific punishment or penalty is otherwise provided for violations of the provisions of this article, any person violating any provision hereof shall be guilty of a misdemeanor offense, and, upon conviction thereof, shall be subject to the punishment and penalties prescribed in section nine, article seven of this chapter.

§20-2-2a. Interference with hunters, trappers and fishermen.

A person may not willfully obstruct or impede the participation of any individual in the lawful activity of hunting, fishing or trapping. Any person violating the provisions of this section shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than $100 nor more than $500 or imprisoned in the county jail for not less than ten days nor more than one hundred days or both fined and imprisoned. Also, any person convicted of a subsequent violation of this section shall be fined not more than $1,000 or imprisoned in the county jail not more than one year or both fined and imprisoned. For the purpose of this section a subsequent violation is one which has occurred within two years of any prior violation of this section and which arises out of a separate set of circumstances. Any person convicted of any violation of this section shall be liable to the person, whom they interfered with, for all costs and damages resulting therefrom and if such offender holds a West Virginia hunting, fishing or trapping license at the time of conviction, such license shall be revoked.

§20-2-3. State ownership of wildlife.

The ownership of and title to all wildlife in the State of West Virginia is hereby declared to be in the state, as trustee for the people. A person shall not take or hunt wildlife in any manner, or at any time, unless the person taking or hunting the wildlife consents that the title to the wildlife is and remains in the State of West Virginia for the purpose of regulating the taking, hunting, using, and disposing of the wildlife. The taking or hunting of wildlife at any time or in any manner by any person is considered consent: Provided, That, all fish, frogs, and other aquatic life in privately-owned ponds are, and remain, the private property of the owner or owners of the privately-owned ponds, and that the fish, frogs, and other aquatic life in the privately-owned ponds may be caught, taken or killed by the owner or owners at any time.

§20-2-4. Possession of wildlife.

(a) Except for wildlife lawfully taken, killed or obtained, no person may have in his or her possession any wildlife, or parts thereof, during closed seasons. It is unlawful to possess any wildlife, or parts thereof, which have been illegally taken, killed or obtained. This does not include the possession of deer antlers that are naturally shed and collected by a person from his or her own land, from public lands unless prohibited by law, or from private lands with the written permission of the landowner in hand. Any wildlife illegally taken, killed or possessed shall be forfeited to the state and shall be counted toward the daily, seasonal, bag, creel and possession limit of the person in possession of, or responsible for, the illegal taking or killing of any wildlife. It is unlawful to take, obtain, purchase, possess or maintain in captivity any live wildlife, wild animals, wild birds, game or fur-bearing animals except as provided by this chapter or any rule promulgated thereunder.

(b) Wildlife lawfully taken outside of this state is subject to the same laws and rules as wildlife taken within this state.

(c) Migratory wild birds may be possessed only in accordance with the Migratory Bird Treaty Act, 16 U. S. C. §703, et seq., and its regulations.

(d) The restrictions in this section do not apply to the director or duly authorized agents, who may take or maintain in captivity any wildlife for the purpose of carrying out the provisions of this chapter.

(e) Wildlife, except protected birds, elk, spotted fawn and bear cubs, killed or mortally wounded as a result of being accidentally or inadvertently struck by a motor vehicle may be lawfully possessed if the possessor of the wildlife provides notice of the claim within twelve hours to a relevant law-enforcement agency and obtains a nonhunting game tag within twenty-four hours of possession. The director shall propose administrative policy which addresses the means, methods and administrative procedures for implementing the provisions of this section.

(f) Persons are required to electronically register deer, bear, turkey, wild boar, bobcat, beaver, otter and fisher in accordance with rules promulgated by the director. “Electronically register” means submission of all necessary and relevant information to the division, in the manner designated by rule governing the electronic registration of wildlife. The director may promulgate rules, pursuant to article three, chapter twenty-nine-a of this code, governing the electronic registration of wildlife: Provided, That the rules shall include a procedure for persons who are not required to obtain licenses or permits under section twenty-eight of this article to register wildlife using identification other than a social security number. The rules may use a system of a combination of the last four digits of the social security number, date of birth and last name of the person.

§20-2-5. Unlawful methods of hunting and fishing and other unlawful acts; Sunday hunting.

(a) Except as authorized by the director or by law, it is unlawful at any time for any person to:

(1) Shoot at any wild bird or wild animal unless it is plainly visible;

(2) Dig out, cut out, smoke out, or in any manner take or attempt to take any live wild animal or wild bird out of its den or place of refuge;

(3) Use or attempt to use any artificial light or any night vision technology, including image intensification, thermal imaging, or active illumination while hunting, locating, attracting, taking, trapping, or killing any wild bird or wild animal: Provided, That it is lawful to hunt or take coyote, fox, raccoon, opossum, or skunk by the use of artificial light or night vision technology, including image intensification, thermal imaging, or active illumination. Any person violating this subdivision is guilty of a misdemeanor and, upon conviction thereof, shall for each offense be fined not less than $100 nor more than $500, and shall be confined in jail for not less than 10 days nor more than 100 days;

(4) Hunt, take, kill, wound, harass, or shoot at wild animals or wild birds from an airplane or other airborne conveyance, a drone or other unmanned aircraft, an automobile, or other land conveyance, or from a motor-driven water conveyance;

(5) Use a drone or other unmanned aircraft to hunt, take, wound, harass, transport, or kill a wild bird or wild animal, or to use a drone or other unmanned aircraft to drive or herd any wild bird or wild animal for the purposes of hunting, trapping, or killing;

(6) Take any beaver or muskrat by any means other than a trap;

(7) Catch, capture, take, hunt, or kill by seine, net, bait, trap, or snare or like device a wild turkey, ruffed grouse, pheasant, or quail;

(8) Intentionally destroy or attempt to destroy the nest or eggs of any wild bird or have in his or her possession the nest or eggs;

(9) Carry an uncased or loaded firearm in the woods of this state or in state parks, state forests, state wildlife management areas, or state rail trails with the following permissible exceptions:

(A) A person in possession of a valid license or permit during open firearms hunting season for wild animals and nonmigratory wild birds where hunting is lawful;

(B) A person hunting or taking unprotected species of wild animals, wild birds, and migratory wild birds during the open season, in the open fields, open water, and open marshes of the state where hunting is lawful;

(D) A person carrying a firearm for self-defense who is not prohibited from possessing firearms under state or federal law; or

(E) A person carrying a rifle or shotgun for self-defense who is not prohibited from possessing firearms under state or federal law: Provided, That this exception does not apply to an uncased rifle or shotgun carried specifically in state park or state forest recreational facilities and marked trails within state park or state forest borders;

(10) Hunt, catch, take, kill, injure, or pursue a wild animal or wild bird with the use of a ferret;

(11) Buy raw furs, pelts, or skins of fur-bearing animals unless licensed to do so;

(12) Catch, take, kill, or attempt to catch, take, or kill any fish by any means other than by rod, line, and hooks with natural or artificial lures, unless otherwise authorized by the director: Provided, That snaring of any species of sucker, carp, fallfish, and creek chub and catching catfish by hand are lawful if done by a holder of a valid license issued pursuant to §20-2-1 et seq. of this code or is exempted from licensure pursuant to §20-2-27 or §20-2-28 of this code;

(13) Employ, hire, induce, or persuade, with money, things of value, or by any means, any person to hunt, take, catch, or kill any wild animal or wild bird except those species in which there is no closed season; or to fish for, catch, take, or kill any fish, amphibian, or aquatic life that is protected by rule, or the sale of which is otherwise prohibited;

(14) Hunt, catch, take, kill, capture, pursue, transport, possess, or use any migratory game or nongame birds except as permitted by the Migratory Bird Treaty Act, 16 U.S.C. §703 et seq., and its regulations;

(15) Kill, take, catch, sell, transport, or have in his or her possession, living or dead, any wild bird other than a game bird, including the plumage, skin, or body of any protected bird, irrespective of whether the bird was captured in or out of this state, except the English or European sparrow (Passer domesticus), starling (Sturnus vulgaris), and cowbird (Molothrus ater), which may be killed at any time;

(16) Use dynamite, explosives, or any poison in any waters of the state for the purpose of killing or taking fish. Any person violating this subdivision is guilty of a felony, and upon conviction thereof, shall be fined not more than $500 or confined for not less than six months nor more than three years, or both fined and confined;

(17) Have a bow and gun, or have a gun and any arrow, in the fields or woods at the same time;

(18) Have a crossbow in the woods or fields, or use a crossbow to hunt, take, or attempt to take any wildlife except as otherwise provided in §20-2-5g and §20-2-42w of this code;

(19) Take or attempt to take turkey, bear, elk, or deer with any arrow unless the arrow is equipped with a point having at least two sharp cutting edges measuring in excess of three- fourths of an inch wide;

(20) Take or attempt to take any wildlife with an arrow having an explosive head or shaft, a poisoned arrow, or an arrow which would affect wildlife by any chemical action;

(21) Shoot an arrow across any public highway;

(22) Permit any dog owned or under his or her control to chase, pursue, or follow the tracks of any wild animal or wild bird, day or night, between May 1 and August 15: Provided, That dogs may be trained on wild animals and wild birds, except deer and wild turkeys, and field trials may be held or conducted on the grounds or lands of the owner, or by his or her bona fide tenant, or upon the grounds or lands of another person with his or her written permission, or on public lands at any time. Nonresidents may not train dogs in this state at any time except during the legal small game hunting season. A person training dogs may not have firearms or other implements for taking wildlife in his or her possession during the closed season on wild animals and wild birds, except a person carrying a firearm for self-defense who is not prohibited from possessing firearms under state or federal law;

(23) Conduct or participate in a trial, including a field trial, shoot-to-retrieve field trial, water race, or wild hunt: Provided, That any person, group of persons, club, or organization may hold a trial upon obtaining a permit pursuant to §20-2-56 of this code. The person responsible for obtaining the permit shall prepare and keep an accurate record of the names and addresses of all persons participating in the trial and make the records readily available for inspection by any natural resources police officer upon request;

(24) Hunt, catch, take, kill, or attempt to hunt, catch, take, or kill any wild animal, wild bird, or wild fowl except during open seasons;

(25) Hunt or conduct hunts for a fee when the person is not physically present in the same location as the wildlife being hunted within West Virginia; and

(26) Catch, take, kill, or attempt to catch, take, or kill any fish by any means within 200 feet of division personnel engaged in stocking fish in public waters.

(b) Notwithstanding any ballot measure relating to Sunday hunting, it is lawful to hunt throughout the State of West Virginia on private lands on Sundays with the written consent of the private landowner pursuant to §20-2-7 of this code, and it is lawful to hunt throughout the State of West Virginia on federal land where hunting is permitted, in state forests, on land owned or leased by the state for wildlife purposes, and on land managed by the state for wildlife purposes pursuant to a cooperative agreement.

§20-2-5a. Forfeiture by person causing injury or death of game or protected species of animal; additional replacement costs for antlered deer; forfeiture procedures and costs.

(a) Any person who is convicted of violating a criminal law of this state that results in the injury or death of game, as defined in §20-1-2 of this code, or a protected species of animal, in addition to any other penalty to which he or she is subject, shall forfeit the replacement cost of the game or protected species of animal to the state as follows:

(1) For each game fish or each fish of a protected species taken illegally other than by pollution kill, $20 for each pound and any fraction thereof: Provided, That for each native brook trout that exceeds the creel limit, $100 each for the first five illegally taken and $20 for each thereafter;

(2) For each bear, $1,000;

(3) For each deer, $500;

(4) For each wild turkey, $250;

(5) For each beaver, otter or mink, $100;

(6) For each muskrat, raccoon, skunk, or fox, $15;

(7) For each rabbit, squirrel, opossum, duck, quail, woodcock, grouse, or pheasant, $10;

(8) For each wild boar, $500;

(9) For each bald eagle, $5,000;

(10) For each golden eagle, $5,000;

(11) For each elk, $10,000;

(12) For each raven, hawk, or owl $200; and

(13) For any other game or protected species of animal, $100.

(b) In addition to the replacement value for deer in subdivision (3), subsection (a) of this section, the following replacement cost shall also be forfeited to the state by any person who is convicted of violating any criminal law of this state and the violation causes the injury or death of antlered deer:

(1) For any deer in which the inside spread of the main beams of the antlers measured at the widest point equals 14 inches or greater but less than 16 inches, $2,500;

(2) For any deer in which the inside spread of the main beams of the antlers measured at the widest point equals 16 inches or greater but less than 18 inches, $5,000;

(3) For any deer in which the inside spread of the main beams of the antlers measured at the widest point equals 18 inches or greater but less than 20 inches, $7,500; and

(4) For any deer in which the inside spread of the main beams of the antlers measured at the widest point equals 20 inches or greater, $10,000.

(5) Any person convicted of a second or subsequent violation of any criminal law of this state which violation causes the injury or death of antlered deer is subject to double the authorized range of replacement cost to be forfeited.

(c) Upon conviction, the court shall order the person to forfeit to the state the amount set forth in this section for the injury or death of the game or protected species of animal. If two or more defendants are convicted for the same violation causing the injury or death of game or protected species of animal, the replacement costs shall be paid by each person in an equal amount. The replacement costs shall be paid by the person so convicted within the time prescribed by the court not to exceed 60 days. In each instance, the court shall pay the replacement costs to the Division of Natural Resources to be deposited into the License Fund-Wildlife Resources and used only for the replacement, habitat management or enforcement programs for injured or killed game or protected species of animal.

(d) Any person convicted of an offense described in subsection (a) of this section and subject to the replacement cost provisions of subsection (b) or subdivision (a)(11) of this section shall also be subject to a revocation of hunting and fishing license for a period of five years pursuant to §20-2-38 of this code and such person shall not be issued any other hunting license for a period of five years.

§20-2-5b. Exceeding creel limit on trout; other violations of code or rules and regulations for trout fishing; penalties.

Any person who exceeds the creel limit on trout or who otherwise violates any provisions of this code or any rules and regulations relating to trout fishing is guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than $50 nor more than $300, or imprisoned in the county jail not less than ten nor more than one hundred days, or both fined and imprisoned.

§20-2-5c. Protection of bald eagles and golden eagles; unlawful acts; criminal penalties; forfeitures; license revocation.

(a) It is unlawful at any time for any person to take, possess, transport, import, export or process, sell or offer for sale, buy, barter or trade or offer to buy, barter or trade at any time or in any manner, any bald eagle, also commonly known as the American eagle, or any golden eagle, alive or dead, or any part, nest or egg thereof of the foregoing eagles, or to attempt to do any of these acts.

(b) Anyone who violates the provisions of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $500 nor more than $5,000 or imprisoned in the county jail not less than sixty days nor more than one year, or both fined and imprisoned. One half of any fine imposed shall be paid to any person or persons providing information that leads to the arrest and conviction of anyone violating the provisions of this section.

(c) For a second or subsequent conviction for a violation of this section, a person is guilty of a felony and, shall be fined not less than $5,000 nor more than $10,000 and imprisoned in the penitentiary for not less than one year nor more than two years. An amount equal to one half of the fine imposed, not exceeding $2,500, shall be paid to the person or persons providing information that leads to the arrest and conviction of anyone for a second or subsequent violation of the provisions of this section.

(d) "Take" is defined as including any means to pursue, hunt, wound, kill, capture, collect, poison, or molest any bald eagle or golden eagle, or any part, nest or egg thereof, or to knowingly and willfully destroy the nest or eggs of any such eagles.

(e) Nothing in this section may be construed to prohibit the taking, possession or transportation of bald or golden eagles legally under the current federal Eagle Protection Act, 16 USC § 668a, and the current federal regulations, 50 CFR 22.1 et seq.

(f) All wildlife, merchandise, guns, traps, nets and other equipment, vessels, vehicles, aircraft and other means of transportation used in taking, possessing, transporting, importing, exporting, selling or offering for sale, purchasing or bartering or offering to purchase or barter any bald or golden eagle or part, nest, or egg thereof, or in attempting to do any of these acts in violation of this section shall be forfeited, at the time of conviction, to the state.

(g) Upon conviction of taking, possessing, transporting, importing, exporting or processing, selling or offering for sale, buying, bartering or trading or offering to buy, barter or trade any bald or golden eagle, alive or dead, or any part, nest or egg thereof of the foregoing eagles, or of attempting to do any of these acts, the hunting licenses of such person or persons may be revoked and such person or persons shall not be issued any new hunting licenses for a period of ten years from the date of conviction.

§20-2-5d. Use of chemicals, biological compounds or devices on free roaming wildlife populations for fertility control.

Notwithstanding any other provisions of this code and except as specifically authorized by the director in consultation with the wildlife resources section of the division, it is unlawful for anyone to administer any chemical, biological compound or device to free roaming or noncaptive wildlife for the purpose of fertility control. The director shall promulgate legislative rules in accordance with the provisions of article three, chapter twenty-nine-a of this code whereby the director may issue such authorization.

§20-2-5e. Assessment fee for decoy animals.

Any person convicted for the violation of any law involving the Division of Natural Resources' use of a decoy animal shall, in addition to any fines and costs for the criminal violation, pay a $50 civil penalty to the Division of Natural Resources, law-enforcement section. The civil penalty shall be collected by the court in which the person is convicted and forwarded to the Division of Natural Resources, law-enforcement section. All funds collected are to be placed in a special account and used for: (1) The purchase or repair of decoy animals; and (2) the purchase of equipment for use with decoy animals.

§20-2-5f. Nonresident dog training for coon hunting; training season.

Notwithstanding subdivision (24), section five of this article or any other provision to the contrary, the director is authorized to allow a nonresident to train dogs for coon hunting in West Virginia, if the state in which the nonresident resides allows residents from West Virginia to train dogs for coon hunting. The dog training season for a nonresident to train dogs for coon hunting is from the fifteenth day of August of each year through the legal small game hunting season.

§20-2-5g. Use of a crossbow to hunt.

(a) Notwithstanding any other provision of this code to the contrary, any person lawfully entitled to hunt may hunt with a crossbow during big game firearms season. A person who possesses a valid Class Y permit may also hunt with a crossbow in accordance with §20-2-42w of this code. Further, the director shall designate a separate season for crossbow hunting and identify which species of wildlife may be hunted with a crossbow.

(b) Only crossbows meeting all of the following specifications may be used for hunting in West Virginia:

(1) The crossbow has a minimum draw weight of 125 pounds;

(2) The crossbow has a working safety; and

(3) The crossbow is used with bolts and arrows not less than 16 inches in length as measured from the leading end of the shaft, including the insert, to the trailing end of the shaft, including the nock, with a broad head having at least two sharp cutting edges, measuring at least three fourths of an inch in width.

§20-2-5h. Elk management area; elk damage fund; criminal penalties; rule-making.

(a) Findings. -- The Legislature finds that Eastern Elk were once a common, native species in the state prior to and following its formation, but historical records indicate native elk were extirpated from the state around 1875. Until recently, free roaming elk have not been present in the state. However, elk are now migrating to the state from Kentucky, which has an active elk restoration program. Therefore, the Division of Natural Resources has established an active elk restoration program in Southern West Virginia.

(b) Elk management area. -- The division has established an elk restoration management plan to reintroduce elk to all of Logan County, Mingo County, McDowell County and Wyoming County, and part of Boone County, Lincoln County and Wayne County. The director and the division may not expand the elk management area without statutory authorization.

(c) Elk damage fund. -- There is hereby created a special revenue account in the State Treasury to be known as the Elk Damage Fund to be administered by the division. Ten percent from all application fees for the hunting of elk are to be deposited into the Elk Damage Fund." Expenditures from the fund shall be for the payment of damages caused to agricultural crops, agricultural fences and personal gardens by elk.

(d) Criminal penalties. -- It shall be unlawful for any person to hunt, capture or kill any elk, or have in his or her possession elk or elk parts, except for elk lawfully taken, killed or obtained during an established open hunting season for elk or by permit.

(1) Any person who commits a violation of the provisions of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $1,000 nor more than $5,000, or confined in jail not less than thirty nor more than one hundred days, or both fined and confined.

(2) Any person who commits a second violation of the provisions of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $2,000 nor more than $7,500, or confined in jail not less than thirty days nor more than one year, or both fined and confined.

(3) Any person who commits a third or subsequent violation of the provisions of this section is guilty of a felony and, upon conviction thereof, shall be fined not less than $5,000 nor more than $10,000, or imprisoned in a state correctional facility not less than one year nor more than five years, or both fined and imprisoned.

(e) Rulemaking. -- The director shall propose rules for promulgation in accordance with the provisions of article three, chapter twenty-nine-a of this code to:

(1) Set forth the parameters of the elk management plan;

(2) Establish the procedures for the issuance of depredation permits to persons suffering damage from elk;

(3) Establish protocols for the control of elk outside the elk management area;

(4) Establish hunting application fees and procedures;

(5) Establish procedures for reimbursement from the elk damage fund to those with damage to agricultural crops, agricultural fences and personal gardens caused by elk; and

(6) Establish protocols for ensuring elk imported to the state are healthy, tested for tuberculosis, brucellosis and other diseases of critical concern, and from an area where chronic wasting disease has not been detected.

§20-2-6. Carrying gun on landowner's land.

Notwithstanding any other provisions of this chapter, it shall be lawful for a bona fide resident landowner of this state, any member of said landowner's family and any bona fide tenant of said landowner, to carry an uncased gun at any time, whether accompanied by or without a dog, in their regular pursuits in caring for and looking after such landowner's livestock or poultry on his land and on any lands leased or rented by him for livestock or poultry husbandry purposes.

§20-2-6a

Repealed.

Acts, 2016 Reg. Sess., Ch. 252

§20-2-7. Hunting, trapping or fishing on lands of another; damages and restitution.

(a) It is unlawful for any person to shoot, hunt, fish or trap upon the fenced, enclosed or posted lands of another person; or to peel trees or timber, build fires or do any other act in connection with shooting, hunting, fishing or trapping on the lands without written permission in his or her possession from the owner, tenant or agent of the owner.

(b) Any person who hunts, traps or fishes on land without the permission of the owner, tenant or agent of the owner is guilty of a misdemeanor and, liable to the owner or person suffering damage for all costs and damages for: (1) Killing or injuring any domestic animal, fowl, or private game farm animal; (2) cutting, destroying or damaging any bars, gates or fence or any part of the property; or (3) leaving open any bars or gates resulting in damage to the property.

(c) Restitution of the value of the property or animals injured, damaged or destroyed shall be required upon conviction pursuant to sections four and five, article eleven-a, chapter sixty-one of this code. The restitution ordered for private game farm animals shall be equivalent to or greater than the replacement values for deer listed in section five-a in this article.

(d) The owner, tenant or agent of the owner may arrest a person violating this section and immediately take him or her before a magistrate. The owner, tenant or agent of the owner is vested with the powers and rights of a natural resources police officer for these purposes. The officers charged with the enforcement of the provisions of this chapter shall enforce the provisions of this section if requested to do so by the owner, tenant or agent of the owner, but not otherwise.

(e) The provisions of subsections (b) and (d) of this section related to criminal penalties and being subject to arrest are inapplicable to a person whose dog, without the person's direction or encouragement, travels onto the fenced, enclosed or posted land of another in pursuit of an animal or wild bird: Provided, That the pursuit does not result in the taking of game from the fenced, enclosed or posted land and does not result in the killing of domestic animals or fowl or other damage to or on the fenced, enclosed or posted land.

§20-2-8. Posting unenclosed lands; hunting, etc., on posted land.

The owner, lessee or other person entitled to possession of unenclosed lands may have erected and maintained signs or placards legibly printed, easily discernible, conspicuously posted and reasonably spaced or, alternatively, may mark the posted land as set forth in section one, article three-b, chapter sixty-one of this code, so as to indicate the territory in which hunting, trapping or fishing is prohibited.

Any person who enters upon the unenclosed lands of another which have been lawfully posted, for the purpose of hunting, trapping or fishing, shall be guilty of a misdemeanor. The officers charged with the enforcement of the provisions of this chapter shall have the duty to enforce the provisions of this section if requested to do so by such owner, lessee, person or agent, but not otherwise.

§20-2-9. Unlawful posting of lands.

It shall be unlawful and shall constitute a misdemeanor offense for any person or his agent or employee wilfully to post any notice or warning or wilfully to ward, drive or attempt to drive any person off, or prevent his hunting or fishing on, any land not owned or lawfully occupied by such person, his agent, or employee, unless such land is a lawfully established game or fish preserve.

§20-2-10. Destruction, etc., of signs posted under chapter.

It shall be unlawful and shall constitute a misdemeanor offense for any person to destroy, tear down, shoot at, deface or erase any printed matter or signs placed or posted by or under the authority of this chapter: Provided, however, That this section shall not apply to the owner, his agents, tenants or lessees, of the lands on which such signs or printed matter are posted. Each such sign so destroyed, torn down, shot at, defaced or erased shall be considered a separate offense under this section.

§20-2-11. Sale of wildlife; transportation of same.

(a) A person, except those legally licensed to operate private game preserves for the purpose of propagating game for commercial purposes and those legally licensed to propagate or sell fish, amphibians and other forms of aquatic life, may not purchase or offer to purchase, sell or offer to sell, trade or offer to trade, barter or offer to barter, expose for sale, trade or barter or have in his or her possession for the purpose of sale, trade or barter any wildlife, or part thereof, which has been designated as game animals, fur-bearing animals, game birds, game fish or amphibians, or any of the song or insectivorous birds of the state, or any other species of wildlife which the director may designate, except for captive cervids regulated pursuant to the provisions of §19-2H-1 et seq. of this code. However, pelts of game or fur-bearing animals, fur-bearer parts, including carcasses for the making of lures and baits, carcass parts, including glands, skulls, claws, and bones, and fur-bearer urine taken during the legal season may be sold, traded or bartered and live red and gray foxes and raccoon taken by legal methods during legal and established trapping seasons may be sold, traded or bartered within the state. In addition, the hide, head, antlers and feet of a legally killed deer, lawfully collected and possessed naturally shed deer antlers, the hide, head and skull of a legally killed black bear, and the hide and tails of legally killed squirrels may be sold, traded or bartered.

(b) A person, including a common carrier, may not transport, carry or convey, or receive for such purposes, any wildlife, the sale, trade or bartering of which is prohibited, if such person knows or has reason to believe that such wildlife has been or is to be sold, traded or bartered in violation of this section.

(c) Each separate act of selling or exposing for sale, trading or exposing for trade or bartering or exposing for barter or having in possession for sale, trade, barter, transporting or carrying in violation of this section constitutes a separate misdemeanor offense. Notwithstanding this or any other section of this chapter, any game birds or game bird meats sold by licensed retailers may be served at any hotel, restaurant or other licensed eating place in this state.

(d) The director may propose rules for promulgation in accordance with §29A-3-1 et seq. of this code dealing with the sale of wildlife and the skins thereof.

§20-2-12. Transportation of wildlife out of state; penalties.

(a) A person may not transport or have in his or her possession with the intention of transporting beyond the limits of the state any species of wildlife or any part thereof killed, taken, captured or caught within this state, except as provided in this section.

(1) A person legally entitled to hunt and fish in this state may take with him or her personally, when leaving the state, any wildlife that he or she has lawfully taken or killed, not exceeding, during the open season, the number that any person may lawfully possess.

(2) Licensed resident hunters and trappers and resident and nonresident fur dealers may transport beyond the limits of the state pelts of game and fur-bearing animals, fur-bearer parts, including carcasses for the making of lures and baits, carcass parts, including glands, skulls, claws, and bones, and fur-bearer urine taken during the legal season.

(3) A person may transport the hide, head, antlers and feet of a legally killed deer and the hide, head, skull, organs and feet of a legally killed black bear beyond the limits of the state.

(4) A person legally entitled to possess an animal according to §20-2-4 of this code may transport that animal, including the parts or urine of that animal, beyond the limits of the state.

(b) The director may promulgate rules in accordance with §29A-3-1 et seq. of this code dealing with the transportation and tagging of wildlife, parts, urine and skins.

(c) A person who violates this section by transporting or possessing with the intention of transporting beyond the limits of this state deer or wild boar shall be considered to have committed a separate offense for each animal so transported or possessed. This section does not apply to captive cervids regulated pursuant to §19-2H-1 et seq. of this code.

(d) A person violating this section shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $20 nor more than $300 or be confined in jail not less than 10 nor more than 60 days, or both.

(e) This section does not apply to persons legally entitled to propagate and sell wild animals, wild birds, fish, amphibians and other forms of aquatic life beyond the limits of the state.

§20-2-13. Importation of wildlife; certification and inspection of imported wildlife.

No person shall transport into or have in his possession within this state any live wildlife or viable eggs thereof from without the state, except as authorized by an importation permit issued by the director: Provided, That the director shall not be authorized to issue a permit to any person to transport into this state any coyotes (Canis latrans). The director may issue at his discretion such permit as he is authorized to issue, fix the terms thereof and revoke it at his pleasure. Importers of fish or viable eggs of the family salmondiae (trout, char, salmon) shall furnish a statement from a recognized fish pathologist certifying the source to be free of whirling disease, infectious pancreatic necrosis, viral hemorrhagic septicemia or other diseases which may threaten fish stocks within the state.

Importers of wildlife species shall furnish disease free certification from pathologists, or veterinarians, as the director deems necessary to protect native populations.

All imported wildlife shall be subject to inspection by authorized agents of the department and such inspections may include biological examinations and the removal of a reasonable sample of fish or eggs for such purposes.

Any person violating any of the provisions of this section concerning coyotes shall be guilty of a misdemeanor, and, upon conviction thereof, shall for each offense be fined not less than one hundred nor more than $300, or confined in jail not less than ten nor more than one hundred days, or be both fined and imprisoned within the limitations aforesaid.

§20-2-14. Propagation of wildlife for commercial purposes.

No person shall propagate wildlife for commercial purposes except when licensed to do so as provided in section forty-seven of this article.

§20-2-15. Permit to kill deer or other wildlife causing damage to cultivated crops, trees, commercial nurseries, homeowners' shrubbery and vegetable gardens; weapon restrictions.

(a) Whenever it is found that deer or other wildlife are causing damage to cultivated crops, fruit trees, commercial nurseries, homeowners' trees, shrubbery or vegetable gardens, the owner or lessee of the lands on which damage is done may report the finding to the natural resources police officer or biologist of the county in which the lands are located or to the director. The director shall then investigate the reported damage and if found substantial, shall issue a permit to the owner or lessee to kill one or more deer or other wildlife in the manner prescribed by the director.

(b) In addition to the foregoing, the director shall establish procedures for the issuance of permits or other authorization necessary to control deer or other wildlife causing property damage.

(c) All persons attempting to kill deer or other wildlife pursuant to this section are subject to the same minimum caliber restrictions and other firearm restrictions and the same minimum bow poundage and other bow and arrow restrictions that apply when hunting the same animal species during the regular hunting seasons.

§20-2-16. Dogs chasing deer.

Except as provided in §20-2-5j of this code, no person may permit or use his or her dog to hunt or chase deer. A natural resources police officer shall take into possession any dog known to have unlawfully hunted or chased deer. If the owner of the dog can be determined, the dog shall be returned to the owner. If the owner of the dog cannot be determined, the natural resources police officer shall deliver the dog to the appropriate county humane officer or facility consistent with the provisions of this code.

§20-2-17. Hunting fur-bearing animals; possession of fur; disturbing traps of another.

No person shall hunt, capture, trap, take or kill fur-bearing animals except as authorized by regulation of the director. Except as authorized by the director, no person shall have in his possession the fresh skin, or part thereof, of any fur-bearing animal, except beaver, within the period beginning ten days after the end of the open season on such fur-bearing animal and ending with the first day of the next succeeding open season. No person shall disturb properly marked traps of another person, kill, remove or take a fur-bearing animal from the trap of another person without specific authorization of the owner of the trap, except upon land where the owner of such trap may have placed it without right or permission.

§20-2-18. Number and types of traps.

The director shall have the power and authority to regulate the number, kind and type of traps to be used in the catching or trapping of any game or fur-bearing animals.

§20-2-19. Marking of traps.

All traps used for taking game or fur-bearing animals shall be marked with a durable plate or tag, attached to the snare, trap, or trap chain, bearing either the name and address of the owner of the trap or the Division of Natural Resources identification number of the owner of the trap.

§20-2-19A

Repealed

Acts, 2017 Reg. Sess., Ch. 163

§20-2-20. Trapping beaver.

A person may not have in his possession an untagged beaver hide, or part thereof, within the period beginning thirty days after the end of the open season and ending with the first day of the next succeeding open season for beavers.

§20-2-21. Reporting beaver and otter pelts taken and tagged.

Each trapper shall electronically register each beaver and otter, or each pelt, to a game checking station or representative of the division within thirty days after the close of a legal season. A game tag number shall be issued to the person and recorded in writing with the person’s name and address, or on a field tag, and shall be affixed to each otter and remain attached to the animal or pelt until it is processed into commercial fur. A game tag number for each beaver shall be issued to the person and recorded in writing with the person’s name and address and either attached to each beaver or pelt, or the tag number shall be retained by the person in possession of the beavers. The game tag numbers shall remain attached to the animal or pelt or retained by the owner until it is processed into commercial fur.

§20-2-22. Tagging, removing, transporting and reporting bear, deer, wild boar and wild turkey.

(a) Each person killing a bear, deer, wild boar or wild turkey found in a wild state shall either attach a completed field tag to the animal or remain with the animal and have upon his or her person a completed field tag before removing the carcass in any manner from where it was killed.

(b) While transporting the carcass of a bear, deer, wild boar or wild turkey from where it was killed, each person shall either attach a completed field tag to the animal or have upon his or her person a completed field tag.

(c) Upon arriving at a residence, camp, hunting lodge, vehicle or vessel each person shall attach a field tag to the killed bear, deer, wild boar or wild turkey. The field tag shall remain on the carcass until the animal is electronically registered. A game tag number shall be issued to the person and recorded in writing with the person’s name and address, or on a field tag, and shall remain on the carcass until it is dressed for consumption. The game tag number shall remain on the skin or hide until it is tanned or mounted.

(d) If a person who does not possess a field tag kills a bear, deer, wild boar or wild turkey, he or she shall make a tag. The field tag shall bear the name, address and, if applicable, the license number of the hunter and the time, date and county of killing.

(e) A person who kills a bear shall treat the carcass and remains in accordance with the provisions of section twenty-two-a of this article.

(f) For each violation of this section a person is subject to the penalties provided in this article.

§20-2-22a. Hunting, tagging and reporting bear; procedures applicable to property destruction by bear; penalties.

(a) A person may not hunt, capture, or kill any bear, or have in his or her possession any bear or bear parts, except during the hunting season for bear in the manner designated by rule or law. For the purposes of this section, bear parts include, but are not limited to, the pelt, gallbladder, skull and claws of bear.

(b) A person who kills a bear shall, within twenty-four hours after the killing, electronically register the bear. A game tag number shall be issued to the person and recorded in writing with the person’s name and address, or on a field tag and shall remain on the skin until it is tanned or mounted. Any bear or bear parts not properly tagged shall be forfeited to the state for disposal to a charitable institution, school or as otherwise designated by the director.

(c) Training dogs on bears or pursuing bears with dogs is the hunting of bear for all purposes of this chapter, including all applicable regulations and license requirements.

(d) It is unlawful:

(1) To hunt bear without a bear damage stamp, as prescribed in section forty-four-b of this article, in addition to a hunting license as prescribed in this article;

(2) To hunt a bear with:

(A) A shotgun using ammunition loaded with more than one solid ball; or

(B) A rifle of less than twenty-five caliber using rimfire ammunition;

(3) To kill or attempt to kill, or wound or attempt to wound, any bear through the use of bait, poison, explosives, traps or deadfalls or to feed bears at any time. For purposes of this section, bait includes, but is not limited to, corn and other grains, animal carcasses or animal remains, grease, sugars in any form, scent attractants and other edible enticements, and an area is considered baited for ten days after all bait has been removed;

(4) To shoot at or kill:

(A) A bear weighing less than seventy-five pounds live weight or fifty pounds field dressed weight, after removal of all internal organs;

(B) Any bear accompanied by a cub; or

(5) To transport or possess any part of a bear not tagged in accordance with the provisions of this section;

(6) To possess, harvest, sell or purchase bear parts obtained from bear killed in violation of this section; or

(7) Except as provided in §20-2-5j of this code, to organize for commercial purposes or to professionally outfit a bear hunt, or to give or receive any consideration whatsoever or any donation in money, goods or services in connection with a bear hunt, notwithstanding the provisions of sections twenty-three and twenty-four of this article.

(e) The following provisions apply to bear damaging or destroying property:

(1)(A) Any property owner or lessee who has suffered damage to real or personal property, including loss occasioned by the death or injury of livestock or the unborn issue of livestock, caused by an act of a bear may complain to any natural resources police officer of the division for protection against the bear.

(B) Upon receipt of the complaint, the officer shall immediately investigate the circumstances of the complaint. If the officer is unable to personally investigate the complaint, he or she shall designate a wildlife biologist to investigate on his or her behalf.

(C) If the complaint is found to be justified, the officer or designated wildlife biologist may issue a permit to kill the bear that caused the property damage or may authorize the owner and other residents to proceed to hunt, destroy or capture the bear that caused the property damage: Provided, That only the natural resources police officer or the wildlife biologist may recommend other measures to end or minimize property damage: Provided, however, That, if out-of-state dogs are used in the hunt, the owners of the dogs are the only nonresidents permitted to participate in hunting the bear.

(2)(A) When a property owner has suffered damage to real or personal property as the result of an act by a bear, the owner shall file a report with the director of the division. A bear damage report shall be completed by a representative of the division and shall state whether or not the bear was hunted and destroyed or killed under authorization of a depredation permit and, if so, the sex and weight shall be recorded and a premolar tooth collected from the bear, all of which shall be submitted with the report. The report shall also include an appraisal of the property damage occasioned by the bear fixing the value of the property lost. Bear damage claims will not be accepted for personal and real property which is commonly used for the purposes of feeding, baiting, observing or hunting wildlife, including, but not limited to, hunting blinds, tree stands, artificial feeders, game or trail cameras and crops planted for the purposes of feeding or baiting wildlife.

(B) The report shall be ruled upon and the alleged damages examined by a commission comprised of the complaining property owner, an officer of the division and a person to be jointly selected by the officer and the complaining property owner.

(C) The division shall establish the procedures to be followed in presenting and deciding claims, issuing bear depredation permits and organizing bear hunts under this section in accordance with §29A-3-1 et seq. of this code.

(D) All claims shall be paid in the first instance from the Bear Damage Fund provided in section forty-four-b of this article: Provided, That the claimant shall submit accurate information as to whether he or she is insured for the damages caused by the acts of bear on forms prescribed by the director, and all damage claims shall first be made by the claimant against any insurance policies before payment may be approved from the Bear Damage Fund. Claims for an award of compensation from the Bear Damage Fund shall be reduced or denied in the amount the claimant is actually reimbursed by insurance for the economic loss upon which the claim is based. In the event the fund is insufficient to pay all claims determined by the commission to be just and proper, the remainder due to owners of lost or destroyed property shall be paid from the special revenue account of the division.

(3) In all cases where the act of the bear complained of by the property owner is the killing of livestock, the value to be established is the fair market value of the livestock at the date of death. In cases where the livestock killed is pregnant, the total value is the sum of the values of the mother and the unborn issue, with the value of the unborn issue to be determined on the basis of the fair market value of the issue had it been born.

(f) Criminal penalties. (1) Any person who commits a violation of the provisions of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $500 nor more than $1,000, which is not subject to suspension by the court, confined in jail not less than 10 nor more than 30 days, or both fined and confined. Further, the person’s hunting and fishing licenses shall be assigned six points, however, the hunting and fishing licenses of any person convicted of a violation of this section which results in the killing or death of a bear shall be suspended for two years.

(2) Any person who commits a second violation of the provisions of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $1,000 nor more than $3,000, which is not subject to suspension by the court, confined in jail not less than 30 days nor more than 100 days, or both fined and confined. The person’s hunting and fishing licenses shall be suspended for five years.

(3) Any person who commits a third or subsequent violation of the provisions of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $2,500 nor more than $5,000, which is not subject to suspension by the court, confined in jail not less than six months nor more than one year, or both fined and confined. The person’s hunting and fishing licenses shall be suspended for 10 years.

§20-2-23. Outfitters and guides -- Generally; definitions.

(a) Services of outfitters and guides for the benefit and convenience of hunters, fishermen and others in this state are recognized as essential, and such outfitters and guides may be licensed and authorized to serve as provided in this article. The director is hereby authorized to promulgate rules and regulations on services of outfitters and guides as herein authorized and defined.

(b) The term "outfitter," as used herein, means and includes any person who, operating from any temporary or permanent camp, private or public lodge, or private or incorporated home situate within this state, provides for monetary profit or gain, saddle or pack animals or other animals, vehicles, boats, conveyances or equipment, or guide services for any person or persons hunting game animals, game birds, fishing or taking expeditions, both land and water, in this state. The term "outfitter" shall not include, however, any person who occasionally for accommodation or favor rather than profit or gain, rents equipment to hunters, fishermen or others as a service incidental to his principal occupation or business without advertising outfitter or guide services or holding out to the public the offering of such services. The term "guide," as used herein, includes and embraces outfitter services and the term "outfitter" includes and embraces guide services, but the applicant for any license hereunder may in his or her application elect to be designated as an outfitter or guide.

(c) The term "commercial whitewater outfitter," as used herein, means any person, partnership, corporation or other organization, or any combination thereof, duly authorized and operating from within or from without the state, which for monetary profit or gain, provides whitewater expeditions or rents whitewater craft or equipment for use in whitewater expeditions on any river, portions of rivers or waters of the state in accordance with this article.

The term "commercial whitewater guide," as used herein, means any person who is an owner, agent or employee of a commercial whitewater outfitter, and who is qualified and authorized to provide services for whitewater expeditions in the state in accordance with this article.

§20-2-23a. Whitewater commission; powers and duties of commission and Division of Natural Resources; allocations; civil and criminal penalties for violations.

(a) There is hereby created a whitewater commission within the Division of Natural Resources. The commission shall consist of the director of the Division of Natural Resources or his or her designee; the director of the Division of Parks and Tourism or his or her designee; three representatives of private river users who have no affiliation with any commercial river enterprise to be appointed by the Governor: Provided, That no more than one representative of the private river users may be from each whitewater zone; and four persons representing four different licensed commercial whitewater outfitters currently operating within the state to be appointed by the Governor. The superintendent of the New River Gorge National Park or his or her designee shall be a nonvoting member of the commission. All appointed members of the commission shall be citizens and residents of West Virginia. Of the four representatives of commercial outfitters, two persons shall represent commercial whitewater outfitters holding or controlling through corporate affiliation or common ownership multiple licenses in West Virginia and two persons shall represent commercial whitewater outfitters in West Virginia who hold only a single license and who have no common ownership or corporate affiliation with another licensee, the director of the Division of Natural Resources shall serve as chairperson of the commission. Of the seven members of the commission first appointed by the Governor, two shall be appointed for a term of one year, two for a term of two years and three for a term of three years. Thereafter, the terms of all appointed members of the commission are for three years. Members shall serve until their successors have been appointed and any vacancy in the office of a member shall be filled by appointment for the unexpired term. Members representing commercial outfitters who have served at least two years on the commission are not eligible for reappointment to a successive term.

(b) The commission has the following powers and duties:

(1) To investigate and study commercial whitewater rafting, outfitting and activities related thereto which take place along the rivers or waters of the state;

(2) To designate any such rivers or waters or any portions thereof as "whitewater zones" for which commercial whitewater rafting, outfitting and activities are to be investigated and studied, and to determine the order and the periods of time within which the investigations and studies are to be conducted. The commission shall first investigate and study those whitewater zones which it finds to present serious problems requiring immediate regulation, including, without limitation, safety hazards and problems of overcrowding or environmental misuse;

(3) To restrict, deny or postpone the issuance of licenses to additional commercial whitewater outfitters seeking to operate in areas and portions of rivers and waters in this state designated whitewater zones by action of the director of the Division of Natural Resources as authorized under prior enactment of this section and so designated by the filing of a written notice entered upon the records of the division containing the designation and reasonable description of the whitewater zone: Provided, That in consideration of the consolidation occurring among outfitting companies providing rafting services on the Gauley River, the commission shall grant one additional whitewater rafting license for the Gauley River on or before July 1, 1999, with preference being given in the selection process to the applicant best satisfying the following criteria: (i) The applicant demonstrates a record of providing commercial rafting and related whitewater services in a safe and lawful manner on the New River and other rivers; (ii) the applicant has continuously engaged for three or more years in the commercial rafting business on the New River and has, or can obtain, the necessary equipment and facilities to support Gauley River operations; (iii) the seniority of the application as measured by the length of time the applicant has sought a Gauley River license with the more senior application given preference; (iv) that the applicant is not affiliated with, operated or owned by an existing Gauley River licensee; (v) that the applicant has no common ownership with an existing Gauley River licensee; and (vi) that the economic benefit represented by the award of a Gauley River license will serve to assist the promotion of tourism and the delivery of outfitting services beyond Fayette and Nicholas counties. In authorizing the issuance of an additional Gauley River license, it is the intention of the Legislature that the commission not increase the carrying capacity of a current Gauley River licensee, but that the commission promote and maintain competition among licensees by increasing the number of independent outfitters operating on the Gauley;

(4) To commission such studies as are necessary to determine the physical carrying capacity and monitor the levels of use on the New, Gauley, Cheat, Shenandoah and Tygart rivers and how each relates to the overall quality of the rafting experience, the economic impact of rafting, tourism and employment in the state and the safety of the general public: Provided, That if, during a study period, the commission deems that overcrowding is not a problem on any whitewater zone on the Cheat, Shenandoah and Tygart rivers, or on the New River upstream of the confluence of the Greenbrier and New rivers and on the Gauley River upstream of the Summersville Dam, then it may issue a license;

(5) Based on the findings of a study of the carrying capacity of a river, to formulate rational criteria for an allocation methodology for the river subject to the study, including, but not limited to, a minimum allocation for each river studied;

(6) To immediately implement a freeze on mandated changes in use allocations for the licenses of existing licensees on moratorium sections of the Gauley and New rivers as defined in subsection (d) of this section. All such licenses shall carry the use allocation in effect on May 2, 1992. The commission shall implement allocation methodologies for other rivers as the commission, after appropriate study, may deem necessary with all such allocation methodologies implemented by rules promulgated pursuant to chapter twenty-nine-a of this code;

(7) To determine administrative policies relating to regulation of the whitewater industry and to administer such policies, except that the commission shall delegate to the director of the Division of Natural Resources or his or her designee the authority to administer the day-to-day responsibilities of the commission pursuant to this section and may vest in the director of the Division of Natural Resources or his or her designee the authority to make determinations with respect to which it is not practicable to convene or to poll the commission, within guidelines established by the commission;

(8) To review all contracts or agreements with governmental agencies related to whitewater studies or regulation, and any negotiations related thereto;

(9) To verify reports by outfitters of numbers of river users and guides, to monitor the extent of the crowding conditions on the rivers and to establish a system for reporting the number of river users and guides on each whitewater expedition;

(10) To regulate the issuance, transfer, and renewal of licenses. However, licenses issued to commercial whitewater outfitters or use allocations or other privileges conferred by a license may be transferred, sold, offered as security to financial institutions or otherwise encumbered, upon notice in writing to the commission and the director of the Division of Natural Resources, subject to the following limitations: (i) The commission may refuse a transfer upon a finding that there is reasonable cause to believe that the safety of members of the public may be adversely affected by the transfer; and (ii) the commission shall require that taxes, workers' compensation and other obligations due the state be paid prior to any transfer;

(11) To collect, for the duration of a study period established in subdivision (4) of this subsection, an annual license fee of $500 for each river on which a commercial whitewater outfitter operates. The annual per river license fee is limited to the Cheat, Gauley, New, Shenandoah and Tygart rivers. The annual license fee for a commercial whitewater outfitter operating on a river not so designated is $500 regardless of the number of rivers operated on. A commercial whitewater outfitter who is operating on a river designated in this subdivision and who has paid the annual per river license fee may not be required to pay an additional annual license fee to operate on a nondesignated river. The commercial whitewater outfitter license shall be issued by the commission and is for a period of ten years: Provided, That an outfitter pays the required annual license fee. If an outfitter fails to pay the license fee, then the license shall be suspended until the license fee is paid. Licenses are subject to the bonding provisions set forth in section twenty-three-d of this article and the revocation provisions set forth in the rules promulgated by the director of the Division of Natural Resources. License fees shall be used by the Division of Natural Resources for the purpose of enforcing and administering the provisions of this section;

(12) To establish a special study and improvement fee to be paid by outfitters and to establish procedures for the collection and enforcement of the special study and improvement fee;

(13) To establish a procedure for hearings on violations of this section and rules promulgated thereunder and to establish civil penalties for violations of this section and rules promulgated thereunder; and

(14) To approve rules promulgated by the director of the Division of Natural Resources pursuant to chapter twenty-nine-a of this code, with respect to commercial whitewater outfitters operating upon the waters of the state, whether or not such waters have been designated whitewater zones, which relate to: (i) Minimum safety requirements for equipment; (ii) standards for the size of rafts and number of persons which may be transported in any one raft; (iii) qualifications of commercial whitewater guides; and with respect to waters designated whitewater zones; (iv) standards for the number of rafts and number of persons transported in rafts.

(c) The commission shall meet upon the call of the chairperson or a majority of the members of the commission. However, the commission shall meet at least quarterly and shall conduct business when a majority of the members are present. At the meetings, the commission shall review all data, materials and relevant findings compiled relating to any investigation and study then under consideration and, as soon as practicable thereafter, the commission may recommend rules to govern and apply to the designated whitewater zone(s). The commission may meet at its discretion for the purpose of considering and adjusting allocations and review fees and proposed expenditures. A budget shall be approved for each fiscal year for the expenditure of funds subject to the commission's control. The commission may not limit the number of commercial whitewater outfitters operating on rivers not designated as whitewater zones, nor may the commission limit the number of rafts or total number of persons transported in rafts by commercial whitewater outfitters on rivers not designated as whitewater zones. Commission members shall be reimbursed all reasonable and necessary expenses incurred in the exercise of their duties.

(d) Special provisions for the New River and the Gauley River:

(1) After the issuance of the Gauley River rafting license provided for in subdivision (3), subsection (b) of this section, a moratorium shall be imposed by the commission upon the issuance of additional commercial rafting licenses on whitewater zones of the New River between the confluence of the Greenbrier and New rivers and the confluence of the New and Gauley rivers and upon whitewater zones of the Gauley River from the Summersville Dam to the confluence of the New and Gauley rivers. The moratorium hereby imposed shall continue until such time as the commission is authorized by the Legislature to discontinue the moratorium.

(2) For the portions of the Gauley and New rivers subject to the moratorium imposed by this section, the minimum use allocation conferred by a license is one hundred twenty for each designated section of a whitewater zone on the Gauley and one hundred fifty for each designated section of a whitewater zone on the New River. A licensee who held a use allocation on May 2, 1992, with a use allocation greater than the minimum allocation established in this subdivision shall retain such use allocation on each designated section of a whitewater zone on the moratorium portions of the New and Gauley rivers subject only to the sale, loss or forfeiture of the license or to a subsequent action of the commission imposing a reduction in use allocations pursuant to subdivision (4) of this subsection. The commission is authorized to increase or decrease minimum use allocations for the moratorium sections of the New and Gauley rivers only in accordance with the provisions of subdivisions (4) and (5) of this subsection. The commission may permit additional allocations or licenses for whitewater outfitters which are nonprofit entities operating upon the waters of the state upon the effective date of this section. Except as provided in subdivision (4), subsection (d) of this section, nothing in this section shall be deemed to require the reduction of a use allocation granted under an existing license or to prohibit a commercial whitewater outfitter from acquiring a license with a use allocation in excess of the minimum allocations hereby established: Provided, That if a licensee has sold, leased or assigned his license, or sold or leased a portion of the use allocation under his license, nothing herein shall be deemed to have the effect of increasing the use allocation assigned to such license.

(3) The commission may permit peak-day variances from license limitations not exceeding ten percent of the use allocation granted under a license. The commission may permit off-peak-day variances from license limitations not exceeding twenty-five percent of the use allocation granted under a license.

(4) If, as result of a study employing the limits of acceptable change process, the whitewater commission acts to reduce the aggregate maximum daily use limit for all commercial rafting licenses on a section of the New River or Gauley River subject to the license moratorium, the reduction shall be distributed on a prorata basis among all licenses granted for the section in proportion to an individual license's relative share of the total use allocation for such river section.

(5) If the limits of acceptable change process results in an increase in the aggregate maximum daily use limit for all commercial rafting licenses on any section of the New River or Gauley River subject to a moratorium on new licenses, such increase shall be divided by the total number of commercial rafting licenses issued for the relevant section of river and the minimum use allocation for each such license shall be increased by the nearest whole number resulting from the division.

(6) If any party contracts to purchase a license containing a use allocation for a moratorium section of the New River or the Gauley River, or if a licensee has obtained, or in the future shall obtain additional use allocations for a moratorium section by lease or purchase from another licensee, the commission shall permit the transfer of such license rights in accordance with the provisions of subdivision (10), subsection (b) of this section. Unless the owners of a license otherwise agree, when two or more licensees share ownership or control of the use allocation assigned to a license, any increase or decrease in use allocations which results from an action of the commission under subdivisions (4) and (5) of this subsection shall be distributed by the commission between such owners in proportion to their ownership or control of the use allocation assigned to such license.

(e) In the event the commission determines through an appropriate study and the limits of acceptable change process that a whitewater zone or a designated section of a whitewater zone on waters other than the moratorium sections of the New and Gauley rivers requires implementation of use allocations, all whitewater rafting licenses issued for such zone or section thereof shall be given the same use allocation.

(f) Violation of this section or any rule promulgated pursuant to this section constitutes a misdemeanor punishable by the penalties set forth in section twenty-three-d of this article.

(g) The director of the Division of Natural Resources shall promulgate, pursuant to the provisions of chapter twenty-nine-a of this code, all rules necessary to effectuate the purposes of this section and these rules must be approved by the commission. The Division of Natural Resources shall enforce the provisions of this section and rules promulgated pursuant to this section, and shall provide necessary staff and support services to the commission to effectuate the purposes of this section.

(h) All orders, determinations, rules, permits, grants, contracts, certificates, licenses, waivers, bonds, authorizations and privileges which have been issued, made, granted or allowed to become effective pursuant to any prior enactments of this section by the Governor, the secretary of the Department of Commerce, labor and environmental resources, the director of the Division of Natural Resources, the whitewater advisory board or by a court of competent jurisdiction, and which are in effect on the effective date of this section, shall continue in effect according to their terms until modified, terminated, superseded, set aside or revoked by the Governor, secretary, director or commission pursuant to this section, by a court of competent jurisdiction, or by operation of law.

§20-2-23b. Whitewater study and improvement fund.

There is hereby created in the State Treasury a special revenue account, which shall be an appropriated, interest-bearing account, designated as the whitewater study and improvement fund. All proceeds from this fund shall be used exclusively for the purposes of the administration, regulation, promotion and study of the whitewater industry.

The special study and assessment fee collected by the commission pursuant to the provisions of section twenty-three-a of this article shall be deposited, within fifteen days after receipt, to the whitewater study and improvement fund and dedicated to the purposes of this section.

§20-2-23c. Voluntary contributions to whitewater advertising and promotion fund.

There is hereby created in the State Treasury a special revenue account, which shall be an appropriated, interest-bearing account designated as the "whitewater advertising and promotion fund". Each whitewater license holder may contribute any sum desired to this fund, which fund shall be used for the purpose of advertising and promoting whitewater in West Virginia.

§20-2-23d. Bond; revocation of license; licensing carrying requirement; criminal penalties.

(a) Immediately upon the issuance of a whitewater outfitter's license and before any whitewater outfitter's services are offered or rendered thereunder, the licensee shall execute a surety bond in the penal sum of $1,000 payable to the State of West Virginia and conditioned upon the faithful and reliable discharge of his or her services under and pursuant to the license. The bond shall be approved as to form by the Attorney General and as to surety by the director, and when so executed and approved, shall be filed in the office of the director of the Division of Natural Resources. The bond shall be for the life of the license.

(b) The whitewater commission is hereby authorized to revoke and cancel any whitewater outfitter's license for failure of the licensee to give the bond required by this section, for a licensee's violation or disregard of any of the provisions of this chapter, upon a licensee's conviction of a crime, or for any other reason or cause justifying refusal of the whitewater outfitter's license to the licensee upon a new application therefor. The commission shall afford a licensee an opportunity to be heard upon the revocation and cancellation of the license.

(c) No person shall act or serve as a whitewater outfitter, as defined in this article, without procuring and having on his or her person at the time a valid whitewater outfitter's license from the commission authorizing them to do so.

(d) Any person who violates any of the provisions of this section or of section twenty-three-a of this article, or any rule promulgated by the director of the Division of Natural Resources or who misrepresents any material fact in an application, record, report or other document filed or required to be maintained under the provisions of this article, or any rules promulgated hereunder by the director of the Division of Natural Resources, is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not less than $500 per violation not to exceed a total penalty of $7,500 or by imprisonment in the county jail not exceeding six months, or both fined and imprisoned.

§20-2-23e. Implementation of allocation methodology.

Other provisions of this article notwithstanding, the implementation of an allocation methodology for the nonmoratorium whitewater zones of the New, Gauley, Cheat, Shenandoah and Tygart rivers, shall be made based upon criteria identified in existing or future studies of carrying capacity, the overall economic impact on the state and the safety of the general public as identified in section twenty-three-a of this article, and shall be implemented at such time as the commission deems appropriate, by rules promulgated pursuant to chapter twenty-nine-a of this code. In determining whether to increase or decrease existing use allocations on the portions of the New and Gauley rivers subjected to a moratorium on new licenses by this article, the commission may continue existing studies and undertake new studies of the carrying capacity of whitewater zones, the quality of the rafting experience, the economic impact of rafting and the safety of the general public.

§20-2-23f.

Repealed.

Acts, 2010 Reg. Sess., Ch. 32.

§20-2-24. Outfitters and guides -- Qualifications.

Each outfitter and guide licensed under the provisions hereof shall be a financially responsible citizen of the United States of America. He shall possess and inventory proper and adequate materials and equipment to provide for hunters, fishermen and others the services and conveniences he advertises. All such materials and equipment shall be safe and free of infection and conditions inimical to the health and well-being of hunters, fishermen, their traveling, camping and lodging companions.

The director shall cause all outfitter and guide applicants to be investigated and shall make a determination of their qualifications prior to the issuance or refusal of licenses thereto.

§20-2-25. Same -- License applications; national forest requirements.

Each applicant for an outfitter or guide license shall file with the director a verified application setting forth the applicant's name, his address, the property possessed and to be used in the proposed outfitter and guide services, the area within which he proposes to serve, his citizenship, his age and such other data and information as may be prescribed and required by the director on the application forms to be furnished by the department. Each such application, when filed by the applicant, shall be approved and signed by three resident real property owners of the county in which such applicant resides.

Before any outfitter or guide license shall be issued for serving hunters, fishermen or others in any national forest areas within this state, the applicant shall obtain from the supervisor of such national forest area a designation of the camp site or other site from which the outfitter or guide proposes to operate therein and shall likewise obtain from such supervisor any other authority or permit to so operate in such national forest area, together with copies of any rules and regulations of the forest incident to maintenance of camps, sanitary conditions, and prevention of forest fires and water pollution. The applicant shall satisfy the director that he has obtained such designation, permit, authority and rules and regulations, as may be required, as a prerequisite to the director's consideration of the applicant's license application.

§20-2-26. Same -- License fee; bond; revocation of license; penalties.

When satisfied as to the applicant's qualifications for an outfitter's or guide's license and upon receipt of a fee of $10 therefor, the director shall issue such license which shall be for the calendar year therein designated.

Immediately upon the issuance of an outfitter's or guide's license and before any outfitter's or guide's services are offered or rendered thereunder, the licensee shall execute a surety bond in the penal sum of $1,000 payable to the State of West Virginia and conditioned upon the faithful and reliable discharge of his services under and pursuant to such license. Such bond shall be approved as to form by the Attorney General and as to surety by the director, and when so executed and approved, shall be filed in the office of the director. Such bond shall be for the life of the license.

The director is hereby authorized to revoke and cancel any such license for failure of the licensee to give the bond herein required, for licensee's violation or disregard of any of the provisions of this chapter, upon licensee's conviction of crime, or for any other reason or cause justifying refusal of the license to the licensee upon a new application therefor. The director shall afford a licensee an opportunity to be heard upon the revocation and cancellation of the license.

No person shall act or serve as a guide or outfitter, as defined in this article, without procuring and having on his person at the time a valid license from the director authorizing him so to do. Any person violating this provision shall be guilty of a misdemeanor, and, upon conviction thereof, may be fined not exceeding $100 or confined in the county jail not exceeding ninety days, or, in the discretion of the court, be both fined and imprisoned within the limits herein prescribed.

§20-2-27. Necessity for license.

(a) Except as otherwise provided by law, no resident who has reached his or her 15th birthday and who has not reached his or her 65th birthday before January 1, 2012, and no nonresident shall at any time take, hunt, pursue, trap for, kill or chase any wild animals, wild birds, or fish for, take, kill or catch any fish, amphibians or aquatic life of any kind whatsoever in this state without first having secured a license or permit and then only during the respective open seasons, except that a nonresident who has not reached his or her 15th birthday may fish for, take, kill or catch any fish, amphibians or aquatic life of any kind whatsoever in this state without first having secured a license or permit. A person under the age of 15 years shall not hunt or chase any wild animals or wild birds upon lands of another unless accompanied by a licensed adult.

(b) A resident or nonresident member of any club, organization, or association or persons owning or leasing a game preserve or fish preserve, plant, or pond in this state shall not hunt or fish therein without first securing a license or permit as required by law: Provided, That resident landowners or their resident children, or bona fide resident tenants of land, may, without a permit or license, hunt and fish on their own land during open seasons in accordance with laws and rules applying to such hunting and fishing unless the lands have been designated as a wildlife refuge or preserve.

(c) Licenses and permits shall be of the kinds and classes set forth in this article and shall be conditioned upon the payment of the fees established for the licenses and permits.

(d) The list of names, addresses and other contact information of all licensees compiled and maintained by the division as a result of the sale and issuance of any resident or nonresident licenses or stamps under this chapter is exempt from disclosure under the Freedom of Information Act, §29B-1-1, et seq., of this code: Provided, That the records specified in this section shall be available to all law-enforcement agencies and other governmental entities authorized to request or receive such records.

§20-2-28. When licenses or permits not required.

Persons in the following categories are not required to obtain licenses or permits as indicated:

(a) Bona fide resident landowners or their resident children, or resident parents, or bona fide resident tenants of the land may hunt, trap or fish on their own land during open season in accordance with the laws and rules applying to the hunting, trapping and fishing without obtaining a license, unless the lands have been designated as a wildlife refuge or preserve.

(b) Any bona fide resident of this state who is totally blind may fish in this state without obtaining a fishing license. A written statement or certificate from a duly licensed physician of this state showing the resident to be totally blind shall serve in lieu of a fishing license and shall be carried on the person of the resident at all times while he or she is fishing in this state.

(c) All residents of West Virginia on active duty in the armed forces of the United States of America, while on leave or furlough, may hunt, trap or fish in season in West Virginia without obtaining a license. Leave or furlough papers shall serve in lieu of any license and shall be carried on the person at all times while trapping, hunting or fishing.

(d) In accordance with the provisions of section twenty-seven of this article, any resident sixty-five years of age or older before January 1, 2012, is not required to have a license to hunt, trap or fish during the legal seasons in West Virginia, but in lieu of the license the person shall at all times while hunting, trapping or fishing carry on his or her person a valid West Virginia driver's license or nondriver identification card issued by the Division of Motor Vehicles.

(e) Except as otherwise provided for in this section, residents of states that share river borders with the State of West Virginia who carry hunting or fishing licenses valid in that state may hunt or fish without obtaining licenses, but the hunting or fishing shall be confined to the fish and waterfowl of the river proper and not on its tributaries: Provided, That the state shall first enter into a reciprocal agreement with the director extending a like privilege of hunting and fishing to licensed residents of West Virginia without requiring the residents to obtain that state's hunting and fishing licenses.

(f) Residents of the State of Ohio who carry hunting or fishing licenses valid in that state may hunt or fish on the Ohio River or from the West Virginia banks of the river without obtaining licenses, but the hunting or fishing shall be confined to fish and waterfowl of the river proper and to points on West Virginia tributaries and embayments identified by the director: Provided, That the State of Ohio shall first enter into a reciprocal agreement with the director extending a like privilege of hunting and fishing from the Ohio banks of the river to licensed residents of West Virginia without requiring the residents to obtain Ohio hunting and fishing licenses.

(g) Any resident of West Virginia who was honorably discharged from the Armed Forces of the United States of America and who receives a veteran's pension based on total permanent service-connected disability as certified to by the Veterans Administration may hunt, trap or fish in this state without obtaining a license. The director shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code setting forth the procedure for the certification of the veteran, manner of applying for and receiving the certification and requirements as to identification while the veteran is hunting, trapping or fishing.

(h) Any disabled veteran who is a resident of West Virginia and who, as certified to by the Commissioner of Motor Vehicles, is eligible to be exempt from the payment of any fee on account of registration of any motor vehicle owned by the disabled veteran as provided in section eight, article ten, chapter seventeen-a of this code shall be permitted to hunt, trap or fish in this state without obtaining a license. The director shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code setting forth the procedure for the certification of the disabled veteran, manner of applying for and receiving the certification and requirements as to identification while the disabled veteran is hunting, trapping or fishing.

(i) Any resident or inpatient in any state mental health, health or benevolent institution or facility may fish in this state, under proper supervision of the institution involved, without obtaining a fishing license. A written statement or certificate signed by the superintendent of the mental health, health or benevolent institution or facility in which the resident or inpatient, as the case may be, is institutionalized shall serve in lieu of a fishing license and shall be carried on the person of the resident or inpatient at all times while he or she is fishing in this state.

(j) Any resident who is developmentally disabled, as certified by a physician and the Director of the Division of Health, may fish in this state without obtaining a fishing license. As used in this section, "developmentally disabled" means a person with a severe, chronic disability which:

(1) Is attributable to a mental or physical impairment or a combination of mental and physical impairments;

(2) Is manifested before the person attains age twenty-two;(3) Results in substantial functional limitations in three or more of the following areas of major life activity:

(A) Self-care;

(B) Receptive and expressive language;

(D) Mobility;

(E) Self-direction;

(F) Capacity for independent living; and

(G) Economic self-sufficiency; and

(4) Reflects the person's need for a combination and sequence of care, treatment or supportive services which are of lifelong or extended duration and are individually planned and coordinated.

(k) A student eighteen years of age or younger receiving instruction in fly fishing in a public, private, parochial or Christian school in this state may fly fish in the state for catch and release only without obtaining a fishing license while under the supervision of an instructor authorized by the school.

§20-2-29. Conservation of species and request for public records.

(a) The director may exempt from disclosure under the Freedom of Information Act, article one, chapter twenty-nine-b of this code, any record concerning the site-specific location of an animal species protected under the Endangered Species Act of 1973, 7 U.S.C. §136, a plant protected under the Plant Variety Protection Act, 7 U.S.C. §2321:2583 and any plant or animal species native to West Virginia determined by the director to be sensitive and in need of conservation to maintain viability or existence.

(b) The director may not deny the release of records under subsection (a) of this section if requested:

(1) By the owner of the land upon which the resource is located;

(2) By an entity which can take the land through the right of eminent domain; or

(3) For scientific purposes which include, but are not limited to, conservation and education, by a person or entity that demonstrates to the director's satisfaction that the request for information is necessary, will not cause harm to the plant or animal species, and that the person or entity will use the information only for the limited purpose which is the basis for the request of information. The director retains the right to provide any such data in a form which in his or her opinion, is of sufficient resolution to satisfy that request and is not obligated to provide exact coordinate data.

(c) Persons or entities receiving records under this subsection may not release the information to the public or release the information to another entity for commercial purposes.

§20-2-30. Application and statement of eligibility for licenses or permits; procuring license or permit in violation of chapter.

(a) Each person who applies for any class of license or permit must state to the issuing agent that he or she is eligible for and has satisfied all prerequisites required by this chapter for that class of license or permit.

(b) It is unlawful for a person to make a false statement when applying for any license or permit issued pursuant to the provisions of this chapter.

§20-2-30a. Certificate of training; falsifying, altering, forging, counterfeiting or uttering training certificate; penalties.

(a) Notwithstanding any other provisions of this article, no base hunting license may be issued to any person who was born on or after January 1, 1975, unless the person submits to the person authorized to issue hunting licenses a certificate of training as provided in this section or proof of completion of any course which promotes as a major objective safety in the handling of firearms and of bow and arrows and which course is approved by the hunter education association or the director, or provides a State of West Virginia resident or nonresident hunting license from the previous hunting season that displays a certification of training, or attests that a hunter training course has been completed when purchasing a license or stamp online: Provided, That after January 1, 2013, a person may be issued a Class AH, Class AHJ, Class AAH and Class AAHJ apprentice hunting and trapping license pursuant to the provisions of section forty-two-y of this article and is exempt from the hunter training requirements set forth herein.

(b) The director shall establish a course in the safe handling of firearms and of bows and arrows, such as the course approved by the Hunter Education Association. This course shall be given at least once per year in each county in this state and shall be taught by instructors certified by the director. In establishing and conducting this course, the director may cooperate with any reputable association or organization which promotes as a major objective safety in the handling of firearms and of bows and arrows: Provided, That any person holding a Class A-L or AB-L lifetime resident license obtained prior to his or her fifteenth birthday shall be required to obtain a certificate of training as provided in this section before hunting or trapping pursuant to said license. This course of instruction shall be offered without charge, except for materials or ammunition consumed. Upon satisfactory completion of the course, each person instructed in the course shall be issued a certificate of training for the purposes of complying with the requirements of subsection (a) of this section. The certificate shall be in the form prescribed by the director and shall be valid for hunting license application purposes.

(c) (1) Upon satisfactory completion of this course, any person whose hunting license has been revoked for a violation of the provisions of this chapter may petition the director for a reduction of his or her revocation time. However, under no circumstances may the time be reduced to less than one year.

(2) Successful completion of this course shall be required to consider the reinstatement of a hunting license of any person whose license has been revoked due to a conviction for negligent shooting of a human being or of livestock under the provisions of section fifty-seven of this article, and who petitions the director for an early reinstatement of his or her hunting privileges. Such a petitioner shall also comply with the other requirements for consideration of reinstatement contained in section thirty-eight of this article.

(d) It is unlawful for any person to falsify, alter, forge, counterfeit or utter a certificate of training. Any person who violates the provisions of this subsection is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $500 nor more than $1,000, or confined in jail for a period not to exceed one year, or both fined and imprisoned.

(e) Nothing herein contained shall mandate that any county school district in the state be responsible for implementing hunter safety education programs.

§20-2-31. Size and form of license and tag; contents; unlawful to alter licenses or permits; penalty.

(a) The size, content, and form of all licenses, tags, and permits shall be prescribed by the director. The information which a licensee is required to furnish shall be placed upon the license by the license issuing authority before delivery of such license to the licensee: Provided, That all hunting or fishing licenses as defined in §16-19-3 of this code include document of gift indicating the applicant has made an anatomical gift, as defined in §16-19-3 of this code.

(b) It is unlawful for any person to alter, mutilate, or deface any license, tag, or permit, or the entries thereon, for the purpose of evading the provisions of this chapter.

Any person violating the provisions of this subsection is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $20 nor more than $300; and upon a second and subsequent conviction thereof, shall be fined not less than $20 nor more than $300, or confined in jail not less than 10 nor more than 100 days, or both fined and confined.

§20-2-32. Issuance of licenses; duplicate licenses.

(a) The clerk of the county commission in each county requesting designation and other persons, designated by the director pursuant to section thirty-three of this article, are license-issuing authorities authorized to issue a license to an applicant if the applicant is legally entitled to obtain the license and pays the proper fee.

(b) Materials and supplies for the issuance of licenses shall be furnished by the director to each license-issuing authority as needed.

(c) Each license shall bear a serial number and shall be signed by the licensee. The license-issuing authority shall keep an accurate record of licenses issued and fees collected as prescribed by the director.

(d) Any license-issuing authority may issue a duplicate license to replace a lost, destroyed or damaged license upon receipt of a verified application executed by the original licensee and payment of a duplicate license fee of $1.

§20-2-33. Authority of Director to designate agents to issue licenses; bonds; fees.

(a) The Director may appoint, in addition to the clerk of the county commission, agents to issue licenses under the provisions of this article to serve the convenience of the public. Each person appointed shall, before issuing any license, file with the Director a bond payable to the State of West Virginia, in the amount to be fixed by the Director, conditioned upon the faithful performance of his or her obligation to issue licenses only in conformity with the provisions of this article and to account for all license fees received by him or her. The form of the bond shall be prescribed by the Attorney General. No person, other than those designated as issuing agents by the Director, may sell licenses or buy licenses for the purpose of resale.

(b) Except when a license is purchased from a state official, every person making application for a license shall pay, in addition to the license fee prescribed in this article, an additional fee of $3 to any county official issuing the license and all fees collected by county officials must be paid by them into the General Fund of the county treasury or, in the case of an agent issuing the license, an additional fee of $3 as compensation: Provided, That only one issuing fee of $3 may be collected by county officials or authorized agents, respectively, for issuing two or more licenses at the same time for use by the same person or for issuing combination resident statewide hunting, trapping and fishing licenses: Provided, however, That a person with a lifetime license or a person who has paid the original additional fee of $3 to a county official or issuing agent for a license shall only be charged an additional fee of $1 as additional compensation when subsequently purchasing an additional license from a county official or issuing agent: Provided further, That licenses may be issued electronically in a manner prescribed by the Director and persons purchasing electronically issued licenses may be assessed, in addition to the license fee prescribed in this article, an electronic issuance fee to be prescribed by the Director: And Provided further, That, notwithstanding any provision of this code to the contrary, an electronic issuance fee of at least $2 shall be assessed on each Go Wild transaction. The electronic issuance fee shall be dedicated to the administration and maintenance of Go Wild. The Director may propose rules for legislative approval in accordance with article three, chapter twenty-nine-a of this code increasing the license issuing fees authorized by this section.

(c) In lieu of the license issuance fee prescribed in subsection (b) of this section, the Director shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code governing the application for and issuance of licenses by telephone and other electronic methods.

(d) The Director may propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code governing the management of issuing agents.

§20-2-33a. Electronic application to apprise applicant of hunters helping the hungry program; check-off donations; special fund continued; authorized expenditures.

(a) (1) Every application for electronic license shall include a solicitation for a voluntary donation to the division's previously established hunters helping the hungry program.

(2) The license applicant will be offered an opportunity to designate a donation in any amount to the hunters helping the hungry program.

(b) There is hereby created a subaccount, designated the "hunters helping the hungry fund", within the special revenue account established in section thirty-four of this article, into which all donations derived under this section shall be deposited. Moneys in the subaccount shall be expended solely for the purposes set forth in subsection (c) of this section. Funds paid into the subaccount may also be derived from the following sources: (1) All interest or return on investment accruing to the subaccount; (2) Any gifts, grants, bequests, transfers, appropriations or other donations which may be received from any governmental entity or unit or any person, firm, foundation, or corporation; and (3) any appropriations by the Legislature which may be made for the purposes of this section. Any balance including accrued interest and other earnings at the end of any fiscal year shall not revert to the General Fund but shall remain in the fund for the purposes set forth in this section.

(c) The moneys in the fund will be paid out, at the direction of the director, to eligible participants for the butchering of game carcasses and for the expenses related to the acquisition and distribution of food to the needy residents of West Virginia.

(d) For purposes of this section, "eligible participant" means a nonprofit organization that coordinates, with the Division of Natural Resources and other entities, a statewide system for the distribution of meat products derived from the butchering of donated game carcasses by a person licensed under the provisions of article two-b, chapter nineteen of this code.

§20-2-33b. Electronic application donation to fund the Coyote Management Program.

(a) (1) Effective January 1, 2006, every application for a hunting or fishing electronic license shall include a solicitation for a voluntary donation to the division's established Coyote Management Program.

(2) The license applicant will be offered an opportunity to designate a donation in the amount of $2 for the Coyote Management Program.

(b) There is hereby created a special revenue account, designated the "Coyote Management Fund" into which all donations derived under this section shall be deposited. Moneys in this account shall be expended solely for the purposes set forth in subsection (c) of this section. Funds paid into this account may also be derived from the following sources: (1) All interest or return on investment accruing to this account; (2) Any gifts, grants, bequests, transfers, appropriations or other donations which may be received from any governmental entity or unit or any person, firm, foundation, or corporation; and (3) any appropriations by the Legislature which may be made for the purposes of this section. Any balance including accrued interest and other earnings at the end of any fiscal year shall not revert to the General Fund but shall remain in the fund for the purposes set forth in this section.

(c) The moneys in the fund shall be paid out, at the sole discretion and direction of the director, to address coyote management issues.

§20-2-34. Disposition of license fees and donations; reports of agents; special funds and uses.

(a) All persons in this state who receive money for licenses and permits required by this chapter, or as donations for the hunters helping the hungry program, shall deposit the moneys into an account at a financial institution at intervals designated by the director with the approval of the State Treasurer. The payment shall be accompanied by a sales report. The form and content of the sales report shall be prescribed by the director.

(b) Except where other provisions of this chapter specifically require direct payment of moneys into designated funds for specific uses and purposes, all license fees received by the director shall be promptly paid into the State Treasury and credited to the Division of Natural Resources "license fund--wildlife resources" which shall be used and paid out, upon order of the director, solely for law enforcement and for other purposes directly relating to the conservation, protection, propagation and distribution of wildlife in this state pursuant to the provisions of this chapter.

No funds from the "license fund--wildlife resources" may be expended for recreational facilities or activities that are used by or for the benefit of the general public, rather than purchasers of hunting and fishing licenses.

The director shall retain ten percent of the "license fund–wildlife resources" for capital improvements and land purchases benefitting state wildlife, forty percent shall be budgeted to the wildlife resources division, forty percent to law enforcement and ten percent apportioned by the director within provisions of this section. Any unexpended moneys for capital improvements and land purchases shall be carried forward.

All interest generated from game and fish license fees shall be used by the director for the Division of Natural Resources in the same manner as is provided for the use of license fees.

(c) Moneys received as donations to the hunters helping the hungry program shall be deposited in the subaccount designated "hunters helping the hungry fund".

§20-2-35. Period during which license valid.

Licenses and permits provided by this chapter shall be valid through the last day of the calendar year for which they are issued unless otherwise provided by law.

§20-2-36. When license, related documents, and picture identification to be carried; using license of another; transferring license to another.

(a) A person who is required by this article to be licensed may not hunt, take, pursue, trap for, kill, catch or chase for sport any wild animal or wild bird; or fish for, take, kill or catch any fish or amphibians of any kind whatsoever in this state unless he or she shall have on his or her person: (1) A valid license issued to him or her, or other proof that a valid license has been issued to him or her in accordance with this article; (2) all applicable stamps, permits, and written consents required by this article; (3) a driver's license, passport, or picture identification issued to him or her by his or her state of residence; and (4) a certificate of training or other proof of hunter safety education as required by section thirty-a of this article.

As an alternative to the identification required by subsection (a)(3) of this section, the name, address and birthdate of a licensee under the age of fifteen years may be established by the averment of an accompanying licensed adult.

(b) It is unlawful for any person to use at any time any license other than those valid licenses legally issued to him or her in accordance with this article.

(c) Except as expressly provided by this article, it is unlawful for any person to transfer a license to any other person.

§20-2-36a. Hunting or fishing when license revoked; penalty.

Any person whose license to hunt or fish has been revoked, who hunts or fishes during the period of revocation, shall be guilty of a misdemeanor, and, upon conviction thereof, shall for each offense be fined not less than $100 nor more than $500, or be imprisoned in the county jail for not less than ten days nor more than one hundred days, or both fined and imprisoned.

§20-2-37. Display of license, etc., by persons in possession of hunting, fishing, etc., paraphernalia.

(a) Any person having in his or her possession in or near the fields or woods, or about the streams of this state, any wildlife, hunting dog or other hunting, fishing or trapping paraphernalia, implements or devices suitable for taking wildlife under circumstances indicating he or she has been hunting, trapping, fishing or otherwise taking wildlife, shall, upon demand of any officer authorized to enforce this chapter:

(1) State his or her correct name and address;

(2) Exhibit for inspection all license and documents or other lawful authorization for hunting, fishing, trapping or otherwise taking wildlife required to be carried pursuant to this chapter; and

(3) Exhibit for inspection all such wildlife, paraphernalia, implements or devices which he or she has in his or her possession.

(b) Mere possession of a firearm does not, in and of itself, indicate that a person has been hunting, fishing, trapping or taking wildlife, but may be considered along with other evidence in a determination as to whether a person has been hunting, fishing, trapping or otherwise taking wildlife.

(c) Nothing in this section may be construed as authorizing searches that violate article three, section six of the West Virginia Constitution or the Fourth Amendment to the Constitution of the United States, nor may anything in this section be construed as effecting a waiver of these Constitutional provisions.

§20-2-38. Refusal or revocation of license or permit.

The director may, for cause, refuse a license or permit to any person or revoke a license or permit which had been granted.

In case the director desires to refuse a license to any person, he shall notify personnel authorized to issue licenses, in counties where it is expected such license may be sought, of the name and address of such person and such other information in relation thereto as he may desire to give, and such issuing authority shall not issue a license to such person thereafter, and shall report to the director any application made therefor. In case any issuing authority shall, after receiving such notice knowingly issue such license, he shall be guilty of a misdemeanor. The director may revoke any such license so wrongfully issued. The violation of any of the provisions of this chapter by any person holding a license shall be sufficient cause for the director to refuse or revoke a license.

Repealed.

Acts, 2005 Reg. Sess., Ch. 130.

§20-2-42. Effective date and indexing of license and stamp fees.

The director may propose rules for legislative approval in accordance with article three, chapter twenty-nine-a of this code, changing any license or stamp fee set forth in this article or in article two-b. All increases in license and stamp fees in this article set forth in rule shall be computed in a manner that indexes the increases to the Consumer Price Index (All Items) published by the United States Department of Labor rounded down to the nearest dollar: Provided, That no fee increase resulting from increases in the Consumer Price Index (All Items) may be made after January 1, 2021.

§20-2-42a. Class A resident hunting and trapping license.

A Class A license is a resident hunting and trapping license and entitles the licensee to hunt and trap all legal species of wild animals and wild birds in all counties of the state, except, big game as provided in §20-2-42v of this code, and except as prohibited by rules of the director or Natural Resources Commission and when additional licenses, stamps, or permits are required. It shall be issued only to residents or aliens lawfully residing in the United States who have been domiciled residents of West Virginia for a period of 30 consecutive days or more immediately prior to the date of their application for a license. The fee for the license is $18. This is a base license and does not require the purchase of a prerequisite license to participate in the activities specified in this section, except as noted.

§20-2-42b. Class B resident fishing license.

A Class B license is a resident fishing license and entitles the licensee to fish for all legal fish except trout and to take frogs in all counties of the state, except as prohibited by rules of the Director or Natural Resources Commission and when additional licenses, stamps or permits are required. It shall be issued only to residents or aliens lawfully residing in the United States who have been domiciled residents of West Virginia for a period of thirty consecutive days or more immediately prior to the date of their application for a license. The fee for the license is $18. To fish for trout, a Class B license holder must purchase and carry a valid Class O stamp or Class O-L license. This is a base license and does not require the purchase of a prerequisite license to participate in the activities specified in this section, except as noted.

§20-2-42c. Class C courtesy statewide hunting and fishing license.

A Class C license is a courtesy hunting and fishing license and entitles the licensee to hunt and fish in all counties of this state. It may be issued by the Director upon application made to him or her and without fee to:

(1) Members and agents of the United States Fish and Wildlife Service;

(2) Members of State Commissions of other states extending similar courtesies;

(3) Diplomatic and consular representatives of foreign countries;

(4) Persons engaged in scientific wildlife research;

(5) Nonresident outdoor writers and other nonresidents engaged in promoting an interest in the Natural Resources of the State of West Virginia.

Not more than one hundred courtesy licenses shall be issued in one year. This is a base license and does not require the purchase of a prerequisite license to participate in the activities specified in this section, except as noted.

§20-2-42d. Class E nonresident hunting and trapping license.

A Class E license is a nonresident hunting and trapping license and entitles the licensee to hunt and trap all legal species of wild animals and wild birds in all counties of the state except as prohibited by rules of the Director or Natural Resources Commission and except when other licenses, stamps or permits are required. The fee for the license is one hundred $10. This is a base license and does not require the purchase of a prerequisite license to participate in the activities specified in this section, except as noted.

§20-2-42e. Class EE nonresident bear hunting license.

A Class EE license is a nonresident bear hunting license and entitles the licensee to hunt bear in all counties of the state, except as prohibited by rules of the Director or Natural Resources Commission and except when additional licenses, stamps or permits are required. The fee for the license is $150. This is a base license and does not require the purchase of a prerequisite license to participate in the activities specified in this section, except as noted.

§20-2-42f. Class F nonresident fishing license.

A Class F license is a nonresident fishing license and entitles the licensee to fish for all legal fish except trout and to take frogs, in all counties of the state except as prohibited by rules of the Director or Natural Resources Commission and except when additional licenses, stamps or permits are required. The fee for the license is $35. To fish for trout, a Class F license holder must purchase and carry a valid Class OO trout stamp. This is a base license and does not require the purchase of a prerequisite license to participate in the activities specified in this section, except as noted.

§20-2-42g. Class H nonresident small game hunting license.

A Class H license is a nonresident small game hunting license and entitles the licensee to hunt small game in all counties of the state, except as prohibited by rules of the Director or Natural Resources Commission and except when additional licenses, stamps or permits are required, for a period of six consecutive hunting days chosen by the licensee. The fee for the license is $25. This is a base license and does not require the purchase of a prerequisite license to participate in the activities specified in this section, except as noted.

§20-2-42h. Class J nonresident small game shooting preserve license.

A Class J license is a nonresident small game shooting preserve license and entitles the licensee to hunt small game on designated shooting preserves, except as prohibited by rules of the Director or Natural Resources Commission and except when additional licenses, stamps or permits are required, for a period of six consecutive hunting days chosen by the licensee. The fee for the license is $10. This is a base license and does not require the purchase of a prerequisite license to participate in the activities specified in this section, except as noted.

§20-2-42i. Class LL nonresident one-day fishing license.

A Class LL license is a nonresident fishing license and entitles the licensee to fish for all legal fish except trout and to take frogs in all counties of the state for the calendar date chosen by the buyer and which will be specified on the license, except as prohibited by rules of the Director or Natural Resources Commission and except when additional licenses, stamps or permits are required. To fish for trout, a Class LL licensee must purchase and carry a valid Class OO trout stamp. The fee for the license is $3. This is a base license and does not require the purchase of a prerequisite license to participate in the activities specified in this section, except as noted.

§20-2-42j. Class X resident hunting, fishing and trapping license.

A Class X license is a resident hunting, fishing and trapping license and entitles the licensee to hunt and trap for all legal species of wild animals and wild birds, to fish for all legal species of fish except trout and to take frogs in all counties of the state, except as prohibited by the rules of the Director or Natural Resources Commission and when additional licenses, stamps or permits are required. No additional fees shall be required of Class X licensees for a Class CS stamp. To fish for trout, a Class X licensee must purchase and carry a valid Class O stamp or Class O-L license. The Class X license shall be issued only to residents or aliens lawfully residing in the United States who have been domiciled residents of West Virginia for a period of thirty consecutive days or more immediately prior to the date of their application for a license. The fee for the license is $33. The portion of the Class X license fee equal to the annual fee for the Class CS stamp shall be designated as conservation stamp revenue and expended pursuant to section nine, article two-b of this code. This is a base license and does not require the purchase of a prerequisite license to participate in the activities specified in this section, except as noted.

§20-2-42k. Class XJ resident junior and Class XXJ nonresident junior hunting, fishing and trapping license.

A Class XJ license is a resident junior hunting, fishing and trapping license and a Class XXJ license is a nonresident junior hunting, fishing and trapping license. These licenses entitle the licensee to hunt and trap for all legal species of wild animals and wild birds, to fish for all legal species of fish except trout and to take frogs in all counties of the state, except as prohibited by the rules of the Director or Natural Resources Commission and when additional licenses, stamps and permits are required. No additional fees are required of Class XJ licensees for a Class CS stamp. No additional fees are required of Class XXJ licensees for Class I, UU, VV or WW stamps. To fish for trout, Class XJ or XXJ licensees must purchase and carry a valid Class O or OO stamp or O-L license. The Class XJ license may be issued only to a resident who has not reached his or her eighteenth birthday and is otherwise required by section twenty-seven of this article to purchase a license. The Class XXJ license may be issued to a nonresident who has not reached his or her eighteenth birthday and is at least eight years old and is otherwise required by section twenty-seven of this article to purchase a license. The fee for the Class XJ license is $15. The portion of the Class XJ license fee equal to the annual fee for the Class CS stamp shall be designated as conservation stamp revenue and expended pursuant to section nine of article two-b. The fee for the Class XXJ license is $15. In addition to buying a Class XXJ license, a nonresident must purchase a Class CS/LE stamp as required in section ten of article two-b. This is a base license and does not require the purchase of a prerequisite license to participate in the activities specified in this section, except as noted.

§20-2-42l. Class A-l small arms hunting stamp.

A Class A-1 stamp is a small arms hunting stamp. Except for any person prohibited from possessing a firearm by state or federal law, a Class A-1 stamp may be issued to a person 18 years of age or older who is otherwise qualified and holds a valid resident or nonresident hunting license, or to a person who is a resident 65 years of age or older. A Class A-1 stamp entitles the licensee to hunt, as otherwise permitted by the provisions of this chapter, but only during small game and big game seasons as established annually by the director, with either a revolver or pistol which has a barrel at least four inches in length: Provided, That the Class A-1 stamp may not be valid unless the licensee has in his or her possession a valid resident or nonresident hunting license or is a resident 65 years of age or older: Provided, however, That while hunting, the licensee shall carry the revolver or pistol in an unconcealed and easily visible place. Nothing in this section shall be construed to prohibit a person from carrying a firearm for self-defense who is not prohibited from possessing a firearm by state or federal law. The fee for the stamp is $8. A lifetime Class A-1 stamp may be issued to anyone otherwise qualified and holding a valid Class A-L or, AB-L, E-L or EE-L license or to a resident 65 years of age or older. The lifetime Class A-1 stamp will be issued in a form prescribed by the director. The fee for a lifetime Class A-1 stamp is $75. All fees collected for the issuance of the Class A-1 and lifetime Class A-1 stamps shall be deposited in the State Treasury and credited to the law-enforcement section of the Division of Natural Resources. The fees collected shall be paid out of the State Treasury on order of the director and used solely for law-enforcement purposes. Any person who becomes legally unable to possess a firearm shall immediately surrender the stamp to the Division of Natural Resources. A holder of a Class A-1 or lifetime Class A-1 stamp is required to purchase the appropriate base license before participating in the activities specified in this section, except as noted.

§20-2-42m. Class I nonresident national forest hunting, trapping and fishing stamp.

A Class I stamp is a nonresident national forest hunting, trapping and fishing stamp and entitles the licensee, when within national forest land in West Virginia, to hunt legal species in season; to trap fur-bearing animals in season; and to fish in the waters therein. The stamp shall be issued only to a nonresident holding a Class E, EE, F, H or LL license. The fee for the stamp is $2. This stamp requires that the licensee purchase the appropriate base license before participating in the activities specified in this section, except as noted.

§20-2-42n. Class N resident and Class NN nonresident antlerless deer hunting stamp.

A Class N stamp is a resident deer hunting stamp for antlerless deer. A Class NN stamp is a nonresident deer hunting stamp for antlerless deer. These stamps entitle the licensee to hunt and take antlerless deer of either sex during the Class N season. The fee for a Class N stamp is $10 and the fee for a Class NN stamp is $25. Class N and NN stamps may be issued only for the purpose of removing antlerless deer when the Director determines it essential for proper management of the wildlife resources. The Director may promulgate rules governing the issuance and use of the Class N and NN stamps as deemed necessary to limit, on a fair and equitable basis, the number of persons who may hunt for antlerless deer in a county, or part of a county. When the Director determines it essential that a Class N or NN season be held in a particular county or part of a county, that season shall be set by the Natural Resources Commission as provided in section seventeen, article one of this chapter. Bona fide resident landowners or their resident children, or resident parents, bona fide resident tenants of such land and bona fide resident stockholders of resident corporations which are formed for the primary purpose of hunting or fishing and which are the fee simple owners of no less than one thousand acres of land upon which the antlerless deer may be hunted are not required to have a Class N stamp in their possession while hunting antlerless deer on their own land during the Class N season. A resident hunter, including those not required to purchase a license pursuant to section twenty-seven of this article, must purchase and carry a valid Class N stamp. A nonresident hunter must purchase and carry a valid Class NN stamp. These stamps require that the licensee purchase the appropriate base license before participating in the activities specified in this section, except as noted.

§20-2-42o. Class O resident and Class OO nonresident trout fishing stamp.

A Class O stamp is a resident trout fishing stamp. A Class OO stamp is a nonresident trout fishing stamp. These stamps entitle the licensee to fish for trout in all counties of the state, except as prohibited by rules of the director or Natural Resources Commission. The fee for a Class O stamp is $10 and the fee for a Class OO stamp is $15. The revenue derived from the sale of these stamps shall be deposited in the State Treasury and credited to the Division of Natural Resources and shall be used and paid out, upon order of the director, for state trout program expenses. These stamps, issued in a form prescribed by the director, shall be in addition to a Class AB-L, B, B-L, F, L, LL, X, XJ or XXJ license or Class Q permit. These stamps require that the licensee purchase the appropriate base license before participating in the activities specified in this section, except as noted.

§20-2-42p. Class RG resident and Class RRG nonresident gun deer hunting stamp for an additional deer.

The Director has the authority to issue a Class RG resident and a Class RRG nonresident gun deer hunting stamp when deemed essential for the proper management of the wildlife resources. These stamps allow the licensee to hunt and take an additional deer as designated by the Director. The fee for a Class RG stamp is $20 and the fee for a Class RRG stamp is $40. The Director may promulgate rules in accordance with article three, chapter twenty-nine-a of this code governing the issuance and use of these stamps. These stamps require that the licensee purchase the appropriate base license before participating in the activities specified in this section, except as noted.

§20-2-42q. Class RB resident and Class RRB nonresident archery deer hunting stamp for an additional deer.

The director may issue a Class RB resident and a Class RRB nonresident archery deer hunting stamp when considered essential for the proper management of the wildlife resources. This stamp allows the licensee to hunt and take an additional deer during the deer archery or crossbow seasons as designated by the director. The fee for a Class RB stamp is $20 and the fee for a Class RRB stamp is $35. The director may propose rules for promulgation in accordance with §29A-3-1 et seq. of this code governing the issuance and use of these stamps. These stamps require that the licensee purchase the appropriate base license before participating in the activities specified in this section.

§20-2-42r. Class RM resident and Class RRM nonresident muzzle-loader deer hunting stamp for an additional deer.

The Director shall have the authority to issue a Class RM resident and a Class RRM nonresident muzzle-loader deer hunting stamp when deemed essential for the proper management of the wildlife resources. These stamps allow the licensee to hunt and take an additional deer as designated by the Director. The fee for a Class RM stamp is $15 and the fee for a Class RRM stamp is $35. The Director may promulgate rules in accordance with article three, chapter twenty-nine-a of this code governing the issuance and use of these stamps. These stamps require that the licensee purchase the appropriate base license before participating in the activities specified in this section, except as noted.

§20-2-42s. Class UU nonresident archery deer hunting stamp.

A Class UU stamp is a nonresident archery deer hunting stamp and entitles the licensee to hunt and take deer with a bow during the archery deer season or with a crossbow in the crossbow deer season in all counties of the state, except as prohibited by the rules of the director or Natural Resources Commission. The fee for a Class UU stamp is $30. The stamp, issued in a form prescribed by the director, is in addition to a Class E license. This stamp requires that the licensee purchase the appropriate base license before participating in the activities specified in this section.

§20-2-42t. Class VV nonresident muzzle-loading deer hunting stamp.

A Class VV stamp is a nonresident muzzle-loading deer hunting stamp and entitles the licensee to hunt and take deer with a muzzle-loader during muzzle-loading deer seasons in all counties the state, or parts thereof, excluding Logan, McDowell, Mingo and Wyoming counties, as set by the Natural Resources Commission in accordance with section seventeen, article one of this chapter. The Director may promulgate rules in accordance with article three, chapter twenty-nine-a of this code governing the issuance and use of this stamp. The stamp, issued in a form prescribed by the Director, shall be in addition to a Class E license. The fee for a Class VV stamp is $30. This stamp requires that the licensee purchase the appropriate base license before participating in the activities specified in this section, except as noted.

§20-2-42u. Class WW nonresident turkey hunting stamp.

A Class WW stamp is a nonresident turkey hunting stamp and entitles the licensee to hunt and take turkey during any turkey hunting season, except as prohibited by the rules of the Director or Natural Resources Commission. The fee for a Class WW stamp is $30. The stamp, issued in a form prescribed by the Director, shall be in addition to a Class E license. This stamp requires that the licensee purchase the appropriate base license before participating in the activities specified in this section, except as noted.

§20-2-42v. Class BG resident big game stamp.

A Class BG stamp is a resident big game stamp and entitles the Class A licensee to hunt deer during the deer archery, crossbow, and muzzleloader seasons, and bear, wild turkey, and wild boar during the respective seasons, except as prohibited by rules of the director or Natural Resources Commission: Provided, That the licensee possesses all other required permits and stamps. The fee for the stamp is $10. The stamp, issued in a form prescribed by the director, shall be in addition to a Class A license. This stamp requires that the licensee purchase the appropriate base license before participating in the activities specified in this section.

§20-2-42w. Class Y special crossbow hunting permit for certain disabled persons.

(a) A Class Y permit is a special statewide hunting permit entitling a person to hunt all wildlife during established archery and firearm seasons if the person meets the following requirements:

(1) He or she holds a Class Q permit; or

(2) He or she has a permanent and substantial loss of function in one or both hands while failing to meet the minimum standards of the upper extremity pinch, grip, and nine-hole peg tests administered under the direction of a licensed physician; or

(3) He or she has a permanent and substantial loss of function in one or both shoulders while failing to meet the minimum standards of the shoulder strength test administered under the direction of a licensed physician.

(b) The application form shall include a written statement or report prepared by the physician conducting the test no more than six months preceding the application and verifying that the applicant is physically disabled as described in this section. The completed Class Y permit application shall be submitted to the division, which shall issue a wallet-sized card to the permittee. The card and all other documents and identification required to be carried by this article shall be in the permittee’s possession when hunting.

(c) A Class Y permit shall be accompanied by a valid statewide hunting license or the applicant shall be exempt from hunting licenses as provided in this chapter.

§20-2-42x. Class XS resident senior hunting, fishing and trapping license.

(a) A Class XS license is a resident senior hunting, fishing and trapping license and entitles the licensee to hunt and trap for all legal species of wild animals and wild birds, to fish for all legal species of fish and to take frogs in all counties of the state, except as prohibited by the rules of the Director or Natural Resources Commission and when additional licenses, stamps or permits are required. No additional fees shall be required of Class XS licensees for a Class CS stamp or a Class O stamp.

(b) A Class XS licensee shall be entitled to participate with the same privileges and subject to the same restrictions as a youth hunter in any special youth deer season established by the Natural Resources Commission pursuant to the provisions of subdivision (b)(7), section 17, article one of this chapter.

(c) A Class XS license is required for residents or aliens lawfully residing in the United States who have been domiciled residents of West Virginia for a period of thirty consecutive days or more immediately prior to the date of their application for a license and who reach sixty-five years of age on or after January 1, 2012.

(d) A Class XS license may be voluntarily purchased by residents or aliens lawfully residing in the United States and who have been domiciled residents of West Virginia for a period of thirty consecutive days or more immediately prior to the date of their application for a license and who reach sixty-five years of age on or before December 31, 2011, entitling those persons to the same privileges and subjecting them to the same restrictions as any Class XS licensee.

(e) The fee for the Class XS license is $25.

(f) A Class XS license is valid for the lifetime of the purchaser without payment of additional fees for the privileges associated with the Class X license, Class CS stamp and the Class O stamp. This is a base license and does not require the purchase of a prerequisite license to participate in the activities specified in this section, except as noted.

(g) The Division of Natural Resources shall coordinate with the Department of Motor Vehicles to adopt and implement a program whereby the senior hunting license provided for in this section shall be identified by an appropriate decal, sticker or other marking to be affixed to the drivers' or chauffeurs' license of such person.

(h) On or before July 1 annually, the Division of Natural Resources shall file an annual report with the joint committee on government and finance describing its implementation of the senior license program as set forth in this section. The report shall include the number of licenses issued, any increase in state funds as a result of the senior license created by this section, any federal funds received as a result of the implementation of the senior license created by this section and the intended use of those funds.

§20-2-42y. Class AH, AHJ, AAH, AAHJ apprentice hunting and trapping licenses; penalties.

(a) Except for persons otherwise exempted, Class AH, AHJ, AAH, and AAHJ licenses are apprentice hunting and trapping licenses and entitle the licensee to hunt and trap for all legal species of wild animals and wild birds. The licenses shall be base licenses and entitle the licensee to a deferral of the proof of a certificate of training required under §20-2-30a of this code.

(b) The apprentice hunting and trapping licensee may not hunt or trap unless he or she is in possession of all other required documentation and stamps and is accompanied and directly supervised by an adult 18 years of age or older who either possesses a valid West Virginia hunting license or has the lawful privilege to hunt pursuant to the provisions of this chapter. For purposes of this section, “accompanied and directly supervised” means that a person maintains a close visual and verbal contact with, provides adequate direction to, and can assume control of the firearm from the apprentice hunter.

(c) The cost of the Class AH license for residents who have reached their 18th birthday shall be $19 and shall have the same privileges associated with Class A base license. The cost of the Class AAH license for nonresidents who have reached their 18th birthday shall be $119 and shall have the same privileges associated with a Class E base license. The cost of the Class AHJ license shall be $16 for residents who have reached their 15th birthday and who have not reached their 18th birthday, and shall have the same privileges associated with Class XJ base license. The cost of the Class AAHJ license shall be $16 for nonresidents who have not reached their 18th birthday and shall have the same privileges associated with a Class XXJ base license.

(d) An apprentice hunting and trapping license is a yearly license and may only be purchased electronically in a manner designated by the director. No person who has ever had a valid base hunting license, other than a Class AH, Class AHJ, Class AAH, or Class AAHJ license, may be issued one of the apprentice hunting and trapping licenses.

(4) Cardiovascular disease to the extent that functional limitations are classified in severity as class 3 or 4, according to standards set by the American Heart Association and where ordinary physical activity causes palpitation, dyspnea or anginal pain.

(c) A licensed physician, physician assistant, advanced practice registered nurse or chiropractic physician must certify the applicant’s permanent disability by completing the permit application. The Class Q permit application shall be submitted to the division, which will issue a wallet sized card to the permittee.

(d) A person with a Class Q permit may not hunt or trap under the provisions of this section unless he or she is in possession of the Class Q permit card, a valid hunting license issued pursuant to §20-2-1 et seq. of this code or is a person excepted from licensing requirements pursuant to §20-2-27 and §20-2-28 of this code, and all documents or other lawful authorizations as prescribed in §20-2-37 of this code.

(e) A Class Q permit entitles the holder to hunt from a motor vehicle and, notwithstanding the provisions of §20-2-5 of this code, to possess a loaded firearm in a motor vehicle, but only under the following circumstances:

(1) The motor vehicle is stationary;

(2) The engine of the motor vehicle is not operating;

(3) The permittee and one individual, who is at least 16 years of age, to assist the permittee are the only occupants of the vehicle;

(4) The individual assisting the permittee may not hunt with a firearm, bow, or cross-bow while assisting the permittee;

(5) The vehicle is not parked on the right-of-way of any public road or highway; and

(6) The permittee observes all other pertinent laws and regulations.

(f) The director may propose rules for legislative approval in accordance with the provisions of §29A-3-1 et seq. of this code setting forth the qualifications of applicants and the permitting process.

§20-2-46f. Class DT special hunting and fishing license for persons with a life-threatening condition.

(a) A Class DT license is a special statewide hunting and fishing license for residents of the State of West Virginia and nonresidents, as permitted in subsection (e) of this section, entitling the licensee to fish or hunt all legal species of game at no charge, in accordance with the provisions of this section.

(b) A license form shall be furnished by the director to an applicant who meets the following requirements:

(1) He or she has been diagnosed by a licensed physician with a life-threatening condition; and

(2) He or she is under twenty-one years of age.

(c) A licensed physician must certify the applicant's life-threatening condition by completing the license form. A "life-threatening condition" means a terminal condition or illness that according to current diagnosis has a high probability of death within two years, even with treatment with an existing generally accepted protocol. When completed, the license form constitutes a Class DT license. The Class DT license and a completed license application shall be submitted to the division, which will issue a wallet sized card to the licensee. The card and all other documents and identification required to be carried by this article shall be in the licensee's possession when hunting or fishing.

(d) A Class DT license entitles the holder to hunt and fish only under the following circumstances:

(1) The licensee is accompanied by a parent, guardian or, with written consent of the parent or guardian, any other competent adult at least twenty-one years of age;

(2) The individual assisting the licensee must hold a valid fishing or hunting license appropriate to the situation;

(3) The licensee and the individual assisting observe all other pertinent laws and regulations.

(e) The director shall provide licenses to nonresidents at no charge who:

(1) Meet the requirements of subsections (b) and (c) of this section; and

The director may issue a license for the operation of a private game preserve for propagation of wild animals and wild birds for commercial purposes. The license shall authorize the holder to breed or raise animals and birds as specified by the license, to sell the same dead or alive, or to sell the eggs of birds in accordance with regulations prescribed by the director.

Application for a license under this section shall designate the property whereon the preserve is to be established. Before the license is issued, the director shall determine that the property is properly enclosed, that the provisions for housing and sanitation are proper and adequate, and that the safety of the public is protected.

The annual license fee shall be $10.

§20-2-48. License for private plant or pond for propagating fish, frogs, turtles and other forms of aquatic life for commercial purposes.

The director may issue a license for the operation of a private plant, pond or business for the propagation, sale or purchase of fish, frogs, turtles and other forms of aquatic life for commercial purposes. The license shall authorize the holder to breed or raise fish, frogs, turtles and other forms of aquatic life as specified by the license and to buy and sell the same dead or alive or the eggs thereof in accordance with regulations prescribed by the director.

Application for a license under this section shall designate the size, character and location of the plant or pond. Before the license is issued, the director shall determine that the pond or plant will not interfere with the free passage of fish; that any water diverted to such plant or pond does not violate the riparian rights of other landowners and that such plant, pond or diversion will not interfere with the public stocking or propagation of fish frequenting such waters.

A licensee selling fish shall furnish the purchaser with a certificate or invoice of sale, bearing date of sale, the number of the license under which sold, the number of fish and number of pounds sold, and such other information which the director may require.

The certificate or invoice shall be shown by the holder on demand of any person authorized under the provisions of this chapter to enforce the provisions hereof.

The annual license fee shall be $10.

§20-2-49. Licenses for dealers in furs, pelts, etc.

The director may issue licenses for buying or dealing in raw furs, pelts or skins, and carcasses for the making of lures and baits, carcass parts, including glands, skulls, claws, and bones, and fur-bearer urine of fur-bearing animals as follows:

(1) A resident county license, which shall apply only to the county or counties designated on the license and shall be issued only to persons who have been bona fide residents of this state for a period of at least six months prior to the date of application, and of a county in which the privilege is to be exercised. A license shall apply to the county for which issued and to such adjacent counties as are designated in the license. A fee of $1 for each county shall accompany the application;

(2) A resident statewide license, which shall apply to all counties in the state and shall be issued only to persons who have been bona fide residents of this state for a period of at least six months prior to the date of application. A fee of $10 shall accompany the application;

(3) A nonresident statewide license, which shall apply to all counties in the state and shall be issued only to nonresidents. A fee of $50 shall accompany the application; and

(4) An agent’s permit which shall apply to a person employed by a licensee under subsections (1), (2) or (3) above, to buy or deal as an agent of the licensee other than at the place of business of the licensee. A fee of $2.50 for each such agent shall accompany the application.

§20-2-50. Permit to hunt, kill, etc., wildlife for scientific or propagation purposes.

The director may issue a permit to a person to hunt, kill, take, capture or maintain in captivity wildlife exclusively for scientific purposes, but not for any commercial purposes. Any person desiring to collect or procure any wildlife, including any body tissue, organ or other portion thereof, eggs, nesting materials or other materials from the habitat of such wildlife shall be required to make application to the director for a scientific collecting permit. The director shall promulgate rules in accordance with the provisions of chapter twenty-nine-a of this code regarding the issuance of the permits. A permit may be issued only upon written application to the director setting forth at least:

(1) The number and kind of wildlife to be taken;

(2) The purpose and manner of taking;

(3) The name, residence, profession and educational or scientific affiliation of the person applying for the permit; and

(4) The geographic location where the collection or procurement is planned to take place.

A fee, to be set at the discretion of the director, shall accompany the application. No permit may be issued for the purpose of killing deer and bear.

§20-2-50a. Wildlife damage control agents; licensing.

The director may issue a license to a person to act as a wildlife damage control agent. Unless otherwise prohibited by law, any person licensed as a wildlife damage control agent, acting pursuant to the license and subject to the rules promulgated by the director, is authorized to take and dispose of wildlife found by the wildlife damage control agent to be creating a nuisance in or around homes, businesses and other places where the presence of wildlife may be a nuisance. The director is authorized to impose and collect fees when issuing this license and the fees shall be deposited in the nongame wildlife fund. The director shall promulgate rules, pursuant to article three, chapter twenty-nine-a of this code, governing the issuance and use of the license and setting fees.

§20-2-51. Permit for keeping pets.

The director may issue a permit to a person to keep and maintain in captivity as a pet, a wild animal or wild bird that has been acquired from a commercial dealer or during the legal open season. The fee therefor shall be $2.

§20-2-52. Permits for roadside menageries.

The director may issue a permit for the keeping and maintaining in captivity of wild animals, wild birds, amphibians or reptiles as a roadside menagerie. A permit shall not be issued unless:

(1) The animals, birds, amphibians or reptiles have been purchased from a licensed commercial dealer, either within or without the state, or have been taken legally; or

(2) The director is satisfied that provisions for housing and care of wildlife to be kept in captivity and for the protection of the public are proper and adequate.

A fee of $25 shall accompany each application for such permit.

§20-2-53. License for privately owned commercial fishing preserve.

The director may issue a license for the operation of a private pond or privately owned pond or impoundment to be used as a commercial fishing preserve, provided such impoundments meet the requirements of section twenty-seven of this article: Provided, however, That only one license shall be required where more than one private pond or privately owned pond or impoundment is operated under one ownership and management and on one separate commercial fishing preserve. The licensee shall have the authority to establish the fishing seasons, size and creel limits for such licensed pond or impoundment. A person fishing in such lake shall not be required to possess the same statewide fishing license as would be required of him if he were fishing in any of the public waters of this state.

The annual fee for the commercial fishing preserve license shall be $25.

§20-2-54. License for privately-owned commercial shooting preserves.

(1) The director may issue a license for privately-owned commercial shooting preserves to any person who meets the following requirements:

(a) Each commercial shooting preserve shall contain a minimum of three hundred acres in one tract of leased or owned land (including water area, if any) and shall be restricted to no more than three thousand contiguous acres (including water area, if any), except that preserves confined to the releasing of ducks only shall be authorized to operate with a minimum of fifty contiguous acres (including water area); and

(b) The exterior boundaries of each commercial shooting preserve shall be clearly defined and posted with signs erected around the extremity at intervals of one hundred fifty yards or less.

(2) The director shall designate the game which may be hunted under this section on which a more liberal season may be allowed.

(3) The operating licenses or permits issued by the director shall entitle holders thereof, and their guests or customers, to recover not more than eighty percent of the total number of each species of game bird released on the premises each year, except mallard, black duck, ringnecked pheasant, chukar partridge and other nonnative game species upon which a one hundred percent recovery may be allowed.

(4) Except for the required compliance with the restriction on the maximum number of released birds that may be recovered from each preserve each year, as provided in subsections (3) and (8) of this section, shooting preserve operators may establish their own shooting limitations and restrictions on the age, sex and number of birds that may be taken by each person.

(5) In order to give a reasonable opportunity for a fair return on a sizeable investment, a liberal season shall be designated by the director during the nine-month period, beginning August 1, and ending April 30.

(6) All harvested game shall be tagged with a numbered tag prior to being either consumed on the premises or removed therefrom, such tags to remain affixed until the game actually is delivered to the point of consumption.

(7) Each shooting preserve operator shall maintain a registration book listing all names, addresses and hunting license numbers of all shooters; the date on which they hunted; the amount of game and the species taken; and the tag numbers affixed to each carcass. An accurate record likewise must be maintained of the total number, by species, of game birds and ducks raised and/or purchased, and the date and number of all species released. These records shall be open to inspection by a delegated representative of the director at any reasonable time, and shall be the basis upon which the game recovery limits in subsection (3) of this section shall be determined.

(8) Any wild game found on commercial shooting preserves may be harvested in accordance with applicable game and hunting laws pertaining to open seasons, bag and possession limits, and so forth, as are established regularly by the director and the United States fish and wildlife service.

(9) State hunting licenses shall be required of all persons hunting or shooting on shooting preserves.

(10) The fee for such commercial shooting preserve license shall be $50 per fiscal year for the first three hundred acres of the shooting preserve area, plus $25 per fiscal year for each additional three hundred acres or part thereof.

§20-2-55. License to catch and sell minnows or other bait fish.

The director shall have the power and authority to issue a license to any person to catch and sell minnows or other bait fish upon written application therefor, signed by the applicant. The fee for such license shall be $10. All licenses issued under this section shall expire on January 1, following the date of issue. Any such license may be renewed from year to year upon paying to the director the sum of $1 for each such renewal.

§20-2-56. Permit to hold a field trial, shoot-to-retrieve field trial, water race or wild hunt; license exemption.

The director may issue a permit to any person, group of persons, club or organization to hold or conduct a field trial, shoot-to-retrieve field trial, water race or wild hunt, hereinafter referred to as a trial, upon receipt of a written application setting forth: (1) The name of the person, group of persons, club or organization; (2) the type or kind of trial; (3) the place and county in which the trial is to be held; and (4) the period or date on which the trial is to be held. The fee for the permit shall be $5.

No person participating in a field trial, shoot-to-retrieve field trial, water race or wild hunt being held under a permit authorized by this section shall be required to possess a state hunting license.

§20-2-56a. Bird dog training permit.

The director may issue a permit to train bird dogs on wild birds or game birds, provided:

(1) The fee for the permit is $10.

(2) The training shall be on private land containing a minimum of five acres in a single tract. The permittee must own the land, lease the land or have written permission of landowner for the training.

(3) The birds permitted to be used for the training of dogs are quail and pigeons. The quail must be purchased from a licensed commercial game farm. Pigeons may be purchased from a licensed commercial game farm or trapped within the state at any time as long as the person conducting the trapping is legally licensed to do so and also holds the appropriate permit. Each trap must be identified by a waterproof tag attached to the trap that bears the name, address and telephone number of the trapper.

(4) The permittee must retain the receipt for two years of all birds purchased from a commercial game farm licensee.

(5) The location where the birds are held and all records pertaining to the purchase and dates of training may be inspected by a natural resources police officer.

(6) No more than thirty birds may be held by the permittee at any given time. All birds must have a uniquely numbered leg band attached. The leg band must remain with the birds until consumption or until the birds are legally disposed.

(7) Birds held under this permit shall be housed and cared for in accordance with the requirements of applicable rules.

(8) The use of the birds held under this permit shall include the release, recapture and/or the shooting of the birds in conjunction with the training of bird dogs.

(9) The person holding birds in captivity under the authority of this permit and the person training his or her bird dog must possess a bird dog training permit.

(10) All other laws and rules governing hunting, trapping, shooting and training apply.

(11) The director may propose rules for legislative approval in accordance with article three, chapter twenty-nine-a of this code, to further restrict bird dog training.

(12) Any person violating any provision of this law is subject to the penalties prescribed in section nine, article seven, chapter twenty of this code.

§20-2-57. Negligent shooting, wounding or killing of livestock while hunting; criminal violations; penalty.

(a) It is unlawful for any person, while engaged in hunting, pursuing, taking or killing wild animals or wild birds, to carelessly or negligently shoot, wound or kill livestock, or to destroy or injure any other chattels or property.

Any person violating this subsection is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $1,000, or confined in jail not more than ninety days, or both fined and confined. Restitution of the value of the livestock, chattel or property injured, damaged or destroyed shall be required upon conviction.

§20-2-57a. Negligent shooting, wounding or killing of another person while hunting; duty to render aid; criminal violations; suspension of hunting and fishing license; criminal penalties; administrative penalties.

(a) It is unlawful for any person, while engaged in the act of hunting, pursuing, taking or killing wild animals or wild birds, to carelessly or negligently shoot, wound or kill another person.

(b) Anyone who negligently shoots, wounds or injures another person while hunting, not resulting in serious bodily injury or death, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $1,000 or confined in jail not more than six months, or both fined and confined.

(c) Anyone who negligently shoots and injures another person while hunting, resulting in serious bodily injury or death, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $2,500 or confined in jail for not more than one year, or both fined and confined.

(d) For purposes of this section, serious bodily injury means bodily injury which creates a substantial risk of death, which causes serious or prolonged disfigurement, prolonged impairment of health or prolonged loss or impairment of the function of any bodily organ.

(e) (1) Any person who, while hunting, discharges a firearm or arrow and knows or has reason to know that the discharge has caused bodily harm to another person shall:

(A) Immediately investigate the extent of the person's injuries; and

(B) Render immediate reasonable assistance to the injured person.

(2) As used in this subsection, "reasonable assistance" means aid appropriate to the circumstances, including by not limited to obtaining or attempting to obtain assistance from a natural resources police officer, law-enforcement officer, 911 dispatchers, emergency medical providers and medical personnel.

(f) Any person who fails to render aid and assistance to an injured person as required by subsection (e), to an injured party who has not sustained a serious bodily injury is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $2,500 and confined in jail for not more than one year, or both fined and confined.

(g) Any person who fails to render aid as required by subsection (e) to an injured party who has sustained a serious bodily injury or dies as a result of their injuries is guilty of a felony and, upon conviction thereof, shall be fined not more than $5,000 or imprisoned in a correctional facility for not less than one year nor more than five years, or both fined and imprisoned.

(h) Any person found guilty of committing a misdemeanor under this section shall have their hunting and fishing licenses suspended for a period of five years from the date of conviction or the date of release from confinement, whichever is later.

(i) Any person found guilty of committing a felony offense under this section shall have their hunting and fishing licenses suspended for a period of ten years from the date of conviction or the date of release from incarceration, whichever is later.

§20-2-57b. Prohibition against hunting while intoxicated; offense of hunting while intoxicated, creating offense of shooting another person when hunting while intoxicated; creating misdemeanor and, felony offenses for the same; defining suspension of hunting and fishing license; criminal penalties; administrative penalties.

(a) It is unlawful for any person to hunt, pursue, take or kill wild animals or wild birds while the person:

(1) Is under the influence of alcohol; or

(2) Is under the influence of any controlled substance; or

(3) Is under the influence of any other drug; or

(4) Is under the combined influence of alcohol and any controlled substance or any other drug; or

(5) Has an alcohol concentration in his or her blood of eight hundredths of one percent or more by weight.

(b) Any person violating subsection (a) of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $100 nor more than $500, or confined in jail for not less than 30 days nor more than 100 days, or both fined and confined.

(c) It is unlawful for any person, while engaged in hunting, pursuing, taking or killing wild animals or wild birds, to carelessly or negligently shoot and wound another person while the shooter:

(1) Is under the influence of alcohol; or

(2) Is under the influence of any controlled substance; or

(3) Is under the influence of any other drug; or

(4) Is under the combined influence of alcohol and any controlled substance or any other drug; or

(5) Has an alcohol concentration in his or her blood of eight hundredths of one percent or more, by weight.

(d) Any person violating subsection (c) of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $500 nor more than $1,500, or confined in jail for not less than two months nor more than one year, or both fined and confined.

(e) It is unlawful for any person, while engaged in hunting, pursuing, taking or killing wild animals or wild birds, to carelessly or negligently shoot and kill another person while the shooter:

(2) Is under the influence of alcohol; or

(3) Is under the influence of any controlled substance; or

(4) Is under the influence of any other drug; or

(5) Is under the combined influence of alcohol and any controlled substance or any other drug; or

(6) Has an alcohol concentration in his or her blood of eight hundredths of one percent or more, by weight.

(f) Any person violating subsection (e) of this section is guilty of a felony and, upon conviction thereof, shall be fined not less than $1,000 nor more than $5,000, or imprisoned in a state correctional facility for not less than one year nor more than three years, or both fined and imprisoned.

(e) Any person found guilty of committing an offense under this section shall have their hunting and fishing licenses suspended for a period of five years from the date of conviction or the date of release from incarceration, whichever is later.

(f) Any person found guilty of committing a felony offense under this section shall have their hunting and fishing licenses suspended for a period of ten years from the date of conviction or the date of release from incarceration, whichever is later.

(g) Any person who shoots another person while intoxicated in violation of this section has the same duty and obligation to render aid to the injured person as is set forth in section fifty-seven-a of this article, and is subject to the additional penalties set forth therein as a separate and distinct violation, in the event that he or she fails to render aid to the injured person.

§20-2-58. Shooting across road or near building or crowd; penalty.

(a) In addition to any other prohibitions which may exist by law, it shall be unlawful for any person to shoot or discharge any firearms:

(1) Across or in any public road in this state, at any time;

(2) Within five hundred feet of any school or church; or

(3) Within five hundred feet of any dwelling house: Provided, That a person who is a resident of a dwelling house, and his or her authorized guest, may shoot or discharge a firearm in a lawful manner within five hundred feet of the dwelling house where the person lives, if the firearm is being discharged with the express or implied knowledge and consent of all residents of that dwelling house, and no other dwelling houses are located within five hundred feet of where the firearm is discharged; or

(4) In any state, county or municipal park in areas of which the discharge of firearms is prohibited.

(b) Any person violating this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $50 nor more than $500 or confined in jail for not more than one hundred days, or both fined and confined.

(c) Notwithstanding the provisions of subsection (a) of this section, any person operating a gun repair shop, licensed to do business in the State of West Virginia and duly licensed under applicable federal statutes, may be exempted from the prohibition established by this section and section twelve, article seven, chapter sixty-one of this code for the purpose of test firing a firearm. The director of the Division of Natural Resources shall prescribe such rules as may be necessary to carry out the purposes of the exemption under this section and section twelve, article seven, chapter sixty-one and shall ensure that any person residing in any dwelling home within five hundred feet of such gun repair shop be given an opportunity to protest the granting of such exemption.

(d) The provisions of this section are not applicable to indoor shooting ranges the owner or operator of which holds all necessary and required licenses and the shooting range is in compliance with all applicable state, county, municipal laws, rules or ordinances regulating the design and operation of such facilities.

§20-2-59. License to take fish and mussels for commercial purposes in certain waters.

The director may issue a license to any resident of West Virginia or Ohio to take fish or mussels for commercial purposes from any portion or all of the main stem of the Ohio River bordering West Virginia. Said license shall be required of every person engaged at any time in taking fish or mussels for commercial purposes.

All nets, traps or other devices used to take fish or mussels according to the provisions of this section shall be plainly marked with a durable plate or tag bearing the name and address of the owner of said nets, traps or other devices and an accurate report of any fish or mussels caught therein shall be submitted to the director by the license holder. Species of fish which may be taken, seasons for taking, type of gear, catch limitations, and the frequency and content of said report and other necessary requirements shall be determined by the director in his rules and regulations.

The fee for such license shall be $25 for West Virginia residents and $100 for Ohio residents and the license shall expire on January 1, following the date of issue.

§20-2-60. Required attire for deer hunters; exemption; penalty.

Any person who hunts deer on public lands or the lands of another during the period designated for firearms hunting of deer or muzzleloader hunting of deer shall wear a daylight fluorescent orange outer garment over at least 400 square inches of his or her person: Provided, That persons engaged in agricultural occupations shall be exempt from the provisions of this section while hunting deer on their own property. Any person violating any provision of this section is guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than $5 nor more than $50.

§20-2-61.

Repealed.

Reserved for future use.

§20-2-62. Persons exempt from obtaining hunting and fishing licenses; qualification.

Any person who has been a prisoner of war, was honorably discharged from the military forces and is a resident of this state may take, or catch by angling, fish of the kind lawfully permitted to be taken or caught and may hunt or trap wild birds or wild quadrupeds lawfully permitted to be hunted or trapped without procuring a fishing license, hunting license or trapping permit. The person, while taking or catching fish or hunting or trapping wild birds or wild quadrupeds for which he would otherwise be required to have a fishing license, hunting license or trapping permit, shall carry written evidence in the form of a record of separation, a letter from one of the military forces of the United States, or such other evidence as the director of the department of natural resources requires by rule that satisfies the eligibility criteria established by this section.

For purposes of this section, the term "prisoner of war" means any member of the Armed Forces of the United States, including the United States coast guard and National Guard, who was held by any hostile force with which the United States was actually engaged in armed conflict during any period of the incarceration; or any person, military or civilian, assigned to duty on the U.S.S. Pueblo who was captured by the military forces of North Korea on the January 23, 1968, and thereafter held prisoner. Notwithstanding any provision in this section, a prisoner of war shall not include any person who, at any time, voluntarily, knowingly and without duress, gave aid to or collaborated with or in any manner served any such hostile force.

§20-2-63.

Repealed.

Acts, 2005 Reg. Sess., Ch. 130.

§20-2-64. Regulating release of fish, water animal and other aquatic organisms; stocking permit.

(a) It is unlawful for any person: (i) To release any fish, water animal or other aquatic organism, alive or dead, or any part, nest or egg thereof into the waters of this state except as authorized by a stocking permit issued by the director; or (ii) to take, give or receive, or agree to take, give or receive, any fish, water animal or other aquatic organism taken from the waters of this state for purposes of stocking any commercial fishing preserve, or other privately owned ponds, for commercial purposes: Provided, That this subsection does not restrict:

(1) The release of fish, water animal or other aquatic organism into the waters of this state from which they were taken by lawful methods; or

(2) The release of native or established species of fish in privately owned ponds for noncommercial purposes.

(b) A stocking permit is not required for the stocking of trout in waters of the state provided that the trout originate from a source within the state or meet the disease-free certification requirements for imported salmondiae set forth in section thirteen of this article.

(c) A stocking permit is not required for the stocking of black bass provided that the Division of Natural Resources is notified prior to stocking and is provided a disease-free certification.

(d) It is unlawful for any person to possess, sell, offer for sale, import, bring or cause to be brought or imported into this state or release into the waters of this state, in a live state, any bighead carp (Hypophthalmichthys nobilis), silver carp (Hypophthalmichthys molitrix), black carp (Mylopharyngodon piceus), largescale silver carp (Hypophthalmichthys harmandi), diploid white amur (Ctenopharyngodon idella) or snakehead (Channa spp.), gametes or eggs of the same, or any hybrids of these species. The director may not issue a stocking permit to any person for the species and their hybrids listed in this subsection, but may issue written authorization for the importation or possession of these species or their hybrids into this state if the importation or possession does not violate any federal law and if the use is limited to scientific research.

ARTICLE 2A. VOLUNTARY WILDLIFE CHECK-OFF PROGRAM.

§20-2A-1. Legislative intent.

It is in the public interest to preserve, protect and perpetuate all species of wildlife for the use and benefit of the citizens of West Virginia. The intent of this legislation is to provide additional funding for wildlife programs, to be primarily used to enhance nongame wildlife programs and for the management, preservation, protection and perpetuation of nongame species.

The financing of these programs will be derived from a voluntary check-off and contribution designation on state personal income tax return forms of a portion or all of a taxpayer's refund. The funding provided shall be supplemental to existing revenues.

§20-2A-2. Voluntary check-off designation.

(a) Each West Virginia individual income tax return form shall contain a designation as follows:

West Virginia Voluntary Wildlife Check-Off Program.

Check ( ) if you wish to designate $1, $5, $10, or more of your tax refund for this program. If joint return, check ( ) if spouse wishes to designate $1, $5, $10, or more.

(b) Each individual taxpayer desiring to contribute to the voluntary wildlife program may designate by placing an "X" in the appropriate box on the state income tax return form. His contribution shall be credited to said program.

§20-2A-3. Contributions credited to special fund.

The tax department shall determine by July 1, of each year the total amount designated pursuant to this legislation and shall report such amount to the State Treasurer who shall credit such amount to a special department of natural resources fund.

§20-2A-4. Use of funds.

The funds shall be used for the purpose of enhancement and perpetuation of nongame wildlife programs in this state upon order of the director. The director shall on January 15, each year furnish the Legislature with a report stating the amount of money that has been provided and how such moneys have been expended.

§20-2A-5. Effective date.

This legislation shall take effect on January 1, 1982 and shall apply to tax return forms filed thereafter.

ARTICLE 2B. WILDLIFE ENDOWMENT FUND.

§20-2B-1. Purpose.

Recognizing the inestimable importance to the state and its people of conserving the wildlife resources of West Virginia, and for the purpose of providing the opportunity for citizens and residents of the state to invest in the future of its wildlife resources, there is created the West Virginia wildlife endowment fund, the interest and principal of which shall be used only for the purpose of supporting wildlife conservation programs of the state in accordance with this section.

§20-2B-2. Board created; composition.

The board of trustees of the wildlife endowment fund of the Division of Natural Resources has full authority over the administration of the wildlife endowment fund. The chairman of the board is the director of the Division of Natural Resources and the members are the executive secretary of the division, the division fiscal officer, the chief of the wildlife resources section, the chief of the law-enforcement section and six citizen members, to be appointed by the Governor. To the extent possible, the Governor shall appoint the citizen members to ensure an equal geographic representation throughout the state and their terms shall be staggered from July 1, 1999. Existing citizen members shall retain their appointed positions for a period of two years from that date. Initial citizen appointments to the board shall be as follows: Two citizen members shall be appointed for a term of three years; two citizen members shall be appointed for a term of four years; and subsequent citizen member appointments to the board shall be for a term of four years. No more than three citizen members may be members of one political party. The actual expenses of the citizen members incurred in the performance of their duties under this section are payable from funds of the division. The State Treasurer is the custodian of the wildlife endowment fund and shall invest its assets in accordance with the provisions of article six, chapter twelve of this code.

§20-2B-2a.

Repealed.

Acts, 2015 Reg. Sess., Ch. 53.

§20-2B-3. Source of fund assets.

The assets of the wildlife endowment fund shall be derived from the following:

(a) The proceeds from the sale of lifetime hunting and fishing licenses under the provisions of section seven of this article; and

(b) The proceeds of any gifts, grants, contributions or other moneys accruing to the state which are specifically designated for inclusion in the fund.

§20-2B-4. Status of fund; expenditures from the fund.

The wildlife endowment fund is declared to constitute a special fund within the department, to be expendable only after legislative approval, with the following limitations and restrictions on expenditures from the funds:

(a) The income received and accruing from the investments of the wildlife endowment fund shall be spent only in furthering the conservation and management of wildlife resources in the state;

(b) The income received and accruing from the investments of the wildlife endowment fund shall be distributed among divisions within the department as prescribed by section six of this article;

(c) No expenditure or disbursement shall be made from the principal of the wildlife endowment fund except at such time as the income received and accruing from the investments of the wildlife endowment fund is expended or disbursed for purposes other than the conservation and management of wildlife resources;

(d) Any disbursement of the principal of the wildlife endowment fund shall be made in the same manner as that prescribed for investment income in section six of this article; and

(e) Any expenditure or disbursement from the wildlife endowment fund must result in benefits to the department of natural resources and must be spent only for the conservation and management of wildlife resources.

§20-2B-5. Accumulation of investment income; how expenditures made; fund exclusive of other receipts and

appropriations; dissolution of department.

(a) The board of trustees of the wildlife endowment fund may accumulate investment income of the fund within the fund until the income, in the sole judgment of the trustees, can provide a significant supplement to the budget of the department of natural resources. After that time the trustees, in their sole discretion and authority, may direct expenditures from the income of the fund to further the conservation of wildlife resources.

(b) Expenditure of the income derived from the wildlife endowment fund shall be made through the state budget accounts of the department of natural resources. The wildlife endowment fund is subject to the oversight of the State Auditor.

(c) The wildlife endowment fund and the income derived therefrom shall not take the place of any other receipts or appropriations accruing to the department of natural resources, or any part thereof, but any portion of the income of the wildlife endowment fund shall be used to supplement other income of and appropriations to the department of natural resources to the end that the department may improve and increase its services to the people of the state and the conservation of their wildlife resources.

(d) In the event of the future dissolution of the department of natural resources, such state agency as shall succeed to its statutory authority to conserve the wildlife resources of the state shall, ex officio, assume the trusteeship of the wildlife endowment fund and shall be bound by all the limitations and restrictions placed by this section on expenditures from the fund. No appeal or modification of this section shall alter the fundamental purposes to which the wildlife endowment fund may be applied. No future dissolution of the department of natural resources shall invalidate any lifetime license issued in accordance with section seven of this article.

§20-2B-6. Expenditure of funds for specific and general purposes.

In accordance with the intent of sections thirty-four and forty-two-o, article two of this chapter and pursuant to sections three and four of this article, income accruing from the investments of the wildlife endowment fund shall be distributed in the following manner:

(1) Income accruing from the investment of moneys resulting from the sale of Class O-L licenses shall be distributed and disbursed in the same manner as revenues accruing from the sale of Class O licenses as provided in section forty-two-o, article two of this chapter.

(2) Income accruing from the investment of any portion of the principal of the wildlife endowment fund which, at the time of its deposit into the fund, is specifically designated for the activities of a particular section within the Division, shall accrue solely to that section within the Division; and

(3) All other income accruing from the investments of the wildlife endowment fund shall be distributed within the Division in the same manner as provided in section thirty-four, article two of this chapter.

§20-2B-7. Lifetime hunting, fishing, and trapping licenses created.

(a) Pursuant to §20-2B-3 of this code, the director may issue the following lifetime hunting, fishing, and trapping licenses and for the lifetime of the licensee, the lifetime licenses serve in lieu of the equivalent annual license: Lifetime resident statewide hunting and trapping license; lifetime resident combination statewide hunting, fishing, and trapping license; lifetime resident statewide fishing license; and lifetime resident trout fishing license.

(b) The director shall propose a rule for legislative approval in accordance with §29A-3-1 et seq. of this code, setting fees for lifetime licenses and shall have authority to promulgate emergency legislative rules necessary to make effective the provisions of this section by July 1, 2021. The fees for adult lifetime licenses shall be 23 times the fee for the equivalent annual licenses or stamps. The rule shall provide that the fee for any resident who has not reached his or her 15th birthday shall be:

(1) Forty percent of the adult fee set under rule for any resident who has not reached his or her first birthday;

(2) Fifty-five percent of the adult fee set under rule for any resident who is over one year old but has not reached his or her fifth birthday;

(3) Seventy-five percent of the adult fee set under rule for any resident who is over five years old but has not reached his or her 10th birthday; and

(4) Ninety percent of the adult fee set under rule for any resident who is over 10 years old but has not reached his or her 15th birthday.

The rule shall also provide that any resident who has not reached his or her 15th birthday and has been legally adopted shall be provided the same fee schedule, except the division shall use the date of entry of the order or decree of adoption as the licensee’s date of birth for purposes of calculating the appropriate fee: Provided, That in addition to the provisions of this subsection for adopted children, foster parents may also purchase a lifetime license for their respective foster children under the same guidelines, except the division shall use the date of entry of the order placing the child in foster care as the licensee’s date of birth for purposes of calculating the appropriate fee.

§20-2B-8. Privileges of lifetime licensees.

(a) Pursuant to §20-2B-7 of this code, resident lifetime licensees shall be entitled to the same privileges and subject to the same restrictions as resident licensees possessing the equivalent annual license with the following exceptions:

(1) Class A-L, AB-L, B-L and O-L licenses shall be valid for the lifetime of the licensee;

(2) A Class O-L lifetime resident trout fishing license shall be issued only to residents of the state and shall be valid only when accompanied by a Class AB-L, B, B-L, X or XJ license; and

(3) No additional fee shall be required of Class A-L, AB-L or B-L licensees for the conservation stamp required by §20-2B-9 of this code. No additional fee shall be required of Class A-L or AB-L licensees for the Class BG stamp required by §20-2-42v of this code.

(b) Pursuant to §20-2B-7 of this code, nonresident lifetime licensees shall be entitled to the same privileges and subject to the same restrictions as nonresident licensees possessing the equivalent annual license with the following exceptions:

(1) Class E-L, EE-L, F-L and OO-L licenses shall be valid for the lifetime of the licensee; and

(2) No additional fee shall be required of Class E-L, EE-L, or F-L licensees for the nonresident conservation law-enforcement and sports education stamp required by §20-2B-10 of this code.

(3) A Class OO-L lifetime nonresident trout fishing license shall be issued only to nonresidents of the state and shall be valid only when accompanied by a Class F or F-L license; and

(4) A Class UU-L lifetime resident archery deer hunting stamp shall be issued only to nonresidents of the state and shall be valid only when accompanied by a Class E-L license; and

(5) A Class VV-L lifetime nonresident muzzleloading deer hunting stamp shall be issued only to nonresidents of the state and shall be valid only when accompanied by a Class E-L license; and

(6) A Class WW-L lifetime nonresident turkey hunting stamp shall be issued only to nonresidents of the state and shall be valid only when accompanied by a Class E-L license; and

(7) A Class I-L lifetime nonresident national forest hunting, trapping, and fishing stamp shall be issued only to nonresidents of the state and shall be valid only when accompanied by a Class E-L, EE-L , or F-L license.

§20-2B-9. Class CS resident conservation stamp; purposes, etc.

A resident hunter, angler or trapper licensed to hunt, fish or trap in this state shall have, in addition to a Class A, B or L license, a Class CS conservation stamp. The fee for the stamp is $5.

The revenue derived from the sale of conservation stamps shall be deposited in the State Treasury and shall be credited to the Division of Natural Resources. The revenue shall be used and paid out, upon order of the director, for capital improvements and land purchases or leases benefitting wildlife except that at the discretion of the director, a maximum of twenty percent of the revenue may be used for the operation and maintenance of capital improvements and lands: Provided, That none of this revenue shall be expended for the purchase of wetlands, or for land to be flooded so as to create wetlands, to attract migratory waterfowl within sixty air miles of any established poultry industry: Provided, however, That no expenditures of the revenue derived from the sale of the conservation stamps shall be made for recreational facilities or activities that are used by, or for the benefit of, the general public rather than by or for purchasers of hunting, fishing or trapping licenses. Any unexpended moneys derived from the sale of conservation stamps shall be carried forward to the next fiscal year.

§20-2B-10. Class CS/LE nonresident conservation law-enforcement and sports education stamp.

(a) Any nonresident hunter, angler or trapper licensed to hunt, fish or trap in this state, in addition to a Class E, EE, F, H, LL or XXJ license, shall have a Class CS/LE nonresident conservation, law-enforcement and sports education stamp. The fee for the stamp is $12.

(b) The revenue derived from the sale of Class CS/LE stamps shall be deposited in the State Treasury and shall be credited to the Division of Natural Resources. Fifty percent of the revenue shall be used and paid out, upon order of the Director, for the law-enforcement section's expenses relating to the general enforcement of state laws pertaining to the conservation of fish and wildlife and law-enforcement education programs for hunters, anglers and trappers: Provided, That no expenditures of the revenue derived from the sale of the Class CS/LE stamp shall be made for law-enforcement purposes not directly related to the wildlife resources of the state or for the educational programs set forth in this subsection. Fifty percent of the revenue shall be used and paid out for capital improvements and land purchases or leases benefitting wildlife except that at the discretion of the Director, a maximum of twenty percent of the revenue may be used for the operation and maintenance of the capital improvements and lands: Provided, however, That no expenditures of the revenue derived from the sale of the conservation stamps shall be made for recreational facilities that are used by or for the benefit of the general public rather than by or for purchasers of hunting, fishing or trapping licenses. Any unexpended moneys derived from the sale of Class CS/LE stamps shall be carried forward to the next fiscal year.

ARTICLE 2C. INTERSTATE WILDLIFE VIOLATOR COMPACT.

§20-2C-1. Governor's authority to execute.

The Governor of West Virginia, on behalf of this state, is hereby authorized to execute a compact in substantially the following form with any one or more of the states of the United States and the Legislature hereby signifies in advance its approval and ratification of such compact:

INTERSTATE WILDLIFE VIOLATOR COMPACT

ARTICLE I. FINDINGS AND DECLARATION OF POLICY AND PURPOSE.

(a) The participating states find that:

(1) Wildlife resources are managed in trust by the respective states for the benefit of all residents and visitors.

(2) The protection of the wildlife resources of a state is materially affected by the degree of compliance with state statues, rules, regulations and ordinances relating to the management of such resources.

(3) The preservation, protection, management and restoration of wildlife resources contributes immeasurably to the aesthetic, recreational and economic values of a state.

(4) Wildlife resources are valuable without regard to political boundaries; therefore, every person should be required to comply with wildlife preservation, protection, management and restoration statutes, rules, regulations and ordinances of the participating states as a condition precedent to the continuance or issuance of any license to hunt, trap, fish or otherwise possess wildlife.

(5) The violation of wildlife laws interferes with the management of wildlife resources and may endanger the safety of people and property.

(6) The mobility of many wildlife law violators necessitates the maintenance of channels of communication among the participating states.

(7) In most instances, a person who is cited for a wildlife violation in a state other than his home state is required to post collateral or a bond to secure appearance for trial at a later date, is taken into custody until the collateral or bond is posted or is taken directly to court for an immediate appearance.

(8) The purpose of the aforementioned enforcement practices is to ensure compliance with the terms of the wildlife citation by the cited person who, if permitted to continue on his way after receiving the citation, could return to his home state and disregard his duty under the terms of the citation.

(9) In most instances, a person receiving a wildlife citation in his home state is permitted to accept the citation from the officer at the scene of the violation and immediately continue on his way after agreeing or being instructed to comply with the terms of the citation.

(10) The aforementioned enforcement practices cause unnecessary inconvenience and, at times, a hardship for the person who is unable at the time to post collateral, furnish a bond, stand trial or pay a fine and thus is compelled to remain in custody until some alternative arrangement is made.

(11) The aforementioned enforcement practices consume an undue amount of law-enforcement time.

(b) It is the policy of the participating states to:

(1) Promote compliance with the statutes, rules, regulations and ordinances relating to the management of wildlife resources in their respective states.

(2) Recognize the suspension of wildlife license privileges of any person whose license privileges have been suspended by a participating state and treat such suspension as if it occurred in their state.

(3) Allow a violator, except as provided in subsection (b) of article III of this compact, to accept a wildlife citation and, without delay, proceed on his way regardless of his state of residence: Provided, That the violator's home state is party to this compact.

(4) Report to the appropriate participating state, as provided in the compact manual, any conviction recorded against any person whose home state was not the issuing state.

(5) Allow the home state to recognize and treat convictions recorded against its residents which occurred in a participating state as though they had occurred in the home state.

(6) Extend cooperation to its fullest extent among the participating states for enforcing compliance with the terms of a wildlife citation issued in one participating state to a resident of another participating state.

(7) Maximize the effective use of law-enforcement personnel and information.

(8) Assist court systems in the efficient disposition of wildlife violations.

(1) Provide a means through which participating states may join in a reciprocal program to effectuate the policies enumerated in subsection (b) of article I of this compact in a uniform and orderly manner.

(2) Provide for the fair and impartial treatment of wildlife violators operating within participating states in recognition of the violator's right to due process and the sovereign status of a participating state.

ARTICLE II. DEFINITIONS.

Unless the context in which used clearly requires a different meaning, as used in this compact:

(a) "Citation" means any summons, complaint, summons and complaint, ticket, penalty assessment or other official document issued to a person by a wildlife officer or other peace officer for a wildlife violation which contains an order requiring the person to respond.

(b) "Collateral" means any cash or other security deposited to secure an appearance for trial in connection with the issuance by a wildlife officer or other peace officer of a citation for a wildlife violation.

(c) "Compliance" with respect to a citation means the act of answering a citation through an appearance in a court or tribunal or through the payment of fines, costs and surcharges, if any.

(d) "Conviction" means a conviction, including any court conviction, for any offense related to the preservation, protection, management or restoration of wildlife which is prohibited by state statute, rule, regulation or ordinance. The term "conviction" shall also include the forfeiture of any bail, bond or other security deposited to secure appearance by a person charged with having committed any such offense, the payment of a penalty assessment, a plea of nolo contendere or the imposition of a deferred or suspended sentence by the court.

(e) "Court" means a court of law, including magistrate's court.

(f) "Home state" means the state of primary residence of a person.

(g) "Issuing state" means the participating state which issues a wildlife citation to the violator.

(h) "License" means any license, permit or other public document which conveys to the person to whom it was issued the privilege of pursuing, possessing or taking any wildlife regulated by statute, rule, regulation or ordinance of a participating state.

(i) "Licensing authority" means the governmental agency within each participating state that is authorized by law to issue or approve licenses or permits to hunt, trap, fish or otherwise possess wildlife.

(j) "Participating state" means any state which enacts legislation to become a member of this wildlife compact.

(k) "Personal recognizance" means an agreement by a person made at the time of issuance of the wildlife citation that such person will comply with the terms of the citation.

(l) "State" means any state, territory or possession of the United States, including the District of Columbia and the Commonwealth of Puerto Rico.

(m) "Suspension" means any revocation, denial or withdrawal of any or all license privileges, including the privilege to apply for, purchase or exercise the benefits conferred by any license.

(n) "Terms of the citation" means those conditions and options expressly stated upon the citation.

(o) "Wildlife" means all species of animals including, but not limited to, mammals, birds, fish, reptiles, amphibians, mollusks and crustaceans which are defined as "wildlife" and are protected or otherwise regulated by statute, rule, regulation or ordinance in a participating state. Species included in the definition of "wildlife" vary from state to state and determination of whether a species is "wildlife" for the purposes of this compact shall be based on the law in the issuing state.

(p) "Wildlife law" means any statute, rule, regulation or ordinance developed and enacted for the management of wildlife resources and the uses thereof.

(q) "Wildlife officer" means any individual authorized by a participating state to issue a citation for a wildlife violation.

(r) "Wildlife violation" means any cited violation of a statute, rule, regulation or ordinance developed and enacted for the management of wildlife resources and the uses thereof.

ARTICLE III. PROCEDURES FOR ISSUING STATE.

(a) When issuing a citation for a wildlife violation, a wildlife officer shall issue a citation to any person whose primary residence is in a participating state in the same manner as though the person were a resident of the issuing state and shall not require such person to post collateral to secure appearance, subject to the exceptions noted in subsection (b) of article III of this compact, if the officer receives the recognizance of such person that he will comply with the terms of the citation.

(b) Personal recognizance is acceptable if not prohibited by law in the issuing state or by the compact manual and if the violator provides adequate proof of identification to the wildlife officer.

(c) Upon conviction or failure of a person to comply with the terms of a wildlife citation, the appropriate official shall report the conviction or failure to comply to the licensing authority of the participating state in which the wildlife citation was issued. The report shall be made in accordance with procedures specified by the issuing state and shall contain information as specified in the compact manual as minimum requirements for effective processing by the home state.

(d) Upon receipt of the report of conviction or noncompliance pursuant to subsection (c) of article III of this compact, the licensing authority of the issuing state shall transmit to the licensing authority of the home state of the violator the information in form and content as prescribed in the compact manual.

ARTICLE IV. PROCEDURES FOR HOME STATE.

(a) Upon receipt of a report from the licensing authority of the issuing state reporting the failure of a violator to comply with the terms of a citation, the licensing authority of the home state shall notify the violator and shall initiate a suspension action in accordance with the home state's suspension procedures and shall suspend the violator's license privileges until satisfactory evidence of compliance with the terms of the wildlife citation has been furnished by the issuing state to the home state licensing authority. Due process safeguards shall be accorded.

(b) Upon receipt of a report of conviction from the licensing authority of the issuing state, the licensing authority of the home state shall enter such conviction in its records and shall treat such conviction as though it occurred in the home state for the purposes of the suspension of license privileges.

(c) The licensing authority of the home state shall maintain a record of actions taken and shall make reports to issuing states as provided in the compact manual.

ARTICLE V. RECIPROCAL RECOGNITION OF SUSPENSION.

(a) All participating states shall recognize the suspension of license privileges of any person by any participating state as though the violation resulting in the suspension had occurred in their state and could have been the basis for suspension of license privileges in their state.

(b) Each participating state shall communicate suspension information to other participating states in form and content as contained in the compact manual.

ARTICLE VI. APPLICABILITY OF OTHER LAWS.

Except as expressly required by the provisions of this compact, nothing herein shall be construed to affect the right of any participating state to apply any of its laws relating to license privileges to any person or circumstance or to invalidate or prevent any agreement or other cooperative arrangement between a participating state and a nonparticipating state concerning wildlife law enforcement.

ARTICLE VII. BOARD OF COMPACT ADMINISTRATORS.

(a) For the purpose of administering the provisions of this compact and to serve as a governing body for the resolution of all matters relating to the operation of this compact, a board of compact administrators is established. The board shall be composed of one representative from each of the participating states to be known as the compact administrator. The compact administrator shall be appointed by the head of the licensing authority of each participating state and shall serve and be subject to removal in accordance with the laws of the state he represents. A compact administrator may provide for the discharge of his duties and the performance of his functions as a board member by an alternate. An alternate shall not be entitled to serve unless written notification of his identity has been given to the board.

(b) Each member of the board of compact administrators shall be entitled to one vote. No action of the board shall be binding unless taken at a meeting at which a majority of the total number of the board's votes are cast in favor thereof. Action by the board shall be only at a meeting at which a majority of the participating states are represented.

(d) The board shall adopt bylaws not inconsistent with the provisions of this compact or the laws of a participating state for the conduct of its business and shall have the power to amend and rescind its bylaws.

(e) The board may accept for any of its purposes and functions under this compact any and all donations and grants of moneys, equipment, supplies, materials and services, conditional or otherwise, from any state and may receive, utilize and dispose of same.

(f) The board may contract with or accept services of personnel from any governmental or intergovernmental agency, individual, firm or corporation or from any private nonprofit organization or institution.

(g) The board shall formulate all necessary procedures and develop uniform forms and documents for administering the provisions of this compact. All procedures and forms adopted pursuant to board action shall be contained in the compact manual.

ARTICLE VIII. ENTRY INTO COMPACT AND WITHDRAWAL.

(a) This compact shall become effective at such time as it is adopted in a substantially similar form by two or more states.

(b) (1) Entry into the compact shall be made by resolution of ratification executed by the authorized officials of the applying state and submitted to the chairman of the board.

(2) The resolution shall substantially be in the form and content as provided in the compact manual and shall include the following:

(A) A citation of the authority from which the state is empowered to become a part to this compact;

(B) An agreement of compliance with the terms and provisions of this compact; and

(C) An agreement that compact entry is with all states participating in the compact and with all additional states legally becoming a party to the compact.

(3) The effective date of entry shall be specified by the applying state but shall not be less than sixty days after notice has been given by the chairman of the board of compact administrators or by the secretariat of the board of each participating state that the resolution from the applying state has been received.

(c) A participating state may withdraw from this compact by official written notice to each member state but withdrawal shall not become effective until ninety days after the notice of withdrawal is given. The notice shall be directed to the compact administrator of each member state. No withdrawal of any state shall affect the validity of this compact as to the remaining participating states.

ARTICLE IX. AMENDMENTS TO THE COMPACT.

(a) This compact may be amended from time to time. Each proposed amendment shall be presented in resolution form to the chairman of the board of compact administrators and shall be initiated by one or more participating states.

(b) Adoption of an amendment shall require endorsement by all participating states and shall become effective thirty days after the date of the last endorsement.

(c) Failure of a participating state to respond to the compact chairman within one hundred twenty days after receipt of a proposed amendment shall constitute endorsement thereof.

ARTICLE X. CONSTRUCTION AND SEVERABILITY.

This compact shall be liberally construed so as to effectuate the purposes stated herein. The provisions of this compact shall be severable and if any phrase, clause, sentence or provision of this compact is declared to be contrary to the Constitution of any participating state or of the United States, or the applicability thereof to any government, agency, individual or circumstance is held invalid, the validity of the remainder of this compact shall not be affected thereby. If this compact shall be held contrary to the Constitution of any participating state, the compact shall remain in full force and effect as to the remaining states and in full force and effect as to the participating state affected as to all severable matters.

§20-2C-2. When and how compact becomes operative.

When the Governor shall have executed said compact on behalf of this state and shall have caused a verified copy thereof to be filed with the Secretary of State and when said compact shall have been ratified by one or more other states, then said compact shall become operative and effective between this state and such other state or states. The Governor is hereby authorized and directed to take such action as may be necessary to complete the exchange of official documents between this state and any other state ratifying said compact.

§20-2C-3. Compensation and expenses of compact administrator.

The compact administrator representing this state, as provided for in article VII of the Interstate Wildlife Violator Compact, shall not be entitled to any additional compensation for his duties and responsibilities as said administrator but shall be entitled to reimbursement for reasonable expenses actually incurred in connection with his duties and responsibilities as said administrator in the same manner as for expenses incurred in connection with other duties and responsibilities of his office or employment.

ARTICLE 3. FORESTS AND WILDLIFE AREAS.

§20-3-1.

Repealed.

Acts, 1994 Reg. Sess., Ch. 119.

PART I. FORESTS AND WILDLIFE AREAS.

§20-3-2. Acquisition of suitable lands by director; maintenance thereof as state forests or wildlife areas; relinquishment of construction and maintenance of roads to the commissioner of highways.

The director may with the consent of the Governor purchase, in the name of the state, out of funds set aside for the purpose, or out of any unused funds in his hands, lands suitable for forest culture, state forests or wildlife refuges, public hunting areas, public fishing areas, public hunting and fishing areas, public access sites and other lands for the purposes set forth in this article. Such funds may also be used for the construction of dams for fish refuges on lands so acquired. Purchase may be made on terms requiring not less than one third of the purchase price to be paid at the time of the conveyance with the residue to be paid in not less than one or two years after date. The director may also receive the gift, in the name of the state, of such lands by deed or bequest. In all cases of transfer to the state, the fee simple title shall pass to the state, except minerals and mining rights to remove such minerals may be excepted or reserved.

The director shall protect, preserve and maintain lands so acquired as forest culture areas, state forests, wildlife areas, public hunting areas, public fishing areas, public hunting and fishing areas, public access sites and other such lands for the propagation and distribution of forest trees and for the protection, management, propagation and distribution of the fish, wild animals and birds thereon. He may prescribe and enforce rules and regulations consistent with the laws of the state to carry out that objective. The director may prescribe and enforce rules prohibiting all hunting and fishing, pursuing, catching, trapping, capturing and killing of fish, wild animals and birds upon such areas and lands for such length of time as he may deem proper.

The director may provide special regulations and open seasons for the taking of any wild birds, wild animals or fish upon such areas and lands in the manner provided in this chapter.

Except for the authority and responsibility to do the necessary cutting and planting of vegetation along road rights-of-way in state parks, state forests and public hunting and fishing areas, the director of the department of natural resources shall, upon the effective date of this section, relinquish to the commissioner of highways his authority over publicly owned roads in state parks, state forests and public hunting and fishing areas, and shall thereafter neither construct, reconstruct nor maintain any road or vehicular bridge for public usage in such areas except as is specifically authorized by this chapter. This relinquishment shall not be construed to alter the responsibilities assigned to the director of the department of natural resources in section eleven, article four, chapter twenty of the Code of West Virginia.

§20-3-3. Establishment of wildlife areas; leasing lands therefor.

The director shall establish and maintain wildlife areas on lands purchased, leased or given for this purpose. Upon such state-owned or leased lands under its administration, or lands purchased from departmental funds for the establishment of wildlife areas, or upon lands purchased in cooperation with any agency of the federal government or leased therefrom or managed cooperatively therewith, the director shall regulate public hunting, chasing for sport, shooting, and limit the number of wildlife, which may be taken from such areas open to public shooting in any year. The director may establish special open seasons on any such lands, and may close any such areas, or parts thereof, to public shooting.

It shall be unlawful at any time to hunt, pursue or molest in any manner, any animals, birds or fowls on that section of any wildlife area designated as wildlife refuge, except that any legally constituted enforcement officer, or other person designated by the director, may hunt, pursue, catch and kill in any manner predatory animals and predatory birds thereon.

On the boundary of each state wildlife refuge, there shall be posted in conspicuous places, not more than one hundred and fifty yards apart, notices bearing the following words:"State wildlife refuge -- hunting is unlawful," and such other information or rules and regulations as the director may deem advisable. On the boundary line of any such wildlife area which has been established as a public shooting ground, the director shall have posted in conspicuous places, not more than one hundred and fifty yards apart, notices bearing the following words:"Public shooting grounds," together with information as to when hunting is legal on such tract.

The director shall also have the power to lease lands for this purpose for not less than ten-year periods, the rental price thereof not to be more than the amount of the annual property taxes on such land, and in no event to exceed 10¢ per acre per annum.

The director may, with the consent of the owner, set apart any tract of land in the state as a wildlife area. When such lands have been set apart, the director shall manage them in the same manner and for the same purpose as wildlife areas owned by the state. Such lands not owned by the state and now operated by the director as wildlife areas shall, at the expiration of the agreement, be reorganized as wildlife areas or be discontinued.

§20-3-4. Authority and duties of director of the division of forestry and others as to forest fires; expenditures for forest fire control; limited liability of certain persons fighting forest fires.

Upon receiving notice of any fire which is injuring or endangering forest land within the state, the director of the Division of Forestry or his or her duly authorized representatives shall employ all necessary means to confine, extinguish or suppress the fire. For these purposes, any temporary or permanent employee of the Division of Forestry or any other agency of the state and any volunteer shall, under the general supervision of the director of the Division of Forestry, have the right and authority to enter upon public or private lands, to destroy fences thereon, to plow such lands, and in case of extreme emergency, to set backfires thereon. No person performing or reasonably attempting to perform any of the activities authorized by the preceding sentence under the general supervision of the director of the Division of Forestry, whether as a temporary or permanent employee of the Division of Forestry or any other agency of the state or as a volunteer, shall be liable in damages for the death of or injury to any person or for damage to any property as a result of his or her performance of such activities to an extent greater than the applicable limits of any liability insurance coverage available to such person under any liability insurance policy or policies issued to the Division of Forestry, any other agency of the state involved in suppressing the forest fire, any volunteer fire department of which such person was a member and which volunteer fire department was responding to the forest fire at the time of the incident alleged to have caused such death, personal injury or property damage, or any combination thereof. The limitation of liability established by the preceding sentence shall not apply if the death, personal injury or property damage alleged was caused by such person's willful or criminal misconduct, gross negligence or reckless misconduct, or by a conscious, flagrant indifference to the rights or safety of any person harmed by such conduct. The director of the Division of Forestry and any duly authorized representative may employ persons to detect fires which may injure or endanger forest land and may likewise summon or employ persons to assist in extinguishing such fires, who shall be paid for the actual time so employed, at a rate per hour to be determined by the director of the Division of Forestry: Provided, That the rate per hour shall not exceed the rate per hour paid for any comparable labor or skills by the Division of Forestry. Any person so summoned who shall fail or refuse to assist in extinguishing any such fire shall, unless such failure or refusal to assist is due to physical inability, be guilty of a misdemeanor.

Expenditures for detecting, confining, extinguishing or suppressing fires described in this section shall be charged against the state. The director of the Division of Forestry or his or her representative shall prepare, as soon as practicable, a sworn statement with the names of all persons who were summoned or employed to assist in fighting such fires, the time so spent by each, as well as the names of persons who furnished equipment, subsistence or supplies, or transportation therefor, and the amount of money due each for such services, subsistence, supplies or transportation. Requisitions shall be issued and payment of the sums due shall be made in the same manner as is provided for the making of other expenditures by the director of the Division of Forestry.

§20-3-5. Forest fire seasons; prohibited and permissible fires; burning permits and fees; fire control measures; criminal and civil penalties.

(a) Forest fire seasons. — March 1 through May 31, and October 1 through December 31 are designated as forest fire seasons. During any fire season, a person may set on fire or cause to be set on fire any forest land, or any grass, grain, stubble, slash, debris, or other inflammable materials only between 5 p.m. and 7 a.m., at which time the fire must be extinguished.

(b) Permissible fires during forest fire seasons. — The following attended fires are permitted during forest fire season as set forth in subsection (a) of this section without a burning permit unless there is a burning ban in effect:

(1) Small fires set for the purpose of food preparation, or providing light or warmth around which all grass, brush, stubble, or other debris has been removed for a distance of 10 feet from the fire; and

(2) Burning conducted at any time when the ground surrounding the burning site is covered by one inch or more of snow.

(c) Burning permits. — The director or his or her designee may issue burning permits authorizing fires during forest fire seasons as set forth in subsection (a) of this section that are otherwise prohibited by this section. The permits shall state the requisite conditions and time frame to prevent danger from the fire to life or property: Provided, That the director or his or her designee shall take final action upon all completed permit applications within 30 days of receipt if the application is uncontested, or within 90 days if the application is contested.

(1) Permit fees. — Entities required to pay a permit fee are those engaged in commercial, manufacturing, public utility, mining, and like activities. Agricultural activities are exempt from paying the permit fee. The permit fee is $125 per site and shall be deposited into the Division of Forestry Fund (3081) to be used to administer the provisions of this section. The permit fee covers the fire season during which it is issued.

(2) Noncompliance with any condition of the permit is a violation of this section. Any permit which was obtained through willful misrepresentation is invalid and violates this section.

(3) Permit holders shall take all necessary and adequate precautions to confine and control fires authorized by the permit. Failure to take action is a violation of this section and is justification for the director to revoke the permit.

(d) Fire control. —

(1) With approval of the Governor, the director may prohibit the starting of and require the extinguishment of fire in any designated area, including fires permitted by this section.

(2) With approval of the Governor, the director may designate any forest area as a danger area, prohibit entry, and declare conditional uses and prohibited areas of the forest by proclamation at any time of the year. The proclamation shall be furnished to newspapers, radio stations, and television stations that serve the designated area and becomes effective after 24 hours. The proclamation remains in effect until the director, with the approval of the Governor, terminates it. The order shall designate the time of termination, and notice of the order shall be furnished to each newspaper, radio station, and television station that received a copy of the proclamation.

(3) A person shall remove all flammable material from the area immediately surrounding the material to be burned for a distance which ensures the fire will at all times be contained; this safety strip shall in no event be less than 10 feet wide. Any person or his or her agent or employee who sets or causes to be set any fire which escapes the safety strip and causes damage to the lands of another is guilty of a misdemeanor.

(e) Criminal and civil penalties. — A person or entity that violates this section is guilty of a misdemeanor and, upon conviction, shall be fined not less than $100 and not more than $1,000 for each violation. In addition to fines and costs, a person or entity convicted of a violation of this section shall pay a $200 civil penalty to the division within 60 days. The civil penalty shall be collected by the court in which the person is convicted and forwarded to the division and deposited in the Division of Forestry Fund (3081) to be used to administer the provisions of this section.

§20-3-6. Failure of person to extinguish fire started or used by him or her; throwing lighted material on forest land; enforcement by State Fire Marshal; penalties.

(a) Any person who, by himself or herself, or by his or her employees, agents or guides, or as an employee, agent or guide of any other person, shall at any time build or use any fire in any field, in any public or private road, or in any area adjacent to or in any forest land in this state, shall, before leaving the fire for any period of time, totally extinguish the same.

(b) A person shall not at any time throw or place any lighted match, cigar, cigarette, firecracker or lighted material on any forest land, private road, public highway or railroad right-of-way within this state.

(c) In addition to any other law-enforcement agencies that have jurisdiction over criminal violations, the State Fire Marshal shall enforce this section as provided in §15A-10-1 et seq. of this code.

(d) Any person who violates any provision of this section shall be guilty of a misdemeanor and, upon conviction thereof, shall be subject to one or more of the following penalties: (1) Fined not less than $100 nor more than $2,000; (2) confined in the county or regional jail not less than 10 days nor more than 200 days; or (3) sentenced to perform community service by cleaning up litter from any public highway, road, street, alley or any other public park or public property or waters of the state, as designated by the court, for not less than 32 hours nor more than 64 hours.

§20-3-7. Starting fire on lands of another; penalties.

Any person who willfully sets or causes to be set on fire any forest land, grass, grain, stubble, brush, slash, debris, or any other inflammable substance upon the property of another without his consent, or in a place from which it is reasonable to expect that the fire may spread to the property of another without his consent, and as a result of either causes damage or destruction to any natural resources in or on the other person's property, shall be guilty of a felony, and, upon conviction thereof, shall be fined not less than $500 nor more than $5,000, or be imprisoned for not less than one year nor more than five years, or both, in the discretion of the court.

§20-3-8. Duty of railroad company to protect against fires.

Every railroad company or other company operating a steam, diesel or other type of locomotive shall clear, for a slope distance of twenty-five feet from the outside rail, or to the limits of the right-of-way if less than twenty-five feet, hazardous areas as designated by the state forester or his duly authorized representative, at least once a year, all grass, brush, and other inflammable materials. Any such company that fails to remove said materials from such road or right-of-way shall be assessed by the department of natural resources $500 for each mile of road or right-of-way which is not maintained in accordance with this section. Any revenue derived from this section shall be deposited in the State Treasury and credited to the department of natural resources and shall be used and paid out, upon order of the director, for forest fire prevention activities within the department of natural resources.

Each such company shall employ sufficient personnel to promptly put out fires on such road or right-of-way at times when such land is in a dry and dangerous fire condition. Each such company shall provide internal combustion engines of motive power other than steam used in road service, if not equipped with exhaust driven centrifugal turbocharger, shall have installed integral with the exhaust gas system, a spark- arresting device of a type certified according to the recommended practices of the association of American railroads and approved by the director so as to give the best practical protection against the escape of fire and sparks from the exhausts thereof.

No such company, or any employee thereof, shall deposit, cast, or discharge fire coals, or ashes or any other material capable of igniting fires on that part of its road or right-of-way which passes through forest land, or lands subject to fire from any cause, unless the fire therein is immediately extinguished. No such company, or employee thereof, shall place a lighted fusee along such roads or rights-of-way in such a manner as will cause the same to ignite inflammable substances which may cause fire to spread to forest land. In case of any uncontrolled or unguarded fire on such part of its road or right-of-way, the company shall use all practicable means to extinguish it even when the fire spreads to the property of another. Engineers, conductors, trainmen, or other persons who, while working for such companies, discover or know of any fire on, along or near such part of the road or right-of-way of their employer, shall report the same as soon as possible to the state forester or his duly authorized representative. Unless otherwise provided for by law, any such company, or any officer or employee thereof, violating any provision of this section, shall be guilty of a misdemeanor.

§20-3-9. Right of railroad company to clear land adjacent to right-of-way.

For the purpose of providing increased protection to forest land from fire originating along railroads, any company which operates a railroad shall have the right, subject to the provisions of this section, without liability for trespass, to enter upon forest land for a distance of one hundred feet from its road or right-of-way and to clear from such a strip any inflammable material such as leaves, grass, dead trees, slash and brush, but shall not remove any valuable timber growth or other thing of value without consent of and recompense to the owner. Not less than fifteen days prior to clearing such lands, the railroad company shall give the owner thereof notice of its intention, together with a transcript of this section, by letter deposited in the United States mail to his last known address. If the owner shall not file an objection to such clearing with the director within ten days of the date of said notice, he shall be deemed to have given consent. Upon the filing by an owner of such objection showing cause why such clearing should not be done, the director shall review the case and may sustain the objection of the owner or permit the clearing in whole or in part.

§20-3-10. Spark arresters for sawmills, etc.; risk and hazard reduction to protect against fires; underground coal fires.

No person, firm or corporation shall use or operate on land subject to fire by any cause, a sawmill, a power shovel, or an engine or machine capable of throwing sparks, unless the equipment is provided with an approved spark arrester. Escape of fire from such equipment shall be prima facie evidence that such appliance was not maintained properly in compliance with this section.

Any person, firm or corporation owning any land and knowing of inflammable waste disposal on said land, and any person, firm or corporation using any land for the purpose of inflammable waste disposal, shall remove annually all grass, brush, debris and other inflammable material adjacent to such disposal areas to provide adequate protection to prevent the escape of fire to adjacent lands. Escape of fire from any such disposal area shall be prima facie evidence that this section had not been complied with.

Any person, firm or corporation owning or leasing any mineral interests and knowing of underground coal being on fire under that land shall between the first of November and the thirty-first of December of each year clear away all inflammable material within forty feet of any mine break or other opening through which the fire could escape to the surface. Any person, firm or corporation owning any underground mineral interests shall use all practical means to confine, extinguish or suppress any such fire in such underground minerals.

Any person, firm or corporation violating any provision of this section shall be guilty of a misdemeanor.

§20-3-11. Recovery of costs incurred in fighting fires; landowners responsibility to extinguish fires.

The Director of the Division of Forestry shall, in the name of the state, recover from the person or persons, firms or corporations whose negligence or whose violation of any provision of this article caused any fire at any time on grass or forest land, the amount expended by the state for the personal services of persons especially employed under the provisions of section four of this article to control, confine, extinguish or suppress such fire, and the costs associated therewith, including payment for the personal services rendered by full-time State Division of Forestry employees, operating costs of state equipment used and costs related thereto in controlling, confining, extinguishing or suppressing such fire. Such recovery shall not bar an action for damages by any other person.

Any such fire which was caused by a trespasser or by a person who was upon the property without the consent of the owner shall not be deemed caused by the negligence of the owner; but the owner shall use all practical means to confine, extinguish or suppress any such fire on his land even though it was caused by any such person. If he fails to do so, after becoming aware of such fire, the Director of the Division of Forestry shall, in the name of the state, recover from him amounts expended by the state for the personal services of persons especially employed under the provisions of section four of this article to control, confine, extinguish or suppress such fire and the costs associated therewith, including payment for the personal services rendered by full-time State Division of Forestry employees, operating costs of state equipment used and costs related thereto in controlling, confining, extinguishing or suppressing such fire.

Any time that a landowner, his or her agent or employee is aware of a fire on the landowner's property, the landowner shall use all practical means to confine, extinguish or suppress the fire.

§20-3-12. Timberland and forest land defined.

For the purpose of this chapter, any land shall be considered timberland or forest land which has enough timber standing or down to constitute, in the judgment of the department, a fire menace to itself or adjoining lands: Provided, That nothing in this section contained shall be construed to include lands under cultivation or in grass, unless a fire thereon would imperil such lands or adjoining lands.

§20-3-13. Director authorized to secure federal cooperation; annual appropriation.

The director may do all things required to meet the conditions and requirements of the federal government in securing federal cooperation under the provisions of the Weeks Law and the Cooperative Forestry Assistance Act of 1978, and any other law amendatory thereof or supplemental thereto, for the purpose of the prevention and control of forest fires and the advancement of forestry practices.

§20-3-14. Financial assistance from owners of forest lands; expenditures by director.

The director may cooperate with the owners of forest lands and receive financial assistance from them for forestry purposes and do any and all things necessary therefor, including the establishment and maintenance of patrol and lookout stations: Provided, That the director shall expend for forestry purposes, and for no other purpose, such moneys as shall be appropriated therefor by the state, and such moneys as may be recovered from persons giving origin to grass or forest fires, and such moneys as may be received from the federal government by appropriation under the Weeks Law, the Cooperative Forestry Assistance Act of 1978 and any reference to the Clarke-McNary Law or otherwise.

§20-3-15. Owner not relieved from civil liability for damage from fire.

Nothing in this chapter shall be construed to relieve the owner, lessee or user of any land from civil liability for damage resulting from any fire for which their agents or employees may be responsible.

§20-3-16. Prima facie evidence of negligence in certain actions for injury due to fires.

In all criminal and civil actions for any injury occasioned by fire communicated by burning or clearing land, the fact that such fire was so communicated shall be prima facie evidence of negligence on the part of the person or agent or employee or any other person who shall at the time of such injury by fire be in the use and occupation of the land on which the burning was done and of those who shall at such time have care and management of such burning.

§20-3-17. Disposition of proceeds of national forests.

Receipts from any national forest, paid to the state or its proper officers pursuant to directions of acts of Congress, are to be allocated by the Auditor to each county which has acreage located in such national forest, in the proportion which the acreage in the county bears to the total acreage of the national forest in this state. Interest or other earnings accrued upon investment of the receipts pending allocation thereof shall be allocated to the recipients of the allocations in proportion to each recipient's allocation of the receipts. Eighty percent of the funds so allocated to any county are to be paid to the Board of Education of the county to be expended by the board for the benefit of the public schools of the county. Twenty percent of the funds so allocated to any county are to be paid to the state road commission to be expended for feeder and state local service road purposes in that county.

Notwithstanding any contrary provisions of former law, any sheriff or county court of any county having charge or custody of any unexpended national forest proceeds, received under allocations made pursuant to former provisions of law, shall pay over eighty percent of the unexpended balance to the county board of education, and twenty percent thereof to the state road commission, for expenditure as provided herein.

§20-3-17a. Same -- Counties embracing Spruce Knob-Seneca Rocks national recreation area.

Notwithstanding the provisions of section seventeen of this article, national forests receipts allocated by the Auditor as provided in section seventeen of this article to any county in which is located any part of the Spruce Knob-Seneca Rocks national recreation area as established by Public Law 89-207, 89th Congress, are to be paid by the Auditor to the county as follows: Sixty-three percent to the Board of Education of the county to be expended by the board for the benefit of the public schools of the county, and thirty-seven percent to the county commission of the county to be expended by the commission for general county purposes. Interest or other earnings accrued upon investment of the receipts pending allocation thereof shall be allocated to the recipients of the allocations in proportion to each recipient's allocation of the receipts.

§20-3-18. Disposition of flood control, navigation and allied funds from the federal government.

Receipts from the treasurer of the United States, paid to the state or its proper officers pursuant to direction of an act of Congress relating to disposition of funds received on account of the leasing of lands for flood control, navigation and allied purposes, are to be allocated by the State Auditor to each county in accordance with the method of allocation specified by the federal government. Interest or other earnings accrued upon investment of the receipts pending allocation thereof shall be allocated to the recipients of the allocations in proportion to each recipient's allocation of the receipts. The State Auditor shall transfer to the road commission fifty percent of the funds so allocated to each county for the purpose of maintenance of feeder and state local service roads in the area or areas of the county in which the flooded lands are located. Fifty percent of the funds so allocated to any county in which the lands are located are to be paid by the State Auditor to the Board of Education of that county to be expended by the board for the benefit of the public schools of the county.

§20-3-19. Protection of forests against destructive insects and diseases; purposes and intent of section.

In order to protect and preserve forest resources of the State of West Virginia from ravages of bark beetles, defoliators, rusts, blights, wilts and other destructive forest pests and diseases, and thereby enhance the growth and maintenance of forests; promote the stability of forest-using industries and employment associated therewith; reduce the fire risk created by dying and dead trees injured or killed by insects or diseases; conserve forest cover on watersheds and protect recreational and other forest values, it shall be the policy of the State of West Virginia independently and through cooperation with adjoining states, the federal government, and private timber owners and other private organizations, to prevent, retard, control, suppress, or eradicate incipient, potential or emergency outbreaks of destructive insects and diseases on, or threatening, all forest land irrespective of ownership.

(a) Authority. -- The director is authorized either directly or in cooperation with other agencies, subject to such conditions as he may deem necessary and using such funds as have been, or may hereafter be made available for those purposes, to conduct surveys on any forest land to detect and appraise infestations of forest insect pests and tree diseases, to determine the measures which should be applied on such lands, in order to prevent, retard, control, suppress or eradicate incipient, threatening, potential or emergency outbreaks of such insects or disease pests, and to plan, organize, direct and carry out such measures as he may deem necessary to accomplish the objectives and provisions of this section: Provided, That actual control measures shall be conducted with the cooperation and consent of the quarantine and regulatory official of the Department of Agriculture.

(b) Establishing control zone; notice to landowners. -- Where an insect infestation or disease infection is believed to exist on a forest land within this state, the director shall investigate the condition. Whenever he finds that an infestation or infection exists, he shall request the quarantine officials of the state Department of Agriculture to declare the same a public nuisance. When same has been declared a public nuisance he shall establish a control zone of the forest land wherein the same is found, and shall give notice thereof by publication as a Class II legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code, and the publication area for such publication shall be each county in which the area or areas are located in which the control zone is established. Such notice shall also be given by mail or otherwise to forest landowners within the control zone, advising them of the nature of the infestation or infection, recommending control measures and offering technical advice on methods of carrying out the control measures.

(c) Institution of control measures. -- If, after notification by the director, any landowner fails, neglects, or is unable to carry out the control measures recommended by the director as set forth in subdivision (b), the director may, through his agents, institute and carry out such control measures.

(d) Appeals. -- Any person damaged or aggrieved by any action of any officer or employee of the department under the provisions of this section shall have the right to appeal from such action to the director and then to the circuit court of the county in which such person resides in which he owns forest land affected by such action. The court, after hearing the evidence in the case, may make such orders as may be appropriate to protect the interests of the appellant, adjacent forest landowners, or the state.

(e) Cooperation with individuals and public agencies. -- The director is authorized to cooperate with landowners and appropriate authorities of town, city, county, adjoining state and the United States government, and other agencies having jurisdiction of state lands, concerning forest tree insect and disease investigation and control, and to accept money, gifts and donations, and to disburse the same for the purpose of carrying out the provisions of this section.

(f) Annual appropriation; forest pest control fund. -- There is hereby created in the State Treasury a special fund to be known as the forest pest control fund. Such fund shall consist of all moneys appropriated thereto by the Legislature and all moneys received and deposited with the State Treasurer under the provisions of this section. All such funds are hereby appropriated to the department of natural resources to be used to carry out the purposes of this section.

(g) Definitions. -- As used in this section, unless the context clearly requires otherwise:

(1) "Forest trees" means only those trees which are a part of and constitute a stand of potential, immature, or mature commercial timber trees: Provided, That the term "forest trees" shall be deemed to include shade trees of any species around houses, along highways and within cities and towns if the same constitute an insect or disease menace to nearby timber trees or timber stands;

(2) "Forest land" means land on which forest trees occur;

(3) "Control zone" means an area of potential or actual infestation or infection, the boundaries of which are fixed and clearly described in a manner to definitely identify the zone;

(4) "Infestation" means infestation by means of any insect in any stage of growth which is determined to be dangerously injurious to forest trees; and

(5) "Infection" means infection by any disease affecting forest trees which is determined to be dangerously injurious thereto.

§20-3-20. Governor's authority to execute

The Governor of West Virginia, on behalf of this state, is hereby authorized to execute a compact in substantially the following form, with any one or more of the states of Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, Tennessee and Virginia, and the Legislature hereby signifies in advance its approval and ratification of such compact:

Southeastern Interstate Forest Fire Protection Compact

Article I

The purpose of this compact is to promote effective prevention and control of forest fires in the southeastern region of the United States by the development of integrated forest fire plans, by the maintenance of adequate forest firefighting services by the member states, by providing for mutual aid in fighting forest fires among the compacting states of the region and with states which are party to other regional forest fire protection compacts or agreements, and for more adequate forest protection.

Article II

This compact shall become operative immediately as to those states ratifying it whenever any two or more of the state of Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, Tennessee, Virginia and West Virginia, which are contiguous, have ratified it and Congress has given consent thereto. Any state not mentioned in this article which is contiguous with any member state may become a party to this compact subject to approval by the Legislature of each of the member states.

Article III

In each state, the state forester or officer holding the equivalent position who is responsible for forest fire control shall act as compact administrator for that state and shall consult with like officials of the other member states, and shall implement cooperation between such states in forest fire prevention and control.

The compact administrators of the member states shall coordinate the services of the member states and provide administrative integration in carrying out the purposes of this compact.

There shall be established an advisory committee of legislators, forestry commission representatives, and forestry or forest products industries representatives, which shall meet from time to time with the compact administrators. Each member state shall name one member of the Senate and one member of the House of Delegates who shall be designated by that state's commission on interstate cooperation, or if said commission cannot Constitutionally designate the said members, they shall be designated in accordance with laws of that state; and the Governor of each member state shall appoint two representatives, one of whom shall be associated with forestry or forest products industries, to comprise the membership of the advisory committee. Action shall be taken by a majority of the compacting states and each state shall be entitled to one vote.

The compact administrators shall formulate and, in accordance with need, from time to time, revise a regional forest fire plan for the member states.

It shall be the duty of each member state to formulate and put into effect a forest fire plan for that state and take such measures as may be necessary to integrate such forest fire plan with the regional forest fire plan formulated by the compact administrators.

Article IV

Whenever the state forest fire control agency of a member state requests aid from the state forest fire control agency of any other member state in combating, controlling or preventing forest fires, it shall be the duty of the state forest fire control agency of that state to render all possible aid to the requesting agency which is consonant with the maintenance of protection at home.

Article V

Whenever the forces of any member state are rendering outside aid pursuant to the request of another member state under this compact, the employees of such state shall, under the direction of the officers of the state to which they are rendering aid, have the same powers (except the power of arrest), duties, rights, privileges and immunities as comparable employees of the state to which they are rendering aid.

No member state or its officers or employees rendering outside aid pursuant to this compact shall be liable on account of any act or omission on the part of such forces while so engaged, or on account of the maintenance or use of any equipment or supplies in connection therewith: Provided, That nothing herein shall be construed as relieving any person from liability for his own negligent act or omission, or as imposing liability for such negligent act or omission upon any state.

All liability, except as otherwise provided hereinafter, that may arise either under the laws of the requesting state or under the laws of a third state on account of or in connection with a request for aid, shall be assumed and borne by the requesting state.

Any member state rendering outside aid pursuant to this compact shall be reimbursed by the member state receiving such aid for any loss or damage to, or expense incurred in the operation of, any equipment answering a request for aid, and for the cost of all materials, transportation, wages, salaries, subsistence of employees and maintenance of equipment incurred in connection with such request: Provided, That nothing herein contained shall prevent any assisting member state from assuming such loss, damage, expense or other cost or from loaning such equipment or from donating such service to the receiving member state without charge or cost.

For the purposes of this compact, the term "employee" shall include any volunteer or auxiliary legally included within the forest firefighting forces of the aiding state under the laws thereof.

The compact administrators shall formulate procedures for claims and reimbursement under the provisions of this article, in accordance with the laws of the member states.

Article VI

Ratification of this compact shall not be construed to affect any existing statute so as to authorize or permit curtailment or diminution of the forest firefighting forces, equipment services or facilities of any member state.

Nothing in this compact shall be construed to limit or restrict the powers of any state ratifying the same to provide for the prevention, control and extinguishment of forest fires, or to prohibit the enactment or enforcement of state laws, rules or regulations intended to aid in such prevention, control and extinguishment in such state.

Nothing in this compact shall be construed to affect any existing or future cooperative relationship or arrangement between any federal agency and a member state or states.

Article VII

The compact administrators may request the United States forest service to act as a research and coordinating agency of the southeastern interstate forest fire protection compact in cooperation with the appropriate agencies in each state, and the United States forest service may accept responsibility for preparing and presenting to the compact administrators its recommendations with respect to the regional fire plan. Representatives of any federal agency engaged in forest fire prevention and control may attend meetings of the compact administrators.

Article VIII

The provisions of articles four and five of this compact which relate to mutual aid in combatting, controlling or preventing forest fires shall be operative as between any state party to this compact and any other state which is party to a regional forest fire protection compact in another region: Provided, That the Legislature of such other state shall have given its assent to such mutual aid provisions of this compact.

Article IX

This compact shall continue in force and remain binding on each state ratifying it until the Legislature or the Governor of such state, as the laws of such state shall provide, takes action to withdraw therefrom. Such action shall not be effective until six months after notice thereof has been sent by the chief executive of the state desiring to withdraw to the chief executives of all states then parties to the compact.

§20-3-21. When and how compact becomes operative.

When the Governor shall have executed said compact on behalf of this state and shall have caused a verified copy thereof to be filed with the Secretary of State and when said compact shall have been ratified by one or more of the states named in section twenty of this article, then said compact shall become operative and effective as between this state and such other state or states. The Governor is hereby authorized and directed to take such action as may be necessary to complete the exchange of official documents as between this state and any other state ratifying said compact.

§20-3-22. Compact administration; advisory committee.

In pursuance of article three of said compact, the director of the department of natural resources of the State of West Virginia or his designated representative shall act as compact administrator for the State of West Virginia of the southeastern interstate forest fire protection compact during his term of office as director, and his successor as compact administrator shall be his successor as director. As compact administrator he shall be an ex officio member of the advisory committee of the southeastern interstate forest fire protection compact, and chairman ex officio of the West Virginia members of said advisory committee. There shall be four members of the southeastern interstate forest fire protection compact advisory committee from the State of West Virginia. Two of the members from the State of West Virginia shall be members of the Legislature of West Virginia, one from the Senate and one from the House of Delegates, designated by the state's commission on interstate cooperation, and the terms of any such members shall terminate at the time they cease to hold legislative office, and their successors as members shall be named in like manner. The Governor shall appoint the other two members from the State of West Virginia, one of whom shall be associated with forestry or forest products industries. Such members shall hold office until their respective successors shall be appointed and qualified. Vacancies occurring in the office of such members for any reason or cause shall be filled by appointment by the Governor for the unexpired term. The director as compact administrator may delegate, from time to time, to any deputy or other subordinate in his department or office, the power to be present and participate, including voting as his representative or substitute at any meeting of or hearing by or other proceeding of the compact administrators or of the advisory committee. The terms of each of the initial four memberships of the advisory committee, whether appointed at said time or not, shall begin upon the date upon which said compact shall become effective in accordance with article two of said compact. Any member of said advisory committee may be removed from office by the Governor upon charges and after a hearing.

§20-3-23. Compact committee powers and duties; cooperation therewith.

There is hereby granted to the director, as compact administrator and chairman ex officio of the West Virginia members of said advisory committee, and to the members from West Virginia of said advisory committee, all the powers provided for in the said compact and all the powers necessary or incidental to the carrying out of said compact in every particular. All officers of the State of West Virginia are hereby authorized and directed to do all things falling within their respective provinces and jurisdiction necessary or incidental to the carrying out of said compact in every particular, it being hereby declared to be the policy of the State of West Virginia to perform and carry out the said compact and to accomplish the purposes thereof. All officers, bureaus, departments and persons of and in the state government or administration of the State of West Virginia are hereby authorized and directed at convenient times and upon request of said compact administrator, or of said advisory committee, to furnish information and data relating to the purposes of said compact possessed by them or any of them to said compact administrator or said advisory committee. They are further authorized to aid said compact administrator or said advisory committee by loan of personnel, equipment or other means in carrying out the purposes of said compact.

§20-3-24. Other powers of state forester supplementary.

Any powers herein granted to the state forester shall be regarded as in aid of and supplemental to, and in no case a limitation upon, any of the powers vested in said director by other laws of the State of West Virginia or by the laws of the states of Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, Tennessee and Virginia, or by the Congress or the terms of said compact.

PART III. MIDDLE ATLANTIC INTERSTATE FOREST FIRE

PROTECTION COMPACT.

§20-3-25. Governor's authority to execute.

The Governor of West Virginia, on behalf of this state, is hereby authorized to execute a compact in substantially the following form, with any one or more of the states of Delaware, Maryland, New Jersey, Ohio, Pennsylvania and Virginia, and the Legislature hereby signifies in advance its approval and ratification of such compact:

MIDDLE ATLANTIC INTERSTATE FOREST FIRE

PROTECTION COMPACT

ARTICLE I.

The purpose of this compact is to promote effective prevention and control of forest fires in the middle Atlantic region of the United States by the development of integrated forest fire plans, by the maintenance of adequate forest firefighting services by the member states, and by providing for mutual aid in fighting forest fires among the compacting states of the region and with states which are party to other regional forest fire protection compacts or agreements.

ARTICLE II.

This compact shall become operative immediately as to those states ratifying it whenever any two or more of the states of Delaware, Maryland, New Jersey, Ohio, Pennsylvania, Virginia and West Virginia which are contiguous have ratified it and Congress has given consent thereto.

ARTICLE III.

In each state, the state forester or officer holding the equivalent position who is responsible for forest fire control shall act as compact administrator for that state and shall consult with like officials of the other member states and shall implement cooperation between such states in forest fire prevention and control.

The compact administrators of the member states shall organize to coordinate the services of the member states and provide administrative integration in carrying out the purposes of this compact.

The compact administrators shall formulate and, in accordance with need, from time to time, revise a regional forest fire plan for the member states.

It shall be the duty of each member state to formulate and put in effect a forest fire plan for that state and take such measures as may be necessary to integrate such forest fire plan with the regional forest fire plan formulated by the compact administrators.

ARTICLE IV.

ARTICLE V.

All liability, except as otherwise provided hereinafter, that may arise either under the laws of the requesting state or under the laws of the aiding state or under the laws of a third state on account of or in connection with a request for aid, shall be assumed and borne by the requesting state.

Any member state rendering outside aid pursuant to this compact shall be reimbursed by the member state receiving such aid for any loss or damage to, or expense incurred in the operation of any equipment answering a request for aid, and for the cost of all materials, transportation, wages, salaries, and maintenance of employees and equipment incurred in connection with such request: Provided, That nothing herein contained shall prevent any assisting member state from assuming such loss, damage, expense or other costs or from loaning such equipment or from donating such services to the receiving member state without charge or cost.

Each member state shall provide for the payment of compensation and death benefits to injured employees and the representatives of deceased employees in case employees sustain injuries or are killed while rendering outside aid pursuant to this compact, in the same manner and on the same terms as if the injury or death were sustained within such state: Provided, That nothing herein shall be construed as relieving any person from liability for his own negligent act or omission, or as imposing liability for such negligent act or omission upon any state.

For the purposes of this compact the term "employee" shall include any volunteer or auxiliary legally included within the forest firefighting forces of the aiding state under the laws thereof.

The compact administrators shall formulate procedures for claims and reimbursement under the provisions of this article, in accordance with the laws of the member states.

ARTICLE VI.

Nothing in this compact shall be construed to authorize or permit any member state to curtail or diminish its forest firefighting forces, equipment, services or facilities, and it shall be the duty and responsibility of each member state to maintain adequate forest firefighting forces and equipment to meet demands for forest fire protection within its borders in the same manner and to the same extent as if this compact were not operative.

Nothing in this compact shall be construed to affect any existing or future cooperative relationship or arrangement between the United States forest service and a member state or states.

ARTICLE VII.

The compact administrators may request the United States forest service to act as the primary research and coordinating agency of the middle Atlantic interstate forest fire protection compact in cooperation with the appropriate agencies in each state, and the United States forest service may accept the initial responsibility in preparing and presenting to the compact administrators its recommendations with respect to the regional fire plan. Representatives of the United States forest service may attend meetings of the compact administrators.

ARTICLE VIII.

The provisions of articles four and five of this compact which relate to mutual aid in combating, controlling or preventing forest fires shall be operative as between any state party to this compact and any other state which is party to a regional forest fire protection compact in another region: Provided, That the Legislature of such other state shall have given its assent to such mutual aid provisions of this compact.

ARTICLE IX.

This compact shall continue in force and remain binding on each state ratifying it until the Legislature or the Governor of such state takes action to withdraw therefrom. Such action shall not be effective until six months after notice thereof has been sent by the chief executive of the state desiring to withdraw to the chief executive of all states then parties to the compact.

§20-3-26. When and how compact becomes operative.

When the Governor shall have executed said compact on behalf of this state and shall have caused a verified copy thereof to be filed with the Secretary of State and when said compact shall have been ratified by one or more of the states named in section twenty-five of this article, then said compact shall become operative and effective as between this state and such other state or states. The Governor is hereby authorized and directed to take such action as may be necessary to complete the exchange of official documents as between this state or any other state ratifying said compact.

§20-3-27. Compact administration.

In pursuance of article two of said compact, the director of the department of natural resources of the State of West Virginia may appoint the state forester and the assistant state forester in charge of forest fire control to represent the State of West Virginia on the compact committee.

§20-3-28. Compact committee powers and duties; cooperation therewith.

There is hereby granted to the members of the compact committee appointed by the director and under the general supervision of the director, all the powers provided for in the said compact. All officers of the State of West Virginia are hereby authorized and directed to do all things falling within their respective provinces and jurisdiction necessary to the carrying out of said compact. All officers, bureaus, departments and persons of and in the state government or administration of the State of West Virginia are hereby authorized and directed at convenient times and upon request of the duly appointed members of the compact committee, to furnish information and data relating to the purpose of said compact possessed by them or any of them to said members of the compact committee. They are further authorized to aid said compact committee members by loan of personnel, equipment, or other means in carrying out the purposes of said compact.

§20-3-29. Other powers supplementary.

Any powers herein granted to the state forester shall be regarded as in aid of and supplemental to, and in no case a limitation upon, any of the powers vested in said director by other laws of the State of West Virginia or by the laws of the state of Delaware, Maryland, New Jersey, Ohio, Pennsylvania and Virginia, or by the Congress or the terms of said compact.

ARTICLE 3A. SKIING RESPONSIBILITY ACT.

§20-3A-1. Legislative purpose.

The Legislature finds that the sport of skiing is practiced by a large number of citizens of West Virginia and also attracts to West Virginia a large number of nonresidents, significantly contributing to the economy of West Virginia. Since it is recognized that there are inherent risks in the sport of skiing which should be understood by each skier and which are essentially impossible to eliminate by the ski area operator, it is the purpose of this article to define those areas of responsibility and affirmative acts for which ski area operators shall be liable for loss, damage or injury and those risks which the skier expressly assumes for which there can be no recovery.

§20-3A-2. Definitions.

Unless the context of usage clearly requires otherwise:

(a) "Aerial passenger tramway" means any device operated by a ski area operator used to transport passengers, by single or double reversible tramway; chair lift or gondola lift; T-bar lift, J-bar lift, platter lift, conveyor lift or similar device; or a fiber rope tow.

(b) "Competitor" means a skier actually engaged in competition, a special event, or training or practicing for competition or a special event on any portion of the area made available by the ski area operator.

(c) "Freestyle terrain" includes, but is not limited to, terrain parks and terrain park features such as jumps, rails, fun boxes, and all other constructed and natural features, half-pipes, quarter pipes, and freestyle-bump terrain.

(d) "Passenger" means any person who is lawfully using an aerial passenger tramway, or is waiting to embark or has recently disembarked from an aerial passenger tramway and is in its immediate vicinity.

(e) "Ski area" means any property owned or leased and under the control of the ski area operator or operators within West Virginia.

(f) "Ski area operator" means any person, partnership, corporation or other commercial entity and their agents, officers, employees or representatives, or the State of West Virginia, or any political subdivision thereof, who has operational responsibility for any ski area or aerial passenger tramway.

(g) "Skiing area" means all ski slopes and trails not including any aerial passenger tramway.

(h) "Skier" means any person present at a skiing area under the control of a ski area operator for the purpose of engaging in the sport of skiing in locations designated as the ski slopes and trails, but does not include a passenger using an aerial passenger tramway.

(i) "Skiing" means sliding downhill or jumping on snow or ice on skis, a toboggan, a sled, a tube, a snowbike, a snowboard, or any other device by utilizing any of the facilities of the ski area.

(j) "Ski slopes and trails" means all ski slopes or trails and adjoining skiable terrain, including all their edges and features, and those areas designated by the ski area operator to be used by skiers for the purpose of participating in the sport of skiing in areas designated for that type of skiing activity. Ski slopes and trails shall be designated on trail maps, if provided, and by signs indicating to the skiing public the designated skiing activity for skiing areas.

§20-3A-3. Duties of ski area operators with respect to ski areas.

Every ski area operator shall:

(1) Mark all trail maintenance vehicles and furnish such vehicles with flashing or rotating lights which shall be in operation whenever the vehicles are working or are in movement in the skiing area.

(2) Mark with a visible sign or other warning implement the location of any hydrant or similar equipment used in snowmaking operations and located on ski slopes and trails.

(3) Mark conspicuously the top or entrance to each ski slope, trail or area to designate open or closed and relative degree of difficulty using the appropriate symbols approved by the national ski areas association as of the effective date of this article and as may thereafter be modified by the association.

(4) Maintain one or more trail boards at prominent locations at each ski area displaying that area's network of ski trails and slopes with each trail and slope rated thereon in accordance with the aforementioned symbols' code and containing a key to the code in accordance with the designations in subdivision (3) herein.

(5) Designate by trail board or otherwise which trails or slopes are open or closed.

(6) Place, or cause to be placed, whenever snow grooming or snowmaking operations are being undertaken upon any trail or slope while such trail or slope is open to the public, a conspicuous notice to that effect at or near the top of the trail or slope.

(7) Post notice at prominent locations of the requirements of this article concerning the use of ski retention devices. This obligation shall be the sole requirement imposed upon the ski area operator regarding the requirement for or use of ski retention devices.

(8) Maintain the ski areas in a reasonably safe condition, except that such operator shall not be responsible for any injury, loss or damage caused by the following: variations in terrain; surface or subsurface snow or ice conditions; bare spots, rocks, trees, other forms of forest growth or debris; collisions with pole lines, lift towers or any components thereof; or, collisions with snowmaking equipment which is marked by a visible sign or other warning implement in compliance with subdivision (2) of this section.

(9) When no certified ambulance service is available in the vicinity, have on duty at or near the skiing area, during all times that skiing areas are open for skiing, at least one trained and currently certified emergency medical technician.

§20-3A-4. Responsibilities of passengers.

No passenger shall:

(1) Board or embark upon or disembark from an aerial passenger tramway except at an area designated for such purpose;

(2) Drop, throw or expel any object from an aerial passenger tramway;

(3) Perform any act which interferes with the running or operation of an aerial passenger tramway;

(4) Enter the boarding area of or use any aerial passenger tramway without requesting and receiving instruction on its use from the ski area operator, unless the passenger has the ability to use it safely without instruction;

(5) Engage in any harmful conduct, or willfully or negligently engage in any type of conduct which contributes to or causes injury to any person; or

(6) Embark on an aerial passenger tramway without the authority, expressed or implied, of the ski area operator.

§20-3A-5. Duties of skiers.

(a) It is recognized that skiing as a recreational sport is hazardous to skiers, regardless of all feasible safety measures which can be taken. Each skier expressly assumes the risk of and legal responsibility for any injury, loss or damage to person or property which results from participation in the sport of skiing including, but not limited to, any injury, loss or damage caused by the following: Variations in terrain including freestyle terrain; surface or subsurface snow or ice conditions; bare spots, rocks, trees, other forms of forest growth or debris; collisions with pole lines, lift towers or any component thereof; or, collisions with snowmaking equipment which is marked by a visible sign or other warning implement in compliance with section three of this article. Each skier shall have the sole individual responsibility for knowing the range of his or her own ability to negotiate any ski slope or trail, and it shall be the duty of each skier to ski within the limits of the skier's own ability, to maintain reasonable control of speed and course at all times while skiing, to heed all posted warnings, to ski only on a skiing area designated by the ski area operator and to refrain from acting in a manner which may cause or contribute to the injury of anyone. If while actually skiing, any skier collides with any object or person, except an obviously intoxicated person of whom the ski area operator is aware, the responsibility for such collision shall be solely that of the skier or skiers involved and not that of the ski area operator.

(b) No person shall place any object in the skiing area or on the uphill track or any aerial passenger tramway which may cause a passenger or skier to fall.

(c) No skier shall cross the track of any T-bar lift, J-bar lift, platter lift, conveyor lift or similar device, or a fiber rope tow except at a designated location, nor shall any skier place any object in such an uphill track.

(d) No person involved in a skiing accident shall depart the ski area without leaving personal identification, including name and address, with an employee of the ski area operator or without notifying the proper authorities or without obtaining assistance when that person knows or reasonably should know that any other person involved in the accident is in need of medical or other assistance.

(e) A ski or snowboard used by a skier while skiing or snowboarding shall be equipped with a strap or other device capable of stopping the ski or snowboard should the ski or snowboard detach from the skier. No skier shall fail to wear retention straps or other devices to help prevent runaway skis or snowboards. This requirement shall not apply to cross country skis.

(f) Each skier has the duty to maintain control of his or her speed and course at all times when skiing and to maintain a proper lookout so as to be able to avoid other skiers and objects. However, the primary duty shall be on the person skiing downhill to avoid collision with any person or objects below him or her.

(g) No skier shall ski on a ski slope or trail that has been posted as "Closed."

(h) No skier shall use any ski slope while such person's ability to do so is impaired by the consumption of alcohol or by the use of any controlled substance or other drug or while such person is under the influence of alcohol or any controlled substance or other drug.

(i) Each skier has the duty to heed all posted information and other warnings.

(j) Before beginning to ski from a stationary position or before entering a ski slope or trail from the side, the skier shall have the duty to avoid moving skiers already on the ski slope or trail.

§20-3A-6. Liability of ski area operators.

Any ski area operator shall be liable for injury, loss or damage caused by failure to follow the duties set forth in section three of this article where the violation of duty is causally related to the injury, loss or damage suffered. A ski area operator shall not be liable for any injury, loss or damage caused by the negligence of any person who is not an agent or employee of such operator, nor shall a ski area operator be liable for any injury, loss or damage caused by any object dropped, thrown or expelled by a passenger from an aerial passenger tramway. Every ski area operator shall carry public liability insurance in limits of no less than $100,000 per person, $300,000 per occurrence and $10,000 for property damage.

§20-3A-7. Liability of passengers.

Any passenger shall be liable for injury, loss or damage resulting from violations of the duties set forth in section four.

§20-3A-8. Liability of skiers.

Any skier shall be liable for injury, loss or damage resulting from violations of the duties set forth in section five.

§20-4-0 to 20-4-14.

Repealed. Acts, 1985 Reg. Sess., Ch. 41.

§20-4-15 to 20-4-25.

Repealed. Acts, 1967 Reg. Sess., Ch. 147.

§20-3A-9. Competition.

(a) The ski area operator shall, prior to use of any portion of the area made available by the ski area operator, allow each competitor the opportunity to conduct a reasonable visual inspection of the ski slopes and trails or freestyle terrain used in the competition.

(b) The competitor shall be held to assume the risk of all ski slopes and trails or freestyle terrain conditions including, but not limited to, weather and snow conditions; obstacles, course or feature location, construction or layout, freestyle terrain configuration and conditions; and other courses, layouts, or configurations of the area to be used. No liability shall attach to a ski area operator for injury or death to any competitor caused by course, venue, or area conditions that a visual inspection should have revealed or by collisions with other competitors.

ARTICLE 3B. WHITEWATER RESPONSIBILITY ACT.

§20-3B-1. Legislative purposes.

Every year, in rapidly increasing numbers, the inhabitants of the State of West Virginia and nonresidents are enjoying the recreational value of West Virginia rivers and streams. The tourist trade is of vital importance to the State of West Virginia and the services offered by commercial whitewater outfitters and commercial whitewater guides significantly contribute to the economy of the State of West Virginia. The Legislature recognizes that there are inherent risks in the recreational activities provided by commercial whitewater outfitters and commercial whitewater guides which should be understood by each participant. It is essentially impossible for commercial whitewater outfitters and commercial whitewater guides to eliminate these risks. It is the purpose of this article to define those areas of responsibility and affirmative acts for which commercial whitewater outfitters and commercial whitewater guides are liable for loss, damage or injury.

§20-3B-2. Definitions.

Unless the context of usage clearly requires otherwise:

(a) "Commercial whitewater outfitter" means any person, partnership, corporation or other organization, or any combination thereof, as defined in section twenty-three, article two of this chapter.

(b) "Commercial whitewater guide" means any person as defined in section twenty-three, article two of this chapter.

(c) "Participant" means any person using the services of a commercial whitewater outfitter or commercial whitewater guide on any river, portions of rivers or waters of the state.

§20-3B-3. Duties of commercial whitewater outfitters and commercial whitewater guides.

(a) All commercial whitewater outfitters and commercial whitewater guides offering professional services in this state shall provide facilities, equipment and services as advertised or as agreed to by the commercial whitewater outfitter, commercial whitewater guide and the participant. All services, facilities and equipment provided by commercial whitewater outfitters and commercial whitewater guides in this state shall conform to safety and other requirements set forth in article two of this chapter and in the rules promulgated by the commercial whitewater advisory board created by section twenty-three-a, article two of this chapter.

(b) In addition to the duties set forth in subsection (a) of this section, all commercial whitewater guides providing services for whitewater expeditions in this state shall, while providing such services, conform to the standard of care expected of members of their profession.

§20-3B-4. Duties of participants.

(a) Participants have a duty to act as would a reasonably prudent person when engaging in recreational activities offered by commercial whitewater outfitters and commercial whitewater guides in this state.

(b) No participant may:

(1) Board upon or embark upon any commercial whitewater expedition when intoxicated or under the influence of nonintoxicating beer, intoxicating beverages or controlled substances; or

(2) Fail to advise the trip leader or the trip guide of any known health problems or medical disability and any prescribed medication that may be used in the treatment of such health problems during the course of the commercial whitewater expedition; or

(3) Engage in harmful conduct or willfully or negligently engage in any type of conduct which contributes to or causes injury to any person or personal property; or

(4) Perform any act which interferes with the safe running and operation of the expedition, including failure to use safety equipment provided by the commercial whitewater outfitter or failure to follow the instructions of the trip leader or trip guide in regard to the safety measures and conduct requested of the participants; or

(5) Fail to inform or notify the trip guide or trip leader of any incident or accident involving personal injury or illness experienced during the course of any commercial whitewater expedition. If such injury or illness occurs, the participant shall leave personal identification, including name and address, with the commercial whitewater outfitter's agent or employee.

§20-3B-5. Liability of commercial whitewater outfitters and commercial whitewater guides.

It is recognized that some recreational activities conducted by commercial whitewater outfitters and commercial whitewater guides are hazardous to participants regardless of all feasible safety measures which can be taken.

(a) No licensed commercial whitewater outfitter or commercial whitewater guide acting in the course of his employment is liable to a participant for damages or injuries to such participant unless such damage or injury was directly caused by failure of the commercial whitewater outfitter or commercial whitewater guide to comply with duties placed on him by article two of this chapter, by the rules of the commercial whitewater advisory board, or by the duties placed on such commercial whitewater outfitter or commercial whitewater guide by the provisions of this article.

(b) The limitations on liability created by this article apply only to commercial whitewater outfitters licensed under the provisions of article two of this chapter and to commercial whitewater guides who are agents or employees of licensed commercial whitewater outfitters, and only when the commercial whitewater outfitter or commercial whitewater guide is acting within the course of his employment.

ARTICLE 4. EQUESTRIAN ACTIVITIES RESPONSIBILITY ACT.

§20-4-1. Legislative purpose.

The Legislature finds that equestrian activities are engaged in by a large number of citizens of West Virginia and that such activities also attract to West Virginia a large number of nonresidents, significantly contributing to the economy of West Virginia. Since it is recognized that there are inherent risks in equestrian activities which should be understood by participants therein and which are essentially impossible for the operators of equestrian businesses to eliminate, it is the purpose of this article to define those areas of responsibility and those affirmative acts for which the operators of equestrian businesses shall be liable for loss, damage or injury suffered by participants, and to further define those risks which the participants expressly assume and for which there can be no recovery.

§20-4-2. Definitions.

In this article, unless a different meaning plainly is required:

(1) "Equestrian activity" means any sporting event or other activity involving a horse or horses, including, but not limited to:

(A) Shows, fairs, competitions, performances or parades;

(B) Any of the equine disciplines such as dressage, hunter and jumper shows, grand prix jumping, three day events, combined training, rodeos, driving, western games and hunting;

(D) Riding classes, therapeutic riding programs, school and college sponsored classes and programs, or other classes in horsemanship;

(E) The boarding or keeping of horses; and

(F) Providing equipment or tack.

(2) "Horseman" or "operator of a horseman's business" means any individual, sole proprietorship, partnership, association, public or private corporation, the United States or any federal agency, this state or any political subdivision of this state, and any other legal entity which engages, with or without compensation, in organizing, promoting, presenting or providing equestrian activities or in providing facilities for equestrian activities.

(3) "Horse" means each animal of the horse kind, in every class or breed of horses, and, without limitation or exception, all members of the genus Equus and family Equidae.

(4) "Participant" means any person using the services or facilities of a horseman so as to be directly involved in an equestrian activity.

§20-4-3. Duties of horsemen.

Every horseman shall:

(1) Make reasonable and prudent efforts to determine the ability of a participant to safely engage in the equestrian activity, to determine the ability of the horse to behave safely with the participant, and to determine the ability of the participant to safely manage, care for and control the particular horse involved;

(2) Make known to any participant any dangerous traits or characteristics or any physical impairments or conditions related to a particular horse which is involved in the equestrian activity of which the horseman knows or through the exercise of due diligence could know;

(3) Make known to any participant any dangerous condition as to land or facilities under the lawful possession and control of the horseman of which the horseman knows or through the exercise of due diligence could know, by advising the participant in writing or by conspicuously posting warning signs upon the premises;

(4) In providing equipment or tack to a participant, make reasonable and prudent efforts to inspect such equipment or tack to assure that it is in proper working condition and safe for use in the equestrian activity;

§20-4-4. Duties of participants.

It is recognized that equestrian activities are hazardous to participants, regardless of all feasible safety measures which can be taken.

Each participant in an equestrian activity expressly assumes the risk of and legal responsibility for any injury, loss or damage to person or property which results from participation in an equestrian activity. Each participant shall have the sole individual responsibility for knowing the range of his or her own ability to manage, care for, and control a particular horse or perform a particular equestrian activity, and it shall be the duty of each participant to act within the limits of the participant's own ability, to maintain reasonable control of the particular horse or horses at all times while participating in an equestrian activity, to heed all posted warnings, to perform equestrian activities only in an area or in facilities designated by the horseman and to refrain from acting in a manner which may cause or contribute to the injury of anyone. If while actually riding in an equestrian event, any participant collides with any object or person, except an obviously intoxicated person of whom the horseman is aware, or if the participant falls from the horse or from a horse-drawn conveyance, the responsibility for such collision or fall shall be solely that of the participant or participants involved and not that of the horseman.

A participant involved in an accident shall not depart from the area or facility where the equestrian activity took place without leaving personal identification, including name and address, or without notifying the proper authorities, or without obtaining assistance when that person knows or reasonably should know that any other person involved in the accident is in need of medical or other assistance.

§20-4-5. Liability of horsemen.

(a) A horseman shall be liable for injury, loss or damage caused by failure to follow the duties set forth in section three of this article where the violation of duty is causally related to the injury, loss or damage suffered. A horseman shall not be liable for any injury, loss or damage caused by the negligence of any person who is not an agent or employee of such horseman.

(b) A horseman shall be liable for acts or omissions which constitute gross negligence or willful and wanton conduct which is the proximate cause of injury to a participant.

(d) Every horseman shall carry public liability insurance in limits of no less than $100,000 per person, $300,000 per occurrence and $10,000 for property damage.

§20-4-6. Liability of participants.

Any participant shall be liable for injury, loss or damage resulting from violations of the duties set forth in section four of this article.

§20-4-7. Applicability of article.

The provisions of this article do not apply to the horse racing industry that is regulated by the provisions of article twenty-three, chapter nineteen of this code.

ARTICLE 4A. SKIN AND SCUBA DIVING.

§20-4A-1. Waters where diving is permitted; exceptions.

(a) Skin and scuba (self-contained underwater breathing apparatus) diving is permitted in all waters in this state, including natural and artificial lakes, except in the following areas:

(1) Within one hundred feet of boat ramps, controlled swimming areas, marina areas and fishing piers marked for use by physically disabled persons;

(2) Designated hazards areas;

(3) Areas near dams and outlet structures in artificial lakes;

(4) Heavily traveled boat lanes;

(5) Narrow channels; and

(6) Areas where visibility is obscured.

(b) The provisions of this section shall not apply to professional skin or scuba divers engaged in demolition, salvage, construction, rescue or repair work in the regular course of their business.

§20-4A-2. "Diver down" flag required; flag specifications.

(1) No person may skin or scuba dive in any waters of the state that are used by motorboats unless the diving area is marked by one "diver down" flag displayed at all times while a diver is in the water.

(2) The "diver down" flag shall be a red field with a white diagonal stripe not less than one and one-half inches wide running upper left to lower right. The dimensions of the flag shall be not less than ten inches by ten inches and the top of the flag shall be at least three feet above the surface of the water.

(3) The "diver down" flag shall be anchored and affixed to a separate flotation device. No such flag may be attached to any navigational device or placed so as to obstruct boat traffic.

(4) A diver must surface within one hundred feet of the "diver down" flag marking his diving area.

§20-4A-3. Penalties.

Any person violating any of the provisions of this article is guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than $20 nor more than $300, or confined in jail not less than ten nor more than one hundred days, or both fined and imprisoned.

ARTICLE 5. PARKS AND RECREATION.

§20-5-1. Section of parks and recreation; chief of section; existing obligation; appropriations.

(a) The section of parks and recreation of the Division of Natural Resources shall have within its jurisdiction and supervision the parks functions of the former Division of Tourism and parks, transferred to the Division of Natural Resources pursuant to the provisions of section twelve, article one, chapter five-b of this code enacted in the year 1994. The section of parks and recreation shall be under the control of a chief, to be appointed by and to serve at the will and pleasure of the director, who shall be qualified by reason of exceptional training and experience in the field of public recreation administration or natural resource management.

(b) The Division of Natural Resources shall have the duty and authority to administer those properties which are a part of the state parks and public recreation system, to which legal title has remained with the Division of Natural Resources, while the section of parks and recreation was part of the former Division of Tourism and parks.

(c) All existing contracts and obligations of the section of parks and recreation, including those in the name of the Division of Tourism and parks administered on behalf of the section of parks and recreation, shall remain in full force and effect and any existing contracts and obligations relating to parks and recreation shall be performed by the Division of Natural Resources.

(d) The transfer, made pursuant to executive order, to the Division of Natural Resources of the unexpended balance existing on June 30, 1995, in any appropriation originally made to the Division of Tourism and parks is hereby ratified.

§20-5-2. Powers of the director with respect to the section of parks and recreation.

(a) The Director of the Division of Natural Resources is responsible for the execution and administration of the provisions in this article as an integral part of the parks and recreation program of the state and shall organize and staff the section of parks and recreation for the orderly, efficient and economical accomplishment of these ends. The authority granted in the year 1994 to the Director of the Division of Natural Resources to employ up to six additional unclassified personnel to carry out the parks’ functions of the Division of Natural Resources is continued.

(b) The Director of the Division of Natural Resources shall:

(1) Establish, manage and maintain the state’s parks and recreation system for the benefit of the people of this state and do all things necessary and incidental to the development and administration of the state’s parks and recreation system;

(2) Acquire property for the state in the name of the Division of Natural Resources by purchase, lease or agreement; retain, employ and contract with legal advisors and consultants; or accept or reject for the state, in the name of the division, gifts, donations, contributions, bequests or devises of money, security or property, both real and personal, and any interest in the property, including lands and waters, for state park or recreational areas for the purpose of providing public recreation: Provided, That the provisions of section §20-1-20 et seq. of this code are specifically made applicable to any acquisitions of land: Provided, however, That any sale, exchange or transfer of property for the purposes of completing land acquisitions or providing improved recreational opportunities to the citizens of the state is subject to the procedures of §5a-10-1 et seq. of this code: Provided further, That no sale of any park or recreational area property, including lands and waters, used for purposes of providing public recreation on the effective date of this article and no privatization of any park may occur without statutory authority;

(3) Approve and direct the use of all revenue derived from the operation of the state parks and public recreation system for the operation, maintenance and improvement of the system, individual projects of the system or for the retirement of park development revenue bonds: Provided, That all revenues derived from the operation of the state parks and public recreation system shall be invested by the Treasurer and all proceeds from investment earnings shall accrue for the exclusive use for the operation, maintenance, and improvement of the system, individual projects of the system or for the retirement of park development revenue bonds;

(4) Effectively promote and market the state’s parks, state forests, state recreation areas and wildlife recreational resources by approving the use of no less than 20 percent of the:

(A) Funds appropriated for purposes of advertising and marketing expenses related to the promotion and development of tourism, pursuant to §29-22-18 (j) of this code; and

(B) Funds authorized for expenditure from the Tourism Promotion Fund for purposes of direct advertising, pursuant to §5B-2-12 and §29-22A-10 of this code;

(5) Issue park development revenue bonds as provided in this article;

(6) Provide for the construction and operation of cabins, lodges, resorts, restaurants and other developed recreational service facilities, subject to the provisions of §20-5-15 and §20-1-20 of this code;

(7) The director may sell timber that has been severed in a state park incidental to the construction of park facilities or related infrastructure where the construction is authorized by the Legislature in accordance with §20-1-20 of this code, and the sale of the timber is otherwise in the best interest of park development, without regard to proceeds derived from the sale of timber. The gross proceeds derived from the sale of timber shall be deposited into the operating budget of the park from which the timber was harvested;

(8) Propose rules for legislative approval in accordance with the provisions of §29A-3-1 et seq. of this code to control the uses of parks: Provided, That the director may not permit public hunting, except as otherwise provided in this section, the exploitation of minerals or the harvesting of timber for commercial purposes in any state park;

(9) Exempt designated state parks from the requirement that all payments must be deposited in a bank within 24 hours for amounts less than $500 notwithstanding any other provision of this code to the contrary: Provided, That such designated parks shall make a deposit in any amount no less than every seven working days;

(10) Waive the use fee normally charged to an individual or group for one day’s use of a picnic shelter or one week’s use of a cabin in a state recreation area when the individual or group donates the materials and labor for the construction of the picnic shelter or cabin: Provided, That the individual or group was authorized by the director to construct the picnic shelter or cabin and that it was constructed in accordance with the authorization granted and the standards and requirements of the division pertaining to the construction. The individual or group to whom the waiver is granted may use the picnic shelter for one reserved day or the cabin for one reserved week during each calendar year until the amount of the donation equals the amount of the loss of revenue from the waiver or until the individual dies or the group ceases to exist, whichever first occurs. The waiver is not transferable. The director shall permit free use of picnic shelters or cabins to individuals or groups who have contributed materials and labor for construction of picnic shelters or cabins prior to the effective date of this section. The director shall propose a legislative rule for legislative approval in accordance with §29A-3-1 et seq. of this code governing the free use of picnic shelters or cabins provided in this section, the eligibility for free use, the determination of the value of the donations of labor and materials, the appropriate definitions of a group and the maximum time limit for the use;

(11) Provide within the parks a market for West Virginia arts, crafts and products, which shall permit gift shops within the parks to offer for sale items purchased on the open market from local artists, artisans, craftsmen and suppliers and local or regional crafts cooperatives;

(12) Provide that reservations for reservable campsites may be made, upon two days’ advance notice, for any date for which space is available within a state park or recreational area managed by the parks and recreation section;

(13) Provide that reservations for all state parks and recreational areas managed by the parks and recreation section of the division may be made by use of a valid credit card;

(14) Develop a plan to establish a centralized computer reservation system for all state parks and recreational areas managed by the parks and recreation section and to implement the plan as funds become available; and

(15) Notwithstanding the provisions of §20-2-58 of this code, the Natural Resources Commission is authorized to promulgate rules in accordance with the provisions of §29A-3-1 et seq. of this code to permit and regulate the hunting of white-tail deer in any state park as considered appropriate by the director to protect the ecological integrity of the area.

(16) Permit the use of drones within State Parks, Forests and Rail Trails. Persons who intend to operate an unmanned aircraft system shall register at the area superintendent’s office prior to engaging or participating in the operation of any unmanned aircraft system and specify where the activity will take place. A superintendent may only prohibit, issue directives, or implement time and place restrictions on unmanned aircraft system use in areas or portions thereof in order to: (i) protect the safety and privacy of other park users, (ii) protect area facilities, (iii) protect the peaceful and quiet atmosphere of the area, or (iv) prevent harassment of wildlife. Upon registration the superintendent shall provide a list and map to the unmanned aircraft system operator of any prohibited areas within the park. Participants in drone operation activities assume full responsibility and liability for any risk or injury related to using an unmanned aircraft system.

§20-5-3. Section of Parks and Recreation; purpose; powers and duties generally.

The purposes of the Section of Parks and Recreation shall be to promote conservation by preserving and protecting natural areas of unique or exceptional scenic, scientific, cultural, archaeological, or historic significance, and to provide outdoor recreational opportunities for the citizens of this state and its visitors. The Section of Parks and Recreation has within its jurisdiction and supervision:

(a) All state parks and recreation areas, including all lodges, cabins, swimming pools, motorboating, and all other recreational facilities therein, except the roads heretofore transferred pursuant to §17-4-1 et seq. of this code to the state road system and to the responsibility of the Commissioner of Highways with respect to the construction, reconstruction, and maintenance of the roads or any future roads for public usage on publicly owned lands for future state parks, state forests, and public hunting and fishing areas;

(b) The authority and responsibility to do the necessary cutting and planting of vegetation along road rights-of-way in state parks and recreational areas;

(c) The administration of all laws and regulations relating to the establishment, development, protection, and use and enjoyment of all state parks and state recreational facilities consistent with the provisions of this article;

(d) The continued operation and maintenance of the Berkeley Springs Historical State Park in Morgan County, as a state recreational facility, designated the Berkeley Springs Sanitarium under prior enactment of this code;

(e) The continued operation and maintenance of that portion of Washington Carver Camp in Fayette County, formerly incorporated within the boundaries of Babcock State Park;

(f) The continued operation and maintenance of Camp Creek State Park as a state recreational facility, formerly delineated according to §19-1A-3 of this code;

(g) The continued operation and maintenance of Moncove Lake State Park as a state recreational facility, formerly delineated pursuant to enactment of §5B-1-13 of this code in 1990;

(h) The continued protection, operation, and maintenance of the right-of-way along the former Greenbrier subdivision of the CSX railway system, collectively designated as the Greenbrier River Trail, including the protection of the trail from motorized vehicular traffic and operation for the protection of adjacent public and private property;

(i) The continued protection, operation, and maintenance of the right-of-way of the CSX railway system designated as the North Bend Rail Trail, including the protection of the trail from motorized vehicular traffic and operation for the protection of adjacent public and private property;

(j) The continued development, operation, and maintenance of Blennerhassett Island Historical State Park, including all the property, powers, and authority previously held by the Blennerhassett Island Historical State Park Commission, formerly delineated pursuant to §29-8-1 et seq. of this code; and

(k) The continued protection, operation, and maintenance of the rights-of-way of the Elk River Coal & Lumber Railroad, the Buffalo Creek & Gauley Railroad, and the Middle Creek Spur, collectively designated as the Elk River Trail, including the protection of the trail from motorized vehicular traffic and operation for the protection of adjacent public and private property.

§20-5-4. Definitions; state parks and recreation system.

As used in this article, unless the context clearly requires otherwise:

"Bonds" shall mean bonds issued by the director.

"Cost of project" shall embrace the cost of construction, the cost of all land, property, material and labor which are deemed essential thereto, cost of improvements, financing charges, interest during construction and all other expenses, including legal fees, trustees", engineers" and architects" fees which are necessary or properly incidental to the project.

"Project" shall be deemed to mean collectively the acquisition of land, the construction of any buildings or other works, together with incidental approaches, structures and facilities, reasonably necessary and useful in order to provide new or improved recreational facilities.

"Recreational facilities" shall mean and embrace cabins, lodges, swimming pools, golf courses, restaurants, commissaries and other revenue producing facilities in any state park or state forest.

"Rent or rental" shall include all moneys received for the use of any recreational facility.

§20-5-5. Authority of director to issue park development revenue bonds; grants and gifts.

The director, with the approval of the Governor, is hereby empowered to raise the cost of any project, as defined in this article, by the issuance of park development revenue bonds of the state, the principal of and interest on the bonds shall be payable solely from the special fund herein provided for the payment. The bonds shall be authorized by order of the director, approved by the Governor, which shall recite an estimate by the director of the cost of the project, and shall provide for the issuance of bonds in an amount sufficient, when sold as hereinafter provided, to produce the cost, less the amount of any grant or grants, gift or gifts received, or in the opinion of the director expected to be received from the United States of America or from any other source. The acceptance by the director of any and all grants and gifts, whether in money or in land, labor or materials, is hereby expressly authorized. All bonds shall have and are hereby declared to have all the qualities of negotiable instruments under the provisions of article eight, chapter forty-six of this code. The director shall have the power:

(a) To issue negotiable bonds, security interests or notes and to provide for and secure the payment thereof and to provide for the rights of the holders thereof and to purchase, hold and dispose of any of its bonds, security interests or notes.

(b) To sell, at public or private sale, any bond or other negotiable instrument, security interests or obligation of the director in any manner and upon such terms as the director deems would best serve the purposes set forth herein.

(c) To issue its bonds, security interests and notes payable solely from the revenues or funds available to the director therefor; and the director may issue its bonds, security interests or notes in such principal amounts as it shall deem necessary to provide funds for any purposes herein including:

(i) The payment, funding or refunding of the principal of, interest on or redemption premiums on any bonds, security interests or notes issued by it whether the bonds, security interests, notes or interest to be funded or refunded have or have not become due.

(ii) The establishment or increase of reserves to secure or to pay bonds, security interests, notes or the interest thereon and all other costs or expenses of the director incident to and necessary or convenient to carry out its purposes and powers. Any bonds, security interests or notes may be additionally secured by a pledge of any revenues, funds, assets or moneys of the special fund herein provided.

(d) To issue renewal notes, or security interests, to issue bonds to pay notes or security interests and, whenever it deems refunding expedient, to refund any bonds by the issuance of new bonds, whether the bonds to be refunded have or have not matured except that no such renewal notes shall be issued to mature more than ten years from date of issuance of the notes renewed, and no such refunding bonds shall be issued to mature more than twenty-five years from the date of original issuance.

(e) To apply the proceeds from the sale of renewal notes, security interests or refunding bonds to the purchase, redemption or payment of the notes, security interests or bonds to be refunded.

(f) To accept gifts or grants or property, funds, security interests, money, materials, labor, supplies or services from the United States of America or from any governmental unit or any person, firm or corporation and to carry out the terms or provisions of, or make agreements with respect to, or pledge, any gifts or grants and to do any and all things necessary, useful, desirable or convenient in connection with the procuring, acceptance or disposition of gifts or grants.

(g) To the extent permitted under its contracts with the holders of bonds, security interests or notes of the authority, to consent to any modification of the rate of interest, time of payment of any installment of principal or interest, security or any other term of any bond, security interest, note or contract or agreement of any kind to which the director is a party.

(h) The director shall determine the form of the bonds, including coupons to be attached thereto to evidence the right of interest payments, which bonds shall be signed by the director, under the great seal of the state, attested by the Secretary of State and the coupons attached thereto shall bear the facsimile signature of the director. In case any of the officers whose signatures appear on bonds or coupons shall cease to be officers before the delivery of the bonds, the signatures shall nevertheless be valid and sufficient for all purposes the same as if they had remained in office until such delivery.

(i) The director shall fix the denominations of the bonds, the principal and interest of which shall be payable at the Office of the Treasurer of the State of West Virginia, at the capitol of the state or, at the option of the holder, at such other place to be named in the bonds in such medium as may be determined by the director.

(j) The director may provide for the registration of the bonds in the name of the owner as to principal alone, and as to both principal and interest under such terms and conditions as the director may determine, and shall sell the bonds in such manner as he or she may determine to be for the best interest of the state, taking into consideration the financial responsibility of the purchaser and the terms and conditions of the purchase and especially the availability of the proceeds of the bonds when required for payment of the cost of the project.

(k) The proceeds of the bonds shall be used solely for the payment of the cost of the project and shall be deposited and withdrawn as provided by section thirteen-g of this article, and under such further restrictions, if any, as the director may provide.

(l) If the proceeds of such bonds, by error in calculation or otherwise, shall be less than the cost of the project, additional bonds may in like manner be issued to provide the amount of the deficiency and, unless otherwise provided for in the trust agreement hereinafter mentioned, shall be deemed to be of the same issue and shall be entitled to payment from the same fund without preference or priority as the bonds before issued.

(m) If the proceeds of bonds issued for the project shall exceed the cost thereof, the surplus shall be paid into a special fund to be established for payment of the principal and interest of the bonds as specified in the trust agreement provided for in the following section. The fund may be used for the purchase of any of the outstanding bonds payable from such fund at the market price, but not exceeding the price, if any, which bonds shall in the same year be redeemable, and all bonds redeemed or purchased shall forthwith be canceled and shall not again be issued. Prior to the preparation of definitive bonds, the director may, under like restrictions, issue temporary bonds with or without coupons exchangeable for definitive bonds upon the issuance of the latter. The revenue bonds may be issued without any other proceedings or the happening of any other conditions or things than those proceedings, conditions and things which are specified and required herein or by the Constitution of the state.

§20-5-6. Tax exemption.

The exercise of the powers granted to the director herein will be in all respects for the benefit of the people of the state, for the improvement of their health, safety, convenience and welfare and for the enhancement of their recreational opportunities and is a public purpose. As the operation and maintenance of park development projects will constitute the performance of essential government functions, the director shall not be required to pay any taxes or assessments upon any park development projects or upon any property acquired or used by the director or upon the income therefrom, other than taxes collected from the consumer pursuant to article fifteen, chapter eleven of this code. The bonds and notes and all interest and income thereon shall be exempt from all taxation by this state or any county, municipality, political subdivision or agency thereof, except inheritance taxes.

§20-5-7. Investment in notes, bonds and security interests.

The notes, bonds and security interests of the director are hereby made securities in which the state Board of Investments, all insurance businesses, all banking institutions, trust companies, building and loan associations, savings and loan associations may invest and upon which notes, security interests or bonds become subject to redemption plus accrued interest to such date. Upon the purchase, the notes, security interests or bonds shall be canceled.

§20-5-8. Disclaimer of any liability of state of West Virginia.

The state of West Virginia shall not be liable on notes, security interests or bonds or other evidences of indebtedness of the director and the notes, security interests or bonds or other evidence of indebtedness shall not be a debt of the State of West Virginia and the notes, security interests or bonds or other evidence of indebtedness shall contain on the face thereof a statement to such effect.

§20-5-9. Trustee for holders of park development revenue bonds.

The director may enter into an agreement or agreements with any trust company, or with any bank having the powers of a trust company, either within or outside the state, as trustee for the holders of bonds issued hereunder, setting forth therein the duties of the state and of the director in respect to acquisition, construction, improvement, maintenance, operation, repair and insurance of the project, the conservation and application of all moneys, the insurance of moneys on hand or on deposit and the rights and remedies of the trustee and the holders of the bonds, as may be agreed upon with the original purchasers of the bonds, and including therein provisions restricting the individual right of action of bondholders as is customary in trust agreements respecting bonds and debentures of corporations, protecting and enforcing the rights and remedies of the trustee and the bondholders and providing for approval by the original purchaser of the bonds of the appointment of consulting architects, and of the security given by those who contract to construct the project, and by any bank or trust company in which the proceeds of bonds or rentals shall be deposited, and for approval by the consulting architects of all contracts for construction. All expenses incurred in carrying out the agreement may be treated as a part of the cost of maintenance, operation and repair of the project.

§20-5-10. Proceeds of park development revenue bonds, grants and gifts.

The proceeds of all bonds sold for any park development project and the proceeds of any grant or gift received by the director for any project financed by the issuance of park development revenue bonds shall be paid to the treasurer of the State of West Virginia, who shall not commingle the funds with any other moneys, but shall deposit them in a separate bank account or accounts. The moneys in the accounts shall be paid by the treasurer on requisition of the director or any other person as the director may authorize to make such requisition. All deposits of the moneys shall, if required by the treasurer or the director, be secured by obligation of the United States, of the State of West Virginia, or of the director, of a market value equal at all times to the amount of the deposit and all banking institutions are authorized to give such deposits.

§20-5-11. Authority of director to pledge revenue from recreational facilities as security.

The director, with the approval of the Governor, shall have authority to pledge all revenue derived from any project as security for any bonds issued to defray the cost of the project. In any case in which the director may deem it advisable, he or she shall also have the authority to pledge the revenue derived from any existing recreational facilities under his or her control, or any state park or forest, as additional security for the payment of any bonds issued under the provisions of this article to pay the cost of any park development project.

§20-5-12. Management and control of project.

The division shall properly maintain, repair, operate, manage and control the project, fix the rates of rental and establish bylaws and rules for the use and operation of the project and may make and enter into all contracts or agreements necessary and incidental to the performance of its duties and the execution of its powers hereunder.

§20-5-13. Provisions of Constitution and law observed; what approval required.

It shall not be necessary to secure from any officer or board not named in this article any approval or consent, or any certificate or finding, or to hold an election, or to take any proceedings whatever, either for the construction of any project, or the improvement, maintenance, operation or repair thereof, or for the issuance of bonds hereunder, except as are prescribed by these provisions or are required by the Constitution of this state.

Nothing contained herein shall be so construed or interpreted as to authorize or permit the incurring of state debt of any kind or nature as contemplated by the provisions of the Constitution of the state in relation to state debt.

§20-5-14. Restaurants and other facilities.

The director may, on all areas under his or her jurisdiction and control, operate commissaries, restaurants and other establishments for the convenience of the public. For these purposes the director may purchase equipment, foodstuffs, supplies and commodities according to law.

§20-5-15. Authority to enter into certain operational contracts; terms and conditions; necessity for legislative notice and public hearing before certain facilities are placed under contract.

(a) The director may enter into a contract with a person, firm, corporation, foundation or public agency for the operation of a commissary, restaurant, recreational facility or other establishment within the state parks and public recreational system, for a duration not to exceed ten years, but the contract may provide for an option to renew at the director’s discretion for an additional term or terms not to exceed ten years at the time of renewal: Provided, That an operational contract for the operation of Prickett’s Fort by the Prickett’s Fort Memorial Foundation, Inc., funded by an appropriation for the specific purpose of such operational contract is exempt from the provisions of article three, chapter five-a of this code. Prior to initiating of a contract for the operation of a state park lodge, cabin, campground, gift shop, golf facility, including pro shop operations, or ski facility, the director shall submit written notice of the specific location subject to the contract to the Legislature by letter to the Senate President and the Speaker of the House of Delegates.

(b) Prior to initiating a contract for a previously state-operated state park lodge, cabin, campground, gift shop, golf facility, including pro shop operations, or ski facility, the director shall conduct a public hearing to be held at a reasonable time and place within the county in which the facility is located. Notice of the time, place and purpose of the public hearing shall be provided as a Class II legal advertisement in accordance with the provisions of section two, article three, chapter fifty-nine of this code which notice shall be given at least for the first publication twenty days in advance of said hearing.

(c) Any contract entered into by the director shall provide an obligation upon the part of the operator that he or she maintain a level of performance satisfactory to the director and shall further provide that any contract may be terminated by the director in the event he or she determines that the performance is unsatisfactory and has given the operator reasonable notice of the termination.

§20-5-16. Authority to enter into contracts with third parties to construct recreational facilities and cabins; public comment.

(a) Notwithstanding any other provision of this code to the contrary, in addition to all other powers and authority vested in the director, he or she may:

(1) Enter into contracts with third parties for the financing, construction, and operation of new recreational, lodging, and ancillary facilities at all state parks and state forests under the jurisdiction of the Division of Natural Resources except for Watoga State Park. The contracts may allow and recognize both direct and subsidiary investment arrangements. The term of the contracts may not exceed a period of 40 years, at which time the full title to the recreational facilities shall vest in the state, except as otherwise provided in this section;

(2) Enter into contracts with third parties for the construction, but not the operation, of cabins at any state park or forest. Upon completion of the construction of the cabins, full title to the cabins shall immediately vest in the state and the cabins shall be operated by the parks and recreation section;

(3) Authorize the construction of at least five cabins by any single third party in state parks and state forests which do not offer the facilities on the effective date of this subsection; and

(4) Propose emergency and legislative rules, in accordance with §29A-3-1 et seq. of this code, that set the conditions upon which the director may enter into a contract with a single third party proposing to construct cabins.

(b) Any contract entered into pursuant to this section shall be approved prior to execution by the Secretary of the Department of Commerce, the Secretary of the Department of Tourism, and the Secretary of the Department of Economic Development.

(c) A contract may provide for renewal for the purpose of permitting continued operation of the facilities at the option of the director for a term or terms not to exceed 10 years.

(d) The director shall provide prior electronic notice of any contract, extension, and renewal entered into pursuant to this section to the Joint Committee on Government and Finance.

(e) Any vendor which is contracted with pursuant to this section may not employ or contract with the individual who holds the position of director when the contract is executed for a period of one year following the individual’s separation from the position of director.

(f) Prior to initiating a contract for new recreational, lodging, and ancillary facilities at all state parks and state forests under the jurisdiction of the Division of Natural resources, the director shall conduct a public hearing to be held at a reasonable time and place within the county in which the facility is located. Notice of the time, place and purpose of the public hearing shall be provided as a Class II legal advertisement in accordance with §59-3-2 of this code which notice shall be given at least for the first publication 20 days in advance of the hearing.

(g) Stonewall Jackson Lake State Park. —

(1) With respect to the financing, construction, and operation of lodging at Stonewall Jackson Lake State Park, in addition to the lodging in existence as of July 1, 2008, contracts entered into pursuant to this section may grant, convey, or provide for commercially reasonable lodging usage and related rights and privileges all on terms and conditions as the director may deem appropriate, desirable or necessary to attract private investment for the construction of additional lodging units.

(2) No contracts may be entered into prior to the preparation of lodging unit development plans and standard lodging unit contract documents in a form and at a level of detail acceptable to the United States Army Corps of Engineers and the director, and subsequent to the presentation of the lodging unit development plans and standard lodging unit contract documents to the Joint Committee on Government and Finance for review and comment.

(3) At a minimum, the lodging unit development plans and standard lodging unit contracts shall comply with the following requirements:

(A) That no more than 100 additional lodging units may be constructed, in addition to the lodging in existence as of July 1, 2008;

(B) That lodging unit contracts, with respect to any additional lodging units that may be financed, constructed or operated pursuant to the provision of this section, shall generally conform to the contracts entered into by federal agencies or the National Park Service with private parties regarding privately financed property that is constructed, developed or operated on public lands administered by federal agencies or the National Park Service, subject to modification and adaptation by the director as the director deems appropriate, suitable and relevant to any lodging units to be constructed at Stonewall Jackson Lake State Park.

(C) That a party granted rights and privileges under lodging unit contracts awarded under the provisions of this subsection shall have the right to renew his or her or its lodging unit contract for successive terms not to extend beyond the termination date of the state’s lease with the United States Army Corps of Engineers; or, in the event that the state’s lease with the United States Army Corps of Engineers is extended beyond the termination date of the lease as of July 1, 2007, not to exceed five 10-year extensions or renewals beyond the termination date of the lease between the state and the United States Army Corps of Engineers in effect as of July 1, 2007: Provided, That the party extended the renewal rights is in compliance with all material rights, duties and obligations arising under his or her or its contract and all relevant and applicable provisions of federal, state and local laws, rules, regulations, contracts or agreements at the time of renewal: Provided, however, That if the director makes an affirmative determination that further renewals beyond the time periods set forth in this subsection are in the best interest of the state and Stonewall Jackson Lake State Park, giving due consideration to financial, operational and other considerations deemed relevant and material by the director, that the director may authorize further renewals;

(D) That all rights and privileges arising under a lodging unit contract shall be transferred to the state or the state’s designee upon the expiration or termination of the contract, upon the terms and conditions as each contract may provide or as may otherwise be agreed upon between the parties;

(E) That the state is not obligated for any costs, expenses, fees, or other charges associated with the development of the additional lodging units under this subsection or the operation and maintenance of the additional lodging units over time, including, but not limited to, costs associated with infrastructure improvements associated with development or operation of the additional lodging units. In his or her discretion, the director may engage professionals to assist the state in connection with its review and oversight of development of the additional lodging units;

(F) That at any time following the initial term and first renewal period of any lodging unit contract entered into with a private party with respect to an additional lodging unit that is constructed under this section, the state shall have the right and option, in its sole discretion, to purchase a lodging unit or lodging units in accordance with the provisions of this subsection and any and all contracts that may be entered into from time to time under this section;

(G) That the state may elect to purchase a lodging unit from a private party. If the private party is paid the fair value of the private party’s residual rights and privileges under the lodging unit contract, the residual rights and privileges to be valued generally in accordance with the valuation standards set forth in the National Park Service’s standard contract provisions, or other relevant federal agency standards applicable to similar or like contract rights and provisions as may be in existence at the time of transfer, all as the same may be considered relevant and appropriate by the director, and all in the exercise of the director’s reasonable discretion. Nothing in this section is intended or may be construed to impose an obligation on the state to purchase, buy, buy out or otherwise acquire or pay for any lodging unit under this section, or to limit the right and ability of a private party to donate or contribute his or her or its interest in and to any lodging unit constructed under this section to the state or any charitable foundation that may be established and operating from time to time to support the continued operation and development of Stonewall Jackson Lake State Park;

(H) That the state has no obligation whatsoever to purchase, buy, buy out or otherwise acquire or pay for any lodging unit that is developed or constructed under this section; and

(I) The director may review and approve the form and content of all contracts that may be entered into pursuant to this subsection in connection with the development, operation, and maintenance of additional lodging units at Stonewall Jackson Lake State Park.

(h) Any facilities constructed under the authority granted under this section must be in accordance with the purpose, powers, and duties of the Section of Parks and Recreation as provided by §20-5-3 of this code.

§20-5-17. Correlation of projects and services.

The director of the Division of Natural Resources shall correlate and coordinate park and recreation programs, projects and developments with the functions and services of other offices and sections of the division and other agencies of the state government so as to provide, consistent with the provisions of this chapter, suitable and adequate facilities, landscaping, personnel and other services at and about all state parks and public recreation facilities under his or her jurisdiction.

§20-5-18. Discounts for West Virginia residents over the age of sixty-two.

The director shall provide to West Virginia citizens who are sixty-two years of age or older, and who document residency and age by a valid West Virginia driver's license, a fifty percent reduction in campground rental fees for each campsite to be used exclusively by said eligible camper: Provided, That the fifty percent reduction in campground rental fees shall only apply to those rentals occurring during the period of time beginning on the day after Labor Day and ending four days prior to Memorial day.

§20-5-19. Discounts for West Virginia residents who are totally and permanently disabled.

The director shall issue a discount card to West Virginia residents who are totally and permanently disabled which would provide a fifty percent reduction in campground rental fees for each campsite to be used exclusively by the eligible camper: Provided, That in order to be eligible for the reduction, the person shall document that he or she is a resident of this state and that he or she has a total and permanent disability. The director shall promulgate rules in accordance with article three, chapter twenty-nine-a of this code setting forth the documentation which is necessary to prove residency and total and permanent disability: Provided, however, That the fifty percent reduction in campground rental fees applies only to those rentals occurring during the period of time beginning on the day after Labor Day and ending four days prior to Memorial Day.

§20-5-20.

Repealed.

Acts, 2010 Reg. Sess., Ch. 32.

§20-5-21. Legislative findings relating to the historical town of Cass; powers of the director to preserve the integrity of the town and to promulgate rules therefor.

(a) The Legislature finds:

(1) That preserving heritage is essential to promoting the education, prosperity and general welfare of the people of this state;

(2) That the town of Cass, in Pocahontas County, is one of the few remaining historical logging towns in the United States and has been recognized as such by the national registry of historic places;

(3) That the town of Cass is richly endowed with numerous historic buildings, structures and sites, both public and private, which are representative of the historical and cultural heritage of the State of West Virginia;

(4) That historic buildings, structures and sites in the town of Cass should be identified, studied, preserved and protected for the general welfare of the residents of this state and this nation;

(5) That preserving and protecting the historical buildings, structures and sites in the town of Cass will aid economic development in Pocahontas County and surrounding areas, lead to the improvement of property values, enhance this state's attraction of tourists and visitors and contribute to education in this state by preserving such heritage for future generations; and

(6) That it is in the public policy and the public interest of this state to engage in a comprehensive program of historic preservation within the area designated as the town of Cass by the national registry of historic places and to promote the use and preservation of such heritage for the education and general welfare of the people of this state.

Accordingly, this section shall be broadly construed in order to accomplish the purposes herein set forth.

(b) To carry out the purposes of this section within the jurisdictional limits of the town of Cass as designated by the national registry of historic places, the director may:

(1) Make a survey of buildings, structures and sites and designate as historic landmarks those principal buildings, structures and sites that are of local, regional, statewide or national historical or architectural significance;

(2) Mark buildings, structures and sites with appropriately designated markers with the consent of the property owners;

(3) Acquire by purchase, gift or lease and administer historic landmarks, buildings, structures and sites;

(4) Review applications for certificates of appropriateness and grant or deny the same in accordance with the provisions of this section;

(5) Establish standards for the care and management of designated historic landmarks, buildings, structures and sites and, for failure of the owner to maintain the standards as prescribed, withdraw any certificate of appropriateness;

(6) Seek the advice and assistance of individuals, groups and government entities that are conducting historical preservation programs and coordinate the same insofar as possible;

(7) Seek and accept grants, gifts, bequests, endowments or other funds to accomplish the purposes of this section; and

(8) Propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code for the protection of the historic integrity of the town of Cass and to effectuate the purposes of this section with regard to the use of lands both public and private within the town of Cass.

§20-5-22. Powers and duties of the director relating to oil and gas access roads on state forests.

(a) In addition to the requirements of article six, chapter twenty-two of this code, a party applying for the well work permit within a state forest shall publish a Class I-O legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code in a qualified newspaper at least sixty days prior to submitting an application with the Department of Environmental Protection. The notice shall state that the Division of Natural Resources will accept public comments prior to the party's application to the Department of Environmental Protection and shall give a postal address and an email address where the public may file comments.

(b) For all new oil and gas road construction proposed in subsection (a) of this section within state forests, written notice shall be provided to the Director, the Division of Forestry and the state Forest Superintendent by the party applying for the well work permit forty-five days before the application of the well work permit is filed with the Department of Environmental Protection.

(c) For routine maintenance of the access roads within the state forest, notice shall be provided to the Director, the Director of the Division of Forestry and the state Forest Superintendent by the well operator for maintenance of the well access road five days before the motorized equipment is to enter the state forest except in the event of an emergency.

(d) The Director of the Division of Natural Resources shall propose emergency and legislative rules in accordance with article three, chapter twenty-nine of this code in consultation with the Department of Environmental Protection and the Division of Forestry that set forth the conditions upon which the permittee may access the land for the purpose of well work in a state forest as permitted by law.

ARTICLE 5A. STATE PARKS AND RECREATION ENDOWMENT FUND.

§20-5A-1. Establishment of fund; deposits; expenditures; investments; use of fund for the State Parks Enhancement Loan Insurance Program.

(a) There is created in the office of the State Treasurer a special revenue account fund to be known as the West Virginia State Parks and Recreation Endowment Fund.

(b) The following shall be deposited into the fund:

(1) The royalties received from the leasing of state-owned gas, oil, and other mineral rights beneath the Ohio River and its tributaries; and

(2) The proceeds of any gifts, grants, contributions, or other moneys accruing to the state which are specifically designated for inclusion in the fund.

(c) Expenditures from the fund shall be for the purposes set forth in this section and are to be made in accordance with appropriation of the Legislature under the provisions of §12-3-1 et seq. of this code, and in compliance with the provisions of §11B-2-1 et seq. of this code: Provided, That income accruing from investments of the fund pursuant to this article shall be distributed or expended for either of the following purposes:

(1) Maintenance, repair, and improvement of any existing recreational facilities, including any supporting or related infrastructure and associated recreational features, all to provide uninterrupted enjoyment and public use of state parks, state forests, and state rail trails.

(2) Maintenance, repair, and procurement of any fixture, furnishing, and equipment necessary to provide uninterrupted enjoyment and public use of state parks, state forests, and state rail trails.

Repealed.

Acts, 1994 Reg. Sess., Ch. 61.

ARTICLE 5J. MEDICAL WASTE ACT.

§20-5J-1. Short title.

This article shall be known and cited as the "West Virginia Medical Waste Act."

§20-5J-2. Legislative findings and purpose.

The Legislature finds that the proper and environmentally-sound disposal of infectious and noninfectious medical waste is an important issue facing all West Virginians.

The Legislature further finds that effective controls for the management of medical waste are necessary to ensure the protection of the public health, safety and welfare, and the environment.

The Legislature further finds that regulation of the generation, handling, storage, transportation, treatment and disposal of medical waste is an important and necessary function of state government.

The Legislature further finds that toxic pollutants emitted by medical waste incinerators are an important public health hazard.

The Legislature further finds that commercial incineration of medical waste, and its transportation in the infectious state, pose a potentially serious threat to the health, safety and welfare of West Virginians.

The Legislature further finds that safe and cost-effective alternatives to the incineration of infectious and noninfectious medical waste should be encouraged.

The Legislature further finds that the public interest is best served by:

(1) Efforts to reduce the volume of medical waste generated at all levels;

(2) On-site separation and treatment of infectious medical waste;

(3) Treatment and disposal of infectious medical waste in local infectious medical waste management facilities; and

(4) Treatment and disposal in approved regional infectious waste management facilities when administrative proceedings result in a finding that on-site or local treatment of infectious medical waste is not feasible.

The Legislature further finds that local responsibility for the minimization in volume, and for the treatment and disposal of infectious and noninfectious medical waste is an important part of a sound and rational waste management program.

The Legislature further finds that small quantity generators of infectious medical waste should either render such waste noninfectious on-site, or properly label and package the waste for transportation to a local infectious waste management facility for proper treatment and disposal.

The Legislature further finds that generators of medical waste should be informed and educated in its management; that training should be provided to all workers likely to come in contact with medical waste, including in-home health care workers; and that relevant information on the potential for infection and disease related to medical waste should be made available to the general public, including in-home health care patients.

The Legislature further finds that the necessity for transporting infectious medical waste be minimized, and that any infectious medical waste transported be safely packaged and identified by source and content.

The Legislature further finds that public policy favors a reduction in the volume of infectious and noninfectious medical waste, the separation of infectious medical waste from noninfectious medical waste, and that efforts to reduce medical waste should be fostered and strongly encouraged at all levels of generation.

The Legislature further finds that noninfectious medical waste is solid waste.

The Legislature further finds that noninfectious medical waste should be handled by environmentally sound disposal technologies, and that alternative disposal technologies promoting safe recycling and limiting the need for incineration should be emphasized, developed and utilized.

Therefore, it is the policy of the State of West Virginia to prohibit commercial infectious medical waste facilities; to regulate and control the generation, handling, storage, transportation, treatment and disposal of infectious and noninfectious medical waste; to reduce the generation of infectious and noninfectious medical waste; to encourage local responsibility for the minimization, management and disposal of infectious and noninfectious medical waste; and to authorize the Department of Health to promulgate rules and regulations necessary to carry out the purposes of this article.

§20-5J-3. Definitions.

As used in this article:

(1) "Commercial infectious medical waste facility" means any infectious medical waste management facility at which thirty-five percent or more by weight of the total infectious medical waste stored, treated, or disposed of by said facility in any calendar year is generated off-site.

(2) "Disposal" means the discharge, deposit, injection, dumping, spilling, leaking or placing of any infectious medical waste into or on any land or water so that such waste, or any constituent thereof, may be emitted into the air, discharged into any waters, including groundwater, or otherwise enter into the environment.

(3) "Generator" means any person, by site location, whose act or process produces medical waste.

(4) "Hospital" means an institution which is primarily engaged in providing to inpatients, by or under the supervision of physicians, diagnostic and therapeutic services for medical diagnosis, treatment and care of injured, disabled or sick persons or services for the rehabilitation of injured, disabled or sick persons. This term also includes psychiatric and tuberculosis hospitals.

(5) "Infectious medical waste" means medical waste identified as capable of producing an infectious disease. Medical waste shall be considered capable of producing an infectious disease if it has been, or is likely to have been, contaminated by an organism likely to be pathogenic to healthy humans, if such organism is not routinely and freely available in the community, and such organism has a significant probability of being present in sufficient quantities and with sufficient virulence to transmit disease. For the purposes of this article, infectious medical waste shall include the following:

(A) Cultures and stocks of microorganisms and biologicals;

(B) Blood and blood products;

(D) Sharps;

(E) Animal carcasses, body parts, bedding and related wastes;

(F) Isolation wastes;

(G) Any residue or contaminated soil, water or other debris resulting from the cleanup of a spill of any infectious medical waste; and

(H) Any waste contaminated by or mixed with infectious medical waste.

(6) "Medical waste" means infectious and noninfectious solid waste generated in the course of the diagnosis, treatment or immunization of human beings or animals, or in research pertaining thereto, or in the production or testing of biologicals. Such term does not include low-level radioactive waste, any hazardous waste identified or listed under Subtitle C, or any household waste as defined in the regulations promulgated pursuant to Subtitle C.

(7) "Noncommercial infectious medical waste facility" means any infectious medical waste facility at which less than thirty-five percent by weight of the total infectious medical waste stored, treated or disposed of by said facility in any calendar year is generated off-site.

(8) "Noninfectious medical waste" means any medical waste not capable of producing an infectious disease or infectious medical waste which has been rendered noninfectious. Noninfectious medical waste is considered solid waste for purposes of this code.

(9) "Off-site" means a facility or area for the collection, storage, transfer, processing, treatment or disposal of infectious medical waste that is not on the generator's site, or a facility or area that received infectious medical waste for storage or treatment that has not been generated on-site.

(10) "On-site" means the same or geographically contiguous property which may be divided by a public or private right-of-way, provided the entrance and exit between the properties is at a crossroads intersection, and access is by crossing, as opposed to going along, the right-of-way. Noncontiguous properties owned by the same person but connected by a right-of-way controlled by said person and to which the public does not have access is also considered on-site property. Hospitals with more than one facility located in the same county shall be considered one site.

(11) "Secretary" means the secretary of the Department of Health or his or her designee.

(12) "Small quantity generator" means any generator of infectious medical waste who generates fifty pounds or less during a one-month period.

(13) "Storage" means the containment of infectious medical waste on a temporary basis. Storage shall not constitute disposal of the waste.

(14) "Subtitle C" means Subtitle C of the federal Resource Conservation and Recovery Act of 1976, 90 Stat. 2806, as amended.

(15) "Treatment" means any method, technique or process, including neutralization, designed to change the physical, chemical or biological character or composition of any infectious medical waste so as to render such waste noninfectious.

§20-5J-4. Commercial infectious medical waste facility prohibited.

It shall be unlawful to construct or operate a commercial infectious medical waste facility in the State of West Virginia: Provided, That the secretary may authorize an exception to this prohibition solely for facilities not utilizing incineration technology in any form, including the manufacture or burning of refuse derived fuel: Provided, however, That such an exception may be granted only following: (1) The promulgation of legislative rules, in accordance with the provisions of chapter twenty-nine-a of this code, containing guidelines for such an exception that are being fully consistent with the findings and purposes contained in section two of this article; (2) a public hearing on the record in the region affected by the proposed facility; (3) an investigation of the infectious medical waste stream in the region affected by the proposed facility; and (4) a determination that programs to minimize and reduce the infectious medical waste stream have been implemented.

§20-5J-5. Designation of Secretary of the Department of Health as the state infectious medical waste management primary agency; prohibitions; requiring permits.

(a) The secretary is designated as the infectious medical waste management primary agency for this state and is hereby authorized to take all action necessary or appropriate to secure to this state the benefits of this legislation pertaining to infectious medical waste. In carrying out the purposes of this article, the secretary is hereby authorized to cooperate with agencies of the federal government, this state and other states, and other interested persons, in all matters relating to medical waste management.

(b) No person may own, construct, modify, operate or close any facility or site for the treatment, storage or disposal of infectious medical waste, nor shall any person store, treat or dispose of any such infectious medical waste without first obtaining a permit from the secretary, unless specifically excluded or exempted by rules promulgated by the secretary.

§20-5J-6. Powers of secretary; authority to promulgate rules.

(a) The secretary shall promulgate legislative rules, in accordance with the provisions of chapter twenty-nine-a of this code, necessary to effectuate the findings and purposes of this article. Said rules shall include, but not be limited to, the following:

(1) A plan designed to encourage and foster reduction in the volume of infectious and noninfectious medical waste and the separation of infectious and noninfectious medical waste;

(2) Guidelines and procedures for the development and implementation of local infectious medical waste management plans, to be followed by all generators, that set forth proper methods for the management of infectious and noninfectious medical waste;

(3) Criteria for identifying the characteristics of infectious medical waste and identifying the characteristics of noninfectious medical waste;

(4) Standards applicable to generators of medical waste necessary to protect public health, safety and the environment, which standards shall establish requirements respecting:

(A) Record-keeping practices that accurately identify the quantities of infectious medical waste generated, the constituents thereof which are significant in quantity or in potential harm to human health or the environment, and the disposition of such waste;

(B) Labeling practices for containers used in the storage, transportation or disposal of infectious medical waste which will accurately identify such waste;

(D) Furnishing of information regarding the general composition of infectious medical wastes to persons transporting, treating, storing or disposing of such waste;

(E) Use of a manifest system and other reasonable means to assure that all infectious medical waste is designated for and arrives at treatment, storage or disposal facilities for which the secretary has issued permits, other than facilities on the premises where the waste is generated; and

(F) The submission of reports to the secretary, at such times as the secretary deems necessary, setting out the quantity of infectious medical waste generated during a particular time period, and the disposition of such infectious medical waste;

(5) Performance standards applicable to owners and operators of facilities for the treatment, storage or disposal of infectious medical waste necessary to protect public health and safety and the environment, which standards shall include, but need not be limited to, requirements respecting:

(A) Maintaining records of all infectious medical waste and the manner in which such waste was treated, stored or disposed of;

(B) Reporting, monitoring and inspection of and compliance with the manifest system referred to in subdivision (4), subsection (a) of this section;

(C) Treatment, storage or disposal of all infectious medical waste received by the facility pursuant to operating methods, techniques and practices as may be satisfactory to the secretary;

(D) The location, design and construction of infectious medical waste treatment, disposal or storage facilities;

(E) Contingency plans for effective action to minimize unanticipated damage from any treatment, storage or disposal of infectious medical waste;

(F) The maintenance or operation of such facilities and requiring additional qualifications as to ownership, continuity of operation, training for personnel and financial responsibility as may be necessary or desirable: Provided, That no private entity may be precluded by reason of criteria established under this subsection from the ownership or operation of facilities providing infectious medical waste treatment, storage or disposal services where such entity can provide assurances of financial responsibility and continuity of operation consistent with the degree and duration of risks associated with the treatment, storage or disposal of infectious medical waste; and

(G) Compliance with the requirements of this article respecting permits for treatment, storage or disposal;

(6) The terms and conditions under which the secretary shall issue, modify, suspend, revoke or deny permits required by this article. The legislative rules required by this subdivision shall be promulgated by August 1, 1991;

(7) Establishing and maintaining records; making reports; taking samples and performing tests and analyses; installing, calibrating, operating and maintaining monitoring equipment or methods; and providing any other information necessary to achieve the purposes of this article;

(8) Standards and procedures for the certification of personnel at infectious medical waste treatment, storage or disposal facilities or sites;

(9) Procedures for public participation in the implementation of this article;

(10) Procedures and requirements for the use of manifests during the transportation of infectious medical wastes;

(11) Procedures and requirements for the submission and approval of a plan by the owners or operators of infectious medical waste storage, treatment and disposal facilities, for closure of such facilities, post-closure monitoring and maintenance, and for both sudden and nonsudden accidental occurrences; and

(12) A schedule of fees to recover the costs of processing permit applications and renewals, training, enforcement, inspections and program development.

(b) The legislative rules required by subsection (a) shall be promulgated within six months after the effective date of this article.

(c) Within twelve months after the effective date of this article, the secretary shall conduct and publish a study of infectious medical waste management in this state which shall include, but not be limited to:

(1) A description of the sources of infectious medical waste generation within the state, including the types and quantities of such waste;

(2) A description of current infectious medical waste management practices and costs, including treatment, storage and disposal within the state; and

(3) An inventory of existing infectious medical waste treatment, storage and disposal sites.

(d) Any person aggrieved or adversely affected by an order of the secretary pursuant to this article, or by the denial or issuance of a permit, or the failure or refusal of said secretary to act within a reasonable time on an application for a permit or the terms or conditions of a permit granted under the provisions of this article, may appeal to a special hearing examiner appointed to hear contested cases in accordance with the provisions of chapter twenty-nine-a of this code. The secretary shall promulgate legislative rules establishing procedures for appeal and the conduct of hearings.

(e) In addition to those enforcement and inspection powers conferred upon the secretary elsewhere by law, the secretary has the enforcement and inspection powers as provided in sections seven, eight and nine of this article.

(f) Nothing in this section diminishes or alters the authority of the director of the Division of Environmental Protection under article five, chapter twenty-two of this code.

§20-5J-7. Inspections; right of entry; sampling; reports and analyses; subpoenas.

(a) The secretary, upon the presentation of proper credentials and at reasonable times, may enter any building, property, premises, place, vehicle or permitted facility where infectious medical wastes are or have been generated, treated, stored, transported or disposed of for the purpose of promptly investigating any person's compliance with the provisions of this article, legislative rules or permits issued by the secretary.

(b) The secretary shall make periodic inspections of every permitted facility as necessary to effectively implement and enforce the requirements of this article or the legislative rules promulgated by or permits issued by the secretary. After an inspection is made, a report shall be prepared and filed with the secretary. A copy of such inspection report shall be promptly furnished to the person in charge of such building, property, premises, place, vehicle or facility. All inspection reports shall be available to the public in accordance with the provisions of article one, chapter twenty-nine-b of this code.

(c) Whenever the secretary has cause to believe that any person is in violation of any provision of this article, any condition of a permit issued by the secretary, any order or any legislative rule promulgated by the secretary under this article, he shall immediately order an inspection of the building, property, premises, place, vehicle or permitted facility at which the alleged violation is occurring.

(d) Upon presentation of proper credentials and at reasonable times, the secretary may enter any establishment, building, property, premises, vehicle or other place maintained by any person where infectious medical waste is being or has been generated, transported, stored, treated or disposed of to inspect and take samples of waste and the contents of any containers. The division shall promptly provide a copy of any analysis to the owner, operator or agent in charge.

(e) Upon presentation of proper credentials and at reasonable times, the secretary shall be given access to all records relating to the generation, transportation, storage, treatment or disposal of infectious medical waste in the possession of any person who generates, stores, treats, transports, disposes of, or otherwise handles or has handled such waste. The secretary shall be furnished with copies of all such records or given the records for the purpose of making copies. If the secretary, upon inspection, investigation or through other means, observes or learns of a violation or probable violation of this article, he is authorized to issue subpoenas and subpoenas duces tecum and to order the attendance and testimony of witnesses and to compel the production of any books, papers, documents, manifests and other physical evidence pertinent to such investigation or inspection.

§20-5J-8. Enforcement orders; hearings.

(a) If the secretary, upon inspection, investigation or through other means observes, discovers or learns of a violation of the provisions of this article, any permit, order or legislative rules promulgated hereunder, he may:

(1) Issue an order stating with reasonable specificity the nature of the violation and requiring compliance immediately or within a specified time. An order issued under this section may suspend, revoke or modify permits, require a person to take remedial action, or require a person to cease and desist activities which violate the provisions of this article;

(2) Seek an injunction in accordance with subsection (b) of section nine of this article; or

(3) Institute a civil action in accordance with subsection (a) of section nine of this article.

(b) Any person who is subject to a cease and desist order may file a notice of request for reconsideration with the secretary within seven days of the issuance of the order. Within ten days of filing of the notice of a request for reconsideration, said person shall have a hearing before the secretary at which he may contest the terms and conditions of the cease and desist order. The filing of a notice of request for reconsideration shall not stay or suspend execution or enforcement of such cease and desist order.

§20-5J-9. Civil actions and injunctive relief.

(a) Any person who violates any provision of this article, any permit or any rule or order issued pursuant to this article shall be subject to a civil penalty not to exceed $25,000 for each day of such violation, which penalty shall be recovered in a civil action either in the circuit court of the county wherein the violation occurs or in the circuit court of Kanawha County.

(b) The secretary may seek an injunction, or may institute a civil action against any person who violates any provision of this article or any permit, legislative rule or order issued pursuant to this article. In seeking an injunction, it is not necessary for the secretary to post bond nor to allege or prove at any stage of the proceeding that irreparable harm will occur if the injunction is not issued or that there is no adequate remedy at law. A petition for an injunction filed pursuant to this section may be filed and relief granted notwithstanding the fact that all administrative remedies provided for in this article have not been exhausted or invoked against the person or persons against whom such relief is sought.

(c) At the request of the secretary, the Attorney General, or the prosecuting attorney of the county in which the violation occurs, shall assist the secretary in any civil action under this section.

(d) In any action brought pursuant to the provisions of this section, the state, or any agency of the state which prevails, may be awarded costs and reasonable attorney's fees.

§20-5J-10. Regulation of infectious medical waste collectors and haulers by the Public Service Commission; limitation of regulation.

(a) On and after July 1, 1991, collectors, haulers and transporters of infectious medical waste who are "common carriers by motor vehicle," as defined in section two, article one, chapter twenty-four-a of this code, shall be regulated by the Public Service Commission in accordance with the provisions of chapter twenty-four-a and rules promulgated thereunder. The rules of the Public Service Commission shall not conflict nor take precedence over the rules promulgated by the secretary.

(b) The commission shall provide a separate and distinct category of special certificates of convenience and necessity for infectious medical waste collectors, haulers and transporters regulated by this section: Provided, That within six months of the effective date of this article, the commission may issue such special certificates to existing common carriers of solid waste who are presently transporting infectious medical waste and who demonstrate that they are in compliance with the provisions of this article: Provided, however, That such common carriers need not make any additional demonstration of public convenience and necessity. Regulation of collectors, haulers and transporters of medical waste shall be separate and distinct from the regulation of solid waste collectors, haulers and transporters provided for in section twenty-three, article three, chapter twenty-two-c of this code.

(c) At any hearing conducted by the Public Service Commission pertaining to infectious medical waste collectors, haulers and transporters, the secretary may appear before the commission and present evidence.

ARTICLE 5K. COMMERCIAL INFECTIOUS MEDICAL WASTE FACILITY SITING APPROVAL.

§20-5K-1. Legislative purpose.

The purpose of this article is to provide the opportunity for public participation in the decision to locate commercial infectious medical waste management facilities.

§20-5K-2. Definitions.

Unless the context clearly requires a different meaning, as used in this article the terms:

(a) "Commercial infectious medical waste facility" means any infectious medical waste management facility at which thirty-five percent or more by weight of the total infectious medical waste stored, treated or disposed of by the facility in any calendar year is generated off-site.

(b) "Infectious medical waste" means medical waste identified as capable of producing an infectious disease. Medical waste shall be considered capable of producing an infectious disease if it has been, or is likely to have been, contaminated by an organism likely to be pathogenic to healthy humans, if such organism is not routinely and freely available in the community, and such organism has a significant probability of being present in sufficient quantities and with sufficient virulence to transmit disease. For the purposes of this article, infectious medical waste includes the following:

(1) Cultures and stocks of microorganisms and biologicals;

(2) Blood and blood products;

(3) Pathological wastes;

(4) Sharps;

(5) Animal carcasses, body parts, bedding and related wastes;

(6) Isolation wastes;

(7) Any residue or contaminated soil, water or other debris resulting from the cleanup of a spill of any infectious medical waste; and

(8) Any waste contaminated by or mixed with infectious medical waste.

(c) "Off-site" means a facility or area for the collection, storage, transfer, processing, treatment or disposal of infectious medical waste that is not on the generator's site, or a facility or area that received infectious medical waste for storage or treatment that has not been generated on-site.

(d) "Secretary" means the Secretary of the Department of Health or his or her designee.

§20-5K-3. Procedure for public participation.

(a) From and after the effective date of this article, in order to obtain approval to locate a commercial infectious medical waste facility, currently not under permit to operate, an applicant shall:

(1) File a presiting notice with the county commission and local solid waste authority of the county or counties in which the facility is to be located or proposed. Such notice shall be submitted on forms prescribed by the secretary;

(2) File a presiting notice with the secretary; and

(3) File a presiting notice with the Division of Environmental Protection.

(b) If a presiting notice is filed in accordance with subsection (a) of this section, the county commission shall publish a Class II legal advertisement in compliance with the provisions of §59-3-1 et seq. of this code, in a newspaper of general circulation in the counties wherein the commercial infectious medical waste facility is to be located. Upon an affirmative vote of the majority of the county commissioners or upon the written petition of registered voters residing in the county equal to not less than 15 percent of the number of votes cast within the county for Governor at the preceding gubernatorial election, which petition shall be filed with the county commission within 60 days after the last date of publication of the notice provided in this section, the county commission shall, upon verification of the required number of signatures on the petition, and not less than 56 days before the election, order a referendum be placed upon the ballot. Any referendum conducted pursuant to this section shall be held at the next primary or general election:

(1) Such referendum is to determine whether it is the will of the voters of the county that a commercial infectious medical waste management facility be located in the county. Any election at which such question of locating a commercial infectious medical waste management facility is voted upon shall be held at the voting precincts established for holding primary or general elections. All of the provisions of the general election laws, when not in conflict with the provisions of this article, apply to voting and elections hereunder, insofar as practicable. The Secretary of State shall prescribe the form of the petition which shall include the printed name, address, and date of birth of each person whose signature appears on the petition.

(2) The ballot, or the ballot labels where voting machines are used, shall have printed thereon substantially the following depending upon the type of facility to be located within the county:

Shall a commercial infectious medical waste management facility be located within ______________________ County.

[ ] For the facility

[ ] Against the facility

(Place a cross mark in the square opposite your choice.)

(a) The division’s law-enforcement policies, practices and programs are under the immediate supervision and direction of the division law-enforcement officer selected by the director and designated as chief natural resources police officer as provided in section thirteen, article one of this chapter.

(b) Under the supervision of the director, the chief natural resources police officer shall organize, develop and maintain law-enforcement practices, means and methods geared, timed and adjustable to seasonal, emergency and other needs and requirements of the division’s comprehensive natural resources program. All division personnel detailed and assigned to law-enforcement duties and services under this section shall be known and designated as natural resources police officers and are under the immediate supervision and direction of the chief natural resources police officer except as otherwise provided. All natural resources police officers shall be trained, equipped and conditioned for duty and services wherever and whenever required by division law-enforcement needs. The chief natural resources police officer may also assign natural resources police officers to perform law-enforcement duties on any trail, grounds, appurtenant facility or other areas accessible to the public within the Hatfield-McCoy Recreation Area, under agreement that the Hatfield-McCoy Regional Recreation Authority, created pursuant to article fourteen of this chapter, shall reimburse the division for salaries paid to the officers and shall either pay directly or reimburse the division for all other expenses of the officers in accordance with actual or estimated costs determined by the chief natural resources police officer.

(c) The chief natural resources police officer, acting under supervision of the director, is authorized to select and appoint emergency natural resources police officers for a limited period for effective enforcement of the provisions of this chapter when considered necessary because of emergency or other unusual circumstances. The emergency natural resources police officers shall be selected from qualified civil service personnel of the division, except in emergency situations and circumstances when the director may designate officers, without regard to civil service requirements and qualifications, to meet law-enforcement needs. Emergency natural resources police officers shall exercise all powers and duties prescribed in section four of this article for full-time salaried natural resources police officers except the provisions of subdivision (8), subsection (b) of said section.

(d) The chief natural resources police officer, acting under supervision of the director, is also authorized to select and appoint as special natural resources police officers any full-time civil service employee who is assigned to, and has direct responsibility for management of, an area owned, leased or under the control of the division and who has satisfactorily completed a course of training established and administered by the chief natural resources police officer, when the action is considered necessary because of law-enforcement needs. The powers and duties of a special natural resources police officer, appointed under this provision, is the same within his or her assigned area as prescribed for full-time salaried natural resources police officers. The jurisdiction of the person appointed as a special natural resources police officer, under this provision, shall be limited to the division area or areas to which he or she is assigned and directly manages.

(e) The Director of the Division of Forestry is authorized to appoint and revoke Division of Forestry special natural resources police officers who are full-time civil service personnel who have satisfactorily completed a course of training as required by the Director of the Division of Forestry. The jurisdiction, powers and duties of Division of Forestry special natural resources police officers are set forth by the Director of the Division of Forestry pursuant to article three of this chapter and articles one-a and one-b, chapter nineteen of this code.

(f) The chief natural resources police officer, with the approval of the director, has the power and authority to revoke any appointment of an emergency natural resources police officer or of a special natural resources police officer at any time.

(g) Natural resources police officers are subject to seasonal or other assignment and detail to duty whenever and wherever required by the functions, services and needs of the division.

(h) The chief natural resources police officer shall designate the area of primary residence of each natural resources police officer, including himself or herself. Since the area of business activity of the division is actually anywhere within the territorial confines of the State of West Virginia, actual expenses incurred shall be paid whenever the duties are performed outside the area of primary assignment and still within the state.

(i) Natural resources police officers shall receive, in addition to their base pay salary, a minimum biweekly subsistence allowance for their required telephone service, dry cleaning or required uniforms, and meal expenses while performing their regular duties in their area of primary assignment in the amount of $60 per biweekly pay. This subsistence allowance does not apply to special or emergency natural resources police officers appointed under this section.

(j) After June 30, 2010, all those full-time law-enforcement officers employed by the Division of Natural Resources as conservation officers shall be titled and known as natural resources police officers. Wherever used in this code the term “conservation officer”, or its plural, means “natural resources police officer”, or its plural, respectively.

(k) Notwithstanding any provision of this code to the contrary, the provisions of subdivision (6), subsection c, section twelve, article twenty-one, chapter eleven of this code are inapplicable to pensions of natural resources police officers paid through the Public Employees Retirement System.

§20-7-1a. Natural resources police officer salary increase based on length of service.

(a) Effective July 1, 2002, each natural resources police officer shall receive and be entitled to an increase in salary based on length of service, including that heretofore and hereafter served as a natural resources police officer as follows: For five years of service with the division, a natural resources police officer shall receive a salary increase of $600 per year payable during his or her next three years of service and a like increase at three-year intervals thereafter, with these increases to be cumulative. A salary increase shall be based upon years of service as of July 1 of each year and may not be recalculated until July 1 of the following year.

Conservation officers in service at the time the amendment to this section becomes effective shall be given credit for prior service and shall be paid salaries as the same length of service will entitle them to receive under the provisions hereof.

(b) This section does not apply to special or emergency natural resources police officers appointed under the authority of section one of this article.

§20-7-1b. Designation of certain federal law-enforcement officers as special natural resources police officers.

The Legislature finds that it is in the mutual interest of the department and certain land management agencies of the United States to cooperate in the enforcement of state statutes and regulations within and adjacent to units of the National Park System, National Forests and U.S. Army Corps of Engineers projects located within the State of West Virginia.

Accordingly, the director of the department of natural resources may enter into a written agreement with a federal agency providing for the appointment of employees of the federal agency as special natural resources police officers and setting forth the terms and conditions within which the federal employees may exercise the powers and duties of special natural resources police officers. The terms and conditions in the agreement shall grant a special natural resources police officer appointed pursuant to the agreement the same powers and duties as prescribed for a full-time salaried natural resources police officer of the department, but shall limit a special natural resources police officer in the exercise of his or her powers and duties to areas within the boundaries of the federal units to which the officer is assigned in his or her federal employment and to situations outside the boundaries of the federal units where the exercise is for the mutual aid of natural resources police officers as set forth in the agreement.

Any federal employee whose duties involve the enforcement of the criminal laws of the United States and who possesses a valid law-enforcement certification issued by a federal land management agency which certifies the meeting of requirements at least equivalent to the law-enforcement officer training requirements promulgated pursuant to article twenty-nine, chapter thirty of this code, may be certified under the provisions of said article twenty-nine and appointed as a special natural resources police officer under the provisions of this section. Any special natural resources police officer so appointed may not receive compensation or benefits from the state or any political subdivisions thereof for the performance of his or her duties as a special natural resources police officer.

§20-7-1c. Natural resources police officer, ranks, salary schedule, base pay, exceptions.

(a) Notwithstanding any provision of this code to the contrary, the ranks within the law-enforcement section of the Division of Natural Resources are colonel, lieutenant colonel, major, captain, lieutenant, sergeant, corporal, natural resources police officer first class, senior natural resources police officer, natural resources police officer and natural resources police officer-in-training. Each officer while in uniform shall wear the insignia of rank as provided by the chief natural resources police officer.

(b) Beginning on July 1, 2002, through June 30, 2011, Natural Resources Police Officers shall be paid the minimum annual salaries based on the following schedule:

ANNUAL SALARY SCHEDULE (BASE PAY)

SUPERVISORY AND NONSUPERVISORY RANKS

Natural Resources Police Officer In Training (first year until end of probation) $26,337

Natural Resources Police Officer (second year) $29,768

Natural Resources Police Officer (third year) $30,140

Senior Natural Resources Police Officer (fourth and

fifth year) $30,440

Senior Natural Resources Police Officer First Class

(after fifth year) $32,528

Senior Natural Resources Police Officer (after

tenth year) $33,104

Senior Natural Resources Police Officer (after

fifteenth year) $33,528

Corporal (after sixteenth year) $36,704

Sergeant $40,880

First Sergeant $42,968

Lieutenant $47,144

Captain $49,232

Major $51,320

Lieutenant Colonel $53,408

Colonel

Beginning July 1, 2011, and continuing thereafter, Natural Resources Police Officers shall be paid the minimum annual salaries based on the following schedule:

ANNUAL SALARY SCHEDULE (BASE PAY)

SUPERVISORY AND NONSUPERVISORY RANKS

Natural Resources Police Officer in Training (first

year until end of probation) $31,222

Natural Resources Police Officer (second year) $34,881

Natural Resources Police Officer (third year) $35,277

Senior Natural Resources Police Officer (fourth and

fifth year) $35,601

Senior Natural Resources Police Officer First Class

(after fifth year) $37,797

Senior Natural Resources Police Officer (after tenth

year) $38,397

Senior Natural Resources Police Officer (after

fifteenth year) $38,833

Corporal (after sixteenth year) $42,105

Sergeant $46,401

First Sergeant $48,549

Lieutenant $52,857

Captain $55,005

Major $57,153

Lieutenant Colonel $59,301

Colonel $66,000

Beginning July 1, 2017, the director may set additional annual compensation for Natural Resources Police Officers based on rank and length of service in addition to the minimum annual salaries provided in this section in an amount payable solely from the Law Enforcement Program Fund and the Special Revenue License Fund. Each Natural Resources Police Officer whose minimum salary is fixed and specified in the Annual Salary Schedule in this section is entitled to the length of service increases set forth in section one-a of this article.

In applying the salary schedules set forth in this section where salary increases are provided for length of service, Natural Resources Police Officers in service at the time the schedules become effective shall be given credit for prior service and shall be paid salaries the same length of service entitles them to receive under the provisions of this section.

(c) This section does not apply to special or emergency Natural Resources Police Officers appointed under the authority of section one of this article.

(d) Nothing in this section prohibits other pay increases as provided under section two, article five, chapter five of this code: Provided, That any across-the-board pay increase granted by the Legislature or the Governor, and any increase in the base pay for the ranks within the law-enforcement section authorized by the director, will be added to, and reflected in, the minimum salaries set forth in this section; and that any merit increases granted to an officer over and above the annual salary schedule listed in subsection (b) of this section are retained by an officer when he or she advances from one rank to another: Provided, however, That any Natural Resources Police Officer who receives an increase in compensation pursuant to the amendment and reenactment of this section in 2011 shall not receive any across-the-board pay increase granted by the Legislature or the Governor in 2011.

§20-7-1d. Awarding service weapon upon retirement; disposal of service weapon when replaced due to routine wear; and furnishing uniform for burial.

(a) Upon the retirement of any full-time salaried natural resources police officer, the chief natural resources police officer shall award to the retiring natural resources police officer his or her service weapon, without charge, upon determining:

(1) That the natural resources police officer is retiring honorably with at least 25 years of recognized law-enforcement service as determined by the chief natural resources police officer; or

(2) That the natural resources police officer is retiring with less than 25 years of service based upon a determination that he or she is totally physically disabled as a result of service with the division.

(b) Notwithstanding the provisions of §20-7-1d(a) of this code, the chief natural resources police officer may not award a service weapon to any natural resources police officer who has been declared mentally incompetent by a licensed physician or any court of law, or who, in the opinion of the chief natural resources police officer, constitutes a danger to any person or the community.

(c) The disposal of law-enforcement service weapons, when replaced due to routine wear, does not fall under the jurisdiction of the agency for surplus property, within the Purchasing Division of the Department of Administration. The chief natural resources police officer may offer these surplus weapons for sale to any active or retired Division of Natural Resources law-enforcement officer, at fair market value, with the proceeds from any sales used to offset the cost of the new weapons.

(d) Upon the death of any current or honorably retired natural resources police officer, the chief natural resources police officer shall, upon request of the deceased officer’s family, furnish a full uniform for burial of the deceased officer.

(e) Notwithstanding the foregoing, this section does not apply to weapons obtained through the federal donation program operated by the West Virginia State Agency for Surplus Property.

§20-7-1e. Natural resources police officers failure to perform duties; penalty; providing extraordinary law enforcement or security services by contract.

(a) Any natural resources police officer who demands or receives from any person, firm or corporation any money or other thing of value as a consideration for the performance of, or the failure to perform, his or her duties under the regulations of the chief natural resources police officer and the provisions of this section, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $25 nor more than $200, or confined in jail for not more than four months, or both fined and confined.

(b) Notwithstanding any other provision of this section to the contrary, the chief natural resources police officer may contract with the public, quasi-public, military or private entities to provide extraordinary law enforcement or security services by the Division of Natural Resources when it is determined by the chief natural resources police officer to be in the public interest. The chief natural resources police officer may assign personnel, equipment or facilities, and the division shall be reimbursed for the wages, overtime wages, benefits and costs of providing the contract services as negotiated between the parties. The compensation paid to natural resources police officers by virtue of contracts provided in this section shall be paid from a special account and are excluded from any formulation used to calculate an employee’s benefits. All requests for obtaining extraordinary law enforcement or security services shall be made to the chief natural resources police officer in writing and shall explain the funding source and the authority for making the request. No officer of the division is required to accept any assignment made pursuant to this subsection. Every officer assigned to duty hereunder shall be paid according to the hours and overtime hours actually worked notwithstanding that officer’s status as exempt personnel under the “Federal Labor Standards Act” or applicable state statutes. Every contract entered into under this subsection shall contain the provision that in the event of public disaster or emergency where the reassignment to official duty of the officer is required, neither the division nor any of its officers or other personnel are liable for any damages incurred as the result of the reassignment. Further, any entity contracting with the Division of Natural Resources or a Natural Resources Police Officer under this section shall also agree as part of that contract to hold harmless and indemnify the state, Division of Natural Resources and its personnel from any liability arising out of employment under that contract.

The director is authorized to propose legislative rules, subject to approval by the Legislature, in accordance with chapter twenty-nine-a of this code relating to the implementation of contracts entered into pursuant to this subsection: Provided, That the rules expressly prohibit private employment of officers in circumstances involving labor disputes. Notwithstanding any provision to this article to the contrary, an officer or member may contract to work for a private person or entity during his or her off duty hours: Provided, however, That any such contract work may not be a type prohibited by this code or the rules of the agency on locations and nature of security services provided.

§20-7-1f. Awarding service weapon to special natural resources police officers upon retirement; disposal of service weapon when replaced due to routine wear; furnishing uniform for burial.

(a) Upon the retirement of any special natural resources police officer selected and appointed pursuant to §20-7-1 of this code, the chief of the officer’s section shall award to the retiring special natural resources police officer his or her service weapon, without charge, upon determining:

(1) That the special natural resources police officer is retiring honorably with at least 25 years of recognized special law enforcement service as determined by the chief natural resources police officer; or

(2) That the special natural resources police officer is retiring with less than 25 years of service based upon a determination that he or she is totally physically disabled as a result of service with the division.

(b) Notwithstanding the provisions of §20-7-1f(a) of this code, the section chief may not award a service weapon to any special natural resources police officer who has been declared mentally incompetent by a licensed physician or any court of law, or who, in the opinion of the chief natural resources police officer constitutes a danger to any person or the community.

(c) Upon the death of any current or honorably retired special natural resources police officer, the respective chief shall, upon request of the deceased officer’s family, furnish a full uniform for burial of the deceased officer.

(d) The disposal of special natural resources police officer service weapons, when replaced due to routine wear, does not fall under the jurisdiction of the agency for surplus property, within the Division of Purchasing of the Department of Administration. The chief of the section of Parks and Recreation and the chief of the Wildlife Resources Section of the Division of Natural Resources may offer these surplus weapons for sale to any active or retired special natural resources police officer, at fair market value, with the proceeds from any sales used to offset the cost of the new weapon.

(e) Notwithstanding the foregoing, this section does not apply to weapons obtained through the federal donation program operated by the West Virginia State Agency for Surplus Property.

§20-7-2. Qualifications of natural resources police officers; right of retired officer to receive complete standard uniform; right of retired officer to acquire uniform; and right of retired officer to acquire badge.

In addition to civil service qualifications and requirements, persons selected as natural resources police officers shall have reached their eighteenth birthday at the time of appointment, be in good physical condition and of good moral character, temperate in habits and may not have been convicted of a felony. Whenever possible and practicable, preference in selection of natural resources police officers shall be given honorably discharged United States Military personnel. Each natural resources police officer, before entering upon the discharge of his or her duties, shall take and subscribe to the oath of office prescribed in article IV, section 5 of the Constitution of West Virginia, which executed oath shall be filed with the director.

The director shall prescribe the kind, style and material of uniforms to be worn by natural resources police officers. Uniforms and other equipment furnished to the natural resources police officers are and remain the property of the state, except as hereinafter provided in this section.

A natural resources police officer, upon honorable retirement, is authorized to maintain at his or her own cost a complete standard uniform from the law-enforcement agency of which he or she was a member, and shall be issued an identification card indicating his or her honorable retirement from the law-enforcement agency. The uniform may be worn by the officer in retirement only on the following occasions: Police Officer's Memorial Day, Law Enforcement Appreciation Day, at the funeral of a law-enforcement officer or during any other police ceremony. The honorably retired officer is authorized to acquire a badge of the law-enforcement agency from which he or she is retired with the word "retired" placed on it.

§20-7-3. Powers and duties of other law officers.

The sheriffs and constables of the several counties of the state, police officers of any city and members of the State Police are vested, within their respective jurisdictions, with all of the powers and authority of natural resources police officers without requirement of any additional oath or bond. Immediately upon making any arrest or executing any process under provisions of this chapter, each officer shall report thereon to the director.

§20-7-4. Powers and duties of natural resources police officers.

(a) Natural resources police officers and other persons authorized to enforce the provisions of this chapter are under the supervision and direction of the director in the performance of their duties.

(b) Natural resources police officers have statewide jurisdiction and have authority to:

(1) Arrest on sight, without warrant or other court process, any person or persons committing a criminal offense in violation of the laws of this state, in the presence of the officer, but no arrest may be made where any form of administrative procedure is prescribed by this chapter for the enforcement of the provisions of this chapter;

(2) Carry arms and weapons as may be prescribed by the director in the course and performance of their duties, but no license or other authorization is required for this privilege;

(3) Search and examine, in the manner provided by law, any boat, vehicle, automobile, conveyance, express or railroad car, fish box, fish bucket or creel, game bag or game coat or other place in which hunting and fishing paraphernalia, wild animals, wild birds, fish, amphibians or other forms of aquatic life could be concealed, packed or conveyed whenever they have reason to believe that they would thereby secure or discover evidence of the violation of the provisions of this chapter;

(4) Execute and serve a search warrant, notice or other process of law issued under the authority of this chapter or other law relating to wildlife, forests, and all other natural resources, by a magistrate or court having jurisdiction in the same manner, with the same authority and with the same legal effect as a sheriff;

(5) Require the operator of any motor vehicle or other conveyance on or about the public highways or roadways, or in or near the fields and streams of this state, to stop for the purpose of allowing the natural resources police officers to conduct game-kill surveys;

(6) Summon aid in making arrests or seizures or in executing warrants, notices or processes, in the same manner as sheriffs;

(7) Enter private lands or waters within the state while engaged in the performance of their official duties;

(8) Arrest on sight, without warrant or other court process, subject to the limitations set forth in subdivision (1) of this section, any person or persons committing a criminal offense in violation of any law of this state in the presence of the officer on any state-owned lands and waters and lands and waters under lease by the Division of Natural Resources and all national forest lands, waters and parks and U.S. Corps of Army Engineers' properties within the boundaries of the State of West Virginia and, in addition to the authority conferred in other subdivisions of this section, execute all arrest warrants on these state and national lands, waters and parks and U.S. Corps of Army Engineers' properties, consistent with the provisions of article one, chapter sixty-two of this code;

(9) Arrest any person who enters upon the land or premises of another without written permission from the owner of the land or premises in order to cut, damage or carry away, or cause to be cut, damaged or carried away, any timber, trees, logs, posts, fruit, nuts, growing plants or products of any growing plant. Any person convicted of cutting, damaging or carrying away or causing to be cut, damaged or carried away any timber, trees, logs, posts, fruits, nuts, growing plants or products of growing plants is liable to the owner in the amount of three times the value of the timber, trees, logs, posts, fruit, nuts, growing plants or products of any growing plant, in addition to and notwithstanding any other penalties by law provided by section thirteen, article three, chapter sixty-one of this code;

(10) Make a complaint in writing before any court or officer having jurisdiction, and procure and execute the warrant, when the officer knows or has reason to believe that a person has violated a law of this state. The actions of the natural resources police officer have the same force and effect as if made by a sheriff;

(11) Serve and execute warrants for the arrest of any person and warrants for the search of any premises, buildings, properties or conveyances issued by a properly constituted authority in the same manner, with the same authority, and with the same legal effect, as a sheriff; and

(12) Do all things necessary to carry into effect the provisions of this chapter.

§20-7-4a. Arrest procedure.

(a) Whenever a person is arrested for any violation of this chapter punishable as a misdemeanor and, such person is not immediately taken before a magistrate or court, the arresting officer shall prepare written notice to appear in court containing the name, address, date of birth, sex, hunting or fishing license number, if any, and social security number of such person, serial number or description of any property found in the possession of the person arrested and susceptible to use in committing the offense charged, if any, the offense charged and the time and place, when and where such person shall appear in court.

(b) The time specified in said notice to appear must be at least five days after such arrest unless the person arrested demands an earlier hearing.

(c) The place specified in said notice to appear must be before a magistrate or court within the county in which the offense charged is alleged to have been committed and who has jurisdiction of such offense.

(d) The arrested person in order to secure release, as provided in this section, must accept a copy of the written notice prepared by the arresting officer. The officer shall deliver a copy of the notice to the person promising to appear. Thereupon, said officer shall forthwith release the person arrested from custody.

§20-7-4b. Record of cases.

Every magistrate or judge of a court shall keep or cause to be kept a record of every complaint, or other legal form of charge, which alleges a violation of the provisions of this chapter or the rules and regulations promulgated thereunder, deposited with or presented to said court, and shall keep a record of every official action by said court in reference thereto, including, but not limited to, a record of every conviction, forfeiture of bail, judgment of acquittal and the amount of fine or forfeiture resulting from every said complaint or charge deposited with or presented to said court.

§20-7-5. Enforcement of chapter.

The director shall be charged with the duty and responsibility of enforcing the provisions of this chapter and to this end may call upon the Attorney General, the prosecuting attorneys of the several counties, the department of public safety and all other law-enforcement officers of the state. He shall have authority to compel compliance with and to prevent violations and threatened violations of any provisions of this chapter, lawful rules and regulations promulgated hereunder, and cease and desist orders issued pursuant hereto. He may invoke the processes of any court for coercive, remedial or preventive relief by injunction, mandamus or other appropriate proceedings.

§20-7-6. Prosecutions under chapter; attorney services; costs.

The director may cause complaints to be made and proceedings to be instituted and prosecuted against any violators of this chapter, without the sanction of the prosecuting attorney of the county wherein such proceedings are instituted, and in all such cases no security for costs shall be required of the director. In any unusual or emergency situation or case wherein a prosecuting attorney or the Attorney General may not be available to the director for legal services, the director may employ another attorney or other attorneys to represent the state in prosecutions and proceedings under provisions of this chapter and shall pay costs and fees for such services from department funds.

§20-7-7. Conspiracy to violate chapter; withholding information; obstructing officers.

Any person who shields or conspires with another in the commission of a violation of any of the provisions of this chapter, or who, upon inquiry, withholds information from enforcement officers, or who hinders, obstructs, interferes with, or impersonates, or attempts to hinder, obstruct, interfere with or impersonate an officer in the performance of his duties shall be guilty of a misdemeanor.

§20-7-8. Seizure and disposition of property used for illegal purpose.

(a) Any officer, when he or she arrests or otherwise takes a person into custody for violating any provision or provisions of this chapter, may take and impound any property found in the possession of the accused and susceptible of use in committing the offense of which the person is accused. The property includes firearms, fishing equipment, traps, boats, or any other device, appliance or conveyance, but does not include dogs. Reasonable care shall be provided in order to protect the condition of the item or items impounded.

(b) If the accused is acquitted the property seized shall be returned. If the accused is convicted and pays the fine, costs and other penalties, the property shall be returned, but if the accused fails to pay the fine and costs, the property shall be sold at public auction in a manner the director prescribes. The proceeds of the sale shall be applied toward the payment of the fine and costs. The remainder, if any, shall be paid to the owner of the seized property.

(c) Whenever a person is convicted of a violation of this chapter a second time, the property seized at the time of arrest shall in any case be declared forfeited to the state and shall be sold in the manner provided by this section.

(d) Property seized, the use of which is forbidden by this chapter, or which is unfit or unsafe for further use, shall be declared forfeited to the state and shall be disposed of by the director.

(e) Notwithstanding any provision of this section to the contrary, disposition of firearms not returned pursuant to subsection (b) above shall be solely in accordance with the provisions of article eight-a, chapter thirty-six of this code.

§20-7-9. Violations of chapter generally; penalties.

Any person violating any of the provisions of this chapter or rules promulgated under the provisions of this chapter, the punishment for which is not prescribed, shall be guilty of a misdemeanor and, upon conviction thereof, shall for each offense be fined not less than $20 nor more than $300, or confined in jail not less than 10 or more than 100 days, or be both fined and confined within the limitations aforesaid and, in the case of a violation by a corporation, every officer or agent thereof directing or engaging in such violation shall be guilty of a misdemeanor and, upon conviction thereof, shall be subject to the same penalties and punishment as herein provided: Provided, That any person violating §20-2-5(b), §20-2-7, §20-2-8, or §20-2-10 of this code shall be guilty of a misdemeanor and, upon conviction of a first offense thereof, shall be fined not less than $100 nor more than $500, or shall be confined for not less than 10 days nor more than 100 days, or both fined and confined. A person who is convicted of a second offense of violation of §20-2-5(b), §20-2-7, §20-2-8, or §20-2-10 of this code is guilty of a misdemeanor and shall be fined not less than $500 nor more than $1,000 or shall be confined for not less than 10 days nor more than 100 days, or both fined and confined. A person who is convicted of a third and subsequent offense of violation of §20-2-5(b), §20-2-7, §20-2-8, or §20-2-10 of this code is guilty of a misdemeanor, and shall be fined not less than $1,000 nor more than $1,500, or shall be confined for not less than 10 days nor more than 100 days, or both fined and confined: Provided, however, That any person who is in violation of §20-2-27 of this code as a result of their failure to have a valid Class E nonresident hunting and trapping license, as defined by §20-2-42d of this code, or a valid Class EE nonresident bear hunting license, as defined by §20-2-42e of this code, shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $250 nor more than $500, or confined in jail not less than 10 nor more than 100 days, or both fined and confined: Provided further, That any person who is in violation of §20-2-27 of this code as a result of their failure to have a Class F nonresident fishing license, as defined by §20-2-42f of this code, shall be guilty of a misdemeanor and, upon conviction thereof, fined not less than $100 nor more than $300 or confined in jail not less than 10 nor more than 100 days, or both fined and confined: And provided further, That any person violating any parking or speeding regulations as promulgated by the director on any state parks, state forests, public hunting and fishing areas, and all other lands and waters owned, leased, or under the control of the Division of Natural Resources shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $2 nor more than $100 or confined in jail not more than 10 days, or both fined and confined.

§20-7-10. Justice of peace jurisdiction under chapter.

Justices of the peace and all other courts established in lieu thereof or in supplementation thereto shall have jurisdiction of all misdemeanor offenses arising under the provisions of this chapter concurrent with the jurisdiction of circuit and other criminal courts.

§20-7-11. Motorboats and other terms defined.

As used in this section and subsequent sections of this article, unless the context clearly requires a different meaning:

(1) “Vessel” means every description of watercraft, other than a seaplane on the water, used or capable of being used as a means of transportation on water;

(2) “Motorboat” means any vessel propelled by an electrical, steam, gas, diesel, or other fuel propelled or driven motor, whether or not the motor is the principal source of propulsion, but does not include a vessel which has a valid marine document issued by the Bureau of Customs of the United States government or any federal agency successor thereto;

(3) “Owner” means a person, other than a lienholder, having the property in or title to a motorboat. The term includes a person entitled to the use or possession of a motorboat subject to an interest in another person, reserved or created by agreement and securing payment or performance of an obligation, but the term excludes a lessee under a lease not intended as security;

(4) “Commissioner” means the Commissioner of the Division of Motor Vehicles;

(5) “Director” means the Director of the Division of Natural Resources;

(6) “Personal watercraft” means a small vessel of less than 16 feet in length which uses an inboard motor powering a water jet pump as its primary source of motive power and which is designed to be operated by a person sitting, standing, or kneeling on the vessel, rather than the conventional manner of sitting or standing inside the vessel. For purposes of this article, the term “personal watercraft” also includes “specialty prop-crafts” which are vessels similar in appearance and operation to a personal watercraft but which are powered by an outboard motor or propeller driven motor; and

(7) “State of principal operation” means the state in whose waters a vessel is or will be used, operated, navigated, or employed more than on the waters of any other state during a calendar year.

§20-7-12. Motorboat identification numbers required; application for numbers; fee; displaying; reciprocity; change of ownership; conformity with United States regulations; records; renewal of certificate; transfer of interest, abandonment, etc.; change of address; unauthorized numbers; information to be furnished assessors.

Every motorboat, as defined in this section, operating upon public waters whose principal operation is within the territorial limits of this state shall be numbered as provided in this section:

(a) The owner of each motorboat requiring numbering by this state shall file an application for a number with the commissioner on forms approved by the Division of Motor Vehicles. The application shall be signed by the owner of the motorboat and shall be accompanied by the appropriate fee for a three-year registration period if the motorboat is propelled by a motor of three or more horsepower or 70 or more pounds of thrust. There is no fee for motorboats propelled by motors of less than three horsepower or less than 70 pounds of thrust. The fee schedule for a three-year registration period is as follows, and may be prorated by the commissioner for periods of less than three years:

(1) Class A motorboats less than 16 feet in length, $30;

(2) Class 1 motorboats 16 feet or over and less than 26 feet in length, $45;

(3) Class 2 motorboats 26 feet or over and less than 40 feet in length, $60; and

(4) Class 3 motorboats 40 feet in length or over, $75.

All fees, including those received under §20-7-12(b) of this code, shall be deposited in the State Treasury. All moneys deposited pursuant to this section and credited to the Division of Motor Vehicles and 50 percent of all fees collected thereafter shall be credited to the State Road Fund. The remaining 50 percent shall be credited to the Division of Natural Resources and shall be used and paid out upon order of the director solely for the enforcement and safety education of the state boating system.

Upon receipt of the application in approved form, the commissioner shall enter the application upon the records of the division and issue to the applicant a number awarded to the motorboat and the name and address of the owner. The owner shall paint on or attach to each side of the bow of the motorboat the identification number in the manner prescribed by rules of the commissioner in order that it is clearly visible. The owner shall maintain the number in legible condition. The certificate of number shall be pocket size and shall be available at all times for inspection on the motorboat for which it is issued, whenever the motorboat is in operation.

(b) To permit a motorboat sold to a purchaser by a dealer to be operated pending receipt of the certificate of number from the commissioner, the commissioner may deliver to dealers temporary certificates of number to in turn be issued to purchasers of motorboats, upon application by the dealer and payment of $1 for each temporary certificate. Every person who is issued a temporary certificate by a dealer shall, under the provisions of §20-7-12(a) of this code, apply for a certificate of number no later than 10 days from the date of issuance of the temporary certificate. A temporary certificate expires upon receipt of the certificate, upon rescission of the contract to buy the motorboat in question, or upon the expiration of 40 days from the date of issuance, whichever occurs first. It is unlawful for any dealer to issue any temporary certificate knowingly containing any misstatement of fact or knowingly to insert any false information on the face of the temporary certificate. The commissioner may by rule prescribe additional requirements upon the dealers and purchasers that are consistent with the effective administration of this section.

(c) The owner of any motorboat already covered by a number in full force and effect which has been awarded to it pursuant to then operative federal law or a federally approved numbering system of another state shall record the number prior to operating the motorboat on the waters of this state in excess of the 60-day reciprocity period provided for in 33 C.F.R. § 173.17 et seq. once its state of principal operation changes to the State of West Virginia. The recordation shall be in the manner and pursuant to procedure required for the award of a number under §20-7-12(a) of this code, except that the commissioner shall not issue an additional or substitute number.

(d) If the ownership of a motorboat changes, the new owner shall file a new application form with the required fee with the commissioner who shall award a new certificate of number in the same manner as provided for in an original award of number.

(e) If an agency of the United States government has in force an overall system of identification numbering for motorboats within the United States, the numbering system employed pursuant to this article by the Division of Motor Vehicles shall be in conformity with the federal system.

(f) The license is valid for a maximum period of three years. If at the expiration of that period ownership has remained unchanged, the commissioner shall, upon application and payment of the proper fee, grant the owner a renewal of the certificate of number for an additional three-year period.

(g) The owner shall furnish the commissioner notice of the transfer of any part of an interest, other than the creation of a security interest, in a motorboat numbered in this state pursuant to §20-7-12(a) and §20-7-12(b) of this code or of the destruction or abandonment of the motorboat within 15 days of the transfer of interest, destruction, or abandonment. The transfer, destruction, or abandonment shall terminate the certificate of number for the motorboat, except that in the case of a transfer of a part interest which does not affect the owner’s right to operate the motorboat, the transfer shall not terminate the certificate of number.

(h) Any holder of a certificate of number shall notify the commissioner within 15 days if his or her address no longer conforms to the address appearing on the certificate and shall, as a part of the notification, furnish the commissioner with his or her new address. The commissioner may provide by rule for the surrender of the certificate bearing the former address and its replacement with a certificate bearing the new address or for the alteration of an outstanding certificate to show the new address of the holder.

(i) An owner shall not paint, attach or otherwise display a number other than the number awarded to a motorboat or granted reciprocity pursuant to this article on either side of the bow of the motorboat.

(j) The commissioner shall on or before August 30 of each year forward to the assessor of each county a list of the names and addresses of all persons, firms, and corporations owning vessels and operating the vessels or other boats registered with the commissioner under the provisions of this article. In furnishing this information to each county assessor, the commissioner shall include information on the make and model of the vessels and other equipment required to be registered for use by the owner or operator of the boats under the provisions of this article: Provided, That the commissioner is not required to furnish the information to the assessor if the true and actual value of the vessel does not exceed $500 or the cost of the motor does not exceed $250.

(k) No person may operate an unlicensed motorboat upon any waters of this state without first acquiring a certificate of number or license as required by law.

§20-7-12a. Payment of personal property taxes prerequisite to application for certificate or renewal of number; duties of assessors; schedule of motorboat values.

Certificates of number and renewals therefor shall not be issued or furnished by the Division of Motor Vehicles, or any other officer charged with the duty, unless the applicant therefor furnishes the receipt hereinafter provided to show full payment of the personal property taxes for the current calendar year or the calendar year which immediately precedes the calendar year in which application is made on all motorboats which were listed with the Division of Motor Vehicles in the applicant's name on the tax day for the current or former calendar year or the division has received verification of full payment of personal property taxes by electronic means. If the applicant contends that any motorboat so listed was not subject to personal property taxation for that year, he or she shall furnish the information and evidence as the Commissioner of Motor Vehicles may require to substantiate his or her contention.

The assessor shall require any person having a duty to make a return of property for taxation to him or her to furnish information identifying each motorboat subject to the numbering provisions of this article. When the property taxes on the motorboat have been paid, the officer to whom the payment was made shall deliver to the person paying the taxes a written or printed receipt therefor and shall retain for his or her records a duplicate of the receipt. The assessor and sheriff, respectively, shall see that the assessment records and the receipts contain information adequately identifying the motorboat as registered under the provisions of this article. The officer receiving payment shall sign each receipt in his or her own handwriting.

The assessors shall commence their duties hereunder during the tax year 1989 and the Division of Motor Vehicles shall commence its duties hereunder as of January 1, 1990.

The State Tax Commissioner shall annually compile a schedule of motorboat values, based on the lowest values shown in a nationally accepted used motorboat guide, which schedule shall be furnished to each assessor and shall be used by him or her as a guide in placing the assessed values on all motorboats in his or her county.

§20-7-12b. Boating safety education certificate.

(a) Except as otherwise provided in subsection (c) of this section, beginning on January 1, 2001, no person born on or after December 31, 1986, may operate a motorboat or personal watercraft on any waters of this state without first having obtained a certificate of boating safety education from this or any other state, which certificate was obtained by satisfactorily completing a course of instruction in boating safety education administered by the United States coast guard auxiliary; the United States power squadron; the West Virginia Division of Natural Resources; any person certified to teach the course administered by West Virginia natural resources boating safety education section personnel; or any person authorized to teach the course prescribed by the national association of state boating law administrators in this or any other state.

(b) Any person who is subject to subdivision (a) of this section shall possess the certificate of boating safety education when operating a motorboat or personal watercraft on the waters of this state and shall show the certificate on demand of any West Virginia natural resources police officers or other law-enforcement officer authorized to enforce the provisions of this chapter.

(1) A person who is a nonresident of this state and who is visiting the state for sixty days or less in a motorboat or personal watercraft from another state if that person:

(A) Is fifteen years of age or older; and

(B) Has been issued a boating safety education certificate by his or her state of residence in accordance with the criteria recommended by the national association of state boating law administration.

(2) A person who is visiting the state for ninety days or less in a motorboat or personal watercraft from a country other than the United States;

(3) A person who is operating a motorboat or personal watercraft in connection with commercial purposes; and

(4) A person who is operating a motorboat or personal watercraft which was purchased by the person within the previous forty-five-day period and who has not been previously charged with a violation of any provision of this chapter involving the use or registration of a motorboat or personal watercraft.

(d) The division shall issue a certificate of boating safety education to a person who:

(1) Passes any course prescribed in subsection (a) of this section; or

(2) Passes a boating safety equivalency examination administered by persons authorized to administer a boating safety education course as outlined in subsection (a) of this section. Upon request, the division shall provide, without charge, boating safety education materials to persons who plan to take the boating safety equivalency examination.

(e) No person who owns a motorboat or personal watercraft or who has charge over a motorboat or personal watercraft may authorize or knowingly permit it to be operated in violation of subsection (a) of this section.

(f) The provisions of subsection (a) of this section may only be enforced as a secondary action when the officer detains an operator of a motorboat or personal watercraft upon probable cause of a violation of another provision of this code or rules adopted in accordance with the code. A person may not be taken immediately to a court or detention facility solely for a violation of subsection (a) of this section.

§20-7-13. Motorboat classification; required lights and equipment; rules and regulations; pilot rules.

(a) Vessels on the waters of this state are subject to lighting requirements, equipment requirements, and pilot and navigation rules, as contained in the federal navigation laws and rules promulgated by the United States Coast Guard pursuant to 33 C.F.R. Subchapter E et seq. Inland Navigation Rules, as authorized by 46 U.S.C. §4302.

(b) Vessels on the waters of this state are subject to ventilation requirements as contained in federal navigation laws and rules promulgated by the United States Coast Guard pursuant to 46 C.F.R. §25.40 et seq., as authorized by 6 U.S.C. §4302.

(c) The director may promulgate rules in accordance with the provisions of §29A-3-1 et seq. of this code modifying the equipment requirements contained in this section to the extent necessary to keep these requirements in conformity with the provisions of the federal navigation laws or with the navigation rules promulgated by the United States Coast Guard.

(d) The director may promulgate rules in accordance with the provisions of §29A-3-1 et seq. of this code, pilot rules in conformity with the pilot rules contained in the federal navigation laws, or the navigation rules promulgated by the United States Coast Guard for the operation of vessels on the waters of this state.

(e) No person shall operate or give permission for the operation of a vessel which is not equipped as required by this section or modification thereof.

§20-7-14. Motorboats exempt from numbering.

A motorboat shall not be required to be numbered under this article if it is:

(1) Already covered by a number in full force and effect which has been awarded to it pursuant to federal law or a federally approved numbering system of another state: Provided, That the boat shall be registered in the state of principal operation;

(2) A motorboat from a country other than the United States temporarily using the waters of this state; or

(3) A motorboat used exclusively for racing while participating in races, and the preparation therefor, which have been authorized pursuant to the provisions of §20-7-20 of this code.

§20-7-15. Dealers' and manufacturers' certificate of number; applications and fees.

Dealers' and manufacturers' certificate of number, containing the word "manufacturer" or "dealer," as appropriate, may be used in connection with the operation of any motorboat in the possession of such dealer or manufacturer, when the boat is being used for demonstrative purposes. Application for a dealer's or manufacturer's certificate of number shall be made upon a form provided by the commissioner and shall contain such information as may be required by the commissioner. Upon receipt of the application and upon payment of a fee of $5 for the initial certificate of number, and $5 for each additional certificate of number, the commissioner shall issue to the applicant a manufacturer's or dealer's certificate of number which shall contain the word "manufacturer" or "dealer" in lieu of a description of the boat. The manufacturer or dealer may have the number awarded to him printed upon or attached to a removable sign or signs to be temporarily but firmly mounted upon or attached to the boat being demonstrated, so long as the display meets the requirements of the provisions of this article and regulations issued hereunder.

§20-7-16. Boat liveries.

(a) The owner or operator of a boat livery or rental facility shall cause to be kept a record of the name and address of the person or persons hiring any vessel including personal watercrafts which is designed or permitted by him or her to be operated as a motorboat, identification number thereof, and the departure date and time, and the expected time of return. The record shall be preserved for at least six months.

(b) Neither the owner or operator of a boat livery or rental facility, nor his or her agent or employee, shall permit any motorboat, personal watercraft or any vessel designed or permitted by him or her to be operated as a motorboat or personal watercraft to depart from his or her premises unless it shall have been provided, either by owner or renter, with the equipment required pursuant to section thirteen of this article and any rules made pursuant thereto.

(c) The owner or operator of a boat livery or rental facility, or his or her agent or employee, shall provide boating safety orientation for all persons that rent any vessel, including personal watercrafts, unless that person holds a certificate as required by section twelve-b, article seven of this chapter. The owner of a boat livery or rental facility, or his or her agent or employee, shall also provide to the operator or operators in print, prior to rental, the operational characteristics of personal watercrafts.

(d) The owner or operator of a boat livery or rental facility, or his or her agent or employee, may not lease, hire or rent a personal watercraft to any person under eighteen years of age.

(e) The owner or operator of a boat livery or rental facility, or his or her agent or employee, shall provide to the operator or operators of rental vessels, boats or personal watercrafts, in print, all pertinent boating rules including, but not limited to, those rules that may be peculiar to the area of the rental, such as no-wake zones, restricted areas, channel markers, water hazard markers and swimming zones.

(f) The owner or operator of a boat livery or rental facility shall carry liability insurance of at least $300,000 and possess the license and surety bond as required by section twenty-three-d, article two of this chapter.

§20-7-17. Motorboat muffling.

The exhaust of every internal combustion engine used on any motorboat shall be effectively muffled by equipment so constructed and used as to muffle the noise of the exhaust in a reasonable manner. The use of cutouts is prohibited, except for motorboats competing in a regatta or boat race approved as provided in section twenty of this article, and for such motorboats while on trial runs during a period not to exceed seventy-two hours immediately preceding such regatta or race, and for such motorboats while competing in official trials for speed records during a period not to exceed seventy-two hours immediately following such regatta or race.

§20-7-18. Care in handling watercraft; duty to render aid after a collision, accident, or casualty; accident reports.

(a) No person shall operate a motorboat, jet ski, or other motorized vessel or manipulate any water skis, surfboard, or similar device in a reckless or negligent manner so as to endanger the life, limb, or property of any person.

(b) No person shall operate any motorboat, jet ski, or other motorized vessel, or manipulate any water skis, surfboard, or similar device while under the influence of alcohol or a controlled substance or drug, under the combined influence of alcohol and any controlled substance or any other drug, or while having an alcohol concentration in his or her blood of eight hundredths of one percent or more, by weight.

(c) The operator of a vessel involved in a collision, accident, or other casualty, so far as he or she can do so without serious danger to his or her own vessel, crew, and any passengers, to render to other persons affected by the collision, accident, or other casualty such assistance as may be practicable and as may be necessary in order to save them from or minimize any danger caused by the collision, accident, or other casualty. The operator shall also give his or her name, address, and identification of his or her vessel in writing to any person injured and to the owner of any property damaged in the collision, accident, or other casualty.

(d) The operator of a vessel involved in a collision, accident, or other casualty shall file an accident report with the director if the incident results in a loss of life, in a personal injury that requires medical treatment beyond first aid or in excess of $2,000 damage to a vessel or other property. The report shall be made on such forms and contain information as prescribed by the director. Upon a request duly made by an authorized official or agency of the United States, any information compiled or otherwise available to the director pursuant to this subsection shall be transmitted to the official or agency.

§20-7-18a. Negligent homicide; penalties.

(a) When the death of any person ensues within one year as a proximate result of injury received by operating any motorboat, jet ski or other motorized vessel anywhere in this state in reckless disregard of the safety of others, the person so operating the motorboat, jet ski or other motorized vessel is guilty of negligent homicide.

(b) Any person convicted of negligent homicide shall be punished by imprisonment in the county or regional jail for not more than one year or by fine of not less than $100 nor more than $1,000, or by both fine and imprisonment.

(c) The director shall suspend the privilege to operate a motorboat or other motorized vessel in this state for a period of five years from the date of conviction.

§20-7-18b. Operating under influence of alcohol, controlled substances or drugs; penalties.

(a) Any person who:

(1) Operates a motorboat, jet ski or other motorized vessel in this state while:

(A) He or she is under the influence of alcohol; or

(B) He or she is under the influence of any controlled substance; or

(D) He or she is under the combined influence of alcohol and any controlled substance or any other drug; or

(E) He or she has an alcohol concentration in his or her blood of eight hundredths of one percent or more, by weight; and

(3) Commits the act or failure in reckless disregard of the safety of others, and when the influence of alcohol, controlled substances or drugs is shown to be a contributing cause to the death, is guilty of a felony and, upon conviction thereof, shall be imprisoned in the state correctional facility for not less than one nor more than ten years and shall be fined not less than $1,000 nor more than $3,000.

(b) Any person who:

(1) Operates a motorboat, jet ski or other motorized vessel in this state while:

(A) He or she is under the influence of alcohol; or

(B) He or she is under the influence of any controlled substance; or

(D) He or she is under the combined influence of alcohol and any controlled substance or any other drug; or

(E) He or she has an alcohol concentration in his or her blood of eight hundredths of one percent or more, by weight; and

(2) When so operating does any act forbidden by law or fails to perform any duty imposed by law in the operating of the motorboat, jet ski or other motorized vessel, which act or failure proximately causes the death of any person within one year next following the act or failure, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail for not less than ninety days nor more than one year and shall be fined not less than $500 nor more than $1,000.

(1) Operates a motorboat, jet ski or other motorized vessel in this state while:

(A) He or she is under the influence of alcohol; or

(B) He or she is under the influence of any controlled substance; or

(D) He or she is under the combined influence of alcohol and any controlled substance or any other drug; or

(E) He or she has an alcohol concentration in his or her blood of eight hundredths of one percent or more, by weight; and

(2) When so operating does any act forbidden by law or fails to perform any duty imposed by law in the operating of the motorboat, jet ski or other motorized vessel, which act or failure proximately causes bodily injury to any person other than himself or herself, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail for not less than one day nor more than one year, which jail term shall include actual confinement of not less than twenty-four hours, and shall be fined not less than $200 nor more than $1,000.

(d) Any person who:

(1) Operates a motorboat, jet ski or other motorized vessel in this state while:

(A) He or she is under the influence of alcohol; or

(B) He or she is under the influence of any controlled substance; or

(D) He or she is under the combined influence of alcohol and any controlled substance or any other drug; or

(E) He or she has an alcohol concentration in his or her blood of eight hundredths of one percent or more, by weight;

(2) Is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail for not less than one day nor more than six months, which jail term shall include actual confinement of not less than twenty-four hours, and shall be fined not less than $100 nor more than $500.

(e) Any person who, being an habitual user of narcotic drugs or amphetamine or any derivative thereof, operates a motorboat, jet ski or other motorized vessel in this state, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail for not less than one day nor more than six months, which jail term shall include actual confinement of not less than twenty-four hours, and shall be fined not less than $100 nor more than $500.

(f) Any person who:

(1) Knowingly permits his or her motorboat, jet ski or other motorized vessel to be operated in this state by any other person who is:

(A) Under the influence of alcohol; or

(B) Under the influence of any controlled substance; or

(D) Under the combined influence of alcohol and any controlled substance or any other drug; or

(E) Has an alcohol concentration in his or her blood of eight hundredths of one percent or more, by weight;

(2) Is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail for not more than six months and shall be fined not less than $100 nor more than $500.

(g) Any person who knowingly permits his or her motorboat, jet ski or other motorized vessel to be operated in this state by any other person who is an habitual user of narcotic drugs or amphetamine or any derivative thereof, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail for not more than six months and shall be fined not less than $100 nor more than $500.

(h) Any person under the age of twenty-one years who operates a motorboat, jet ski or other motorized vessel in this state while he or she has an alcohol concentration in his or her blood of two hundredths of one percent or more, by weight, but less than eight hundredths of one percent, by weight, shall, for a first offense under this subsection, be guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $25 nor more than $100. For a second or subsequent offense under this subsection, the person is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail for twenty-four hours, and shall be fined not less than $100 nor more than $500.

A person arrested and charged with an offense under the provisions of subsection (a), (b), (c), (d), (e), (f), (g) or (i) of this section may not also be charged with an offense under this subsection arising out of the same transaction or occurrence.

(i) Any person who:

(1) Operates a motorboat, jet ski or other motorized vessel in this state while:

(A) He or she is under the influence of alcohol; or

(B) He or she is under the influence of any controlled substance; or

(D) He or she is under the combined influence of alcohol and any controlled substance or any other drug; or

(E) He or she has an alcohol concentration in his or her blood of eight hundredths of one percent or more, by weight; and

(2) The person when so operating has on or within the motorboat, jet ski or other motorized vessel one or more other persons who are unemancipated minors who have not reached their sixteenth birthday, shall be guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail for not less than two days nor more than twelve months, which jail term shall include actual confinement of not less than forty-eight hours, and shall be fined not less than $200 nor more than $1,000.

(j) A person violating any provision of subsection (b), (c), (d), (e), (f), (g) or (i) of this section, for the second offense under this section, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail for a period of not less than six months nor more than one year, and the court may, in its discretion, impose a fine of not less than $1,000 nor more than $3,000.

(k) A person violating any provision of subsection (b), (c), (d), (e), (f), (g) or (i) of this section shall, for the third or any subsequent offense under this section, be guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than one nor more than three years, and the court may, in its discretion, impose a fine of not less than $3,000 nor more than $5,000.

(l) For purposes of subsections (j) and (k) of this section relating to second, third and subsequent offenses, the following types of convictions shall be regarded as convictions under this section:

(1) Any conviction under the provisions of subsection (a), (b), (c), (d), (e) or (f) of this section for an offense which occurred on or after the effective date of this section;

(2) Any conviction under the provisions of subsection (a) or (b) of this section for an offense which occurred within a period of five years immediately preceding the date of the offense; and

(3) Any conviction under a municipal ordinance of this state or any other state or a statute of the United States or of any other state of an offense which has the same elements as an offense described in subsection (a), (b), (c), (d), (e), (f) or (g) of this section, which offense occurred after the effective date of this section.

(m) A person may be charged in a warrant or indictment or information for a second or subsequent offense under this section if the person has been previously arrested for or charged with a violation of this section which is alleged to have occurred within the applicable time periods for prior offenses, notwithstanding the fact that there has not been a final adjudication of the charges for the alleged previous offense. The warrant or indictment or information shall set forth the date, location and particulars of the previous offense or offenses. No person may be convicted of a second or subsequent offense under this section unless the conviction for the previous offense has become final.

(n) The fact that any person charged with a violation of subsection (a), (b), (c), (d) or (e) of this section, or any person permitted to operate as described under subsection (f) or (g) of this section, is or has been legally entitled to use alcohol, a controlled substance or a drug shall not constitute a defense against any charge of violating subsection (a), (b), (c), (d), (e), (f) or (g) of this section.

(o) For purposes of this section, the term "controlled substance" shall have the meaning ascribed to it in chapter sixty-a of this code.

(p) The sentences provided herein upon conviction for a violation of this article are mandatory and may not be subject to suspension or probation: Provided, That the court may apply the provisions of article eleven-a, chapter sixty-two of this code to a person sentenced or committed to a term of one year or less. An order for home detention by the court pursuant to the provisions of article eleven-b of said chapter may be used as an alternative sentence to any period of incarceration required by this section.

§20-7-18c. Implied consent to test; administration at direction of law-enforcement officer.

Any person who operates a motorboat, jet ski or other motorized vessel in this state shall be deemed to have given his or her consent by the operation thereof, to a preliminary breath analysis and a secondary chemical test of either his or her blood, breath or urine for the purposes of determining the alcoholic content of his or her blood. A preliminary breath test and the secondary chemical test of blood, breath or urine and the results of the tests may be designated, administered, processed, interpreted and used in the same manner as tests designated and administered in accordance with the provisions of article five, chapter seventeen-c of this code.

§20-7-18d. Operation of personal watercrafts.

(a) No person under the age of 15 may operate a personal watercraft on the waters of this state: Provided, That a person that has attained the age of 12 may operate a personal watercraft if a person 18 years of age or older is aboard the personal watercraft.

(b) A person may not operate a personal watercraft unless each person on board or being towed behind is wearing a personal flotation device defined and approved by the United States Coast Guard pursuant to 33 C.F.R. §175.13 2014 et seq. as authorized by 46 U.S.C. §4302. Inflatable personal flotation devices do not meet the requirements of this section.

(c) A person operating a personal watercraft equipped by the manufacturer with a lanyard-type engine cutoff switch must attach the lanyard to his or her person, clothing, or personal flotation device as appropriate for the specific vessel.

(d) A person may not operate a personal watercraft at any time between the hours of sunset and sunrise. However, an agent or employee of a fire rescue, emergency rescue unit, or law-enforcement division is exempt from this subsection while performing his or her official duties.

(e) A personal watercraft must at all times be operated in a reasonable and prudent manner. Maneuvers which unreasonably or unnecessarily endanger life, limb, or property constitute reckless operation of a vessel and include, but are not limited to:

(1) Weaving through congested traffic;

(2) Jumping the wake of another vessel unreasonably or unnecessarily close to the other vessel or when visibility around the other vessel is obstructed or restricted;

(3) Becoming airborne or completely leaving the water while crossing the wake of another vessel within 100 feet of the vessel creating the wake;

(4) Operating at a greater than slow or no-wake speed within 100 feet of an anchored or moored vessel, shoreline, dock, pier, swim float, marked swim areas, swimmers, surfers, persons engaged in angling, or any manually powered vessel;

(5) Operating contrary to navigation rules including following too closely to another vessel, including another personal watercraft. For the purpose of this subdivision, “following too closely” is construed as a proceeding in the same direction and operating at a speed in excess of 10 miles per hour within 100 feet to the rear or 50 feet to the side of another vessel which is underway, unless said vessels are operating in a narrow channel, in which case the personal watercraft may operate at the speed and flow of the other vessel traffic within the channel.

§20-7-19. Water skiing and surfboarding.

(a) No person shall operate a vessel on any waters of this state towing a person or persons on water skis, surfboard, or similar device, nor shall any person engage in water skiing, surfboarding, or similar activity between sunset and sunrise.

(b) The provisions of §20-7-19(a) of this code do not apply to a performer engaged in a professional exhibition or a person or persons engaged in an activity authorized under §20-7-20 of this code.

(c) No person shall operate or manipulate any vessel, tow rope, or other device by which the direction or location of water skis, surfboard, or similar device may be affected or controlled in such a way as to cause water skis, surfboard, or similar device, or any person thereon, to collide with or strike against any object or person.

§20-7-19a. Towing water skiers and towables.

(a) No person may operate a personal watercraft towing another person on water skis or other towables unless the personal watercraft has, on board, in addition to the operator, a rear-facing observer, who monitors the progress of the person or persons being towed. This rear-facing observer must be at least twelve years of age.

(b) No person may operate a personal watercraft towing another person on water skis or other towables unless the total number of persons operating, observing and being towed does not exceed the specified number of passengers as identified by the manufacturer as the maximum safe load for the vessel.

§20-7-20. Regattas, races and exhibitions; applications and permits.

(a) The department may authorize the holding of regattas, motorboat or other boat races, marine parades, tournaments or exhibitions on any waters of this state. It shall adopt and may from time to time amend regulations concerning the safety of motorboats and other vessels and persons thereon, either observers or participants. Whenever a regatta, motorboat or other boat race, marine parade, tournament or exhibition is proposed to be held, the person in charge thereof, shall, at least fifteen days prior thereto, file an application with the director for permission to hold such regatta, motorboat or other boat race, marine parade, tournament or exhibition. The application shall set forth the date, time and location where it is proposed to hold such regatta, motorboat or other boat race, marine parade, tournament or exhibition, and it shall not be conducted without authorization of the director in writing.

(b) The provisions of this section shall not exempt any person from compliance with the applicable federal law or regulation, but nothing contained herein shall be construed to require the securing of a state permit pursuant to this section if a permit therefor has been obtained from an authorized agency of the United States.

§20-7-20a. Personal watercraft operation and towing exemptions.

(a) The provisions of sections eighteen-d and nineteen-a do not apply to a performer engaged in a professional exhibition or a person engaging in an officially sanctioned regatta, race, marine parade, tournament, exhibition, or water safety demonstration.

(b) The provisions of sections eighteen-d and nineteen-a do not apply to a person who holds a valid master's, mate's, or operator's license issued by the United States Coast Guard while performing his or her official duties.

§20-7-21. Responsibility of owner, etc., for incapable operators of motorboats.

No person who is the owner of any motorboat, or has such in his charge or control, shall act or permit the same to be operated by any person who, by reason of any physical or mental disability, is incapable of operating such motorboat under all the prevailing circumstances.

§20-7-22. General rules and regulations for motorboating; special rules.

The director is hereby authorized and empowered to prescribe and to enforce:

(a) General rules and regulations to be observed in the operation or navigation of motorboats upon, over or through the waters of this state which he shall deem necessary for the public health or safety of persons or property on or in such waters, or for the preservation of all forms of useful aquatic life, particularly as to speed, running, lights, signals, courses, channels, rights-of-way, and the disposal of oil, gas, gasoline or other wastes from such boats;

(b) Special rules and regulations for such particular, artificial or natural areas of water, for further limiting, restricting or prohibiting the operation or navigation of motorboats thereon to protect the public health or to protect and preserve useful aquatic life.

§20-7-22a. Agency rule making for personal watercrafts.

The director of the Division of Natural Resources shall propose rules, including the personal watercraft safety orientation requirements for livery owners and operators, for legislative approval in accordance with the provisions of subdivision thirty, section seven, article one of this chapter and section one, article one, chapter twenty-nine-a of this code which effectuate the contents of sections eleven, sixteen, eighteen-d, nineteen-a and twenty-a of this article.

§20-7-23. Local rules.

(a) The provisions of this article, and of other applicable laws of this state, shall govern the operation, equipment, numbering and all other matters relating thereto whenever any vessel shall be operated on the waters of this state, or when any activity regulated by this article shall take place thereon, but nothing in this article shall be construed to prevent the adoption of any ordinance or local law relating to operation and equipment of vessels the provisions of which are identical to the provisions of this article, amendments thereto or rules promulgated thereunder: Provided, That such ordinances or local laws shall be operative only so long as to the extent that they continue to be identical to provisions of this article, amendments thereto or rules promulgated thereunder.

(b) Any subdivision of this state may, at any time, but only after public notice, make formal application to the director for special rules with reference to the operation of vessels on any waters within its territorial limits and shall set forth therein the reasons which make such special rules necessary or appropriate.

Repealed.

Acts, 2005 Reg. Sess., Ch. 199.

ARTICLE 7A. CAVE PROTECTION.

§20-7A-1. Definitions.

Unless the context in which used clearly requires a different meaning, as used in this article:

(a) "Cave" means any naturally occurring subterranean cavity. The word "cave" includes or is synonymous with cavern, pit, pothole, well, sinkhole and grotto.

(b) "Commercial cave" means any cave with improved trails and lighting utilized by the owner for the purpose of exhibition to the general public as a profit or nonprofit enterprise, wherein a fee is collected for entry.

(d) "Person or persons" means any individual, partnership, firm, association, trust or corporation.

(e) "Speleothem" means a natural mineral formation or deposit occurring in a cave. This includes or is synonymous with stalagmites, stalactites, helictites, anthodites, gypsum flowers, needles, angel's hair, soda straws, draperies, bacon, cave pearls, popcorn (coral), rimstone dams, columns, palettes, flowstone, et cetera. Speleothems are commonly composed of calcite, epsomite, gypsum, aragonite, celestite and other similar minerals.

(f) "Owner" means a person who owns title to land where a cave is located, including a person who owns title to a leasehold estate in such land.

§20-7A-2. Vandalism; penalties.

It is unlawful for any person, without express, prior, written permission of the owner, to willfully or knowingly:

(a) Break, break off, crack, carve upon, write, burn or otherwise mark upon, remove, or in any manner destroy, disturb, deface, mar or harm the surfaces of any cave or any natural material therein, including speleothems;

(b) Disturb or alter in any manner the natural condition of any cave;

(c) Break, force, tamper with or otherwise disturb a lock, gate, door or other obstruction designed to control or prevent access to any cave, even though entrance thereto may not be gained.

Any person violating a provision of this section shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than $150 nor more than $500, and in addition thereto, may be imprisoned in the county jail for not less than ten days nor more than six months.

§20-7A-3. Sale of speleothems unlawful; penalties.

It is unlawful to sell or offer for sale any speleothems in this state, or to export them for sale outside the state. A person who violates any of the provisions of this section shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than $150 nor more than $500 and in addition thereto, may be imprisoned in the county jail for not less than ten days nor more than six months.

§20-7A-4. Biological policy; penalties for violation.

It is unlawful to remove, kill, harm or disturb any plant or animal life found within any cave: Provided, That scientific collecting permits may be obtained from the director as provided in section fifty, article two of this chapter. Gates employed at the entrance or at any point within any cave shall be of open construction to allow free and unimpeded passage of air, insects, bats and aquatic fauna. A person who violates any provision of this section shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than $200 nor more than $500 and in addition thereto, may be imprisoned in the county jail for not less than fifteen days nor more than six months.

§20-7A-5. Archaeology; permits for excavation; how obtained; prohibitions; penalties.

(a) No person may excavate, remove, destroy, injure or deface any historic or prehistoric ruins, burial grounds, archaeological or paleontological site including saltpeter workings, relics or inscriptions, fossilized footprints, bones or any other such features which may be found in any cave.

(b) Notwithstanding the provisions of subsection (a) of this section, a permit to excavate or remove archaeological, paleontological, prehistoric and historic features may be obtained from the director of natural resources. Such permit shall be issued for a period of two years and may be renewed at expiration. It is not transferable but this does not preclude persons from working under the direct supervision of the person holding the permit: Provided, That the director shall take final action upon all completed permit applications within thirty days of receipt if the application is uncontested, or within ninety days if the application is contested.

A person applying for such a permit must:

(1) Provide a detailed statement to the director of natural resources giving the reasons and objectives for excavation or removal and the benefits expected to be obtained from the contemplated work.

(2) Provide data and results of any completed excavation, study or collection at the first of each calendar year.

(3) Obtain the prior written permission of the director of natural resources if the site of the proposed excavation is on state-owned lands and prior written permission of the owner if the site of such proposed excavation is on privately owned land.

(4) Carry the permit while exercising the privileges granted.

A person who violates any provision of subsection (a) of this section shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than $100 nor more than $500, and may be imprisoned in the county jail for not less than ten days nor more than six months. A person who violates any of the provisions of subsection (b) of this section shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than $100 nor more than $500, and the permit herein authorized shall be revoked.

§20-7A-6. Liability of owners and agents.

(a) Neither the owner of a cave nor his authorized agents acting within the scope of their authority are liable for injuries sustained by any person using such features for recreational or scientific purpose if the prior consent of the owner has been obtained and if no charge has been made for the use of such features.

(b) An owner of a commercial cave is not liable for an injury sustained by a spectator who has paid to view the cave, unless such injury is sustained as a result of such owner's negligence in connection with the providing and maintaining of trails, stairs, electrical wires or other modifications, and such negligence is the proximate cause of the injury.

ARTICLE 8. GENERAL AND MISCELLANEOUS PROVISIONS.

§20-8-1. Transition in terms; continuity.

Whenever in this code and elsewhere in law the terms "the conservation commission of West Virginia," "conservation commission," "director of conservation" and similar and related terms are used and referenced, they shall be read, understood and construed in the light of the enactment of this chapter by which the conservation commission and the office of director of conservation are abolished and the responsibilities, functions and services thereof are transferred to and absorbed in the Division of Natural Resources, the natural resources commission and the office of director of the Division of Natural Resources as in this chapter provided.

Any litigation instituted, entered into or pending to which any of the governmental corporations and agencies abolished by this chapter are named parties may be continued and prosecuted to completion in such party names or, at the option of the litigants and by leave of court, such party names may be amended or changed to correspond with the names of the successor governmental corporations and agencies as in this chapter provided.

All contracts, compacts and agreements, heretofore entered into by any of the governmental corporations and agencies hereby abolished, shall continue to be the obligations of the respective successor corporations and agencies as in this chapter provided. No provision of this chapter shall be construed as impairing the obligation of any contract.

§20-8-2. Transfer of records, appropriations, facilities and other properties and assets.

As of the effective date of this chapter, the records, funds, unexpended appropriations, facilities, equipment and real and personal properties and assets of every kind and character belonging to, owned by or in the custody and control of any governmental corporation, agency, office or activity abolished or transferred to and absorbed in the department of natural resources by the provisions of this chapter shall be by each such governmental corporation, agency, office or activity transferred and delivered to the department of natural resources or to the identifiable successor to the abolished corporation, agency, office or activity as in this chapter established and constituted. It is the intent and purpose of the provisions of this section that continuity in the governmental operations, functions and services affected by this transition shall not be interrupted or impeded.

§20-8-3. Construction of chapter; severability.

The provisions of this chapter shall be liberally construed to effect the objects and purposes hereof. The provisions of the chapter shall be construed to be separable and severable and in the event any clause, sentence or provision hereof shall for any reason be construed or held to be unconstitutional or invalid, such unconstitutionality or invalidity shall not affect or impair the remaining provisions hereof.

§20-8-4. Effective date.

The provisions of this chapter shall become effective on July 1, 1961.

ARTICLE 9. BOAT DOCK AND MARINA SAFETY REQUIREMENTS -- THE MICHAEL CUNNINGHAM ACT.

§20-9-1. Definitions.

As used in this article:

(1) "ABYC" means the American Boat and Yacht Council;

(2) "Boat dock" means a man-made structure that protrudes into a body of water for the purpose of mooring a boat or for other water-related recreation, including boat liveries, and that is connected to an electrical power source in any manner: Provided, That "boat dock" does not include structures that are privately owned and used exclusively by the owner or the owner's guests for noncommercial purposes;

(3) "Boat dock or marina owner or operator" means any person who:

(A) Has an ownership interest in a boat dock or marina, other than a lienholder; or

(B) Operates a boat dock or marina;

(4) "Ground fault circuit interrupter" means a device that functions to de-energize a circuit, or a portion thereof, within an established period of time when current to ground exceeds a predetermined value that is less than required to operate the over current protective device of the supply circuit;

(5) "Marina" means a dock including a boat dock or basin providing moorings for motorboats and offering supply, repair or other services, including electrical power supply, for remuneration: Provided, That "marina" does not include docks that are privately owned and used exclusively by the owner or the owner's guests for noncommercial purposes;

(6) "Motorboat" means any vessel propelled by an electrical, steam, gas, diesel or other propelled or driven motor, whether or not the motor is the principal source of propulsion, but does not include a vessel with a valid marine document issued by the United States Bureau of Customs or any federal agency that is the successor to the Bureau of Customs;

(7) "Person" means an individual, partnership, firm, corporation, association or other entity; and

(8) "Vessel" means every description of watercraft, other than a seaplane on the water, used or capable of being used as a means of transportation on the water.

§20-9-2. Boat Dock and Marina Safety Requirements - Swimming and Signage.

All boat dock or marina owners or operators shall install permanent safety signage with print legible at eighty feet of distance and placed to give adequate notice, to persons using the boat dock or marina or swimming near the boat dock or marina, of the electric shock hazard risks of the waters around the boat dock or marina. The signage shall state: "ELECTRIC SHOCK HAZARD RISK: NO SWIMMING WITHIN 100 YARDS OF THE BOAT DOCK".

§20-9-3. Boat dock and marina safety requirements-electrical shock and electrocution.

All boat dock or marina owners or operators shall comply with the following requirements to prevent electrical shock, electrocution or injury to users of their facilities and the surrounding areas:

(1) All electrical wiring involving 110 AC or 220 AC shall be installed by and maintained by a holder of a valid West Virginia journeyman electrician license or master electrician license in accordance with the most recently adopted versions of the National Fire Protection Association's Standards for Marinas and Boatyards (NFPA 303) and the National Electric Code (NFPA 70);

(2) Install ground fault circuit interrupters on all boat dock and marina electrical wiring circuits; and

(3) Cause an inspection before August 1, 2014 and at least once every three years thereafter by a West Virginia licensed electrical inspector of all sources of electrical supply, including ship-to-shore power pedestals, submergible pumps, and sewage pump-out facilities, that could result in unsafe electrical current in the water.

§20-9-4. Compliance date and enforcement.

Each boat dock and marina shall be in full compliance with this article by January 1, 2015. The penalties contained in section seven of this article apply only to conduct on or after January 1, 2015. Enforcement of sections three and four of this article regarding the work of electricians shall be conducted by the State Fire Marshal.

§20-9-5. Rule-making Authority.

The State Fire Marshal may promulgate emergency rules pursuant to the provisions of section fifteen, article three, chapter twenty-nine-a of this code and shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code to implement the provisions of this article and incorporate boat dock and marina safety standards for electricians, including, but not limited to, the National Fire Protection Association's Standards for Marinas and Boatyards (NFPA 303), Article 555 of the National Electric Code and ABYC Standards Projects E-2, E-10 and E-11, as appropriate to the West Virginia waterways.

§20-9-6. Penalties.

(a) A boat dock or marina owner or operator who violates sections two or three of this article and the violation does not result in the injury or death of a person, shall, for the first offense, be issued a warning citation with no court appearance or penalty, and for a second or subsequent offense, be fined $100. After a boat dock or marina owner or operator is put on notice of a violation of sections two or three of this article and is directed to cure the violation within a certain amount of time, each and every day that the violation continues after the time given to cure shall constitute a separate offense.

(b) A boat dock or marina owner or operator who violates sections two or three of this article, and the violation results in the injury of a person, shall be guilty of a misdemeanor and, upon conviction, shall be fined not more than $500, and for a second offense or subsequent offense shall be fined not more than $1,000 or confined in jail for not more than six months, or both fined and confined.

(c) A boat dock or marina owner who violates sections two or three of this article, and the violation results in the death of a person, shall be guilty of a misdemeanor and, upon conviction, shall fined not more than $1,000 or confined in jail for not more than one year, or both fined and confined.

ARTICLE 10. COMMERCIAL HAZARDOUS WASTE MANAGEMENT FACILITY SITING BOARD.

§20-10-1.

Repealed.

Acts, 1994 Reg. Sess., Ch. 61.

ARTICLE 10A. HAZARDOUS WASTE FACILITY SITING APPROVAL.

§20-10A-1.

Repealed.

Repealed.

Acts, 2005 Reg. Sess., Ch. 199.

ARTICLE 12. CONSERVATION AND PRESERVATION EASEMENTS.

§20-12-1. Short title.

This article shall be known and may be cited as the "Conservation and Preservation Easements Act".

§20-12-2. Purpose of article.

The West Virginia Legislature recognizes the importance and significant public benefit of conservation and preservation easements in its ongoing efforts to protect the natural, historic, agricultural, open-space and scenic resources of this state.

§20-12-3. Definitions.

The following words and phrases when used in this article have the meanings given to them in this section unless the context clearly indicates otherwise:

(a) "Conservation easement" means a nonpossessory interest of a holder in real property, whether appurtenant or in gross, imposing limitations or affirmative obligations, the purposes of which include, but are not limited to, retaining or protecting for the public benefit the natural, scenic or open-space values of real property; assuring its availability for agricultural, forest, recreational or open-space use; protecting natural resources and wildlife; maintaining or enhancing land, air or water quality; or preserving the historical, architectural, archaeological or cultural aspects of real property.

(b) "Holder" means:

(1) A governmental body empowered to hold an interest in real property under the laws of this state or the United States.

(2) A charitable corporation, charitable association or charitable trust registered with the Secretary of State and exempt from taxation pursuant to Section 501(c)(3) of the Internal Revenue Code of 1986 (Public Law 99-514, 26 U.S.C. Section 501(c)(3), or other federal or state statutes or rules, the purposes or powers of which include retaining or protecting the natural, scenic, agricultural or open-space values of real property; assuring the availability of real property for agricultural, forest, recreational or open-space use; protecting natural resources and wildlife; maintaining or enhancing land, air or water quality; or preserving the historical, architectural, archaeological or cultural aspects of real property.

(d) "Third-party right of enforcement" means a right provided in a conservation or preservation easement, in order to enforce any of its terms, granted to a governmental body, charitable corporation, charitable association or charitable trust, which, although eligible to be a holder, is not a holder.

§20-12-4. Creation, transfer and duration.

(a) Except as otherwise provided in this article, a conservation or preservation easement may be created, conveyed, recorded, assigned, released, modified, terminated or otherwise altered or affected in the same manner as other easements.

(b) No right or duty of a holder, successive holder named in the easement deed or person having a third-party right of enforcement arises under a conservation or preservation easement before the easement's acceptance by the holder, successive holder or third party with right of enforcement and a recordation of the acceptance.

(c) Except as provided in subsection (b), section five of this article, a conservation or preservation easement created after the effective date of this article may be perpetual in duration, but in no event shall be for a duration of less than twenty-five years.

(d) An interest in real property in existence at the time a conservation or preservation easement is created, including an unrecorded lease for the production of minerals or removal of timber, shall not be impaired unless the owner of such interest is a party to the easement or expressly consents to comply with the restriction of such easement.

§20-12-5. Judicial and related actions.

(a) An action affecting a conservation or preservation easement may be brought by any of the following:

(1) An owner of an interest in the real property burdened by the easement;

(2) A holder of the easement;

(3) A person having a third-party right of enforcement; or

(4) A person, agency or entity otherwise authorized by state or federal law.

(b) This article does not affect the power of a court to modify or terminate a conservation or preservation easement in accordance with the principles of law and equity consistent with the public policy of this article as stated under section two of this article, when the easement is broadly construed to effect that policy. Notwithstanding provision of law to the contrary, conservation and preservation easements shall be liberally construed in favor of the grants contained therein to effect the purposes of those easements and the policy and purpose of this article.

(c) A holder, governmental entity or other person may not exercise the right of eminent domain or the power of condemnation to acquire a conservation easement without condemning or exercising the right of eminent domain as to the entire fee interest of the property: Provided, That any public utility regulated pursuant to the provisions of chapter twenty-four of this code or any public service enterprise subject to the provisions of the Natural Gas Act, title XV, United States Code, Section 717, et seq., or the Federal Power Act, title XV, United States Code, Section 794a, et seq., or any successor statute for the regulation of public utility or public service business, may condemn land or an interest in land subject to a conservation or preservation easement for any purpose authorized by the governing regulatory statute or by the administrative agency established under the statute. Nothing in this article may be construed to limit the lawful exercise of the right of eminent domain or the power of condemnation by any person or entity having such power, or the right of any real property owner to compensation by reason of the lawful exercise of such right of eminent domain or power of condemnation for any estate or interest in real property except a conservation or preservation easement authorized by this article.

§20-12-6. Validity.

(a) A conservation or preservation easement is valid even though:

(1) It is not appurtenant to an interest in real property;

(2) It can be or has been assigned to another holder;

(3) It is not of a character that has been recognized traditionally as common law;

(4) It imposes a negative burden;

(5) It imposes affirmative obligations upon the owner of an interest in the burdened property or upon the holder;

(6) The benefit does not touch or concern real property; or (7) There is no privity of estate or of contract.

(b) To be enforceable under the provisions of this article, a conservation or preservation easement shall be recorded within sixty days of the effective date of the easement. Upon proper recording, the provisions of this article apply retroactively to the effective date of the easement.

§20-12-7. Applicability.

(a) This article applies to any interest created after the effective date of this article, whether designated as a conservation or preservation easement or as a covenant, equitable servitude, restriction, easement or otherwise.

(b) This article applies to any interest created before the effective date when the interest would have been enforceable had it been created after its effective date, unless retroactive application contravenes the Constitution or laws of the United States or of this state. No conservation easement or preservation easement created prior to the effective date of this article may be invalidated by reason of the enactment of this article when the conservation easement or preservation easement was valid under the law in effect at the time of its creation.

(c) This article does not invalidate any interest, whether designated as a conservation or preservation easement or as a covenant, equitable servitude, restriction, easement or otherwise, that is enforceable under another law of this state.

§20-12-8. Uniformity of application and construction.

This article shall be applied and construed to effectuate its general purpose to make uniform the laws with respect to the subject of this article among states enacting similar laws. Except as expressly otherwise provided, nothing contained in this article is intended to be construed to alter applicable established common law. In a manner consistent with common law, the granting of a conservation or preservation easement shall not subsequently restrict the right of the fee owner to further grant any other interest in real property to any person or entity when the grant does not materially impair the prior conservation or preservation easement. When a fee holder grants an interest beyond the conservation or preservation easement, he shall notify the holder of any conservation or preservation easement at least forty-five days prior to the execution of any subsequent easement or any other conveyance of an interest in land encompassed by the conservation or preservation easement.

ARTICLE 13. WEST VIRGINIA STREAM PARTNERS PROGRAM.

§20-13-1. Short title.

This article shall be known and cited as the "West Virginia Stream Partners Program Act."

§20-13-2. Legislative findings and purpose.

The Legislature finds that efforts to restore, protect and utilize West Virginia's rivers and streams for public health, recreation, commercial and habitat uses are most successful when citizens work in partnership with state agencies to manage the state's rivers and streams by combining community resources, local initiative and state agency support.

It is the purpose of the Legislature, therefore, to establish a program to encourage citizens to work in partnership with appropriate state agencies so that the state's rivers and streams: (a) Are safe for swimming, fishing and other forms of recreation; (b) can support appropriate public and commercial purposes; and (c) can provide habitat for plant and animal life.

§20-13-3. West Virginia Stream Partners Program created; executive committee identified; program coordination.

Subject to annual appropriation of the Legislature, the program shall be jointly administered by the Division of Natural Resources, the Department of Environmental Protection, the Division of Forestry and the West Virginia State Soil Conservation Agency. The director, secretary or commissioner of each of these administering agencies, or his or her designee, collectively constitute an executive committee to oversee the program. The Governor shall designate a member of the executive committee to serve as chair. The committee may designate a staff member from the existing staff of one of the administering agencies to coordinate the program on behalf of the executive committee.

§20-13-4. Stream Partners Program.

The West Virginia Stream Partners Program shall provide grants to groups comprised of representatives located in the immediate area of the stream or streams being addressed that are dedicated to achieving the purpose stated in section two of this article. The grants shall be awarded by consensus of the executive committee in accordance with legislative rules promulgated by the Department of Environmental Protection pursuant to article three, chapter twenty-nine-a of this code. Each grant shall be matched by the group of representatives with cash or in-kind services in, at least, an amount equal to twenty percent of the grant: Provided, That no grant shall exceed the amount of $5,000.

§20-13-5. Grant qualifications.

In order to qualify for grants from the West Virginia Stream Partners Program, a group of representatives located in the immediate area of a stream or streams which qualify under section two of this article shall apply to the executive committee in accordance with the following requirements and in accordance with any other provision of this article or any applicable rule. The application shall:

(a) Identify the stream or streams to be restored, protected, utilized or enhanced;

(b) Identify the representatives of groups applying for funds and the financially responsible entity to receive funds, all from the geographic area immediately surrounding the stream or streams. These identified individuals shall represent the general public, industry, environmental groups, sportsmen, forestry, agriculture, local government, tourism, recreation and affected landowners, all located in the geographic area immediately surrounding the stream or streams;

(c) Demonstrate an ability to achieve, within the grant year, a specific improvement project that enhances the identified stream or streams; and

(d) Evidence a commitment to educate the citizens in the area of the identified stream or streams about the benefits of restoring, protecting and enhancing the stream or streams in a responsible manner.

§20-13-6. Administering agency support.

The administering agencies may provide staff and other resources as necessary to address the technical assistance and administrative needs of the West Virginia Stream Partners Program. This support may include the utilization of resources and formulation of policies to achieve the purpose set forth in section two of this article.

ARTICLE 14. HATFIELD-MCCOY REGIONAL RECREATION AUTHORITY.

§20-14-1. Legislative findings.

The West Virginia Legislature finds that there is a significant need within the state and throughout the eastern United States for well-managed facilities for trail-oriented recreation for off-highway motor vehicle enthusiasts. The Legislature further finds that under an appropriate contractual and management scheme, well-managed, trail-oriented recreation facilities could exist on private property without diminishing the landowner’s interest, control, or profitability in the land and without increasing the landowner’s exposure to liability.

The Legislature further finds that, with the cooperation of private landowners, there is an opportunity to provide trail-oriented recreation facilities primarily on private property in the mountainous terrain of southern West Virginia and that the facilities will provide significant economic and recreational benefits to the state and to the communities in southern West Virginia through increased tourism in the same manner as whitewater rafting and snow skiing benefit the state and communities surrounding those activities.

The Legislature further finds that the economic benefits of trail development are only realized when the ridership is concentrated in specific areas. Before private capital will be brought to the marketplace in support of a recreational trail system, a density of trail ridership must be demonstrated and sustained over a period of years to warrant the investment. Therefore, any expansion of the state’s recreational trail systems must be strategic and require a showing that the new trail system would not only expand visitation, but would not materially detract from the visitation and ridership on existing trail systems where numerous private and public investments have already been made.

The Legislature further finds that the creation and empowering of a joint development entity to work with the landowners, county officials and community leaders, state and federal government agencies, recreational user groups, and other interested parties to enable and facilitate the implementation of the facilities will greatly assist in the realization of these potential benefits.

The Legislature further finds that it is in the best interests of the state to encourage private landowners to make available for public use through the Hatfield-McCoy Regional Recreation Authority land for these recreational purposes by limiting their liability for injury to persons entering thereon, by limiting their liability for injury to the property of persons entering thereon, and by limiting their liability to persons who may be injured or otherwise damaged by the acts or omissions of persons entering thereon.

§20-14-2. Definitions.

Unless the context clearly requires a different meaning, the terms used in this section have the following meanings:

(a) “Authority” means the Hatfield-McCoy Regional Recreational Authority;

(b) “Board” means the board of the Hatfield-McCoy Regional Recreation Authority;

(c) “Charge” means, for purposes of limiting liability for recreational purposes set forth in this article, the amount of money asked in return for an invitation to enter or go upon the land, including a one-time fee for a particular event, amusement, occurrence, adventure, incident, experience, or occasion as set by the authority: Provided, That the authority may set charges in differing amounts for different categories of participants, including, but not limited to, in-state and out-of-state participants, as the authority sees fit;

(d) “Hatfield-McCoy Recreation Area” means a system of recreational trails and appurtenant facilities, including trail head centers, parking areas, camping facilities, picnic areas, recreational areas, historic or cultural interpretive sites, and other facilities that are a part of the system;

(e) “Land” includes, but is not limited to, roads, water, watercourses, private ways and buildings, structures, and machinery or equipment thereon when attached to the realty;

(f) “Owner” means those vested with title to real estate and those with the ability to exercise control over real estate and includes, but is not limited to, tenant, lessee, licensee, holder of a dominant estate, or other lawful occupant;

(g) “Participant” means any person using the land, trails, and facilities of the Hatfield-McCoy Recreation Area;

(h) “Participating county or counties” means the counties of Boone, Braxton, Clay, Fayette, Kanawha, Lincoln, Logan, McDowell, Mercer, Mingo, Nicholas, Wayne, Webster, and Wyoming that have agreed to operate the Hatfield-McCoy Regional Recreation Authority as a joint development entity and to participate in its governance; and

(i) “Recreational purposes” includes, but is not limited to, any one or any combination of the following noncommercial recreational activities: Hunting, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving, motorcycle or motor vehicle driving and riding, bicycling, horseback riding, nature study, water skiing, winter sports and visiting, viewing or enjoying historical, archaeological, scenic, or scientific sites, or otherwise using land for purposes of the user.

§20-14-3. Creation; appointment of board; terms.

(a) The public corporation, the Hatfield-McCoy Regional Recreation Authority, previously created by this section is hereby converted to a new public corporation created as a joint development entity of the participating counties for the purpose of enabling and facilitating the development and operation of a system of trail-oriented recreation facilities for use by off-highway motor vehicle enthusiasts. This recreational trail system shall be located in the counties of Boone, Braxton, Clay, Fayette, Kanawha, Lincoln, Logan, McDowell, Mercer, Mingo, Nicholas, Wayne, Webster, and Wyoming with significant portions of the recreational trail system being located on private property made available for use through lease, license, easement, or other appropriate legal form by a willing landowner.

(b) The authority shall be governed by a board of no more than two times the number of participating counties who shall be representative of the various interests involved in the Hatfield-McCoy Recreation Area project in the participating counties and who shall be appointed as follows:

(1) The county commission of each participating county, as defined in section two of this article, shall appoint one member of the board who represents and is associated with travel and tourism or economic development efforts within the county or who is associated with a mining, logging, natural gas, or other resource-extraction industry or who is a licensed land surveyor or licensed professional engineer. The initial appointment shall be for a two-year term, but all subsequent appointments shall be for a four-year term.

(2) The county commission of each participating county, as defined in §20-14-2 of this code, shall appoint one member of the board who represents and is associated with a corporation or individual landowner whose land is being used or is expected to be used in the future as part of the Hatfield-McCoy Recreation Area project or their designee. This member shall be appointed to a four-year term.

Any appointed member whose term has expired shall serve until his or her successor has been duly appointed and qualified. Any person appointed to fill a vacancy shall serve only for the unexpired term. Any appointed member is eligible for reappointment. Members of the board are not entitled to compensation for services performed as members but are entitled to reimbursement for all reasonable and necessary expenses actually incurred in the performance of their duties.

(c) The conversion of the Hatfield-McCoy Regional Recreation Authority to a joint development entity does not terminate or interrupt its status as a public corporation. The amendments to this article made during the 2015 regular session of the Legislature do not alter the debts, liabilities, responsibilities, or other obligations of any party with regard to this public corporation.

(d) The Hatfield-McCoy Regional Recreation Authority is a “public body” for purposes of the West Virginia Freedom of Information Act, as provided in article one, chapter twenty-nine-b of this code.

§20-14-4. Board; quorum; executive director; expenses.

The board is the governing body of the authority and the board shall exercise all the powers given the authority in this article.

The board shall meet quarterly, unless a special meeting is called by its chairman: Provided, That at the first meeting of each fiscal year beginning in an odd-numbered year, or as soon thereafter as feasible, the board shall elect a chairman, secretary, and Treasurer from among its own members.

Ten members of the board constitute a quorum and a quorum shall be present for the board to conduct business.

The board may prescribe, amend, and repeal bylaws and rules governing the manner in which the business of the authority is conducted, rules governing the use of the trail system and the safety of participants, and shall review and approve an annual budget. The fiscal year for the authority begins on July 1 and ends on the thirtieth day of the following June.

The board shall appoint an executive director to act as its chief executive officer, to serve at the will and pleasure of the board. The board, acting through its executive director, may employ any other personnel considered necessary and may appoint counsel and legal staff for the authority and retain such temporary engineering, financial, and other consultants or technicians as may be required for any special study or survey consistent with the provisions of this article. The executive director shall carry out plans to implement the provisions of this article and to exercise those powers enumerated in the bylaws. The executive director shall prepare annually a budget to be submitted to the board for its review and approval prior to the commencement of each fiscal year. The budget shall contain a detailed account of all planned and proposed revenue and expenditures for the authority for the upcoming fiscal year, including a detailed list of employees by title, salary, cost of projected benefits, and total compensation. Before August 15 the executive director shall provide to the board and the county commission for each participating county a detailed list of actual expenditures and revenue by account and recipient name for the previous fiscal year and a copy of the approved budget for the current fiscal year.

All costs incidental to the administration of the authority, including office expenses, personal services expense, and current expense, shall be paid in accordance with guidelines issued by the board from funds accruing to the authority.

All expenses incurred in carrying out the provisions of this article shall be payable solely from funds provided under the authority of this article and no liability or obligation may be incurred by the authority under this article beyond the extent to which moneys have been provided under the authority of this article.

§20-14-4a. Financial review and oversight.

(a) The authority shall contract for and obtain an annual financial audit to be conducted by a private accounting firm in compliance with generally accepted government auditing standards. When complete, the audit shall be transmitted to the board, the president of the county commission of each participating county and the Legislative Auditor. The cost of the audit shall be paid by the authority.

(b) If the authority receives any funds from the Legislature by appropriation or grant, the Legislative Auditor shall have the power and authority to examine the revenues, expenditures and performance of the Hatfield-McCoy Regional Recreation Authority and for these purposes shall have the power to inspect the properties, equipment, facilities of the authority and to request, inspect and obtain copies of any records of the authority. For each fiscal year in which the authority receives any funds from the Legislature by appropriation or grant, the executive director shall provide to the Legislative Auditor and Secretary of Revenue a detailed list of actual expenditures and revenue by account and recipient name for the previous fiscal year within forty-five days of the close of that fiscal year.

§20-14-5. Powers of authority.

The authority, as a public corporation and joint development entity, may exercise all powers necessary or appropriate to carry out the purposes of this article, including, but not limited to, the power:

(1) To acquire, own, hold and dispose of property, real and personal, tangible and intangible;

(2) To lease property, whether as lessee or lessor, and to acquire or grant through easement, license or other appropriate legal form, the right to develop and use property and open it to the use of the public;

(3) To mortgage or otherwise grant security interests in its property;

(4) To procure insurance against any losses in connection with its property, license or easements, contracts, including hold-harmless agreements, operations or assets in such amounts and from such insurers as the authority considers desirable;

(5) To maintain such sinking funds and reserves as the board determines appropriate for the purposes of meeting future monetary obligations and needs of the authority;

(6) To sue and be sued, implead and be impleaded and complain and defend in any court;

(7) To contract for the provision of legal services by private counsel and, notwithstanding the provisions of article three, chapter five of this code, the counsel may, in addition to the provisions of other legal services, represent the authority in court, negotiate contracts and other agreements on behalf of the authority, render advice to the authority on any matter relating to the authority, prepare contracts and other agreements and provide such other legal services as may be requested by the authority;

(8) To adopt, use and alter at will a corporate seal;

(9) To make, amend, repeal and adopt bylaws for the management and regulation of its affairs;

(10) To appoint officers, agents and employees and to contract for and engage the services of consultants;

(11) To make contracts of every kind and nature and to execute all instruments necessary or convenient for carrying on its business, including contracts with any other governmental agency of this state or of the federal government or with any person, individual, partnership or corporation to effect any or all of the purposes of this article;

(12) Without in any way limiting any other subdivision of this section, to accept grants and loans from, and enter into contracts and other transactions with, any federal agency;

(13) To maintain an office at such places within the state as it may designate;

(14) To borrow money and to issue notes and to provide for the payment of notes and to provide for the rights of the holders of the notes and to purchase, hold and dispose of any of its notes;

(15) To issue notes payable solely from the revenues or other funds available to the authority, and the authority may issue its notes in such principal amounts as it considers necessary to provide funds for any purpose under this article, including:

(A) The payment, funding or refunding of the principal of, interest on or redemption premiums on notes issued by it whether the notes or interest to be funded or refunded have or have not become due;

(B) The establishment or increase of reserves to secure or to pay notes or the interest on the notes and all other costs or expenses of the authority incident to and necessary or convenient to carry out its corporate purposes and powers. Notes may be additionally secured by a pledge of any revenues, funds, assets or moneys of the authority from any source whatsoever;

(16) To issue renewal notes, except that no renewal notes may be issued to mature more than ten years from the date of issuance of the notes renewed;

(17) To apply the proceeds from the sale of renewal notes to the purchase, redemption or payment of the notes to be refunded;

(18) To accept gifts or grants of property, funds, security interests, money, materials, labor, supplies or services from the federal government or from any governmental unit or any person, firm or corporation and to carry out the terms or provisions of or make agreements with respect to or pledge any gifts or grants and to do any and all things necessary, useful, desirable or convenient in connection with the procuring, acceptance or disposition of gifts or grants;

(19) To the extent permitted under its contracts with the holders of notes of the authority, to consent to any modification of the rate of interest, time of payment of any installment of principal or interest, security or any other term of any note, contract or agreement of any kind to which the authority is a party;

(20) To construct, reconstruct, improve, maintain, repair, operate and manage the Hatfield-McCoy Recreation Area at the locations within the participating counties as may be determined by the authority;

(21) To enter into an agreement with the West Virginia Division of Natural Resources for natural resources police officers to provide law-enforcement services within the Hatfield-McCoy Recreation Area and to reimburse the Division of Natural Resources for its costs therefor;

(22) To exercise all power and authority provided in this article necessary and convenient to plan, finance, construct, renovate, maintain and operate or oversee the operation of the Hatfield-McCoy Recreation Area at such locations within the participating counties as may be determined by the authority;

(23) To exercise such other and additional powers as may be necessary or appropriate for the exercise of the powers conferred in this section;

(24) To exercise all of the powers which a corporation may lawfully exercise under the laws of this state;

(25) To develop, maintain and operate or to contract for the development, maintenance and operation of the Hatfield-McCoy Recreation Area;

(26) To enter into contract with landowners and other persons holding an interest in the land being used for its recreational facilities to hold those landowners and other persons harmless with respect to any claim in tort growing out of the use of the land for recreational purposes or growing out of the recreational activities operated or managed by the authority from any claim except a claim for damages proximately caused by the willful or malicious conduct of the landowner or other person or any of his or her agents or employees;

(27) To assess and collect a reasonable fee from those persons who use the trails, parking facilities, visitor centers or other facilities which are part of the Hatfield-McCoy Recreation Area and to retain and utilize that revenue for any purposes consistent with this article;

(28) To enter into contracts or other appropriate legal arrangements with landowners under which their land is made available for use as part of the Hatfield-McCoy Recreation Area; and

(29) To directly operate and manage recreation activities and facilities within the Hatfield-McCoy Recreation Area.

§20-14-6.

Repealed.

Acts, 2015 Reg. Sess., Ch. 117.

§20-14-7.

Repealed.

Acts, 2015 Reg. Sess., Ch. 117.

§20-14-8. Prohibited acts, penalty.

(a) A person may not enter or remain upon the Hatfield-McCoy Recreation Area without a valid, nontransferable user permit issued by the authority and properly displayed, except properly identified landowners or leaseholders or their officers, employees, or agents while on the land that the person owns or leases for purposes related to the ownership or lease of the land and not for recreational purposes;

(b) A person may not consume or possess any alcoholic liquor, nonintoxicating beer, nonintoxicating craft beer, or wine at any time or any location within the Hatfield-McCoy Recreation Area.

(c) The operator and all passengers of a motor vehicle within the Hatfield-McCoy Recreation Area shall wear size-appropriate protective helmets at all times. All operators and passengers shall wear helmets that meet the current performance specifications established by the American National Standards Institute Standard, z 90.1, the United States Department of Transportation Federal Motor Vehicle Safety Standard no. 218 or Snell Memorial Foundation Safety Standards for protective headgear for vehicle users.

(d) Each trail user shall obey all traffic laws, traffic-control devices, and signs within the Hatfield-McCoy Recreation Area, including those which restrict trails to certain types of motor vehicles, motorcycles, or those equipped with roll cages.

(e) Each trail user shall at all times remain within and on a designated and marked trail while within the Hatfield-McCoy Recreation Area.

(f) A person may not be on any trail within the Hatfield-McCoy Recreation Area at any time from one-half hour after sunset until one-half hour before sunrise, except in an emergency.

(g) Every person within the Hatfield-McCoy Recreation Area who is under 16 years of age shall at all times be under the immediate supervision of, and within sight of, a person who is at least 18 years of age and who either is a parent or guardian of the youth or has the express permission of a parent or guardian to supervise the youth. No parent, guardian, or supervising adult may allow a child under the age of 16 years to leave that person’s sight and supervision within the Hatfield-McCoy Recreation Area.

(h) A person may not ignite or maintain any fire within the Hatfield-McCoy Recreation Area except at a clearly marked location at a trailhead center.

(i) A person within the Hatfield-McCoy Recreation Area may not operate a motor vehicle in any competition or exhibition of speed, acceleration, racing, test of physical endurance, or climbing ability unless in an event sanctioned by the authority.

(j) Every person operating a motor vehicle within the Hatfield-McCoy Recreation Area is subject to all of the duties applicable to the driver of a motor vehicle by the provisions of §17C-1-1 et seq. of this code except where inconsistent with the provisions of this article and except as to those provisions of §17C-1-1 et seq. of this code which by their nature can have no application and may not operate a motor vehicle in violation of those duties.

(k) A person may not possess a glass container while riding on a motor vehicle within the Hatfield-McCoy Recreation Area.

(l) A person may not operate or ride in a utility terrain vehicle, as defined in §17F-1-1 et seq. of this code, or any other motor vehicle with bench or bucket seating and a steering wheel for control unless equipped with seat belts meeting at a minimum federal motor vehicle safety standard and properly worn by the driver and all passengers.

(m) (1) No child under the age of six years may be allowed on any trail within the Hatfield-McCoy Recreation Area; and

(2) No child under the age of eight years who is required to be placed in a child passenger safety device system meeting applicable federal motor vehicle safety standards pursuant to §17C-15-46 of this code while occupying a motor vehicle may be allowed on any trail within the Hatfield-McCoy Recreation Area; and

(3) All persons operating or riding upon an ATV, UTV, or motorcycle as defined in §20-15-1 et seq. of this code shall follow the manufacturer’s recommendations for that vehicle relating to age and size limitations for operators and passengers.

(n) (1) A person who violates any provision of this section, except for subsection (e), is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $100.

(2) A person who violates subsection (e) of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined $1,000: Provided, That in the event the person’s violation of subsection (e) of this section causes damage to a landowner’s property outside of the designated and marked trail within the Hatfield-McCoy Recreation Area or interferes with a landowner’s or lawful possessor’s use of the property outside of the designated and marked trail within the Hatfield-McCoy Recreation Area, the person is guilty of a misdemeanor and, upon conviction thereof, shall be fined $2,000.

(3) Prosecution or conviction for the misdemeanors described in this subsection may not prevent or disqualify any other civil or criminal remedies for the conduct prohibited by this section.

§20-14-9. Limiting liability.

(a) An owner of land used by, or for the stated purposes of, the Hatfield-McCoy Regional Recreation Authority, whether with or without charge, owes no duty of care to keep the premises safe for entry or use by others for recreational purposes or to give any warning of a dangerous or hazardous condition, use, structure or activity on the premises to persons entering for those purposes.

(b) Unless otherwise agreed in writing, an owner who grants a lease, easement or license of land to the authority for recreational purposes, whether with or without charge, owes no duty of care to keep that land safe for entry or use by others or to give warning to persons entering or going upon the land of any dangerous or hazardous conditions, uses, structures or activities thereon. An owner who grants a lease, easement or license of land to the authority for recreational purposes does not by giving a lease, easement or license: (1) Extend any assurance to any person using the land that the premises are safe for any purpose; (2) confer upon those persons the legal status of an invitee or licensee to whom a duty of care is owed; or (3) assume responsibility for or incur liability for any injury to person or property caused by an act or omission of a person who enters upon the leased land. The provisions of this section apply whether the person entering upon the land is an invitee, licensee, trespasser or otherwise.

(c) Nothing herein limits in any way any liability which otherwise exists for deliberate, willful or malicious infliction of injury to persons or property: Provided, That nothing herein limits in any way the obligation of a person entering upon or using the land of another for recreational purposes to exercise due care in his or her use of the land and in his or her activities thereon, so as to prevent the creation of hazards or the commission of waste by himself or herself.

§20-14-10. Purchasing and bidding procedures.

(a) Whenever the authority proposes to purchase or contract for commodities or services reasonably anticipated to equal or exceed $2,500 in cost, the purchase or contract shall be based on competitive bids. Where the purchase of particular commodities or services is reasonably anticipated to be $25,000 or less, the executive director may, on behalf of the authority, solicit bids or price quotes in any manner that the executive director deems appropriate and the authority shall obtain its commodities or services by the lowest bid. In lieu of seeking bids or quotes for commodities or services in this price range, the authority may purchase those commodities and services pursuant to state master contracts as provided in section ten-e, article three, chapter five-a of this code.

(b) Where the cost for the purchase of commodities or services is reasonably anticipated to exceed $25,000, the executive director shall solicit sealed bids for the commodities or services to be provided: Provided, That the executive director may permit bids by electronic transmission be accepted in lieu of sealed bids. Bids shall be solicited by public notice. The notice shall be published as a Class II legal advertisement in all participating counties in compliance with the provisions of article three, chapter fifty-nine of this code and by such other means as the executive director deems appropriate. The notice shall state the general character of the work and general character of the materials to be furnished, the place where plans and specifications therefor may be examined and the time and place of receiving bids. After all bids are received, the authority shall enter into a written contract with the lowest responsible bidder; however, the authority may reject any or all bids that fail to meet the specifications required by the authority or that exceed the authority's budget estimation for those commodities or services. If the executive director determines in writing that there is only one responsive and responsible bidder and that there has been sufficient public notice to attract competitive bids, he or she may negotiate the price for a noncompetitive award or the specifications for a noncompetitive award based solely on the original purpose of the solicitation.

(c) For any contract that exceeds $25,000 in total cost, the authority shall require the vendors to post a bond, with form and surety to be approved by the authority, in an amount equal to at least fifty percent of the contract price conditioned upon faithful performance and completion of the contract.

(d) The bidding requirements specified in this section do not apply to any leases for real property upon which the authority makes improvements for public access to the recreation area, information distribution and welcome centers. This exemption does not apply to leases for offices, vehicle and heavy equipment storage or administrative facilities.

(e) Any person who violates a provision of this section is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail not less than ten days nor more than one year, or fined not less than $10 nor more than $1000, or both confined and fined.

§20-14-11. Conflicts of interest prohibiting certain contracts.

(a) No contract, change order to a prior contract or renewal of any contract may be awarded or entered by the authority to any vendor or prospective vendor when the vendor or prospective vendor is a member of the board or an employee of the authority, or a spouse, sibling, child or parent of a member of the board or an employee of the authority or to any vendor or prospective vendor in which a member of the board or employee of the authority, or a spouse, sibling, child or parent of a member of the board or an employee of the authority has an ownership interest of greater than five percent.

(b) No contract, change order to a prior contract or renewal of any contract may be awarded or entered by the authority to any vendor or prospective vendor when the vendor or prospective vendor is a member of the West Virginia Legislature, or a spouse, sibling, child or parent of a member of the Legislature, or to any vendor or prospective vendor in which a member of the Legislature or a spouse, sibling, child or parent of a member of the Legislature, has an ownership interest of greater than five percent.

(c) All responses to bid solicitations, requests for quotation, requests for proposal, contracts, change orders and contract renewals with the authority submitted or approved under the provisions of this article shall include an affidavit that the vendor or prospective vendor is not in violation of this section.

(d) Any person who violates a provision of this section is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail not less than ten days nor more than one year, or fined not less than $10 nor more than $1000, or both confined and fined.

§20-14-12. Civil remedies for unlawful purchasing and contracts.

The county commission of any participating county may challenge the validity of any contract or purchase entered, solicited or proposed by the authority in violation of section ten or eleven of this article by seeking declaratory or injunctive relief in the circuit court of the county of the challenging party. If the court finds by a preponderance of evidence that the provisions of section ten or eleven of this article have been violated, the court may declare the contract or purchase to be void and may grant any injunctive relief necessary to correct the violations and protect the funds of the authority as a joint development entity.

ARTICLE 15. ATV RESPONSIBILITY ACT.

§20-15-1. Legislative findings.

The West Virginia Legislature finds that trail-oriented recreation for off-highway vehicle enthusiasts offered by the Hatfield-McCoy Regional Recreation Authority significantly contributes to the economy of West Virginia and is enjoyed by a large and growing number of residents and nonresidents alike. Since it is recognized that there are inherent risks in the operation of such off-highway vehicles which should be understood by each operator and which cannot be eliminated by the Hatfield -McCoy Regional Recreation Authority or its authorized outfitters or licensees, it is the purpose of this article to define the areas of responsibility and affirmative acts which authorized outfitters must perform or risk being liable for loss, damage or injury suffered by participants and to define the risk which the participants expressly assume and for which there can be no recovery.

§20-15-2. Definitions.

The terms in this article have the following meaning, unless the context clearly requires a different meaning:

(1) “All-terrain vehicle” or “ATV” means any motor vehicle designed for off-highway use and designed to travel on not less than three low-pressure tires, having a seat designed to be straddled by the operator and handlebars for steering control and intended by the manufacturer to be used by a single operator or by an operator and no more than one passenger.

(2) “Authorized outfitter” or “licensee” means a commercial outfitter, which is a person, partnership, limited liability company, corporation, other organization, or any combination thereof, licensed by the Hatfield-McCoy Regional Recreation Authority, or other regional recreation authorities, who operates from any temporary or permanent camp, private or public lodge, or private home, who provides guided tours or the rental of all-terrain vehicles, utility-terrain vehicles or motorcycles for use on assigned lands for monetary profit or gain.

(3) “Low-pressure tire” means every tire in which twenty pounds per square inch or less of compressed air is designed to support the load.

(4) “Motorcycle” means any motor vehicle manufactured with no more than two wheels and having a seat or saddle for the use of the operator.

(5) “Off-highway vehicle”, “off-highway recreational vehicle” or “OHV” means a vehicle intended for off-highway use and includes all-terrain vehicles, utility-terrain vehicles, motorcycles and off-road vehicles. All permissible off-highway vehicles, including off-road vehicles, are incorporated by reference in this article.

(6) “Off-road vehicle” or “ORV” means a vehicle that is suitable for off-road use. It includes a four-wheel drive vehicle such as a Jeep, pickup or sport utility vehicle. It also includes a specially designed, modified or customized off-road vehicle that is of a similar size to a vehicle manufactured for highway use.

(7) “Participant” means any person using the land, trails and facilities of the Hatfield-McCoy Regional Recreation Authority or other regional recreation authorities.

(8) “Regional recreational authority” means the Hatfield-McCoy Regional Recreation Authority or any regional recreation authority established and organized pursuant to the provisions of article fourteen-a of this chapter; and

(9) “Utility-terrain vehicle” or “UTV” means any motor vehicle with four or more low-pressure tires designed for off-highway use, having bench or bucket seating for each occupant and a steering wheel for control.

§20-15-3. Scope.

This article shall only apply to the Hatfield-McCoy Regional Recreation Authority, authorized outfitters or licensees and any participant as defined in section two of this article.

§20-15-4. Duties of authorized outfitters or licensees.

(a) Every authorized outfitter or licensee shall:

(1) Mark for identification purposes all equipment and vehicles used in the business;

(2) Maintain all equipment and vehicles used in the business in such condition that the equipment and vehicles are safe to operate or use as intended and recommended by the manufacturer;

(3) Provide facilities, equipment and services conforming to safety and other requirements established by the rules promulgated by the Hatfield-McCoy Regional Recreation Authority;

(4) Provide facilities, equipment and services as advertised or as agreed to by the authorized outfitter or licensee and the participant;

(5) Provide protective helmets which are size appropriate and which meet the current performance specifications established by the American National Standards Institute standard, z 90.1, the United States Department of Transportation federal motor vehicle safety standard no. 218 or Snell safety standards for protective headgear for vehicle users as defined by subdivision (5), subsection (a), section one, article one, chapter seventeen-f of this code, to all persons using all-terrain vehicles, utility-terrain vehicles or motorcycles;

(6) Provide all-terrain vehicles or motorcycles which are age and size appropriate as recommended by the manufacturer;

(7) Make reasonable and prudent efforts to ensure that participants utilizing the facilities, equipment or services of the authorized outfitter or licensee have received the safety training required by the provisions of the legislative rule for the use of the Hatfield-McCoy Regional Recreation Area;

(8) Make certain that every guide offered to participants by the authorized outfitter or licensee has a current standard first aid training certificate and CPR certificate issued by the American Red Cross or its equivalent and ATV safety training by the Hatfield-McCoy Recreation Authority or its designee;

(9) Make certain that employees carry first aid kits when acting as guides; and

(10) Make known to any participant utilizing the facilities, equipment or services of the authorized outfitter or licensee any dangerous condition as to trail lands, facilities or equipment to be traversed or used which is known by the outfitter or licensee.

(b) An authorized outfitter or licensee may not rent or lease an all-terrain vehicle, utility-terrain vehicle or motorcycle to a person under the age of eighteen years or allow any owner-operated all-terrain vehicle, utility-terrain vehicle or motorcycle on any guided tour when operated by any person under the age of eighteen years without first obtaining a written statement, signed by the minor's parent or guardian certifying that:

(1) Any machine to be operated by the minor or his or her parent or guardian is of a model that is recommended by the manufacturer as appropriate to the minor's age and size;

(2) All rules governing the use of the vehicle and the Hatfield-McCoy Recreation Area have been explained to the minor in sufficient detail to enable the minor to abide by the rules; and

(3) Any minor under the age of sixteen will remain under the supervision of and the sight of the parent or guardian at all times.

(c) An authorized outfitter or licensee may not rent or lease a utility-terrain vehicle to any person who is not at least sixteen years of age and in possession of a valid driver's license.

(d) An authorized outfitter or licensee shall provide a participant utilizing the facilities, equipment or services of the authorized outfitter or licensee with written notification of his or her duties as prescribed in section five of this article. The participant shall sign the notification prior to using the equipment. The signed notification, or an electronically stored copy thereof, shall be kept on file by the outfitter or licensee for not less than five years.

§20-15-5. Duties of participants.

(a) All participants:

(1) Shall comply with any requirements established by law, including those in section one, article one, chapter seventeen-f of this code, which defines those acts prohibited by operators of all-terrain vehicles;

(2) Shall comply with the rules or regulations established for use of the Hatfield-McCoy Recreation Area;

(3) Shall, as to the Hatfield-McCoy Regional Recreation Authority or to any recreation area landowner, lessor, authorized outfitter or licensee, expressly assume the risk of and legal responsibility for any injury, loss or damage to person or property which results from participation in operating an all-terrain vehicle, utility-terrain vehicle or motorcycle, and caused by any of the following:

(A) Variations in terrain, slope or angle of terrain;

(B) Surface or subsurface conditions, including rocks, trees or other forms of forest growth or debris;

(C) Collisions with signs, markers, width restrictors, culverts, bridges, pipes, equipment, vehicles or any other objects or fixtures used in trail management, maintenance, construction or development;

(D) Collisions with signs, markers, pipes, equipment, vehicles or any component thereof used in natural resource maintenance, development or extraction;

(E) Collisions with electrical transmission poles, towers, lines, guy wires or any component thereof;

(4) Shall obey all rules or instructions announced by the Hatfield-McCoy Regional Recreation Authority, authorized outfitter or licensee with regard to the operation of the all-terrain vehicle or motorcycle he or she is operating; and

(5) Shall wear all safety equipment provided by the authorized outfitter or licensee, or which might otherwise be required by law.

(b) Each participant shall have the sole individual responsibility for:

(1) Knowing the range of his or her own ability to negotiate any slope or trail;

(2) Operating the ATV, UTV or motorcycle within the limits of the participant's own ability;

(3) Maintaining reasonable control of speed and course at all times;

(4) Heeding all posted warnings;

(5) Operating only on trails designated by the Hatfield-McCoy Regional Recreation Authority; and

(6) Refraining from acting in a manner which a reasonable person would believe to be likely to cause or contribute to the injury of any person.

(c) If while riding an ATV, UTV or motorcycle any participant collides with any object or person, the responsibility for the collision shall be solely that of the participant or participants involved and not that of the Hatfield-McCoy Regional Recreation Authority, any recreation area landowner, lessor, authorized outfitter or licensee unless the Hatfield-McCoy Regional Recreation Authority, recreation area landowner, lessor, authorized outfitter or licensee or their agent caused the collision in a tortious manner.

(d) After an accident, a participant may not leave the area where the accident took place without:

(1) Leaving personal identification, including his or her name and address;

(2) Notifying the proper authorities; and

(3) Obtaining assistance when he or she knows or reasonably should know that any other person involved in the accident is in need of medical or other assistance.

(e) Where a participant is a lawful passenger, that participant may not distract or perform any act which might interfere with the safe operation of the all-terrain vehicle, utility-terrain vehicle or motorcycle of which he or she is a passenger.

(f) Any person under the age of sixteen years shall remain under the direct supervision and within sight of a parent or guardian both of whom must otherwise comply with state or federal laws and any rules or regulations promulgated thereunder.

(g) A participant may not make any alterations or tamper with the all-terrain vehicle, utility-terrain vehicle or motorcycle he or she is operating or of which he or she is a passenger in any way which would interfere with the continued safe operation of that machine.

§20-15-6. Liability of authorized outfitters and licensees.

(a) Any authorized outfitter or licensee is liable for injury, loss or damage caused by failure to follow the duties set forth in section four of this article where the violation of duty is causally related to the injury, loss or damage suffered.

(b) An authorized outfitter or licensee is not liable for any injury, loss or damage caused by the negligence of any person who is not an agent or employee of the authorized outfitter or licensee.

(c) An authorized outfitter or licensee is not liable for any injury, loss or damage caused by a participant's violation of any duty described in section five of this article.

(d) An authorized outfitter or licensee is not liable for any injury, loss or damage caused solely by the participant's failure to negotiate the terrain or environment over which or through which the participant is operating his or her all-terrain vehicle, utility-terrain vehicle or motorcycle as described in section five of this article.

§20-15-7. Liability of participants.

Any participant is liable for injury, loss or damage resulting from violations of the duties established in section five of this article where the violation of duty is causally related to the injury, loss or damage suffered.

§20-15-8. Authorized outfitters required to carry insurance.

Every authorized outfitter or licensee shall carry public liability insurance in limits of not less than $300,000 per occurrence.

ARTICLE 16. NONPROFIT ADVENTURE AND RECREATIONAL ACTIVITY RESPONSIBILITY ACT.

§20-16-1. Short title.

This article may be cited as the "Nonprofit Adventure and Recreational Activity Responsibility Act".

§20-16-2. Legislative purpose.

The Legislature finds that West Virginia is blessed by geography and natural features that make it ideal for a host of adventure and recreational activities attractive to nonprofit youth organizations interested in training and inspiring thousands of young people from other parts of the United States and throughout the world. The location by these organizations of facilities within the state will contribute significantly to the economy of West Virginia, and enhance the state's reputation as a place to visit and transact business. Because it is recognized that there are inherent risks in various adventure and recreational activities which should be understood by participants therein and which are essentially impossible for the organizations and their providers to eliminate, it is the purpose of this article to define those areas of responsibility and those affirmative acts for which these nonprofit organizations and their providers of adventure and recreational activities shall be liable for loss, damage or injury suffered by participants, and to further define those risks which the participants expressly assume and for which there can be no recovery.

§20-16-3. Definitions.

In this article, unless a different meaning plainly is required:

(1) "Adventure or recreational activity" means any program or activity sponsored by a nonprofit youth organization and conducted by the organization or its provider that involves inherent risks, including, but not limited to:

(A) All-terrain vehicle activities and similar activities, including all activities within the ATV Responsibility Act in article fifteen of this chapter;

(B) Biking, mountain-biking and similar activities;

(D) Climbing and repelling and similar activities in improved and natural areas, including climbing walls;

(E) Equestrian activities and similar activities, including all activities within the Equestrian Activities Responsibility Act in article four of this chapter;

(F) Firearms training and similar activities;

(G) Hiking, backpacking, camping and similar activities;

(H) Paintball and similar activities;

(I) Rope initiatives, cope and confidence courses, challenge courses, slacklines, challenge courses and similar activities;

(J) Skating, including ice skating, rollerblading, and similar activities;

(K) Snow activities, including snowshoeing, snow skiing, sledding, snowmobiling, and similar activities, including all activities within the Skiing Responsibility Act in article three-A of this chapter;

(L) Spelunking, caving, and similar activities;

(M) Water sports, including swimming, diving, canoeing, kayaking, boating, sailing, scuba diving, water skiing, and similar activities, including all activities within the Whitewater Responsibility Act in article three-b of this chapter;

(N) Windsurfing and similar activities.

(2) "Employee" means an officer, agent, employee, servant, or volunteer, whether compensated or not, whether full time or not, who is authorized to act and is acting within the scope of his or her employment or duties with the nonprofit youth organization or provider.

(3) "Nonprofit youth organization" means any nonprofit organization, including any subsidiary, affiliate or other related entity within its corporate or other business structure, that has been chartered by the United States Congress to train young people to do things for themselves and others, and that has established an area of at least six thousand contiguous acres within West Virginia in which to provide adventure or recreational activities for these young people and others.

(4) "Participant" means any person engaging in an adventure or recreational activity.

(5) "Provider" means any individual, sole proprietorship, partnership, association, public or private corporation, the United States or any federal agency, this state or any political subdivision of this state, and any other legal entity which engages, with or without compensation, in organizing, promoting, presenting or providing or assisting in providing an adventure or recreational activity sponsored by a nonprofit youth organization, including one that allows the nonprofit youth organization the use of its land for the adventure or recreational activity.

§20-16-4. Duties of a nonprofit youth organization or provider.

Every nonprofit youth organization or provider shall:

(1) Make reasonable and prudent efforts to determine the ability of a participant to safely engage in the adventure or recreational activity;

(2) Make known to any participant any dangerous traits or characteristics or any physical impairments or conditions related to a particular adventure or recreational activity, of which the nonprofit youth organization or provider knows or through the exercise of due diligence could know;

(3) Make known to any participant any dangerous condition as to land or facilities under the lawful possession and control of the nonprofit youth organization or provider, of which the nonprofit youth organization or provider knows or through the exercise of due diligence could know, by advising the participant in writing or by conspicuously posting warning signs upon the premises;

(4) Assure that each participant has or is provided all equipment reasonably necessary for all activities covered by this article and, in providing equipment to a participant, make reasonable and prudent efforts to inspect such equipment to assure that it is in proper working condition and safe for use in the adventure or recreational activity;

(5) Prepare and present to each participant or prospective participant, for his or her inspection and signature, a statement which clearly and concisely explains the liability limitations, restrictions and responsibilities set forth in this article: Provided, That said statement shall not contain nor have the effect of a waiver of a nonprofit youth organization or provider's duties set forth in this section;

(6) Make reasonable efforts to provide supervision of participants while engaged in activities under this article.

§20-16-5. Duties of participants.

It is recognized that the adventure and recreational activities described in this article are hazardous to participants, regardless of all feasible safety measures which can be taken.

Each participant in an adventure or recreational activity expressly assumes the risk of and legal responsibility for any injury, loss or damage to person or property which results from participation in an activity. Each participant shall have the sole individual responsibility for knowing the range of his or her own ability to participate in a particular adventure or recreational activity, and it shall be the duty of each participant to act within the limits of the participant's own ability, to heed all posted warnings, to act in accordance with the instructions of any employee of the non-profit youth organization or provider, to perform an adventure or recreational activity only in an area or facility designated by the nonprofit youth organization or provider and to refrain from acting in a manner which may cause or contribute to the injury of anyone. There is a rebuttable presumption that any participant under the age of fourteen is incapable of comparative negligence or assumption of the risk. There is an irrebuttable presumption that any participant under the age of seven is incapable of comparative negligence or assumption of the risk. Any participant over the age of fourteen will be subject to the common law presumptions as to their acts and or omissions.

A participant involved in an accident shall not depart from the area or facility where the adventure or recreational activity took place without leaving personal identification, including name and address, or without notifying the proper authorities, or without obtaining assistance when that person knows or reasonably should know that any other person involved in the accident is in need of medical or other assistance.

§20-16-6. Liability of nonprofit youth organization or provider.

(a) A nonprofit youth organization or provider shall be liable for injury, loss or damage caused by failure to follow the duties set forth in section four of this article where the violation of duty is causally related to the injury, loss or damage suffered. A nonprofit youth organization or provider shall not be liable for any injury, loss or damage caused by the negligence of any person who is not an agent or employee of the nonprofit youth organization or provider.

(b) A nonprofit youth organization or provider shall be liable for acts or omissions which constitute gross negligence or willful and wanton conduct which is the proximate cause of injury to a participant.

(c) A nonprofit youth organization or provider shall be liable for an intentional injury which he or she inflicts upon a participant.

(d) Every nonprofit youth organization and any provider for such non-profit youth organization shall carry public liability insurance in limits of no less than $500,000 per person, $1 million per occurrence and $50,000 for property damage with coverage extending to any employee of the non-profit youth organization or provider in the course of their duties as an employee or volunteer. The failure to have in effect the insurance required by this section shall prevent the non-profit youth organization or provider from relying on the provisions of this article in any civil action brought by a participant.

§20-16-7. Liability of participants.

Any participant shall be liable for injury, loss or damage resulting from violations of the duties set forth in section five of this article: Provided, That none of the provisions in this article shall modify or eliminate any other statutory or common law provisions which specifically relate to or concern liability of minors or the capacity of minors to legally enter into contracts.

§20-16-8. Applicability of article.

The provisions of this article are in addition to provisions of articles three-a, three-b, four and fifteen of this chapter, and are to be construed in pari materia.

§20-3-3a. Cabwaylingo State Forest Trail System.

(a) The director, in consultation with the forestry director, may permit all-terrain vehicles (ATVs), off-highway recreational vehicles (ORVs), and utility-terrain vehicles (UTVs) to drive on roads and trails in Cabwaylingo State Forest, as designated and approved by the director. The director may establish special seasons and designate certain campgrounds and tent sites in the forest.

(b) The director, in consultation with the forestry director, may establish a special permit for purchase by the ATV and ORV users for road and trail access, and may close any areas, or parts thereof, to public use. Should the director establish such a special permit, it shall be unlawful, at any time, to operate an ATV or ORV on any roads and trails in Cabwaylingo State Forest without the special permit.

(c) The provisions of §20-15-1 et seq. of this code apply to the division, participants, outfitters, and licensees of the Cabwaylingo State Forest Trail System, though ORVs may be permitted.

(d) The Parks and Recreation Section of the Division of Natural Resources is prohibited from establishing any additional ATV, ORV, or UTV trail systems within state parks and state forests: Provided, That the Director of the Division of Natural Resources shall have the authority to authorize the development and use of certain connector trails, roads, and parking areas from private systems, including, without limitation, the Hatfield-McCoy systems, solely for the purpose of providing access to state park and state forest recreational facilities and lodging by ATV, ORV, and UTV trail system users.

(e) The Director of the Division of Natural Resources shall have authority to promulgate emergency legislative rules and legislative rules necessary to effectuate the provisions of this section.

§20-3-5a. Prescribed Fire Program.

(a) As used in this section:

(1) “Certified prescribed fire manager” means an employee of the Division of Forestry, the Division of Natural Resources, or any federal employee who has successfully completed a certification process established by the director.

(2) “Prescribed fire” means the controlled application of fire or wildland fuels in wildlife management areas, state forests or federal lands in either the natural or modified state, under specified environmental conditions, which allows the fire to be confined to a predetermined area and produces the fire behavior and fire characteristics necessary to attain planned fire treatment and ecological, silvicultural, and wildlife management objectives.

(3) “Prescription” means a written statement defining the objectives to be attained by a prescribed fire and the conditions of temperature, humidity, wind direction and speed, fuel moisture, and soil moisture under which a fire will be allowed to burn. A prescription is generally expressed as an acceptable range of the prescription elements.

(b) Director certification process. — The director shall develop and administer a certification process and prescribed burn course for any individual who desires to become a certified prescribed fire manager. The prescribed fire course shall include the following subjects: the legal aspects of prescribed fire, fire behavior, prescribed fire tactics, smoke management, environmental effects, plan preparation, and safety. The director shall give a final examination on these subjects to all attendees. The director may charge a reasonable fee to cover the costs of the prescribed fire course and the examination.

(1) Successfully complete all components of the prescribed fire course developed by the director and pass the examination developed for the course;

(2) Successfully complete a prescribed fire course comparable to that developed by the director and pass the examination developed for the course; or

(3) Demonstrate relevant past experience, complete a review course and pass the examination developed for the prescribed fire course.

(d) Prescribed burning shall be performed in the following manner:

(1) A certified prescribed fire manager shall prepare a prescription for the prescribed fire prior to the burn. The prescription shall include: (A) The landowner’s name, address, and telephone number, and the telephone number of the certified prescribed fire manager who prepared the plan; (B) a description of the area to be burned, a map of the area to be burned, the objectives of the prescribed fire, and the desired weather conditions or parameters; (C) a summary of the methods to be used to start, control, and extinguish the prescribed fire; and (D) a smoke management plan. The smoke management plan shall conform to the Department of Environmental Protection’s rule, Control of Air Pollution from Combustion of Refuse, 45 CSR 6. A copy of the prescription shall be retained at the site throughout the period of the burning;

(2) A certified prescribed fire manager shall directly supervise a prescribed fire and ensure that the prescribed fire is in accordance with the prescription; and

(3) The certified prescribed fire manager shall notify the nearest regional office of the division 24 hours prior to the prescribed fire.

(e) If the actions of any certified prescribed fire manager or the prescriptions prepared by him or her violate any provision of this article, state air pollution control laws, the Division of Forestry rules, the Department of Environmental Protection rules or laws, or threaten public health and safety, the director may revoke his or her certification.

(f) The director shall propose rules for promulgation in accordance with the provisions of §29A-3-1 et seq. of this code for establishing the procedures for the development of a certification program for prescribed fire managers.

§20-17A-4. Governing body and expenses.

(a) The governing body of the authority shall be a board constituted according to the provisions of §20-17-4 of this code.

(b) All costs incidental to the administration of the authority, including office expenses, personal services expenses and current expenses, shall be paid in accordance with guidelines issued by the board from funds accruing to the authority.

(c) All expenses incurred in carrying out the provisions of this article shall be payable solely from funds provided under the authority of this article and according to the requirements of §20-17-1 et seq. of this code. No liability or obligation may be incurred by the authority under this article beyond the extent to which moneys have been provided under the authority of this article.

§20-17A-5. Protection for private landowners.

Owners of land used by the authority shall have the full benefit of the limitations of liability provided in §20-17-8 of this code.

ARTICLE 17A. MOUNTAINEER TRAIL NETWORK RECREATION AUTHORITY.

§20-17A-1. Legislative findings; purpose.

The Legislature further finds that, with the cooperation of private landowners, there is an opportunity to provide trail-oriented recreation facilities primarily on private property in the mountainous terrain of the Potomac Highlands and north central West Virginia and that the facilities will provide significant economic and recreational benefits to the state and to the communities in the Potomac Highlands and north central West Virginia through increased tourism in the same manner as whitewater rafting, snow skiing, and utility terrain motor vehicle riding benefit the state and communities surrounding those activities.

The Legislature further finds that the creation and empowering of a joint development entity to work with the landowners, county officials and community leaders, state and federal government agencies, recreational user groups, adjacent neighboring states and counties, and other interested parties to enable and facilitate the implementation of the facilities will greatly assist in the realization of these potential benefits.

The purpose of this article is to provide additional opportunities and regulatory authorization for recreational trail networks and to provide for increased access to recreational areas, including, but not limited to, creating a contiguous trail system that connects to the Upper Ohio Valley Trail Network Recreation Authority, the Elk River Trail, the Chesapeake and Ohio Canal Tow Path and any other trails in adjacent neighboring states that can be feasibly connected.

§20-17A-2. Continuation of Mountaineer Trail Network Recreation Authority and establishment of recreation area.

(a) There is hereby continued the Mountaineer Trail Network Recreation Authority consisting of representatives from the counties of Barbour, Doddridge, Grant, Harrison, Lewis, Marion, Mineral, Monongalia, Preston, Randolph, Ritchie, Taylor, Tucker, Upshur, and Wood organized pursuant to the provisions of §20-17-1 et seq. of this code. This authority is authorized to establish a Mountaineer Trail Network Recreation Area within the jurisdictions of those counties and the authority shall be subject to the powers, duties, immunities, and restrictions provided in §20-17-1 et seq. of this code. Visitors and participants in recreational activities within the trail network shall, in similar respects, be subject to the user requirements and prohibitions of §20-17-7 of this code.

(b) Notwithstanding subsection (a) of this section, an adjacent county may join the Mountaineer Trail Network Recreation Authority pursuant to the procedures set forth in §20-17-3(b) of this code.

(c) Notwithstanding subsection (a) of this section, the Mountaineer Trail Network Recreation Authority may merge with another multicounty trail network authority, pursuant to the procedures set forth in §20-17-3(c) of this code.

(d) The Mountaineer Trail Network Recreation Authority may set goals of connecting to the Upper Ohio Valley Trail Network Recreation Authority, the Elk River Trail, the Chesapeake and Ohio Canal Tow Path and any other trails in adjacent neighboring states that can be feasibly connected.

§20-17A-3. Recreational purposes.

The permitted recreational purposes for the Mountaineer Trail Network Recreation Area include, but are not limited to, any one or any combination of the following recreational activities: Hunting, fishing, swimming, boating, camping, picnicking, hiking, bicycling, mountain bicycling, running, cross-country running, nature study, winter sports and visiting, viewing or enjoying historical, archaeological, scenic, or scientific sites.

§20-17-8. Limiting liability.

(a) An owner of land used by an authority owes no duty of care to keep his or her land safe for entry or use by others for recreational purposes, or to give any warning of a dangerous or hazardous condition, use, structure, activity, or wild animal on such land to persons entering or going upon the land for such purposes. The provisions of this section apply regardless of whether the person entering or going upon the leased land is permitted to enter the land or is a trespasser.

(b) Unless otherwise agreed in writing, an owner of land who grants a lease, easement, or license of land to an authority for recreational purposes does not, by giving a lease, easement or license: (1) Extend any assurance to any person using the land that the land is safe for any purpose; (2) confer upon those persons the legal status of a party to whom a duty of care is owed; or (3) assume responsibility for or incur liability for any injury to person or property or death caused by an act or omission of a person who enters upon the leased land. The provisions of this section apply whether the person entering or going upon the leased land is permitted to enter the land or is a trespasser.

(c) Nothing in this section limits in any way any liability which otherwise exists for deliberate, willful, or malicious infliction of injury to persons or property: Provided, That nothing herein limits in any way the obligation of a person entering upon or using the land of another for recreational purposes to exercise due care in his or her use of the land and in his or her activities thereon, so as to prevent the creation of hazards or the commission of waste by himself or herself.

§20-17-5. Financial review and oversight.

(a) An authority shall contract for and obtain an annual financial audit to be conducted by a private accounting firm in compliance with generally accepted government auditing standards. When complete, the audit shall be transmitted to the board, the president of the county commission of each participating county, and the Legislative Auditor. The cost of the audit shall be paid by the authority.

(b) If an authority receives any funds from the Legislature by appropriation or grant, the Legislative Auditor shall have the power and authority to examine the revenues, expenditures, and performance of the authority, and, for these purposes, shall have the power to inspect the properties, equipment, and facilities of the authority and to request, inspect, and obtain copies of any records of the authority. For each fiscal year in which the authority receives any funds from the Legislature by appropriation or grant, the executive director shall provide to the Legislative Auditor and Secretary of Revenue a detailed list of actual expenditures and revenue by account and recipient name for the previous fiscal year within 45 days of the close of that fiscal year.

§20-17-6. Powers of an authority.

An authority, as a public corporation and joint development entity, may exercise all powers necessary or appropriate to carry out the purposes of this article, including, but not limited to, the power:

(1) To acquire, own, hold, and dispose of property, real and personal, tangible and intangible;

(2) To lease property, whether as lessee or lessor, and to acquire or grant through easement, license, or other appropriate legal form, the right to develop and use property and open it to the public;

(3) To mortgage or otherwise grant security interests in its property;

(4) To procure insurance against any losses in connection with its property, licenses, easements, operations, assets, or contracts, including hold-harmless agreements, in such amounts and from such insurers as the authority considers desirable;

(5) To maintain such sinking funds and reserves as the board determines appropriate for the purposes of meeting future monetary obligations and needs of the authority;

(6) To sue and be sued, implead and be impleaded, and complain and defend in any court;

(7) To contract for the provision of legal services by private counsel and, notwithstanding the provisions of §5-3-1 et seq. of this code, the counsel may, in addition to the provisions of other legal services, represent the authority in court, negotiate contracts and other agreements on behalf of the authority, render advice to the authority on any matter relating to the authority, prepare contracts and other agreements, and provide such other legal services as may be requested by the authority;

(8) To adopt, use, and alter at will a corporate seal;

(9) To make, amend, repeal, and adopt bylaws for the management and regulation of the authority’s affairs;

(10) To appoint officers, agents, and employees and to contract for and engage the services of consultants;

(11) To make contracts of every kind and nature and to execute all instruments necessary or convenient for carrying out the purposes of this article, including contracts with any other governmental agency of this state or of the federal government or with any person, individual, partnership, or corporation;

(12) Without in any way limiting any other subdivision of this section, to accept grants and loans from, and enter into contracts and other transactions with, any federal agency;

(13) To maintain an office at such place or places within the state as it may designate;

(14) To borrow money, to issue notes, to provide for the payment of notes, to provide for the rights of the holders of notes, and to purchase, hold, and dispose of any of its notes;

(15) To issue notes payable solely from the revenue or other funds available to the authority, which may be issued in such principal amounts as necessary to provide funds for any purpose under this article, including:

(A) The payment, funding, or refunding of the principal of, interest on, or redemption premiums on notes issued by it, whether the notes or interest to be funded or refunded have or have not become due; and

(B) The establishment or increase of reserves to secure or to pay notes, or the interest on the notes, and all other costs or expenses of the authority incident to and necessary or convenient to carry out its corporate purposes and powers. Notes may be additionally secured by a pledge of any revenues, funds, assets, or moneys of the authority from any source;

(16) To issue renewal notes, except that no renewal notes may be issued to mature more than 10 years from the date of issuance of the notes renewed;

(17) To apply the proceeds from the sale of renewal notes to the purchase, redemption, or payment of the notes to be refunded;

(18) To accept gifts or grants of property, funds, security interests, money, materials, labor, supplies, or services from the federal government or from any governmental unit or any person, firm, or corporation, and to take appropriate measures in procuring, accepting, or disposing of gifts or grants;

(20) To construct, reconstruct, improve, maintain, repair, operate, and manage the recreational areas at the locations within the participating counties as may be determined by the authority;

(21) To enter into an agreement with the West Virginia Division of Natural Resources for natural resources police officers to provide law-enforcement services within the authority’s recreational area and to reimburse the Division of Natural Resources for its costs therefor;

(22) To exercise all power and authority provided in this article necessary and convenient to plan, finance, construct, renovate, maintain, and operate or oversee the operation of the authority at such locations within the participating counties as may be determined by the authority;

(23) To exercise all of the powers which a corporation may lawfully exercise under the laws of this state;

(24) To develop, maintain, and operate or contract for the development, maintenance, and operation of the authority;

(25) To enter into contracts with landowners and other persons holding an interest in the land being used for its recreational facilities to hold those landowners and other persons harmless with respect to any claim in tort growing out of the use of the land for recreational purposes or growing out of the recreational activities operated or managed by the authority from any claim except a claim for damages proximately caused by the willful or malicious conduct of the landowner or any of his or her agents or employees;

(26) To assess and collect a reasonable fee from those persons who use the trails, parking facilities, visitor centers, or other facilities which are part of the recreational area and to retain and utilize that revenue for any purposes consistent with this article: Provided, That such fee does not constitute a "charge" or a "fee" within the meaning and for the purposes of §19-25-5 of this code: Provided, however, That the authority may not charge a fee for any user to enter or go upon any trail that is already open for use by the public without fee as of January 1, 2019;

(27) To enter into contracts or other appropriate legal arrangements with landowners under which land is made available for use as part of the recreational area;

(28) To directly operate and manage recreation activities and facilities within the recreational area;

(29) To promulgate and publish rules governing the use of the recreational area and the safety of participants, including rules designating particular trails or segments of trails within the recreational area for certain activities and limiting use of designated trails to such activities;

(30) To coordinate and conduct athletic races, competitions, or events within the recreational area, in cooperation with the county commissions of participating counties in which such events will take place; and

(31) To exercise such other and additional powers as may be necessary or appropriate to carry out the purposes of this article.

§20-17-9. Purchasing and bidding procedures; criminal penalties.

(a) Purchasing and bidding procedures; criminal penalties. —

(1) Whenever an authority proposes to purchase or contract for commodities or services reasonably anticipated to equal or exceed $25,000 in cost, the purchase or contract shall be based on competitive bidding. Where the purchase of particular commodities or services is reasonably anticipated to be less than $25,000, the executive director may, on behalf of the authority, solicit bids or price quotes in any manner that the executive director deems appropriate and the authority shall obtain its commodities or services by the lowest bid. In lieu of seeking bids or quotes for commodities or services in this price range, the authority may purchase those commodities and services pursuant to state prequalification agreements as provided in §5A-3-10e of this code.

(2) Where the cost for the purchase of commodities or services is reasonably anticipated to exceed $25,000, the executive director shall solicit sealed bids for such commodities or services: Provided, That the executive director may permit bids by electronic transmission to be accepted in lieu of sealed bids. Bids shall be solicited by public notice. The notice shall be published as a Class II legal advertisement in all participating counties in compliance with the provisions of §59-3-1 et seq. of this code and by such other means as the executive director deems appropriate. The notice shall state the general character of the work and general character of the materials to be furnished, the place where plans and specifications therefor may be examined, and the time and place for receiving bids. After all bids are received, the authority shall enter into a written contract with the lowest responsible bidder; however, the authority may reject any or all bids that fail to meet the specifications required by the authority or that exceed the authority’s budget estimation for those commodities or services. If the executive director determines in writing that there is only one responsive and responsible bidder and that there has been sufficient public notice to attract competitive bids, he or she may negotiate the price for a noncompetitive award or the specifications for a noncompetitive award based solely on the original purpose of the solicitation.

(3) For any contract that exceeds $25,000 in total cost, the authority shall require the vendors to post a bond, with form and surety to be approved by the authority, in an amount equal to at least 50 percent of the contract price conditioned upon faithful performance and completion of the contract.

(4) The bidding requirements specified in this section do not apply to any leases for real property upon which the authority makes improvements for public access to the recreational area, information distribution, and welcome centers. This exemption does not apply to leases for offices, vehicle and heavy equipment storage, or administrative facilities.

(5) Any person who violates a provision of this subsection is guilty of a misdemeanor and, upon conviction, shall be confined in jail not less than 10 days nor more than one year, or fined not less than $10 nor more than $1,000, or both fined and confined.

(b) Conflicts of interest in contracts prohibited. —

An authority or any of its board members, officers, employees, or agents may not enter into any contracts, agreements, or arrangements for purchases of services or commodities violating the requirements of §6B-2-5 or §61-10-15 of this code.

The county commission of a participating county in an authority may challenge the validity of any contract or purchase entered, solicited, or proposed by the authority in violation of this section by seeking declaratory or injunctive relief in the circuit court of the county of the challenging party. If the court finds by a preponderance of evidence that the provisions of those sections have been violated, the court may declare the contract or purchase to be void and may grant any injunctive relief necessary to correct the violations and protect the funds of the authority as a joint development entity.

§20-17-7. Requirements for trail users and prohibited acts; criminal penalties.

(a) An authority may require recreational users to wear protective helmets or use safety equipment that the authority determines to be appropriate for the recreational activity in which the user is engaged.

(b) Each trail user operating a bicycle or mountain bicycle shall obey all traffic laws, traffic-control devices, and signs within the recreational area, including those which restrict trails to certain types of bicycles or mountain bicycles.

(c) Each trail user shall at all times remain within and on a designated and marked trail while within the recreational area.

(d) A person may not ignite or maintain any fire within the recreational area except in a designated camp site.

(e) A person may not operate a motor vehicle within the recreational area unless the person is authorized to operate a motor vehicle in the area to perform maintenance services or emergency response.

(f) A person who violates any provision of this section is guilty of a misdemeanor and, upon conviction, shall be fined not more than $100. Prosecution or conviction for the misdemeanor described in this subsection shall not prevent or disqualify any other civil or criminal remedies for the conduct prohibited by this section.

§20-17-4. Board; quorum; executive director; expenses; application of state Freedom of Information Act.

(a) The board is the governing body of an authority and the board shall exercise all the powers given the authority in this article. The county commission of each participating county shall appoint two members to the board, as follows:

(1) Each participating county shall appoint one member who represents and is associated with a corporation or individual landowner whose land is being used or is expected to be used in the future as part of the authority’s recreational area. This member shall be appointed to a four-year term.

(2) Each participating county shall appoint one member who is an experienced instructor, guide, or participant in recreational activities in the county or an individual who represents and is associated with travel, tourism, economic development, land surveying, or relevant engineering efforts within the county. The initial appointment for this member shall be for a two-year term, but all subsequent appointments shall be for a four-year term.

(3) Any appointed member whose term has expired shall serve until his or her successor has been duly appointed and qualified. Any person appointed to fill a vacancy shall serve only for the unexpired term. Any appointed member is eligible for reappointment. Members of the board are not entitled to compensation for services performed as members but are entitled to reimbursement for all reasonable and necessary expenses actually incurred in the performance of their duties.

(b) Upon joining an existing authority as a participating county pursuant to §20-17-3 of this code, the newly participating county shall appoint board members only for the length of the unexpired terms of the authority’s board members serving at the time the county joins the authority. Thereafter, the county shall appoint board members according to the regular appointment procedure provided in subsection (a) of this section.

(c) The board shall meet quarterly, unless a special meeting is called by its chairman. During the first meeting of each fiscal year beginning in an odd-numbered year, or as soon as feasible thereafter, the board shall elect a chairman, secretary, and treasurer from among its own members to serve for two-year terms.

(d) A majority of the members of the board constitutes a quorum and a quorum shall be present for the board to conduct business.

(e) The board may prescribe, amend, and repeal bylaws and rules governing the use of the trail system, safety standards for participants, and the manner in which the business of the authority is conducted.

(f) The board shall review and approve an annual budget. The fiscal year for an authority begins on July 1 and ends on the 30th day of the following June.

(g) The board shall appoint an executive director to act as its chief executive officer, to serve at the will and pleasure of the board. The board, acting through its executive director, may employ any other personnel considered necessary and retain such temporary legal, engineering, financial, and other consultants or technicians as may be required for any special study or survey consistent with the provisions of this article. The executive director shall carry out plans to implement the provisions of this article and to exercise those powers enumerated in the bylaws. The executive director shall prepare an annual budget to be submitted to the board for its review and approval prior to the commencement of each fiscal year. The budget shall contain a detailed account of all planned and proposed revenue and expenditures for the authority for the upcoming fiscal year, including a detailed list of employees by title, salary, cost of projected benefits, and total compensation. Before August 15 of each year, the executive director shall provide to the board and the county commission for each participating county a detailed list of actual expenditures and revenue, by account and recipient name, for the previous fiscal year and a copy of the approved budget for the current fiscal year.

(h) All costs incidental to the administration of the authority, including office expenses, personal services expenses, and current expenses, shall be paid in accordance with guidelines issued by the board from funds accruing to the authority.

(i) All expenses incurred by an authority in carrying out the provisions of this article shall be payable solely from funds that have accrued to the authority pursuant to this article. An authority may not incur liability or an obligation above the amount of funds that have accrued to the authority pursuant to this article.

(j) A multicounty trail network authority and the board is a "public body" for purposes of the West Virginia Freedom of Information Act, as provided in §29B-1-1 et seq. of this code.

§20-17-3. Multicounty trail network authorities authorized; addition of counties; merger of existing authorities.

(a) For the purposes of this article, three or more contiguous counties may, upon approval of the county commission of each county desiring to participate, form a multicounty trail network authority. An authority established pursuant to this section is a public corporation and a joint development entity existing for the purpose of facilitating the development and operation of a system of recreational trails and areas throughout the participating counties. Such trails will be designated and made available for recreational purposes with significant portions of the trails system being located on private property throughout West Virginia, made available for use through lease, license, easement, or other appropriate legal form by a willing landowner.

(b) An adjacent county may join a multicounty trail network authority as a participating county upon approval of both the board of the authority and the county commission of the adjacent county wishing to become a participating county.

(c) Two or more existing authorities may merge and become a single authority encompassing the participating counties in each merging authority upon approval of the board of each authority. Upon merger of two or more authorities, the board of the newly created authority will be composed of all board members serving on the board of each merging authority at the time the merger takes place. Thereafter, the authority will fill any vacancies and appoint board members as required by §20-17-4 of this code. The board of the newly created authority shall adopt appropriate procedures and bylaws to ensure that the newly created authority complies with all requirements of this article.

ARTICLE 17. MULTICOUNTY TRAIL NETWORK AUTHORITIES.

§20-17-1. Legislative findings.

The West Virginia Legislature finds that outdoor recreation is an increasingly vital part of the state’s economy and that outdoor recreation participants spend billions of dollars annually in the state and support a significant number of local jobs.

The Legislature further finds that well-managed areas for trail-oriented recreation in the state will increase outdoor recreational tourism, increasing revenue to the state and creating more jobs for West Virginia citizens.

The Legislature further finds that, with the cooperation of private landowners, there is an opportunity to provide citizens and recreational tourists with greater access to trail-oriented recreation by incorporating private property into recreational trail systems and areas throughout West Virginia to provide significant economic and recreational benefits to communities in the state.

The Legislature further finds that, under an appropriate contractual and management scheme, well-managed trail systems may exist on private property without diminishing the landowner’s interest, control, or profitability in the land and without increasing the landowner’s exposure to liability.

The Legislature further finds that creating and empowering multicounty trail network authorities, that can work with the landowners, county officials, community leaders, state and federal government agencies, recreational user groups, and other interested parties to expand trail systems will greatly assist in improving and linking recreational trail systems.

The Legislature further finds that it is in the best interests of the state to encourage private landowners to make land available for public use, through multicounty trail network authorities, for recreational purposes by limiting landowner liability for injury to persons entering thereon, by limiting landowner liability for injury to the property of persons entering thereon, and by limiting landowner liability to persons who may be injured or otherwise damaged by the acts or omissions of persons entering thereon.

§20-17-2. Definitions.

Unless the context clearly requires a different meaning, the terms used in this article have the following meanings:

(1) "Adjacent county" means a nonparticipating county that directly borders any participating county in a multicounty trail network authority;

(2) "Authority" means a multicounty trail network authority created pursuant to this article;

(3) "Board" means the board of a multicounty trail network authority;

(4) "Contiguous counties" means a group of counties in which each county shares the border of at least one other county in the group;

(5) "Fee" means the amount of money asked in return for an invitation to enter or go upon a recreational area of a trail network, including a one-time fee for a particular event, amusement, occurrence, adventure, incident, experience, or occasion as set by an authority, which may differ in amount for different categories of participants;

(6) "Land" or "property" includes, but is not limited to, roads, water, watercourses, private ways, buildings, premises, structures, and machinery or equipment, when attached to the realty;

(7) "Owner" or "owner of land" means a person vested with title to real estate and those with the ability to exercise control over real estate and includes, but is not limited to, a tenant, lessee, licensee, holder of a dominant estate, or other lawful occupant;

(8) "Participant" means any person using a recreational area of a trail network for recreational purposes;

(9) "Person" means any public or private corporation, institution, association, society, firm, organization, or company organized or existing under the laws of this or any other state or country; the State of West Virginia; any state governmental agency; any political subdivision of the state or of its counties or municipalities; a sanitary district; a public service district; a drainage district; a conservation district; a watershed improvement district; a partnership, trust, or estate; a person or individual; a group of persons or individuals acting individually or as a group; any other legal entity; or any authorized agent, lessee, receiver, or trustee of any of the foregoing;

(10) "Participating county" means one of the three or more counties forming a multicounty trail network authority;

(11) "Recreational area" means the recreational trails and appurtenant facilities, including trail head centers, parking areas, camping facilities, picnic areas, recreational areas, historic or cultural interpretive sites, and other facilities or attractions that are a part of a multicounty trail network authority system; and

(12) "Recreational purposes" means:

(A) Any outdoor activity undertaken, or practice or instruction in any such activity, for the purpose of exercise, relaxation, or pleasure, including, but not limited to any one or any combination of the following noncommercial recreational activities: Hunting, fishing, swimming, boating, kayaking, camping, picnicking, hiking, rock climbing, bouldering, bicycling, horseback riding, spelunking, nature study, water skiing, winter sports, and visiting, viewing, or enjoying historical, archaeological, scenic, or scientific sites, aircraft, or ultralight operations on private airstrips or farms, or otherwise using land for purposes of the user;

(B) Parking on or traversing land, outside of the state road system, for the purpose of engaging in a recreational activity described in paragraph (A) of this subdivision; or

(C) Maintaining or making improvements on land, including, but not limited to, artificial improvements for the purpose of making the land accessible or usable for a recreational activity described in paragraph (A) of this subdivision.

§20-2-5i. Waste of game animals, game birds, or game fish; penalties.

(a) It is unlawful for any person to cause through carelessness, neglect, or otherwise to let any edible portion of any big game or game fish to go to waste needlessly.

(b) For purposes of this section, "edible portion" means, with respect to:

(1) Big game. — One or more of the following: (A) the meat of the front quarters to the knee; (B) the meat of the hind-quarters to the hock; or (C) the meat along the backbone between the front quarters and hind quarters: Provided, That an edible portion of a wild turkey is the meat of the breast only.

(2) Game fish. — The fillet meat from the gill plate to the tail fin.

(3) Edible portion does not include bones, sinew, viscera, meat from the head or neck, meat that has been damaged or rendered inedible by method of taking, or meat that is reasonably lost as a result of boning or close trimming of bones.

(c) It is unlawful for any person to take any big game and detach or remove from the carcass the head, hide, antlers, tusks, paws, claws, gallbladder, teeth, beards, or spurs only and leave the carcass to waste.

(d) Any person who through no carelessness, neglect, or otherwise, is unable to locate the carcass of any lawfully taken big game prior to the spoilage or decay of any or all edible portions may detach or remove from the carcass the head, hide, antlers, tusks, paws, claws, gall bladder, teeth, beards, or spurs: Provided, That the big game is registered and shall be counted toward the daily, seasonal, bag, and possession limit of the person in possession of, or responsible for taking the big game.

(e) Any person violating the provisions of this section is guilty of a misdemeanor and, upon conviction thereof, shall be subject to the following penalties, with respect to:

(1) Big game violations. —

(A) A fine of not less than $500 nor more than $2,500, or confinement in jail not less than 10 days nor more than 100 days, or both fined and confined;

(B) Suspension of hunting and fishing license for a period of five years; and

(2) Game fish violations. —

(A) A fine of not less than $100 nor more than $500, or confinement in jail not less than 10 days nor more than 100 days, or both fined and confined;

(B) Suspension of hunting and fishing license for a period of two years; and

§20-5A-2. Board of trustees.

(a) A board of trustees is hereby created to administer the State Parks and Recreation Endowment Fund.

(b) The board shall be composed of the Director of the Division of Natural Resources, serving as chair, the Chief of the Parks and Recreation Section of the Division of Natural Resources, the executive secretary of the division, the division fiscal officer, and the President of the West Virginia State Parks Foundation, who shall serve as voting ex officio members, and six voting members to be appointed by the Governor. Two of the appointed members shall be state park superintendents and four of the appointed members shall be selected from citizen membership of state park associations that represent a lodge state park, a cabin state park, a day-use state park, a state forest, or a state rail trail under the jurisdiction of the division: Provided, That to the extent possible, the Governor shall appoint the citizen members to ensure an equal geographic representation throughout the state and their terms shall be staggered from July 1, 2020. Of the citizen members first appointed, two citizen members shall be appointed for a term of three years; and two citizen members shall be appointed for a term of four years. Successors to appointed citizen members whose terms expire shall be appointed for terms of four years. Vacancies shall be filled for the unexpired term. An appointed citizen member may not serve for more than two successive terms. Appointment to fill a vacancy may not be considered as one of two terms.

§20-2-5j. Leashed dogs for tracking mortally wounded deer, elk, turkey, wild boar, or bear.

(a) Notwithstanding any provision of this chapter to the contrary, a person who is legally hunting and reasonably believes he or she has mortally wounded a deer, elk, turkey, wild boar, or bear may use leashed dogs to track and locate the mortally wounded deer, elk, turkey, wild boar, or bear. The hunter is also permitted to use a dog handler of leashed dogs to track and locate the mortally wounded deer, elk, turkey, wild boar, or bear. The hunter or the dog handler shall always maintain physical control of the leashed dogs.

(b) The act of tracking a mortally wounded deer, elk, turkey, wild boar, or bear with a dog is hunting and the hunter and handler are subject to all applicable laws and rules. It is unlawful for a hunter or dog handler to track deer, elk, turkey, wild boar, or bear with leashed dogs under the provisions of this section unless he or she is in possession of a valid hunting license issued pursuant to this article or is a person excepted from licensing requirements pursuant to this article, and all other lawful authorizations as prescribed in this article. The hunter shall accompany the dog handler and only the hunter may kill a mortally wounded deer, elk, turkey, wild boar, or bear. However, any hunter who is physically unable to accompany the handler in the tracking and locating of the mortally wounded deer, elk, wild turkey, boar, or bear may designate the handler to kill the deer, elk, wild turkey, boar, or bear when located by the handler. The deer, elk, turkey, wild boar, or bear shall count toward the bag limit of the hunter who fired the initial shot.

(c) Any dog handler providing tracking services for profit must be licensed as an outfitter or guide pursuant to §20-2-23 of this code.

ARTICLE 18. WEST VIRGINIA DIVISION OF NATURAL RESOURCES POLICE OFFICER RETIREMENT SYSTEM.

§20-18-1. Short title.

This article is known and may be cited as the “West Virginia Natural Resources Police Officers Retirement System Act.”

§20-18-10. Transfer from Public Employees Retirement System.

(a) The Consolidated Public Retirement Board shall, within 90 days of the effective date transfer assets from the Public Employees Retirement System trust fund into the West Virginia Natural Resources Police Officers Retirement trust fund.

(b) The amount of assets to be transferred for each transferring Natural Resources Police Officer shall be computed as of January 1, 2021, using the actuarial valuation assumptions in effect for July 1, 2020, actuarial valuation of Public Employees Retirement System, and updated with seven and one-half percent annual interest to the date of the actual asset transfer. The market value of the assets of the transferring Natural Resources Police Officer in the Public Employees Retirement System shall be determined as of the end of the month preceding the actual transfer. To determine the computation of the asset share to be transferred the board shall:

(1) Compute the market value of the Public Employees Retirement System assets;

(2) Compute the accrued liability for all Public Employees Retirement System retirees, beneficiaries, disabled retirees and terminated inactive members;

(3) Reduce the market value of Public Employees Retirement System assets by the accrued liability determined in subdivision (2) of this subsection;

(4) Compute the entry age method accrued liability for all active Public Employees Retirement System members;

(5) Compute the share of accrued liability as determined pursuant to subdivision (4) of this subsection, that is attributable to those Natural Resources Police Officers in Public Employees Retirement System who have elected to transfer to the plan;

(6) Compute the percentage of active’s accrued liability computed to the Natural Resources Police Officers by dividing subdivision (5) by subdivision (4) of this subsection;

(7) Determine the asset share to be transferred from Public Employees Retirement System to the plan by multiplying subdivision (3) times subdivision (6) of this subsection.

(c) Once a Natural Resources Police Officer has elected to transfer from the Public Employees Retirement System, transfer of that amount as calculated in accordance with the provisions of subsection (b) of this section by the Public Employees Retirement System shall operate as a complete bar to any further liability to the Natural Resource Police Officer transferring from the Public Employees Retirement System, and constitutes an agreement whereby the transferring Natural Resources Police Officer forever indemnifies and holds harmless the Public Employees Retirement System from providing him or her any form of retirement benefit whatsoever until such time as that Natural Resources Police Officer obtains other employment which would make him or her eligible to reenter the Public Employees Retirement System with no credit whatsoever for the amounts transferred to the Natural Resources Police Officer retirement system.

§20-18-11. Notice requirements.

(a) The Division of Natural Resources shall prepare a written notice no later than August 1, 2020, to be delivered to each Natural Resources Police Officer actively employed by the division: Provided, That the division shall also deliver this notice on the first day of employment to any Natural Resources Police Officer hired after July 1, 2020, but before January 2, 2021. This notice shall clearly and accurately explain the benefits, financial implications and consequences to a Natural Resources Police Officer of electing to participate in the retirement plan created in this article, including the consequences and financial implications in regard to the benefits under the public employees insurance plan as set forth in §5-16-1 et seq. of this code. This notice shall be distributed to each Natural Resources Police Officer and the West Virginia Division of Natural Resources shall obtain a signed receipt from each Natural Resources Police Officer acknowledging that the Natural Resources Police Officer was provided a copy of the notice required in this subsection. If a Natural Resources Police Officer makes the election provided for in §20-18-6 of this code, he or she shall be considered to have made a voluntary, informed decision in regard to the election to participate in the retirement system created in this article.

(b) Nothing in this section may be construed to alter, affect or change any of the rights and benefits of any Natural Resources Police Officer who has insurance coverage under §5-16-1 et seq. of this code as a result of being a spouse or dependent of a participant who is the primary insured under §5-16-1 et seq. of this code.

(c) Nothing contained in this section may be construed to affect or pertain to any life insurance coverage under §5-16-1 et seq. of this code.

§20-18-12. Retirement; commencement of benefits.

A member may retire and commence to receive retirement income payments on the first day of the calendar month following the board’s receipt of the member’s voluntary written application for retirement or the required beginning date, if earlier. Before receiving retirement income payments, the member shall have ceased covered employment and reached normal retirement age. The retirement income payments shall be in an amount as provided under §20-18-18 of this code: Provided, That retirement income payments under this plan shall be subject to the provisions of this article. Upon receipt of a request for estimation of benefits, the board shall promptly provide the member with an explanation of his or her optional forms of retirement benefits and the estimated gross monthly annuity. Upon receipt of properly executed retirement application forms from the member, the board shall process the member’s request and commence payments as soon as administratively feasible.

§20-18-13. Federal law maximum benefit limitations.

Notwithstanding any other provision of this article or state law, the board shall administer the retirement system in compliance with the limitations of Section 415 of the Internal Revenue Code and regulations under that section, to the extent applicable to governmental plans (hereafter sometimes referred to as the “415 limitation(s)” or “415 dollar limitation(s)”), so that the annual benefit payable under this system to a member may not exceed those limitations. Any annual benefit payable under this system shall be reduced or limited, if necessary, to an amount which does not exceed those limitations. The extent to which any annuity or other annual benefit payable under this retirement system shall be reduced, as compared to the extent to which an annuity, contributions or other benefits under any other defined benefit plans or defined contribution plans required to be taken into consideration under Section 415 of the Internal Revenue Code shall be reduced, shall be proportional on a percentage basis to the reductions made in such other plans administered by the board and required to be so taken into consideration under Section 415, unless a disproportionate reduction is determined by the board to maximize the aggregate benefits payable to the member. If the reduction is under this retirement system, the board shall advise affected members of any additional limitation on the annuities or other annual benefit required by this section. For purposes of the 415 limitations, the “limitation year” shall be the calendar year. The 415 limitations are incorporated herein by reference, except to the extent the following provisions may modify the default provisions thereunder:

(a) The annual adjustment to the 415 dollar limitations made by Section 415(d) of the Internal Revenue Code and the regulations thereunder shall apply for each limitation year. The annual adjustments to the dollar limitations under Section 415(d) of the Internal Revenue Code which become effective: (i) After a retirant’s severance from employment with the employer; or (ii) after the annuity starting date in the case of a retirant who has already commenced receiving benefits, shall apply with respect to a retirant’s annual benefit in any limitation year. A retirant’s annual benefit payable in any limitation year from this retirement system may not be greater than the limit applicable at the annuity starting date, as increased in subsequent years pursuant to Section 415(d) of the Internal Revenue Code and the regulations thereunder.

(b) For purposes of this section, the “annual benefit” means a benefit that is payable annually in the form of a straight life annuity. Except as provided below, where a benefit is payable in a form other than a straight life annuity, the benefit shall be adjusted to an actuarially equivalent straight life annuity that begins at the same time as such other form of benefit, using factors prescribed in the 415 limitation regulations, before applying the 415 limitations. No actuarial adjustment to the benefit shall be made for: (1) Survivor benefits payable to a surviving spouse under a qualified joint and survivor annuity to the extent such benefits would not be payable if the member’s benefit were paid in another form; (2) benefits that are not directly related to retirement benefits (such as a qualified disability benefit, preretirement incidental death benefits, and post-retirement medical benefits); or (3) the inclusion in the form of benefit of an automatic benefit increase feature, provided the form of benefit is not subject to Section 417(e)(3) of the Internal Revenue Code and would otherwise satisfy the limitations of this article, and the plan provides that the amount payable under the form of benefit in any limitation year shall not exceed the limits of this article applicable at the annuity starting date, as increased in subsequent years pursuant to Section 415(d) of the Internal Revenue Code. For this purpose, an automatic benefit increase feature is included in a form of benefit if the form of benefit provides for automatic, periodic increases to the benefits paid in that form.

(c) Adjustment for benefit forms not subject to Section 417(e)(3). — The straight life annuity that is actuarially equivalent to the member’s form of benefit shall be determined under this subsection if the form of the member’s benefit is either: (1) A nondecreasing annuity (other than a straight life annuity) payable for a period of not less than the life of the member (or, in the case of a qualified preretirement survivor annuity, the life of the surviving spouse); or (2) an annuity that decreases during the life of the member merely because of: (i) The death of the survivor annuitant (but only if the reduction is not below 50 percent of the benefit payable before the death of the survivor annuitant); or (ii) the cessation or reduction of Social Security supplements or qualified disability payments (as defined in Section 411(a)(9) of the Internal Revenue Code). The actuarially equivalent straight life annuity is equal to the greater of: (I) The annual amount of the straight life annuity (if any) payable to the member under the plan commencing at the same annuity starting date as the member’s form of benefit; and (II) the annual amount of the straight life annuity commencing at the same annuity starting date that has the same actuarial present value as the member’s form of benefit, computed using a five percent interest rate assumption and the applicable mortality table defined in Treasury Regulation §1.417(e)-1(d)(2) (Revenue Ruling 2001-62 or any subsequent Revenue Ruling modifying the applicable provisions of Revenue Ruling 2001-62) for that annuity starting date.

(d) Adjustment for benefit forms subject to Section 417(e)(3). — The straight life annuity that is actuarially equivalent to the member’s form of benefit shall be determined under this subsection if the form of the member’s benefit is other than a benefit form described in subdivision (c) of this section. The actuarially equivalent straight life annuity shall be determined as follows: The actuarially equivalent straight life annuity is equal to the greatest of: (1) The annual amount of the straight life annuity commencing at the same annuity starting date that has the same actuarial present value as the member’s form of benefit, computed using the interest rate specified in this retirement system and the mortality table (or other tabular factor) specified in this retirement system for adjusting benefits in the same form; (2) the annual amount of the straight life annuity commencing at the same annuity starting date that has the same actuarial present value as the member’s form of benefit, computed using a five and a half percent interest rate assumption and the applicable mortality table defined in Treasury Regulation §1.417(e)-1(d)(2) (Revenue Ruling 2001-62 or any subsequent Revenue Ruling modifying the applicable provisions of Revenue Ruling 2001-62) for that annuity starting date; and (3) the annual amount of the straight life annuity commencing at the same annuity starting date that has the same actuarial present value as the member’s form of benefit, computed using the applicable interest rate defined in Treasury Regulation §1.417(e)-1(d)(3) and the applicable mortality table defined in Treasury Regulation §1.417(e)-1(d)(2) (the mortality table specified in Revenue Ruling 2001-62 or any subsequent Revenue Ruling modifying the applicable provisions of Revenue Ruling 2001-62), divided by 1.05.

(e) Benefits payable prior to age 62:

(1) Except as provided in paragraphs (2) and (3) of this subdivision, if the member’s retirement benefits become payable before age 62, the 415 dollar limitation prescribed by this section shall be reduced in accordance with regulations issued by the Secretary of the Treasury pursuant to the provisions of Section 415(b) of the Internal Revenue Code, so that the limitation (as so reduced) equals an annual straight life benefit (when the retirement income benefit begins) which is equivalent to an annual benefit in the amount of the applicable dollar limitation of Section 415(b)(1)(A) of the Internal Revenue Code (as adjusted pursuant to Section 415(d) of the Internal Revenue Code) beginning at age 62.

(2) The limitation reduction provided in paragraph (1) of this subdivision may not apply if the member commencing retirement benefits before age 62 is a qualified participant. A qualified participant for this purpose is a participant in a defined benefit plan maintained by a state, or any political subdivision of a state, with respect to whom the service taken into account in determining the amount of the benefit under the defined benefit plan includes at least 15 years of service: (i) As a full-time employee of any police or fire department organized and operated by the state or political subdivision maintaining the defined benefit plan to provide police protection, fire-fighting services or emergency medical services for any area within the jurisdiction of such state or political subdivision; or (ii) as a member of the armed forces of the United States.

(3) The limitation reduction provided in paragraph (1) of this subdivision is not applicable to preretirement disability benefits or preretirement death benefits.

(4) For purposes of adjusting the 415 dollar limitation for benefit commencement before age 62 or after age 65 (if the plan provides for such adjustment), no adjustment is made to reflect the probability of a member’s death: (i) After the annuity starting date and before age 62; or (ii) after age 65 and before the annuity starting date.

(f) Adjustment when member has less than 10 years of participation. — If a member has less than 10 years of participation in the retirement system (within the meaning of Treasury Regulation §1.415(b)-1(g)(1)(ii)), the 415 dollar limitation (as adjusted pursuant to Section 415(d) of the Internal Revenue Code and subdivision (e) of this section) shall be reduced by multiplying the otherwise applicable limitation by a fraction, the numerator of which is the number of years of participation in the plan (or one, if greater), and the denominator of which is 10. This adjustment is not applicable to preretirement disability benefits or preretirement death benefits.

(g) The application of the provisions of this section may not cause the maximum annual benefit provided to a member to be less than the member’s accrued benefit as of December 31, 2008 (the end of the limitation year that is immediately prior to the effective date of the final regulations for this retirement system as defined in Treasury Regulation §1.415(a)-1(g)(2)), under provisions of the retirement system that were both adopted and in effect before April 5, 2007, provided that these provisions satisfied the applicable requirements of statutory provisions, regulations, and other published guidance relating to Section 415 of the Internal Revenue Code in effect as of December 31, 2008, as described in Treasury Regulation §1.415(a)-1(g)(4). If additional benefits are accrued for a member under this retirement system after January 1, 2009, then the sum of the benefits described under the first sentence of this subsection and benefits accrued for a member after January 1, 2009, shall satisfy the requirements of Section 415, taking into account all applicable requirements of the final 415 Treasury Regulations.

§20-18-14. Federal law minimum required distributions.

The requirements of this section apply to any distribution of a member’s or beneficiary’s interest and take precedence over any inconsistent provisions of this plan. This section applies to plan years beginning after December 31, 1986. Notwithstanding anything in the plan to the contrary, the payment of benefits under this article shall be determined and made in accordance with section 401(a)(9) of the Internal Revenue Code and the federal regulations promulgated thereunder as applicable to governmental plans, including without limitation the minimum distribution incidental benefit (MDIB) requirement of section 401(a)(9)(G) and the regulations thereunder, and the incidental benefit rule of section 1.401-1(b)(1)(i) of the regulations. Any term used in this article has the same meaning as when used in a comparable context in section 401(a)(9) of the Internal Revenue Code and the federal regulations promulgated thereunder unless a different meaning is clearly required by the context or definition in this article. The following provisions apply to payments of benefits required under this article:

(a) The payment of benefits under the plan to any member shall be distributed to him or her not later than the required beginning date, or be distributed to him or her commencing not later than the required beginning date, in accordance with regulations prescribed under section 401(a)(9) of the Internal Revenue Code, over the life of the member or over the lives of the member and his or her beneficiary or over a period not extending beyond the life expectancy of the member and his or her beneficiary: Provided, That the requirements of this section may not be construed to grant a right to a form of benefit which is not otherwise available to a particular member under this retirement system: Provided, however, That if the member elects an annuity option which provides survivor benefits to a beneficiary who is not the member’s spouse, and the annuity option elected would provide survivor payments that exceed the applicable percentage permitted by the MDIB regulations under section 401(a)(9) of the Internal Revenue Code, the member’s annuity election shall be changed to the highest survivor annuity option offered under this retirement plan which satisfies the MDIB regulations. Benefit payments under this section may not be delayed pending, or contingent upon, receipt of an application for retirement from the member.

(b) If a member dies after distribution to him or her has commenced pursuant to this section but before his or her entire interest in the plan has been distributed, then the remaining portion of that interest shall be distributed at least as rapidly as under the method of distribution being used at the date of his or her death.

(c) If a member dies before distribution to him or her has commenced, then his or her entire interest in the retirement system is to be distributed by December 31 of the calendar year containing the fifth anniversary of the member’s death, unless the provisions of subsection (d) of this section apply.

(d) If a member dies before distribution to him or her has commenced, and the member’s interest is eligible to be paid in the form of a survivor annuity to a designated beneficiary, distributions are to be made over the life of that beneficiary or over a period certain not greater than the life expectancy of that beneficiary, commencing on or before the following:

(1) December 31 of the calendar year immediately following the calendar year in which the member died; or

(2) If the member’s sole designated beneficiary is either the surviving spouse or a former spouse who, as an alternate payee under a Qualified Domestic Relations Order, is receiving 100 percent of the survivor benefit, distributions are to commence on or before the later of:

(A) December 31 of the calendar year in which the member would have attained age 72; or

(B) December 31 of the calendar year immediately following the calendar year in which the member died.

(e) If a member dies before distribution to him or her has commenced and the survivor annuity provisions of subsection (d) of this section are not applicable, any designated beneficiary who is eligible to receive a distribution pursuant to the provisions of subsection (c) of this section may elect to have life expectancy treatment apply to the distribution for purposes of determining whether any portion of the distribution is an eligible rollover distribution: Provided, That any such election may not delay the required distribution of the deceased member’s entire interest in the retirement system beyond December 31 of the calendar year containing the fifth anniversary of the member’s death as required by subsection (c) of this section: Provided, however, That the election is timely made in a form acceptable to the board on or before the following:

(1) December 31 of the calendar year immediately following the calendar year in which the member died; or

(2) If the member’s sole designated beneficiary is either the surviving spouse or a former spouse who, as an alternate payee under a Qualified Domestic Relations Order, is receiving 100 percent of the survivor benefit, election of life expectancy treatment must be made on or before the earlier of (A) or (B) below:

(A) The later of: (i) December 31 of the calendar year immediately following the calendar year in which the member died; or (ii) December 31 of the calendar year in which the member would have attained age 72; or

(B) October 31 of the calendar year containing the fifth anniversary of the member’s death.

§20-18-15. Direct rollovers.

Except where otherwise stated, this section applies to distributions made on or after January 1, 1993. Notwithstanding any provision of this article to the contrary that would otherwise limit a distributee’s election under this plan, a distributee may elect, at the time and in the manner prescribed by the board, to have any portion of an eligible rollover distribution paid directly to an eligible retirement plan specified by the distributee in a direct rollover. For purposes of this section, the following definitions apply:

(1) “Eligible rollover distribution” means any distribution of all or any portion of the balance to the credit of the distributee, except that an eligible rollover distribution does not include any of the following: (A) Any distribution that is one of a series of substantially equal periodic payments not less frequently than annually made for the life or life expectancy of the distributee or the joint lives or the joint life expectancies of the distributee and the distributee’s designated beneficiary, or for a specified period of 10 years or more; (B) any distribution to the extent the distribution is required under Section 401(a)(9) of the Internal Revenue Code; (C) the portion of any distribution that is not includable in gross income determined without regard to the exclusion for net unrealized appreciation with respect to employer securities; (D) any hardship distribution described in Section 401(k)(2)(B)(i)(iv) of the Internal Revenue Code. For distributions after December 31, 2001, a portion of a distribution may not fail to be an eligible rollover distribution merely because the portion consists of after-tax employee contributions which are not includable in gross income. However, this portion may be paid only to an individual retirement account or annuity described in Section 408(a) or (b) of the Internal Revenue Code, or (for taxable years beginning before January 1, 2007) to a qualified trust which is part of a defined contribution plan described in Section 401(a) or (for taxable years beginning after December 31, 2006) to a qualified trust or to an annuity contract described in Section 403(a) or (b) of the Internal Revenue Code that agrees to separately account for amounts transferred (including interest or earnings thereon), including separately accounting for the portion of the distribution which is includable in gross income and the portion of the distribution which is not so includable, or (for taxable years beginning after December 31, 2007) to a Roth IRA described in Section 408A of the Internal Revenue Code.

(2) “Eligible retirement plan” means an individual retirement account described in Section 408(a) of the Internal Revenue Code, an individual retirement annuity described in Section 408(b) of the Internal Revenue Code, an annuity plan described in Section 403(a) of the Internal Revenue Code or a qualified plan described in Section 401(a) of the Internal Revenue Code that accepts the distributee’s eligible rollover distribution: Provided, That in the case of an eligible rollover distribution prior to January 1, 2002, to the surviving spouse, an eligible retirement plan is limited to an individual retirement account or individual retirement annuity. For distributions after December 31, 2001, an eligible retirement plan also means an annuity contract described in Section 403(b) of the Internal Revenue Code and an eligible plan under Section 457(b) of the Internal Revenue Code which is maintained by a state, political subdivision of a state, or any agency or instrumentality of a state or political subdivision of a state and which agrees to separately account for amounts transferred into the plan from this system. For distributions after December 31, 2007, an eligible retirement plan also means a Roth IRA described in Section 408A of the Internal Revenue Code: Provided, That in the case of an eligible rollover distribution after December 31, 2007, to a designated beneficiary (other than a surviving spouse) as that term is defined in Section 402(c)(11) of the Internal Revenue Code, an eligible retirement plan is limited to an individual retirement account or individual retirement annuity which meets the conditions of Section 402(c)(11) of the Internal Revenue Code.

(3) “Distributee” means an employee or former employee. In addition, the employee’s or former employee’s surviving spouse and the employee’s or former employee’s spouse or former spouse who is the alternate payee under a qualified domestic relations order, as defined in Section 414(p) of the Internal Revenue Code with respect to governmental plans, are distributees with regard to the interest of the spouse or former spouse. For distributions after December 31, 2007, “distributee” also includes a designated beneficiary (other than a surviving spouse) as such term is defined in Section 402(c)(11) of the Internal Revenue Code.

(4) “Direct rollover” means a payment by the plan to the eligible retirement plan.

§20-18-16. Rollovers and transfers to purchase service credit or repay withdrawn contributions.

(a) This section applies to rollovers and transfers as specified in this section made on or after January 1, 2002. Notwithstanding any provision of this article to the contrary that would otherwise prohibit or limit rollovers and plan transfers to this system, the retirement system shall accept the following rollovers and plan transfers on behalf of a member solely for the purpose of purchasing permissive service credit, in whole or in part, as otherwise provided in this article or for the repayment of withdrawn or refunded contributions, in whole and in part, with respect to a previous forfeiture of service credit as otherwise provided in this article: (i) One or more rollovers within the meaning of Section 408(d)(3) of the Internal Revenue Code from an individual retirement account described in Section 408(a) of the Internal Revenue Code or from an individual retirement annuity described in Section 408(b) of the Internal Revenue Code; (ii) one or more rollovers described in Section 402(c) of the Internal Revenue Code from a retirement plan that is qualified under Section 401(a) of the Internal Revenue Code or from a plan described in Section 403(b) of the Internal Revenue Code; (iii) one or more rollovers described in Section 457(e)(16) of the Internal Revenue Code from a governmental plan described in Section 457 of the Internal Revenue Code; or (iv) direct trustee-to-trustee transfers or rollovers from a plan that is qualified under Section 401(a) of the Internal Revenue Code, from a plan described in Section 403(b) of the Internal Revenue Code or from a governmental plan described in Section 457 of the Internal Revenue Code: Provided, That any rollovers or transfers pursuant to this section shall be accepted by the system only if made in cash or other asset permitted by the board and only in accordance with such policies, practices and procedures established by the board from time to time. For purposes of this article, the following definitions and limitations apply:

(1) “Permissive service credit” means service credit which is permitted to be purchased under the terms of the retirement system by voluntary contributions in an amount which does not exceed the amount necessary to fund the benefit attributable to the period of service for which the service credit is being purchased, all as defined in Section 415(n)(3)(A) of the Internal Revenue Code: Provided, That no more than five years of “nonqualified service credit”, as defined in Section 415(n)(3)(C) of the Internal Revenue Code, may be included in the permissive service credit allowed to be purchased (other than by means of a rollover or plan transfer), and no nonqualified service credit may be included in any such purchase (other than by means of a rollover or plan transfer) before the member has at least five years of participation in the retirement system.

(2) “Repayment of withdrawn or refunded contributions” means the payment into the retirement system of the funds required pursuant to this article for the reinstatement of service credit previously forfeited on account of any refund or withdrawal of contributions permitted in this article, as set forth in Section 415(k)(3) of the Internal Revenue Code.

(3) Any contribution (other than by means of a rollover or plan transfer) to purchase permissive service credit under any provision of this article must satisfy the special limitation rules described in Section 415(n) of the Internal Revenue Code, and shall be automatically reduced, limited, or required to be paid over multiple years if, necessary, to ensure such compliance. To the extent any such purchased permissive service credit is qualified military service within the meaning of Section 414(u) of the Internal Revenue Code, the limitations of Section 415 of the Internal Revenue Code shall be applied to such purchase as described in Section 414(u)(1)(B) of the Internal Revenue Code.

(4) For purposes of Section 415(b) of the Internal Revenue Code, the annual benefit attributable to any rollover contribution accepted pursuant to this section shall be determined in accordance with Treasury Regulation §1.415(b)-1(b)(2)(v), and the excess, if any, of the annuity payments attributable to any rollover contribution provided under the retirement system over the annual benefit so determined shall be taken into account when applying the accrued benefit limitations of Section 415(b) of the Internal Revenue Code and §20-18-13 of this code.

(b) This section does not permit rollovers or transfers into this system or any other system administered by the retirement board other than as specified in this section and no rollover or transfer may be accepted into the system in an amount greater than the amount required for the purchase of permissive service credit or repayment of withdrawn or refunded contributions.

(c) This section does not permit the purchase of service credit or repayment of withdrawn or refunded contributions except as otherwise permitted in this article.

§20-18-17. Conversion of annual and sick leave authorized for health or retirement benefits.

(a) Any member, who was a member of the Public Employee Retirement System prior to July 1, 2015, and who elected to become a member of this plan pursuant to §20-18-6 of this code and who has accrued annual leave or sick leave days with the division may elect to use the days at the time of retirement to acquire additional credited service in this retirement system. The accrued days shall be applied on the basis of two workdays credit granted for each one day of such accrued annual or sick leave days, with each month of retirement service credit to equal 20 workdays and with any remainder of 10 workdays or more to constitute a full month of additional credit and any remainder of less than 10 workdays to be dropped and not used. Additional service credited pursuant to the provisions of this section shall be allowed and not deemed to controvert the requirement of no more than 12 months credited service in any year’s period.

(b) Nothing in this article may be construed to change a member’s eligibility to use accrued annual or sick leave days for extended insurance coverage as authorized pursuant to the provisions of §5-16-13 of this code. Any use of accrued annual or sick leave days for extended insurance coverage shall be as authorized by the provisions of §5-16-13 of this code.

§20-18-18. Retirement benefits.

This section provides for a member’s accrued benefit payable starting at the member’s annuity starting date which follows the completion of a written application for the commencement of benefits. The member shall receive the accrued retirement benefit in the normal form or in an actuarial equivalent amount in an optional form as provided under §20-18-19 of this code, subject to reduction, if necessary to comply with the maximum benefit provisions of Section 415 of the Internal Revenue Code and §20-18-13 of this code. The first day of the calendar month following the calendar month of birth shall be used in lieu of any birth date that does not fall on the first day of a calendar month.

(a) Normal retirement. — A member whose annuity starting date is the date the member attains normal retirement age or later is entitled to his or her accrued retirement benefit based on years of service and final average salary at termination of employment.

(b) Retirement benefits shall be paid monthly in an amount equal to one twelfth of the retirement income payments elected and at those times established by the board.

§20-18-19. Annuity options.

(a) Prior to the effective date of retirement, but not thereafter, except as provided in subsection (c) of this section, a member may elect to receive retirement income payments in the normal form, or the actuarial equivalent of the normal form from the following options:

(1) Joint and Survivor Annuity. — A life annuity payable during the joint lifetime of the retirant and his or her beneficiary who is a natural person with an insurable interest in the retirant’s life. Upon the death of the retirant, the benefit shall continue as a life annuity to the survivor in an amount equal to 50 percent, 66 and two-thirds percent, 75 percent, or 100 percent of the amount paid while both were living as selected by the member. If the beneficiary dies first, the monthly amount of benefits may not be reduced, but shall be paid at the amount that was in effect before the death of the beneficiary. If the retiring member is married, the spouse shall sign a waiver of benefit rights if the beneficiary is to be other than the spouse.

(2) Ten Years Certain and Life Annuity. — A life annuity payable during the retirant’s lifetime but in any event for a minimum of 10 years. If the retirant’s dies before the expiration of 10 years, the remaining payments shall be made to a designated beneficiary, if any, or otherwise to the member’s estate.

(3) Level Income Annuity. — A life annuity payable monthly in an increased amount “A” from the time of retirement until the member is Social Security retirement age, and then a lesser amount “B” payable for the retirant’s lifetime thereafter, with these amounts computed actuarially to satisfy the following two conditions:

(A) Actuarial equivalence. — The actuarial present value at the date of retirement of the retirant’s annuity if taken in the normal form must equal the actuarial present value of the term life annuity in amount “A” plus the actual present value of the deferred life annuity in amount “B”; and

(B) Level income. — The amount “A” equals the amount “B” plus the amount of the retirant’s estimated monthly Social Security primary insurance amount that would commence at the date amount “B” becomes payable. For this calculation, the primary insurance amount is estimated when the member applies for retirement, using Social Security law then in effect, using assumptions established by the board.

(b) If a retirant who has elected the options set forth in subdivision (1), subsection (a) of this section, whose beneficiary dies prior to the retirant’s death, the retirant may name an alternative beneficiary. If an alternative beneficiary is named within 18 months following the death of the prior beneficiary, the benefit shall be adjusted to be the actuarial equivalent of the benefit the retirant is receiving just after the death of the retirant’s named beneficiary. If the election is not made until 18 months after the death of the prior beneficiary, the amount shall be reduced so that it is only 90 percent of the actuarial equivalent of the benefit the retirant is receiving just after the death of the retirant’s named beneficiary.

(c) (1) If a retirant who has elected an option set forth in subdivision (1), subsection (a) of this section, designated his or her spouse as beneficiary, upon divorce or annulment, the retirant may elect to change the retirement benefit options offered by those subdivisions to a life annuity in an amount adjusted on a fair basis to be of equal actuarial value of the annuity prospectively in effect relative to the retirant at the time the option is elected: Provided, That the retirant furnishes to the board satisfactory proof of entry of a final decree of divorce or annulment: Provided, however, That the retirant certifies under penalty of perjury that no qualified domestic relations order, final decree of divorce or other court order that would restrict the election is in effect: Provided further, That no cause of action against the board arises or may be maintained on the basis of having permitted the retirant to change the retirement benefit option pursuant to the provisions of this subdivision.

(2) Upon remarriage, a retirant may name the new spouse as an annuitant for any of the retirement benefit options offered by subdivision (1), subsection (a) of this section: Provided, That the retirant shall furnish to the board proof of marriage: Provided, however, That the retirant certifies under penalty of perjury that no qualified domestic relations order, final decree of divorce or other court order that would restrict the designation is in effect: Provided further, That no cause of action against the board arises or may be maintained on the basis of having permitted the retirant to name a new spouse as annuitant for any of the survivorship retirement benefit options. The value of the new survivorship annuity shall be the actuarial equivalent of the retirant’s benefit prospectively in effect at the time the new annuity is elected.

§20-18-2. Definitions.

As used in this article, unless a federal law or regulation or the context clearly requires a different meaning:

(a) "Accrued benefit" means on behalf of any member two and one-quarter percent of the member’s final average salary multiplied by the member’s years of credited service: Provided, That members who retire after July 1, 2025, shall have an accrued benefit of two and one-half percent of the member’s final average salary multiplied by the member’s years of credited service. A member’s accrued benefit may not exceed the limits of Section 415 of the Internal Revenue Code and is subject to the provisions of §20-18-13 of this code.

(b) "Accumulated contributions" means the sum of all amounts deducted from the annual compensation of a member or paid on his or her behalf pursuant to §5-10C-1 et seq. of this code, either pursuant to §20-18-8(a) or §5-10-29 of this code as a result of covered employment together with regular interest on the deducted amounts.

(d) "Active military duty" means full-time active duty with any branch of the armed forces of the United States, including service with the National Guard or reserve military forces when the member has been called to active full-time duty and has received no compensation during the period of that duty from any board or employer other than the armed forces.

(e) "Actuarial equivalent" means a benefit of equal value computed upon the basis of the mortality table and interest rates as set and adopted by the retirement board in accordance with the provisions of this article: Provided, That when used in the context of compliance with the federal maximum benefit requirements of Section 415 of the Internal Revenue Code, "actuarial equivalent" shall be computed using the mortality tables and interest rates required to comply with those requirements.

(f) "Annual compensation" means the wages paid to the member during covered employment within the meaning of Section 3401(a) of the Internal Revenue Code, but determined without regard to any rules that limit the remuneration included in wages based upon the nature or location of employment or services performed during the plan year plus amounts excluded under Section 414(h)(2) of the Internal Revenue Code and less reimbursements or other expense allowances, cash or noncash fringe benefits or both, deferred compensation, and welfare benefits. Annual compensation for determining benefits during any determination period may not exceed the maximum compensation allowed as adjusted for cost of living in accordance with §5-10D-7 of this code and Section 401(a)(17) of the Internal Revenue Code.

(g) "Annual leave service" means accrued annual leave.

(h) "Annuity starting date" means the first day of the first calendar month following receipt of the retirement application by the board or the required beginning date, if earlier: Provided, That the member has ceased covered employment and reached normal retirement age.

(i) "Beneficiary" means a natural person who is entitled to, or will be entitled to, an annuity or other benefit payable by the plan.

(j) "Board" means the Consolidated Public Retirement Board created pursuant to §5-10D-1 et seq. of this code.

(k) "Covered employment" means either: (1) Employment as a Natural Resources Police Officer and the active performance of the duties required of a Natural Resources Police Officer; (2) the period of time which active duties are not performed but disability benefits are received under §20-18-21 or §20-18-22 of this code; or (3) concurrent employment by a Natural Resources Police Officer in a job or jobs in addition to his or her employment as a Natural Resources Police Officer where the secondary employment requires the Natural Resources Police Officer to be a member of another retirement system which is administered by the Consolidated Public Retirement Board pursuant to §5-10D-1 et seq. of this code: Provided, That the Natural Resources Police Officer contributes to the fund created in §20-18-7 of this code the amount specified as the Natural Resource Police Officer’s contribution in §20-18-8 of this code.

(l) "Credited service" means the sum of a member’s years of service, active military duty, disability service, eligible annual and sick leave service.

(m) "Dependent child" means either:

(1) An unmarried person under age 18 who is:

(A) A natural child of the member;

(B) A legally adopted child of the member;

(C) A child who at the time of the member’s death was living with the member while the member was an adopting parent during any period of probation; or

(D) A stepchild of the member residing in the member’s household at the time of the member’s death; or

(2) Any unmarried child under age 23:

(A) Who is enrolled as a full-time student in an accredited college or university;

(B) Who was claimed as a dependent by the member for federal income tax purposes at the time of the member’s death; and

(n) "Dependent parent" means the father or mother of the member who was claimed as a dependent by the member for Federal Income Tax purposes at the time of the member’s death.

(o) "Director" means Director of the Division of Natural Resources.

(p) "Disability service" means service credit received by a member, expressed in whole years, fractions thereof or both, equal to one half of the whole years, fractions thereof, or both, during which time a member receives disability benefits under §20-18-21 or §20-18-22 of this code.

(q) "Division of Natural Resources" or "division" means the West Virginia Division of Natural Resources.

(r) "Effective date" means January 2, 2021.

(s) "Employer error" means an omission, misrepresentation, or deliberate act in violation of relevant provisions of the West Virginia Code or of the West Virginia Code of State Rules or the relevant provisions of both the West Virginia Code and of the West Virginia Code of State Rules by the participating public employer that has resulted in an underpayment or overpayment of contributions required.

(t) "Final average salary" means the average of the highest annual compensation received for covered employment by the member during any five consecutive plan years within the member’s last 10 years of service. If the member did not have annual compensation for the five full plan years preceding the member’s attainment of normal retirement age and during that period the member received disability benefits under §20-18-21 or §20-18-22 of this code then "final average salary" means the average of the monthly salary determined paid to the member during that period determined as if the disability first commenced after the effective date of this article with monthly compensation equal to that average monthly compensation which the member was receiving in the plan year prior to the initial disability multiplied by 12.

(u) "Fund" means the West Virginia Natural Resources Police Officer Retirement Fund created pursuant to §20-18-7 of this code.

(v) "Hour of service" means:

(1) Each hour for which a member is paid;

(2) Each hour for which a member is paid but where no duties are performed due to vacation, holiday, illness, incapacity including disability, layoff, jury duty, military duty, leave of absence, or any combination thereof, and without regard to whether the employment relationship has terminated. Hours under this paragraph shall be calculated and credited pursuant to West Virginia Division of Labor rules. A member will not be credited with any hours of service for any period of time he or she is receiving benefits under §20-18-21 or §20-18-22 of this code; and

(3) Each hour for which back pay is either awarded or agreed to be paid by the Division of Natural Resources, irrespective of mitigation of damages. The same hours of service may not be credited both under this subdivision and subdivision (1) or (2) of this subsection. Hours under this paragraph shall be credited to the member for the plan year or years to which the award or agreement pertains rather than the plan year in which the award, agreement, or payment is made.

(w) "Medical examination" means an in-person or virtual examination of a member’s physical or mental health, or both, by a physician or physicians selected or approved by the board; or, at the discretion of the board, a medical record review of the member’s physical or mental health, or both, by a physician selected or approved by the board.

(x) "Member" means a person first hired as a Natural Resources Police Officer, as defined in subsection (z) of this section, on or after January 2, 2021, or a Natural Resources Police Officer first hired prior to the effective date and who elects to become a member pursuant to §20-18-6 of this code. A member shall remain a member until the benefits to which he or she is entitled under this article are paid or forfeited or until cessation of membership pursuant to §20-18-6 of this code.

(y) "Monthly salary" means the portion of a member’s gross annual compensation which is paid to him or her per month.

(z) "Natural Resources Police Officer" means any person regularly employed in the service of the division as a law-enforcement officer on or after the effective date of this article, and who is eligible to participate in the fund. The term shall not include Emergency Natural Resources Police Officers as defined in §20-7-1(c) of this code, Special Natural Resources Police Officers as defined in §20-7-1(d) of this code, Forestry Special Natural Resources Police Officers as defined in §20-7-1(e) of this code, or Federal Law Enforcement Officer as defined in §20-7-1b of this code.

(aa) "Normal form" means a monthly annuity which is one-twelfth of the amount of the member’s accrued benefit which is payable for the member’s life. If the member dies before the sum of the payments he or she receives equals his or her accumulated contributions on the annuity starting date, the named beneficiary or beneficiaries shall receive in one lump sum the difference between the accumulated contributions at the annuity starting date and the total of the retirement income payments made to the member.

(bb) "Normal retirement age" means the first to occur of the following: (1) Attainment of age 55 years and the completion of 15 or more years of service; (2) while still in covered employment, attainment of at least age 55 years, and when the sum of current age plus years of service equals or exceeds 70 years; or (3) attainment of at least age 62 years, and completion of 10 years of service: Provided, That any member shall in qualifying for retirement pursuant to this article have 10 or more years of service, all of which years shall be actual, contributory ones.

(cc) "Partially disabled" means a member’s inability to engage in the duties of a Natural Resources Police Officer by reason of any medically determinable physical or mental impairment that can be expected to result in death or that has lasted or can be expected to last for a continuous period of not less than 12 months. A member may be determined partially disabled for the purposes of this article and maintain the ability to engage in other gainful employment which exists within the state but which ability would not enable him or her to earn an amount at least equal to two thirds of the average annual compensation earned by all active members of this plan during the plan year ending as of the most recent June 30, as of which plan data has been assembled and used for the actuarial valuation of the plan.

(dd) "Plan" means the West Virginia Natural Resources Police Officers Retirement System established by this article.

(ee) "Plan year" means the 12-month period commencing on July 1 of any designated year and ending the following June 30.

(ff) "Public Employees Retirement System" means the West Virginia Public Employees Retirement System created by §5-10-1 et seq. of this code.

(gg) "Qualified public safety employee" means any employee of the division who provides police protection, fire-fighting services, or emergency medical services for any area within the jurisdiction of the state or political subdivision, or such other meaning given to the term by Section 72(t)(10)(B) of the Internal Revenue Code or by Treasury Regulation §1.401(a)-1(b)(2)(v) as they may be amended from time to time.

(hh) "Regular interest" means the rate or rates of interest per annum, compounded annually, as the board adopts in accordance with the provisions of this article.

(ii) "Required beginning date" means April 1 of the calendar year following the later of: (i) The calendar year in which the member attains age 72; or (ii) the calendar year in which the member retires or otherwise separates from covered employment.

(jj) "Retirant" means any member who commences an annuity payable by the retirement system.

(kk) "Retire" or "retirement" means a member’s termination from the employ of a participating public employer and the commencement of an annuity by the plan.

(ll) "Retirement income payments" means the annual retirement income payments payable under the plan.

(mm) "Substantial gainful employment" or "gainful employment" means employment in which an individual may earn up to an amount that is determined by the United States Social Security Administration as substantial gainful activity and still receive total disability benefits.

(nn) "Surviving spouse" means the person to whom the member was legally married at the time of the member’s death and who survived the member.

(oo) "Totally disabled" means a member’s inability to engage in substantial gainful activity by reason of any medically determined physical or mental impairment that can be expected to result in death or that has lasted or can be expected to last for a continuous period of not less than 12 months. For purposes of this subdivision:

(1) A member is totally disabled only if his or her physical or mental impairment or impairments are so severe that he or she is not only unable to perform his or her previous work as a Natural Resources Police Officer but also cannot, considering his or her age, education, and work experience, engage in any other kind of substantial gainful employment which exists in the state regardless of whether: (A) The work exists in the immediate area in which the member lives; (B) a specific job vacancy exists; or (C) the member would be hired if he or she applied for work.

(2) "Physical or mental impairment" is an impairment that results from an anatomical, physiological, or psychological abnormality that is demonstrated by medically accepted clinical and laboratory diagnostic techniques. A member’s receipt of Social Security disability benefits creates a rebuttable presumption that the member is totally disabled for purposes of this plan. Substantial gainful employment rebuts the presumption of total disability.

(pp) Year of service. — A member shall, except in his or her first and last years of covered employment, or within the plan year of the effective date, be credited with year of service credit, based upon the hours of service performed as covered employment and credited to the member during the plan year based upon the following schedule:

Hours of Service Years of Service Credited

Less than 500 0

500 to 999 1/3

1,000 to 1,499 2/3

1,500 or more 1

During a member’s first and last years of covered employment or within the plan year of the effective date, the member shall be credited with one-twelfth of a year of service for each month during the plan year in which the member is credited with an hour of service. A member is not entitled to credit for years of service for any time period during which he or she received disability payments under §20-18-21 or §20-18-22 of this code. Except as specifically excluded, years of service include covered employment prior to the effective date. Years of service which are credited to a member prior to his or her receipt of accumulated contributions upon termination of employment pursuant to §20-18-20 or §5-10-30 of this code, shall be disregarded for all purposes under this plan unless the member repays the accumulated contributions with interest pursuant to §20-18-20 of this code or had prior to the effective date made the repayment pursuant to §5-10-18 of this code.

§20-18-20. Refunds to certain members upon discharge or resignation; deferred retirement; preretirement death; forfeitures.

(a) Any member who terminates covered employment and is not eligible to receive disability or retirement income benefits under this article is, by written request filed with the board, entitled to receive from the fund the member’s accumulated contributions. Except as provided in subsection (b) of this section, upon withdrawal the member shall forfeit his or her accrued benefit and cease to be a member.

(b) Any member of this plan who ceases employment in covered employment and active participation in this plan, and who thereafter becomes reemployed in covered employment may not receive any credited service for any prior withdrawn accumulated contributions from either this plan or the Public Employees Retirement System relating to the prior covered employment unless following his or her return to covered employment and active participation in this plan, the member redeposits in this plan the amount of the withdrawn accumulated contributions submitted on salary earned while a Natural Resources Police Officer, together with interest on the accumulated contributions at the rate determined by the board from the date of withdrawal to the date of redeposit. Upon repayment he or she shall receive the same credit on account of his or her former service in covered employment as if no refund had been made. The repayment authorized by this subsection shall be made in a lump sum within 60 months of the Natural Resources Police Officer’s reemployment in covered employment or if later, within 60 months of the effective date of this article.

(c) A member of this plan who has elected to transfer from the Public Employees Retirement System into this plan pursuant to §20-18-6(b) of this code may not, after having transferred into and become an active member of this plan, reinstate to his or her credit in this plan any service credit relating to periods of non-Natural Resources Police Officer service which were withdrawn from the Public Employees Retirement System plan prior to his or her elective transfer into this plan.

(d) Any member of this plan who: (1) Was employed as a Natural Resource Police Officer prior to the effective date of this article; and (2) was not employed as a Natural Resource Police Officer on the effective date of this article; and (3) thereafter becomes reemployed in covered employment, may not receive any credited service for any previously withdrawn accumulated contributions from either this plan or the Public Employees Retirement System relating to the prior covered employment unless, following his or her return to covered employment and active participation in this plan, the member redeposits in this plan the amount of the withdrawn accumulated contributions submitted on salary earned while a Natural Resources Police Officer, together with interest on the accumulated contributions at the rate determined by the board from the date of withdrawal to the date of redeposit. Upon repayment he or she shall receive the same credit for his or her former service in covered employment as if no refund had been made. The repayment required by this subsection shall be made in a lump sum within 60 months of the Natural Resource Police Officers reemployment in covered employment.

(e) In the event a member dies from any cause other than those specified in §20-18-25 of this code and does not have ten or more years of credited service, the member’s accumulated contributions may be paid to a named beneficiary or beneficiaries. If no beneficiary is named, then the accumulated contributions shall be paid to the estate of the deceased member.

(f) Every member who completes 120 months of covered employment is eligible, upon cessation of covered employment, to either withdraw his or her accumulated contributions in accordance with subsection (a) of this section, or to choose not to withdraw his or her accumulated contribution and to receive retirement income payments upon attaining normal retirement age.

(g) Notwithstanding any other provision of this article, forfeitures under the plan may not be applied to increase the benefits any member would otherwise receive under the plan.

§20-18-21. Award and benefits for disability – Duty related.

(a) Any member who after the effective date of this article and during covered employment: (1) Has been or becomes either totally or partially disabled by injury, illness, or disease; and (2) the disability is a result of an occupational risk or hazard inherent in or peculiar to the services required of members; or (3) the disability was incurred while performing law-enforcement functions during either scheduled work hours or at any other time; and (4) in the opinion of two physicians based on a medical examination, one of whom shall be named by the board and one by the member, the member is by reason of the disability unable to perform adequately the duties required of a Natural Resources Police Officer, is entitled to receive and shall be paid from the fund in monthly installments the compensation under either subsection (b) or (c) of this section.

(b) If the member is totally disabled, the member shall receive 90 percent of his or her average full monthly compensation for the 12-month contributory period preceding the member’s disability award, or the shorter period if the member has not worked 12 months.

(c) If the member is partially disabled, the member shall receive 45 percent of his or her average full monthly compensation for the 12-month contributory period preceding the member’s disability award, or the shorter period if the member has not worked 12 months.

(d) If the member remains partially disabled until attaining 60 years of age, the member shall then receive the retirement benefit provided in §20-18-18 and §20-18-19 of this code with the accrued benefit being computed with the multiplier in effect as of his or her effective date of retirement.

(e) The disability benefit payments will begin the first day of the month following termination of employment and receipt of the disability retirement application by the Consolidated Public Retirement Board.

§20-18-22. Award and benefits for disability – Due to other causes.

(a) Any member with 10 or more years of contributing service and who after the effective date of this article and during covered employment: (1) Has been or becomes totally or partially disabled from any cause other than those set forth in §20-18-21 of this code and not due to vicious habits, intemperance, or willful misconduct on his or her part; and (2) in the opinion of two physicians based on a medical examination, one of whom shall be named by the board and one by the member, he or she is by reason of the disability unable to perform adequately the duties required of a Natural Resources Police Officer, is entitled to receive and shall be paid from the fund in monthly installments the compensation set forth in either subsection (b) or (c) of this section.

(b) If the member is totally disabled, he or she shall receive 66 and two-thirds percent of his or her average full monthly compensation for the 12-month contributory period preceding the disability award, or the shorter period, if the member has not worked 12 months.

(c) If the member is partially disabled, he or she shall receive 33 and one-third percent of his or her average full monthly compensation for the 12-month contributory period preceding the disability award, or the shorter period, if the member has not worked 12 months.

(d) If the member remains disabled until attaining 60 years of age, then the member shall receive the retirement benefit provided in §20-18-18 and §20-18-19 of this code with the accrued benefit being computed with the multiplier in effect as of his or her effective date of retirement.

(e) The board shall propose legislative rules for promulgation in accordance with the provisions of §29A-3-1 et seq. of this code concerning member disability payments so as to ensure that the payments do not exceed 100 percent of the average current salary for the position last held by the member.

(f) The disability benefit payments will begin the first day of the month following termination of employment and receipt of the disability retirement application by the Consolidated Public Retirement Board.

§20-18-23. Awards and benefits for disability — Physical examinations; termination of disability.

(a) The board may require any member who has applied for or any retirant who is receiving disability benefits under this article to submit to a physical examination, mental examination or both, by a physician or physicians selected or approved by the board and may cause all costs incident to the examination and approved by the board to be paid from the fund. The costs may include hospital, laboratory, X ray, medical, and physicians’ fees. A report of the findings of any physician shall be submitted in writing to the board for its consideration. If, from the report, independent information, or from the report and any hearing on the report, the board is of the opinion and finds that: (1) The member has become reemployed as a law-enforcement officer; (2) two physicians who have examined the member have found that considering the opportunities for law enforcement in West Virginia, the member could be so employed as a Natural Resources Police Officer; or (3) other facts exist to demonstrate that the member is no longer totally disabled or partially disabled as the case may be, then the disability benefits shall cease. If the member was totally disabled and is found to have recovered, the board shall determine whether the member continues to be partially disabled. If the board finds that the member is no longer totally disabled but is partially disabled, then the member shall continue to receive partial disability benefits in accordance with this article. Benefits shall cease once the member has been found to be no longer either totally or partially disabled: Provided, That the board shall require recertification for each partial or total disability at regular intervals.

(b) If from the report, or from the report and hearing on the report, the board is of the opinion and finds that the disabled retirant has recovered from the disability to the extent that he or she is able to perform adequately the duties of a law-enforcement officer, the board shall within five working days provide written notice of the finding to the Director of the Division of Natural Resources, who shall reinstate the retirant to active duty as a member of the department at his or her rank or classification and assigned to his or her area of assignment prior to the disability retirement within 45 days of the finding, unless the retirant declines to be reinstated.

(c) A disability retirant who is returned to active duty as a Natural Resources Police Officer for the West Virginia Division of Natural Resources shall again become a member of the retirement system in which he or she was enrolled and the retirant’s credited service shall be restored.

(d) If a retirant refuses to submit to a medical examination or submit a statement by his or her physician certifying continued disability in any period, his or her disability annuity may be discontinued by the board until the retirant complies. If the refusal continues for one year, all the retirant’s rights in and to the annuity may be revoked by the board.

§20-18-24. Prior disability.

Any Natural Resources Police Officer who became totally disabled as a result of illness or injury incurred in the line of duty prior to the effective date of this article may not be a member of the Natural Resources Police Officer Retirement System.

§20-18-25. Awards and benefits to surviving spouse — When member dies in performance of duty, etc.

(a) The surviving spouse of any member who, after the effective date of this article while in covered employment, has died or dies by reason of injury, illness or disease resulting from an occupational risk or hazard inherent in or peculiar to the service required of members, while the member was or is engaged in the performance of his or her duties as a Natural Resources Police Officer, or the survivor spouse of a member who dies from any cause while receiving benefits pursuant to §20-18-21 of this code, is entitled to receive and shall be paid from the fund benefits as follows: To the surviving spouse annually, in equal monthly installments during his or her lifetime an amount equal to the greater of: (i) Two thirds of the annual compensation received in the preceding 12-month period by the deceased member; or (ii) if the member dies after his or her normal retirement age, the monthly amount which the spouse would have received had the member retired the day before his or her death, elected a 100 percent joint and survivor annuity with the spouse as the joint annuitant, and then died.

(b) Benefits for a surviving spouse received under this section, §20-18-27 and §20-18-28 of this code, are in lieu of receipt of any other benefits under this article for the spouse, or any other person, or under the provisions of any other state retirement system based upon the member’s covered employment.

§20-18-26. Awards and benefits to surviving spouse — When member dies from nonservice-connected causes.

(a) In any case where a member who has been a member for at least 10 years, while in covered employment after the effective date of this article, has died or dies from any cause other than those specified in §20-18-25 of this code, and not due to vicious habits, intemperance, or willful misconduct on his or her part, the fund shall pay annually in equal monthly installments to the surviving spouse during his or her lifetime, a sum equal to the greater of: (i) One half of the annual compensation received in the preceding 12-month employment period by the deceased member; or (ii) if the member dies after his or her early or normal retirement age, the monthly amount which the spouse would have received had the member retired the day before his or her death, elected a 100 percent joint and survivor annuity with the spouse as the joint annuitant, and then died.

(b) Benefits for a surviving spouse received under §20-18-27 and §20-18-28 of this code, are in lieu of receipt of any other benefits under this article for the spouse or any other person or under the provisions of any other state retirement system based upon the member’s covered employment.

§20-18-27. Additional death benefits and scholarships - Dependent children.

(a) In addition to the spouse death benefits in §20-18-25 and §20-18-26 of this code, the surviving spouse is entitled to receive and there shall be paid to the spouse $100 monthly for each dependent child.

(b) If the surviving spouse dies while receiving death benefits provided in §20-18-25 or §20-18-26 of this code, or if there is no surviving spouse, the fund shall pay monthly to each dependent child a sum equal to one fourth of the surviving spouse’s entitlement under either §20-18-25 or §20-18-26 of this code. If there is neither a surviving spouse nor a dependent child, the fund shall pay in equal monthly installments to the dependent parents of the deceased member during their joint lifetimes a sum equal to the amount which a surviving spouse, without children, would have received: Provided, That when there is only one dependent parent surviving, that parent is entitled to receive during his or her lifetime one-half the amount which both parents, if living, would have been entitled to receive: Provided, however, That if there is no surviving spouse, dependent child nor dependent parent of the deceased member the accumulated contributions shall be paid to a named beneficiary or beneficiaries: Provided further, That if there is no surviving spouse, dependent child, nor dependent parent of the deceased member, nor any named beneficiary or beneficiaries then the accumulated contributions shall be paid to the estate of the deceased member.

(c) Any person qualifying as a dependent child under this section, in addition to any other benefits due under this or other sections of this article, is entitled to receive a scholarship to be applied to the career development education of that person. This sum, up to but not exceeding $7,500 per year, shall be paid from the fund to any higher education institution in this state, career-technical education provider in this state, or other entity in this state approved by the board, to offset the expenses of tuition, room and board, books, fees or other costs incurred in a course of study at any of these institutions so long as the recipient makes application to the board on an approved form and under such rules as the board may provide, and maintains scholastic eligibility as defined by the institution or the board. The board may propose legislative rules for promulgation in accordance with §29A-3-1 et seq. of this code which define age requirements, physical and mental requirements, scholastic eligibility, disbursement methods, institutional qualifications and other requirements as necessary and not inconsistent with this section. Scholarship benefits awarded pursuant to this subsection are not subject to division or payable to an alternate payee by any Qualified Domestic Relations Order.

§20-18-28. Burial benefit.

Any member who dies as a result of any service related illness or injury after the effective date is entitled to a lump sum burial benefit of $5,000. If the member is married, the burial benefit shall be paid to the member’s spouse. If the member is not married, the burial benefit shall be paid to the member’s estate for the purposes of paying burial expenses, settling the member’s final affairs, or both. Any unspent balance shall be distributed as a part of the member’s estate. Burial benefits awarded pursuant to this section are not subject to division or payable to an alternate payee by any Qualified Domestic Relations Order.

§20-18-29. Double death benefits prohibited.

A surviving spouse is not entitled to receive simultaneous death benefits under this article as a result of the death of two or more members to whom the spouse was married. Any spouse who becomes eligible for a subsequent death benefit under this article while receiving a death benefit under this article shall receive the higher benefit, but not both.

§20-18-3. Meaning of terms.

Any term used in this article has the same meaning as when used in a comparable context in the laws of the United States, unless a different meaning is clearly required. Any reference in this article to the Internal Revenue Code means the Internal Revenue Code of 1986, as it has been amended.

§20-18-30. Return to covered employment by retired member.

The annuity of any member who retires under the provisions of this article and who resumes service in covered employment shall be suspended while the member continues in covered employment. The monthly annuity payment for the month in which the service resumes shall be prorated to the date of commencement of service, and the member shall again become a contributing member during resumption of service. At the conclusion of resumed service in covered employment the member shall have his or her annuity recalculated to take into account the entirety of service in covered employment.

§20-18-31. Exemption from garnishment and other process; exception for certain qualified domestic relations orders.

The moneys in the fund and the right of a member, spouse or other beneficiary to benefits under this article, to the return of contributions, or to any retirement, death, or disability payments under the provisions of this article are not subject to execution, garnishment, attachment, or any other process whatsoever with the exception that the benefits or contributions under the system shall be subject to “qualified domestic relations orders” as that term is defined in Section 414(p) of the Internal Revenue Code with respect to governmental plans, and are unassignable except as is provided in this article.

§20-18-32. Fraud; penalties; and repayment.

Any person who knowingly makes any false statement or who falsifies or permits to be falsified any record of the retirement system in any attempt to defraud that system is guilty of a misdemeanor and, upon conviction, shall be fined not to exceed $1,000 or confined in jail not to exceed one year, or both fined and confined. Any increased benefit received by any person as a result of the falsification or fraud shall be returned to the fund upon demand by the board.

§20-18-33. Credit toward retirement for member’s prior military service; credit toward retirement when member has joined armed forces in time of armed conflict; qualified military service.

(a) Any member who has previously served on active military duty is entitled to receive additional years of service for the purpose of determining his or her years of credited service for a period equal to the active military duty not to exceed five years, subject to the following:

(1) That he or she has been honorably discharged from the armed forces;

(2) That he or she substantiates by appropriate documentation or evidence his or her period of active military duty; and

(3) That he or she is receiving no benefits from any other retirement system for his or her active military duty.

(b) In addition, any member who while in covered employment was commissioned, enlisted or inducted into the armed forces of the United States or, being a member of the reserve officers’ corps, was called to active duty in the armed forces between September 1, 1940, and the close of hostilities in World War II, or between the June 27, 1950, and the close of the armed conflict in Korea on July 27, 1953, between August 1, 1964, and the close of the armed conflict in Vietnam, or during any other period of armed conflict by the United States whether sanctioned by a declaration of war by Congress or by executive or other order of the President, is entitled to and shall receive credited service, for a period equal to the full time that he or she has or, pursuant to that commission, enlistment, induction or call, shall have served with the armed forces subject to the following:

(1) That he or she has been honorably discharged from the armed forces;

(2) That within 90 days after honorable discharge from the armed forces, he or she presented himself or herself to the West Virginia Division of Natural Resources and offered to resume service as a Natural Resources Police Officer; and

(3) That he or she has made no voluntary act, whether by reenlistment, waiver of discharge, acceptance of commission or otherwise, to extend or participate in extension of the period of service with the armed forces beyond the period of service for which he or she was originally commissioned, enlisted, inducted or called.

(d) Any service credit allowed under this section may be credited one time only for each Natural Resources Police Officer, regardless of any changes in job title or responsibilities.

(e) Notwithstanding the preceding provisions of this section, contributions, benefits, and service credit with respect to qualified military service shall be provided in accordance with Section 414(u) of the Internal Revenue Code. For purposes of this section, “qualified military service” has the same meaning as in Section 414(u) of the Internal Revenue Code. The retirement board is authorized to determine all questions and make all decisions relating to this section and, pursuant to the authority granted to the retirement board in §5-10D-1 of this code, may promulgate rules relating to contributions, benefits and service credit to comply with Section 414(u) of the Internal Revenue Code.

§20-18-34. Pro rata reduction of annuities.

Any provision in this article to the contrary notwithstanding, if at the end of any fiscal year the total of the annuities paid from the retirement fund during the said fiscal year is more than 10 percent of the sum of the balances in the fund at the end of the said fiscal year, the said annuities payable in the next ensuing fiscal year shall be reduced, pro rata, so that the sum of the annuities so reduced shall not exceed 10 percent of the sum of the said balances in the fund. The said pro rata reduction shall be applied to all annuities payable in the said ensuing fiscal year.

§20-18-35. Liability of participating public employer for delinquent retirement contributions; liability of participating public employer’s successor for delinquent retirement contributions; lien for delinquent contributions; collection by suit.

The requirements for this section shall be the same as the requirements of §5-10D-11 of this code.

§20-18-36. Benefits not forfeited if system terminates.

If the retirement system is terminated or contributions are completely discontinued, the rights of all members to benefits accrued or contributions made to the date of such termination or discontinuance, to the extent then funded, are not forfeited.

§20-18-4. Creation and administration of West Virginia Natural Resources Police Officers Retirement System; specification of actuarial assumptions.

There is hereby created the West Virginia Natural Resources Police Officers Retirement System. The purpose of this system is to provide for the orderly retirement of Natural Resources Police Officers who become superannuated because of age or permanent disability and to provide certain survivor death benefits, and it is contemplated that substantially all of the members of the retirement system shall be qualified public safety employees as defined in §20-18-2 of this code. The retirement system shall come into effect January 1, 2021: Provided, That if the number of members in the system are fewer than 100 on July 1, 2022, then all of the provisions of this article are void and of no force and effect, and memberships in the plan will be merged into the Public Employees Retirement System created in §5-10-1 et seq. of this code. The retirement system constitutes a body corporate. All business of the system shall be transacted in the name of the West Virginia Natural Resources Police Officers Retirement System. The board shall specify and adopt all actuarial assumptions for the plan at its first meeting of every calendar year or as soon thereafter as may be practicable, which assumptions shall become part of the plan.

§20-18-5. Article to be liberally construed; supplements federal social security; federal qualification requirements.

(a) The provisions of this article shall be liberally construed to provide a general retirement system for Natural Resources Police Officers eligible to retire under the provisions of this plan. Nothing in this article may be construed to permit the state to substitute this plan for federal social security now in force in West Virginia.

(b) The board shall administer the plan in accordance with its terms and may construe the terms and determine all questions arising in connection with the administration, interpretation and application of the plan. The board may sue and be sued, contract and be contracted with and conduct all the business of the system in the name of the plan. The board may employ those persons it considers necessary or desirable to administer the plan. All start-up costs to modify the existing line of business computer system and all personnel salary, including benefits, shall be paid by the board from funds received by the board through gifts and bequests to the fund and any accretions and accumulations which may properly be paid into and become a part of the fund. The board may receive gifts and bequests for purposes of paying start-up costs as set forth in this subsection. The board may also receive gifts and additional contributions for the purpose of supplementing the plan. The board shall administer the plan for the exclusive benefit of the members and their beneficiaries subject to the specific provisions of the plan.

(c) The plan is intended to meet the federal qualification requirements of Section 401(a) and related sections of the Internal Revenue Code as applicable to governmental plans. Notwithstanding any other provision of state law, the board shall administer the plan to fulfill this intent for the exclusive benefit of the members and their beneficiaries. Any provision of this article referencing or relating to these federal qualification requirements shall be effective as of the date required by federal law. The board may promulgate rules and amend or repeal conflicting rules in accordance with the authority granted to the board pursuant to §5-10D-1 of this code to assure compliance with the requirements of this section.

§20-18-6. Members.

(a) Any Natural Resources Police Officer first employed in covered employment after the effective date of this article shall be a member of this retirement system and does not qualify for membership in any other retirement system administered by the board, so long as he or she remains employed in covered employment: Provided, That any Natural Resources Police Officer who has concurrent employment in an additional job or jobs which would require the Natural Resources Police Officer to be a member of the West Virginia Deputy Sheriff Retirement System, West Virginia Municipal Police Officers and Firefighters Retirement System or the West Virginia Emergency Medical Services Retirement System shall participate in only one retirement system administered by the board, and the retirement system applicable to the concurrent employment for which the employee has the earliest date of hire shall prevail. The membership of any person in the plan ceases: (1) Upon the withdrawal of accumulated contributions after the cessation of service; (2) upon retirement; or (3) at death.

(b) Any Natural Resources Police Officer employed in covered employment on July 1, 2020, shall notify in writing both the Division of Natural Resources and the board no later than September 30, 2020, of his or her desire to become a member of the plan beginning January 2, 2021: Provided, That any Natural Resources Police Officer hired after July 1, 2020, but before January 2, 2021, shall make this required notification to the division and the board no later than 30 days from receipt of the notice required by §20-18-11 of this code or September 30, 2020, whichever is later. Any Natural Resources Police Officer who elects to become a member of the plan ceases to be an active member in the Public Employees Retirement System and shall continue to be ineligible for future membership in any other retirement system administered by the board so long as the Natural Resources Police Officer remains employed in covered employment in this plan; any Natural Resources Police Officer who does not affirmatively elect to become a member of the plan continues to be eligible for any other retirement system as is from time to time offered to other state employees but is ineligible for this plan regardless of any subsequent termination of employment and rehire.

(c) Any Natural Resources Police Officer employed in covered employment on the effective date of this article, who has timely elected to transfer into this plan as provided in subsection (b) of this section, shall be given credited service at the time of transfer for all credited service then standing to the Natural Resources Police Officer service credit in the Public Employees Retirement System regardless of whether the credited service (as that term is defined in §5-10-2 of this code) was earned as a Natural Resources Police Officer. All the credited service standing to the transferring Natural Resources Police Officer’s credit in the Public Employees Retirement Fund System at the time of transfer into this plan shall be transferred into the plan created by this article, and the transferring Natural Resources Police Officer shall be given the same credit for the purposes of this article for all service transferred from the Public Employees Retirement System, as that transferring Natural Resources Police Officer would have received from the Public Employees Retirement System as if the transfer had not occurred. In connection with each transferring Natural Resources Police Officer receiving credit for prior employment as provided in this subsection, a transfer from the Public Employees Retirement System to this plan shall be made pursuant to the procedures described in §20-18-10 of this code: Provided, That a member of this plan who has elected to transfer from the Public Employees Retirement System into this plan pursuant to subsection (b) of this section may not, after having transferred into and become an active member of this plan, reinstate to his or her credit in this plan any service credit relating to periods of non-Natural Resources Police Officer service which were withdrawn from the Public Employees Retirement System prior to his or her elective transfer into this plan.

(d) Any Natural Resources Police Officer who was employed as a Natural Resources Police Officer between the effective date of this article and June 30, 2026, who has not commenced retirement under the Public Employees Retirement System, shall become a member upon rehire as a Natural Resources Police Officer. For purposes of this subsection, the member’s years of service and credited service prior to the effective date shall not be counted for any purposes under this plan unless the Natural Resources Police Officer has not received the return of his or her accumulated contributions in the Public Employees Retirement System pursuant to §5-10-30 of this code. The member may request in writing within two years of first becoming a member of the plan to have his or her accumulated contributions and employer contributions from all credited service, as that term is defined in §5-10-2 of this code, in the Public Employees Retirement System transferred to the plan regardless of whether the credited service was earned as a Natural Resources Police Officer. If the conditions of the subsection are met, all years of the Natural Resources Police Officer’s credited service shall be counted as years of service for the purposes of this article.

(e) Any certified law enforcement officer who has law enforcement service with a participating public employer in the Public Employees Retirement System who is first employed in covered employment between the effective date of this article and June 30, 2026, and who has not commenced retirement under the Public Employees Retirement System, shall be a member of this retirement system. For purposes of this subsection, the member’s years of service and credited service prior to the effective date shall not be counted for any purposes under this plan unless the Natural Resources Police Officer has not received the return of his or her accumulated contributions in the Public Employees Retirement System pursuant to §5-10-30 of this code. The member may request in writing within two years of first becoming a member of the plan to have up to a maximum of three years of his or her accumulated contributions and employer contributions from credited service, as that term is defined in §5-10-2 of this code, earned while performing service as a certified law enforcement officer in the Public Employees Retirement System transferred to the plan. If the member has more than three years of credited service as a certified law enforcement officer in the Public Employees Retirement System, the accumulated contributions and employer contributions of the first thirty-six months of credited service with full salary as a certified law enforcement officer shall be transferred. If the conditions of the subsection are met, the maximum three years of credited service in the Public Employees Retirement System as a certified law enforcement officer shall be counted as years of service for the purposes of this article.

(f) Any Natural Resources Police Officer who was employed as a Natural Resources Police Officer prior to the effective date of this article and who was rehired as a Natural Resource Police Officer on or after July 1, 2026, and who has not commenced retirement under the Public Employees Retirement System, shall become a member upon rehire as a Natural Resources Police Officer. For purposes of this subsection, the member’s years of service and credited service prior to the effective date shall not be counted for any purposes under this plan unless the Natural Resources Police Officer has not received the return of his or her accumulated contributions in the Public Employees Retirement System pursuant to §5-10-30 of this code. The member may request in writing within one year of first becoming a member of the plan to have his or her accumulated contributions and employer contributions from covered employment in the Public Employees Retirement System transferred to the plan. If the conditions of the subsection are met, all years of the Natural Resources Police Officer’s covered employment shall be counted as years of service for the purposes of this article.

(g) Once made, the election provided in this section is irrevocable. All Natural Resources Police Officers first employed after the effective date and Natural Resources Police Officers electing to become members as described in this section shall be members as a condition of employment and shall make the contributions required by §20-18-8 of this code.

(h) Notwithstanding any other provisions of this article to the contrary, any individual who is a leased employee is not eligible to participate in the plan. For purposes of this plan, a "leased employee" means any individual who performs services as an independent contractor or pursuant to an agreement with an employee leasing organization or similar organization. If a question arises regarding the status of an individual as a leased employee, the board has final power to decide the question. Additionally, any individual who is an Emergency Natural Resources Police Officer as defined in §20-7-1(c) of this code, Special Natural Resources Police Officer as defined in §20-7-1(d) of this code, Forestry Special Natural Resources Police Officer as defined in §20-7-1(e) of this code, or Federal Law Enforcement Officer as defined in §20-7-1b of this code, is not eligible to participate in the plan.

§20-18-7. Creation of fund; investments.

(a) There is hereby created the “West Virginia Natural Resources Police Officer Retirement Fund” for the benefit of the members of the retirement system created pursuant to this article and the dependents of any deceased or retired member of the system.

(b) All moneys paid into and accumulated in the fund, except such amounts as are designated by the board for payment of benefits as provided in this article, shall be held in trust and invested in the consolidated pensions fund as administered by the state Investment Management Board as provided by law.

§20-18-8. Members’ contributions; employer contributions.

(a) There shall be deducted from the monthly salary of each member and paid into the fund an amount equal to nine and one-half percent of his or her monthly salary.

(b) An additional 12 percent of the monthly salary of each member shall be paid to the fund by the employer.

(c) If the board finds that the benefits provided by this article can be actuarially funded with a lesser contribution, then the board shall reduce the required member or employer contributions or both. The sums withheld each pay date shall be paid to the fund no later than 15 days following the end of the pay date.

(d) Any active member who has concurrent employment in an additional job or jobs and the additional employment requires the Natural Resources Police Officer to be a member of another retirement system which is administered by the Consolidated Public Retirement Board pursuant to §5-10D-1 et seq. of this code shall make an additional contribution to the fund of nine and one-half percent of his or her monthly salary earned from any additional employment which requires the Natural Resources Police Officer to be a member of another retirement system which is administered by the Consolidated Public Retirement Board pursuant to §5-10D-1 et seq. of this code. An additional employer contribution shall be paid to the fund by the concurrent employer for which the member is employed in an amount equal to 12 percent of his or her monthly salary. If the board finds that the benefits provided by this article can be funded with a lesser contribution, then the board shall reduce the required member, or employer contributions or both. The sums withheld each calendar month shall be paid to the fund no later than 15 days following the end of the calendar month.

§20-18-9. Correction of errors; underpayments; overpayments.

(a) General rule. — Upon learning of errors, the board shall correct errors in the retirement plan in a timely manner whether the individual, division or board was at fault for the error with the intent of placing the affected individual, division and board in the position each would have been in had the error not occurred.

(b) Underpayments to the plan. — Any error resulting in an underpayment to the plan may be corrected by the member or retirant remitting the required employee contribution or underpayment and the division remitting the required employer contribution or underpayment. Interest shall accumulate in accordance with the legislative rule 162 CSR 7 concerning retirement board refund, reinstatement, retroactive service, loan and correction of error interest factors and any accumulating interest owed on the employee and employer contributions or underpayments resulting from an employer error is the responsibility of the division. The division may remit total payment and the employee reimburse the division through payroll deduction over a period equivalent to the time period during which the employer error occurred. If the correction of an error involving an underpayment to the plan will result in the plan paying a retirant an additional amount, this additional payment may be made only after the board receives full payment of all required employee and employer contributions or underpayments, including interest.

(c) Overpayments to the plan by the division. — When mistaken or excess employer contributions or other employer overpayments have been made to the plan, the board shall credit the division with an amount equal to the overpayment, to be offset against the employer’s future liability for employer contributions to the plan. If the division has no future liability for employer contributions to the retirement system, the board shall refund the erroneous contributions directly to the division. Earnings or interest may not be returned, offset or credited to the division under any of the means used by the board for returning employer overpayments made to the plan.

(d) Overpayments to the plan by an employee. — When mistaken or excess employee contributions or overpayments have been made to the retirement system, the board has sole authority for determining the means of return, offset or credit to or for the benefit of the individual making the mistaken or excess employee contribution of the amounts, and may use any means authorized or permitted under the provisions of section 401(a), et seq. of the Internal Revenue Code and guidance issued thereunder applicable to governmental plans. Alternatively, the board may require the division to pay the individual the amounts as wages, with the board crediting the division with a corresponding amount to offset against its future contributions to the plan. If the division has no future liability for employer contributions to the plan, the board shall refund said amount directly to the division: Provided, That the wages paid to the individual shall not be considered compensation for any purposes of this article. Earnings or interest shall not be returned, offset, or credited under any of the means used by the board for returning employee overpayments.

(e) Overpayments from the plan. — If any error results in any member, retirant, beneficiary, the division or other individual receiving from the system more than he or she would have been entitled to receive had the error not occurred the board, upon learning of the error, shall correct the error in a timely manner. If correction of the error occurs after annuity payments to a retirant or beneficiary have commenced, the board shall prospectively adjust the payment of the benefit to the correct amount. In addition, the member, retirant, beneficiary, the division or other person who received the overpayment from the plan shall repay the amount of any overpayment to the plan in any manner permitted by the board. If the member, retirant, beneficiary or other person who received the overpayment is deceased and an annuity or lump sum benefit is still payable, the amount of the overpayment shall be offset against the benefit payment owed in a manner consistent with the board’s error correction policy. Interest shall not accumulate on any corrective payment made to the plan pursuant to this subsection.

(f) Underpayments from the plan. — If any error results in any member, retirant, beneficiary, the division or other individual receiving from the plan less than he or she would have been entitled to receive had the error not occurred, the board, upon learning of the error, shall correct the error in a timely manner. If correction of the error occurs after annuity payments to a retirant or beneficiary have commenced, the board shall prospectively adjust the payment of the benefit to the correct amount. In addition, the board shall pay the amount of such underpayment to the member, retirant, beneficiary or other individual in a lump sum. Interest shall not be paid on any corrective payment made by the plan pursuant to this subsection.

(g) Eligibility errors. — If the board finds that an individual is not eligible to participate, the board shall notify the individual and the division of the determination and terminate his or her participation in the plan. Any erroneous payments to the retirement system shall be returned to the division and individual in accordance with the methods described in subsections (c) and (d) of this section and any erroneous payments from the plan to such individual shall be returned to the plan in accordance with the methods described in subsection (e) of this section. Any erroneous service credited to the individual shall be removed. If the board determines that an individual has not been participating in the plan, but was eligible to and required to be participating in the plan, the board shall as soon as practicable notify the individual and the division of the determination, and the individual shall prospectively commence participation in the plan as soon as practicable. Service credit for service prior to the date on which the individual prospectively commences participation in the plan shall be granted only if the board receives the required employer and employee contributions for such service, in accordance with subsection (b) of this section, including interest.

(h) Correction of errors occurring prior to transfer from Public Employee Retirement System. — If any errors requiring correction occurred prior to establishment of the plan created pursuant to this article or prior to the transfer of funds from the Public Employee Retirement System, into the plan, or both, the employer and member contributions, if any, required to be calculated in order to effect correction shall be based on the rates in effect for the retirement system under which such employer or member contributions would have been made had the error not occurred. For purposes of this subsection, “retirement system” means either the Public Employees Retirement System or the plan. The board shall have full discretion when applying this subsection (h), consistent with the general principles of subsection (a) of this section. The intent of any correction is to place the affected individual, division and board in the position in which each would have been had the error not occurred.

§20-18-37. Severability.

If any part of this article is declared unconstitutional by a court of competent jurisdiction, such decision shall not affect the validity of the remaining provisions of this article, or the article in its entirety.

§20-2-5k. Use of air rifles to hunt.

(a) Notwithstanding any other provision of this code to the contrary, any person lawfully entitled to hunt may hunt with an air rifle during small game and big game firearms season: Provided, That air rifles may only be used for deer hunting in counties open to firearm deer hunting.

(b) An air rifle may not be substituted for a muzzleloader during any muzzleloader season or during the Mountaineer Heritage season.

(d) No person may hunt with an air bow at any time.

(e) Any person hunting with an air rifle is subject to all other rifle and firearm hunting regulations according to this chapter and rules promulgated thereunder.

(f) Only air rifles meeting the following specifications may be used for hunting big game:

(1) No person may hunt big game with an air rifle of less than .45 caliber and with a bullet of less than 200 grains, except that wild turkey may be hunted with an air rifle of .22 caliber or larger.

(a) The West Virginia Division of Natural Resources shall establish an Adopt-A-Trail program that will allow volunteer groups to assist in maintaining and enhancing trails on state- owned land.

(b) Subject to subsection (g) of this section, volunteer groups in the Adopt-A-Trail program may adopt any available trail or trail segment and may choose any one or more of the following activities:

(1) Spring cleanups;

(2) Litter collection;

(3) Accessibility projects;

(4) Special events;

(5) Trail maintenance, enhancement, or realignment;

(6) Public information and assistance; or

(7) Training.

(c) Volunteer groups that want to participate in the Adopt-A-Trail program shall apply to the division on an application provided by the division. Applications shall be reviewed and approved or denied at the division’s discretion. Groups may not perform any activity on a trail or trail segment until approved by the division with an Adopt-A-Trail agreement executed by all parties to the agreement. The division may provide for more than one volunteer group to adopt an eligible trail or trail segment.

(d) Adopt-A-Trail agreements shall include, but not be limited to, the following provisions:

(1) Participating in the program for a term of at least two years;

(2) Assisting with trail or path maintenance when applicable; and

(3) Complying with all reasonable requirements of the division.

(e) Volunteer groups shall consist of people who are 18 years or older. Participants 17 years of age or younger may participate, but must be accompanied by an adult who is 18 years of age or older with a close relationship or connection to any participant 17 years of age or younger. As with the Adopt-A-Highway and the Adopt-A-Stream Programs in this state, groups participating in the Adopt-A-Trail Program may include, but not be limited to, communities, families, individuals, members of 4-H or Future Farmers of America, scouting organizations, any faith-based group, youth group, schools, college organizations, businesses, civic organizations, and government agencies.

(f) Activities performed by volunteer groups may not involve work that:

(1) Reduce hours or compensation of department or division employees;

(3) Could be performed by a laid-off department or division employee; or

(3) Are inconsistent with the terms of a collective bargaining agreement.

(g) If the division operates other programs in the vicinity of the trail that allows volunteers to participate in similar programs, the division shall coordinate these programs to provide for efficient and effective volunteer programs in the area.

(h) Adopted trails may be identified by a sign at a location along the adopted section bearing the Adopt-A-Trail logo and the name of the volunteer group after the group completes 50 hours of service.

(i) The division shall coordinate with the closest solid waste authority so that any tires, appliances, televisions, or trash may be properly disposed of with proper documentation.

(j) Collected litter will be placed at designated locations approved by the division. The division may coordinate with volunteers, local authorities, and state agencies for removal and disposal of collected litter. Garbage bags, safety training, and gloves are to be furnished by the program.

(k) The division may propose rules pursuant to §29A-3-1 et seq. of this code to carry out and implement the Adopt-A-Trail program.

§20-2-5l. Use of certain rifles to hunt in muzzleloader season.

Notwithstanding any other provision of this code or any rule promulgated thereunder to the contrary, any person lawfully entitled to hunt may hunt with a singleshot muzzleloading pistol or singleshot muzzleloading rifle, having a bore diameter of not less than thirty-eight one-hundredths of an inch, using an encapsulated propellant charge that loads from the breech, with the projectile loaded from the muzzle, during any established muzzleloader season: Provided, That such muzzleloading pistol or muzzleloading rifle may not be used for hunting during the Mountaineer Heritage season.

§20-14-13. Authorization to contract to build and maintain trails on private property.

The Hatfield-McCoy Regional Recreation Authority shall be authorized to contract to build and maintain trails on privately owned property, with the consent of the private property owner. This authorization shall allow the authority to build and/or maintain motorized and nonmotorized trails.

ARTICLE 19. MOTORSPORT RESPONSIBILITY ACT.

§20-19-1. Legislative purposes.

The West Virginia Legislature finds that motorsport activities are engaged in by a large number of citizens of West Virginia and that such activities also attract to West Virginia a large number of nonresidents, significantly contributing to the economy of West Virginia. Since it is recognized that there are inherent risks in motorsport activities which should be understood by participants therein and which are essentially impossible for the operators of motorsport businesses to eliminate, it is the purpose of this article to define those areas of responsibility and those affirmative acts for which the operators of motorsport businesses shall be liable for loss, damage, or injury suffered by participants, and to further define those risks which the participants expressly assume and for which there can be no recovery. It is the intent of the Legislature to expand the liability protections afforded with respect to motorsports and to not eliminate any other liability protections that may be available under statutory or common law.

§20-19-2. Definitions.

In this article, unless a different meaning plainly is required:

(1) "Driver training" means qualified instruction to enhance a vehicle operator’s ability to learn vehicle control, provided by a motorsport facility.

(2) "Lessee" means any qualified person or organization with the necessary licenses and liability insurance meeting the motorsport operator’s lease requirements to operate a motorsport facility.

(3) "Motorized vehicle" means an automobile, motorcycle, or any other vehicle propelled by power, other than muscular power, used to transport persons and which operates within the confines of a motorsport facility.

(4) "Motorsport activities" means driver training, vehicle storage, competitive racing, non-competitive driving events, exhibitions of speed, fairs or shows using motorized vehicles, or other forms of recreation involving the use of motor vehicles, including motorcycles.

(5) "Motorsport facility" means a speedway or racetrack designed and intended for motorsport activities.

(6) "Motorsport operator" means any person, partnership, corporation, lessee, or other organization, or any combination thereof offering motorsport activities.

(7) "Participant" means any person or organization using the services of a motorsport facility including, but not limited to, spectators, vehicle operators using either their own personally owned vehicle or a vehicle owned by the motorsport facility, or vehicle passengers using either their own personally owned vehicle or a vehicle owned by the motorsport facility.

(8) "Spectator area" means a specified area within a motorsport facility intended for admission to the general public, whether or not an admission price is charged, or to which admitted persons of the general public have unrestricted access, including the grandstands and other general admission seating or viewing areas.

§20-19-3. Duties of motorsport operators.

(a) Every motorsport operator shall:

(1) Mark for identification purposes all equipment and vehicles used in the business;

(2) Maintain all equipment and vehicles used in the offering of motorsport activities in such condition that the equipment and vehicles are safe to operate or use as intended and recommended by the manufacturer;

(3) Provide facilities, equipment, and services conforming to safety and other requirements established by the rules promulgated by the Department of Economic Development;

(4) Provide or prepare facilities, equipment, and services for motorsports use as advertised or as agreed to by the motorsport operator and the participant;

(5) Procure and maintain commercial general liability insurance against claims for personal injury, death, and property damages occurring upon, in, or about the motorsport facility which affords protection to the limit of not less than $1 million for injury or death of a single person, to the limit of $2 million in the aggregate, and to the limit of not less than $50,000 for property damage; and

(6) Maintain records for a period of at least three years from the date of the creation of the record of:

(A) Proof of insurance;

(B) Inspection reports;

(D) Participant acknowledgement of risks and duties.

§20-19-4. Duties of motorsport participants.

(a) All participants:

(1) Shall comply with the rules or regulations established for use by the motorsport operator;

(2) Shall wear all safety equipment as recommended by the motorsport operator, or which might otherwise be required by law;

(3) Shall obey all rules or instructions announced by the motorsport operator with regard to the safe operation of the motorized vehicle he or she is operating;

(4) Shall, as to the motorsport operator, expressly assume the risk of and legal responsibility for any injury, loss, or damage to person or property which results from participation in operating a motorized vehicle, and caused by any of the following:

(A) Variations in terrain, slope, or angle of terrain including elevation changes;

(B) Surface or subsurface conditions including, but not limited to, rocks or debris;

(D) Collisions with retaining walls, tire walls, trees, fences, other vehicles, or any property provided by the motorsport operator.

(b) Each participant shall have the sole individual responsibility for:

(1) Knowing the range of his or her ability to negotiate the course of the motorsport facility;

(2) Operating the motorized vehicle within the limits of the participant’s own ability;

(3) Heeding all posted warnings;

(4) Operating only within the designated area and designated times as provided by the motorsport operator; and

(5) Refraining from acting in a manner which a reasonable person would believe to be likely to cause or contribute to the injury of any person.

§20-19-5. Liability of motorsport operators.

(a) A motorsport operator is liable for injury, loss, or damage caused by failure to follow the duties set forth in §20-19-3 of this code where the violation of duty is the proximate cause of the injury, loss, or damage suffered.

(b) A motorsport operator is not liable for any injury, loss, or damage to the extent caused by the negligence of any person who is not an agent or employee of the motorsport operator.

(c) A motorsport operator is not liable for any injury, loss, or damage to the extent caused by a participant’s violation of any duty described in §20-19-4 of this code.

§20-19-6. Liability of motorsport participants.

(a) A participant is not liable for any injury, loss, or damage resulting from violations of the duties established in §20-19-4 of this code where the violation of the duty constitutes simple negligence on the part of the participant, or where the injury, loss, or damage is a result of the risks inherent in motorsports.

(b) A participant is liable for injury, loss, or damage resulting from violations of the duties established in §20-19-4 of this code where the violation of the duty constitutes gross negligence, willful and wanton conduct, or intentional acts on the part the participant, and is the proximate cause of the injury, loss, or damage suffered.

§20-19-7. Rules.

The Department of Economic Development shall promulgate rules pursuant to §29A-1-1 et seq. of this code, with respect to motorsport facilities operating in the state, which shall include at a minimum: (a) Safety requirements for equipment; (b) safety requirements for the design of racing surfaces; (c) safety requirements for the provision of run-off areas; (d) requirements for fire and emergency services; and (e) requirements for signage. The rules shall be promulgated and designed for the purpose of developing motorsport facilities as a recreational activity and additional tourist attraction in West Virginia and shall be approved by the West Virginia Motorsport Committee.

§20-19-8. No abrogation of common law and statutory defenses.

In a proceeding brought against a motor sports operator or participant, in addition to the liability protections provided for under this article, a motor sports operator or participant may assert any and all common law, statutory, or other defenses that may be available. A motorsports operator may require participants to sign anticipatory release and waiver of liability forms as a condition of participating as a spectator or vehicle operator, which signed waiver forms shall be admissible at trial in any action for damages by or on behalf of the person who executed the forms.

ARTICLE 17B. UPPER OHIO VALLEY TRAIL NETWORK RECREATION AUTHORITY.

§20-17B-1. Legislative findings; purpose.

The Legislature further finds that, with the cooperation of private landowners, there is an opportunity to provide trail-oriented recreation facilities primarily on private property in the Ohio River valley terrain of western counties in West Virginia and the northern panhandle of West Virginia and that the facilities will provide significant economic and recreational benefits to the state and to the communities in the Ohio River valley terrain of western counties in West Virginia and the northern panhandle of West Virginia through increased tourism in the same manner as whitewater rafting, snow skiing, and utility terrain motor vehicle riding benefit the state and communities surrounding those activities.

The Legislature further finds that the creation and empowering of a joint development entity to work with the landowners, county officials and community leaders, state and federal government agencies, recreational user groups, adjacent neighboring states and counties, and other interested parties to enable and facilitate the implementation of the facilities will greatly assist in the realization of these potential benefits.

The purpose of this article is to provide additional opportunities and regulatory authorization for recreational trail networks and to provide for increased access to recreational areas, including, but not limited to, creating a contiguous trail system that connects to the Mountaineer Trail Network Recreation Authority and any other trails in adjacent neighboring states that can be feasibly connected.

§20-17B-2. Creation of Upper Ohio Valley Trail Network Recreation Authority and establishment of recreation area.

(a) There is hereby created the Upper Ohio Valley Trail Network Recreation Authority consisting of representatives from all counties in the northern panhandle – Hancock, Brooke, Ohio, and Marshall – and Ohio River valley counties to include Wetzel, Tyler, Pleasants, Wood, Jackson, Mason, and Cabell, organized pursuant to the provisions of §20-17-1 et seq. of this code. This authority is authorized to establish an Upper Ohio Valley Trail Network Recreation Area within the jurisdictions of those counties and the authority shall be subject to the powers, duties, immunities, and restrictions provided in §20-17-1 et seq. of this code. Visitors and participants in recreational activities within the trail network shall, in similar respects, be subject to the user requirements and prohibitions of §20-17-7 of this code.

(b) Notwithstanding subsection (a) of this section, an adjacent county may join the Upper Ohio Valley Trail Network Recreation Authority pursuant to the procedures set forth in §20-17-3(b) of this code.

(c) Notwithstanding subsection (a) of this section, the Upper Ohio Valley Trail Network Recreation Authority may merge with another multicounty trail network authority, pursuant to the procedures set forth in §20-17-3(c) of this code.

(d) Notwithstanding §20-17A-4 of this code, Monongalia County of the Mountaineer Trail Network Recreation authority shall serve as an ex-officio member of the Upper Ohio Valley Trail Network Recreation Authority for the purposes of establishing the trail network and coordinating the two trail networks.

(e) The Upper Ohio Valley Trail Network Recreation Authority may set goals of connecting to the Mountaineer Trail Network and any other trails in adjacent neighboring states that can be feasibly connected.

§20-17B-3. Recreational purposes.

The permitted recreational purposes for the Upper Ohio Valley Trail Network Recreation Area include, but are not limited to, any one or any combination of the following recreational activities: Hunting, fishing, swimming, boating, camping, picnicking, hiking, bicycling, mountain bicycling, running, cross-country running, nature study, winter sports and visiting, viewing or enjoying historical, archaeological, scenic, or scientific sites.

§20-17B-4. Governing body and expenses.

(a) The governing body of the authority shall be a board constituted according to the provisions of §20-17-4 of this code.

(c) All expenses incurred in carrying out the provisions of this article shall be payable solely from funds provided under the authority of this article and according to the requirements of §20-17-1 et seq. of this code. No liability or obligation may be incurred by the authority under this article beyond the extent to which moneys have been provided under the authority of this article.

§20-17B-5. Protection for private landowners.

Owners of land used by the authority shall have the full benefit of the limitations of liability provided in §20-17-8 of this code.

§20-5A-3. State Parks Enhancement Loan Insurance Program.

(a) Legislative findings and purpose.

(1) The Legislature finds that certain areas of the state currently have existing developments or attractions, including, but not limited to, developments in West Virginia State Parks and resorts that are constructed on U.S. Army Corps of Engineers property, wherein such attractions and developments are unable to serve as collateral for loans. Because of this, the expansion of tourism and development projects in these areas is severely restricted or significantly impeded.

(2) The purpose of this section is to establish the State Parks Enhancement Loan Insurance Program, which may provide for the guarantee of a loan made to an eligible entity to be used exclusively for further development on these properties to encourage economic development and tourism.

(b) Terms defined. – As used in this section, unless the context clearly indicates otherwise:

(1) Board of trustees means the board provided for in §20-5A-2 of this code.

(2) Development project means any new project, or any project at any existing development or attraction, being pursued by a private entity, which has established a partnership or agreement with the division to operate on U.S. Army Corps of Engineers property, State Parks and resorts property, any other property under the jurisdiction of the division, or on a hybrid tourism destination, for the purpose of increasing recreational opportunities, tourism, and economic development.

(3) Director means the director of the Division of Natural Resources.

(4) Division means the Division of Natural Resources.

(5) Eligible entity means any corporation, limited liability company, partnership, limited liability partnership, sole proprietorship, business trust, joint venture, or any other entity operating or intending to operate a development project, whether owned or leased, that receives the approval pursuant to this section to apply for an insurance agreement under the State Parks Enhancement Loan Insurance Program.

(6) Program means the State Parks Enhancement Loan Insurance Program.

(c) The State Parks Enhancement Loan Insurance Program is established. The program may insure the payment or repayment of all or any part of the principal of, prepayment premiums or penalties on, and interest on any form of debt instrument entered into by an eligible entity with a financial institution, including, but not limited to, banks, insurance companies and other institutions in the business of lending money. Eligible entities shall submit applications for loan insurance to the board of trustees. By a majority vote, the board of trustees may approve or deny any application. If approved, the board of trustees shall enter into an insurance agreement with the eligible entity and any necessary financial institution.

(d) In order to effectuate the purposes of this section, the board of trustees shall cooperate with the West Virginia Economic Development Authority pursuant to §31-15-8b of this code. The board of trustees may utilize the staff and resources of the authority for guidance and assistance in administering the program.

(e) The board of trustees may, subject to a recommendation by the director, establish additional requirements and procedures for the issuance of loan insurance; including, but not limited to, setting the premiums and fees to be paid to it for providing financial assistance under this section. The premiums and fees set by the board of trustees shall be payable in the amounts, at the time, and in the manner that the board of trustees, in its sole and absolute discretion, requires. The premiums and fees need not be uniform among transactions and may vary in amount: (1) Among transactions; and (2) at different stages during the terms of transactions.

(f) The board of trustees may, in its sole and absolute discretion, require the security it believes sufficient in connection with its insuring of the payment or repayment of any bonds, notes, debt, or other instruments: Provided, That the board of trustees may not require a security interest in the real property or permanent improvements which are part of the development project when the eligible entity will not hold ownership on the real or personal property of the development project.

(g) The obligations of the board of trustees under any insurance agreement entered into pursuant to this article shall not constitute a debt or a pledge of the faith and credit or taxing powers of this state, the division, or of any county, municipality, or any political subdivision of this state for the payment of any amount due thereunder or pursuant thereto, but the obligations evidenced by such insurance agreement shall be payable solely from the funds pledged for their payment.

(h) The board of trustees may not authorize any amount of loan insurance through the program that exceeds $10 million in the aggregate of the assets existing in the West Virginia State Parks and Recreation Endowment Fund: Provided, That no more than $5 million may be authorized for any project: Provided, however, That no amount of the fund's income from investments may be used to provide loan insurance. However, any amount of loan insurance issued by the board of trustees shall not require the encumbrance or otherwise segregation of funds within the West Virginia State Parks and Recreation Endowment Fund.

(i) The board of trustees may establish an application and additional procedures or guidelines for the program. Prior to submission of an application to the board of trustees, an eligible entity must receive approval in writing from the Secretary of the Department of Commerce, the Secretary of the Department of Economic Development, and the Secretary of the Department of Tourism.

(j) The West Virginia Department of Commerce shall maintain a list of approved projects using this loan insurance program and shall submit this list to the Joint Committee on Government and Finance in the form of an annual report for legislative review.

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§20-1-1. Purposes and objects of chapter; how chapter cited.

§20-1-2. Definitions.

§20-1-3. Division of natural resources, office of director and commission established.

§20-1-4. Director to be chief executive officer; appointment, term and qualifications; vacancy; removal.

§20-1-5. Salary, expenses, oath and bond of director.

§20-1-6. Offices and office hours.

§20-1-7. Additional powers, duties and services of director.

Senate Bill 586 (passed last on February 28, 2020) amended West Virginia Code §20-1-17 to read as follows:

Senate Bill 487 (passed last on February 11, 2020) amended West Virginia Code §20-1-17 to read as follows:

§20-1-8. Personnel management.

§20-1-9. Fiscal management.

§20-1-10. Property management.

§20-1-10a. Authority to convey land to county board of education for educational purposes.

§20-1-11. Public relations.

§20-1-12. Surveys and planning.

§20-1-13. Law enforcement and legal services.

§20-1-14. Sections within division.

§20-1-15.

§20-1-16. Natural Resources Commission - generally.

§20-1-17. Natural Resources Commission -- Organization and services.

§20-1-18. Government cooperation; projects; finances; properties.

§20-1-18a. Cooperation with federal government in wildlife restoration and management.

§20-1-18b. Cooperation with federal government in fish restoration and management.

§20-1-18c. Cooperation with federal government in management of federal lands within the state.

§20-1-18d.

§20-1-19. West Virginia state parks and state forests.

§20-1-20. Limitations on state parks and state forests; exceptions.

§20-1-21.

§20-1A-1.

§20-1A-2.

§20-1A-3.

§20-1A-4.

§20-1A-5.

§20-1A-6.

§20-1A-7. Adopt a state park or forest program.

§20-1A-8.

§20-1A-9.

§20-2-1. Declaration of policy.

§20-2-1a. Wildlife resources division; organization and administration.

§20-2-2. Violations of article.

§20-2-2a. Interference with hunters, trappers and fishermen.

§20-2-3. State ownership of wildlife.

§20-2-4. Possession of wildlife.

§20-2-5. Unlawful methods of hunting and fishing and other unlawful acts; Sunday hunting.

§20-2-5a. Forfeiture by person causing injury or death of game or protected species of animal; additional replacement costs for antlered deer; forfeiture procedures and costs.

§20-2-5b. Exceeding creel limit on trout; other violations of code or rules and regulations for trout fishing; penalties.

§20-2-5c. Protection of bald eagles and golden eagles; unlawful acts; criminal penalties; forfeitures; license revocation.

§20-2-5d. Use of chemicals, biological compounds or devices on free roaming wildlife populations for fertility control.

§20-2-5e. Assessment fee for decoy animals.

§20-2-5f. Nonresident dog training for coon hunting; training season.

§20-2-5g. Use of a crossbow to hunt.

§20-2-5h. Elk management area; elk damage fund; criminal penalties; rule-making.

§20-2-6. Carrying gun on landowner's land.

§20-2-7. Hunting, trapping or fishing on lands of another; damages and restitution.

§20-2-8. Posting unenclosed lands; hunting, etc., on posted land.

§20-2-9. Unlawful posting of lands.

§20-2-10. Destruction, etc., of signs posted under chapter.

§20-2-11. Sale of wildlife; transportation of same.

§20-2-12. Transportation of wildlife out of state; penalties.

§20-2-13. Importation of wildlife; certification and inspection of imported wildlife.

§20-2-14. Propagation of wildlife for commercial purposes.

§20-2-15. Permit to kill deer or other wildlife causing damage to cultivated crops, trees, commercial nurseries, homeowners' shrubbery and vegetable gardens; weapon restrictions.

§20-2-16. Dogs chasing deer.

§20-2-17. Hunting fur-bearing animals; possession of fur; disturbing traps of another.

§20-2-18. Number and types of traps.

§20-2-19. Marking of traps.

§20-2-20. Trapping beaver.

§20-2-21. Reporting beaver and otter pelts taken and tagged.

§20-2-22. Tagging, removing, transporting and reporting bear, deer, wild boar and wild turkey.

§20-2-22a. Hunting, tagging and reporting bear; procedures applicable to property destruction by bear; penalties.

§20-2-23. Outfitters and guides -- Generally; definitions.

§20-2-23a. Whitewater commission; powers and duties of commission and Division of Natural Resources; allocations; civil and criminal penalties for violations.

§20-2-23b. Whitewater study and improvement fund.

§20-2-23c. Voluntary contributions to whitewater advertising and promotion fund.

§20-2-23d. Bond; revocation of license; licensing carrying requirement; criminal penalties.

§20-2-23e. Implementation of allocation methodology.

§20-2-23f.

§20-2-24. Outfitters and guides -- Qualifications.