The 2nd meeting of the Subcommittee on Natural Resources of the Interim Joint Committee on Agriculture and Natural Resources was held on Wednesday, November 14, 2007, at 10:05 AM, in Room 131 of the Capitol Annex. Senator Ernie Harris, Chair, called the meeting to order, and the secretary called the roll.
Present were:
Members: Senator Ernie Harris, Co-Chair; Representative Keith Hall, Co-Chair; Senators Ernesto Scorsone; Representatives Hubert Collins, Reginald Meeks, Tim Moore, Tanya Pullin, and Robin L. Webb.
Guests:
Dr. Jon Gassett, Commissioner, and Morgan Sprague of the Kentucky Department of Fish and Wildlife Resources (KDFWR).
LRC Staff: Hank Marks and Jo Ann Paulin.
The meeting was called to order by the Chair, Senator Harris. A quorum was not present.
Dr. John Gassett, Commissioner of the Kentucky Department of Fish and Wildlife Resources (KDFWR), was invited by the Chair to give an update on Fish and Wildlife Resources and Legislative proposals. Commissioner Gassett spoke about KDFWRs legislative package. His PowerPoint presentation is a part of this permanent record.
Commissioner Gassett discussed KDFWRs needs. 1) Tax credits for easements and access; 2) Law enforcement training stipend; 3) Recreational use of private land; 4) Civil penalties for Fish and Wildlife violators; and 5)Boating safety and penalties.
Commissioner Gassett said they have identified significant needs for Fish and Wildlife this year. Their customers also have needs in the form of providing additional public access, providing additional support for conservation officers, providing land owner protection and added protection for the privileges and rights of the sportsmen.
The commissioner said the most significant needs that KDFWR identified this year is tax credits for conservation easements. They have had some very good hearings and they have made considerable improvements. The Kentucky Law Enforcement Foundation Program Fund (KLEFPF) bill will provide Conservation Officers an annual training stipend as part of the KLEFPF bill. The Department will sponsor a land owners protection bill that allows land owners to enter into agreements with the state to protect themselves from liability if someone gets injured on their property. There is also a boating and safety bill that will help bring Kentucky on par with the rest of the country regarding safe boating.
He said the conservation tax credits bill is a comprehensive bill that will allow a person to take a state tax credit for conservations easements and public access for private land. It is an incentive for individuals to either open their lands for hunting/fishing or to preserve their land to provide habitat and harbor wildlife that helps to provide for increasing public access and habitat protection.
The commissioner said about 47,420 acres are lost to development each year. In addition to that there and 48,200 acres of forest land that gets diverted to other uses. Ecological and economic value of the forest land is lost when that happens and the forest products industry is jeopardized by loss of forest land and that is a multi-billion dollar industry. He said there are several states that have instituted conservation tax credits with great success, and these states have put into place a tax credit to provide protection for qualified land. What makes KDFWRs proposal unique is that they have attached an option for the land owner to provide some public access for additional dollars in this tax credit.
The second piece of legislation is a law enforcement training stipend that will provide for conservation officers assigned to the Division of Law Enforcement to receive the annual training stipend as part of the Kentucky Law Enforcement Foundation Program Fund (KLEFPF).
Representative Hall asked how long was the $197 per year credit tying up property and what kind of typical scenario would this be for a land owner. Commissioner Gassett said that was $197 per acre was a tiered system and that was for the access portion. The conservation easement, the protection itself is in perpetuity. It mirrors the federal language for conservation easements. On the access side, the land owner can enter into a 15 year, 30 year, or a perpetual agreement. The dollar amount goes up significantly depending on which year program they choose.
The KLEFPF is a surcharge on everyone's car insurance policies in Kentucky. This was initially set up to provide a stipend for smaller law enforcement agencies that weren't able to send their people to training on a regular basis. The Department seeks to expand it to 300 Fish and Wildlife conservation officers, park rangers, Attorney General inspectors, Alcohol Beverage Control officers, Department of Insurance, Charitable Gaming, and the Department of Agriculture who are not included in this stipend. The total impact to KLEFPF for these remaining 300 people would be 1.3 to 1.4 million dollars annually.
The third legislative item discussed was the recreational use of private land. This is a bill that would authorize public and private recreational land use to access agreements in which governmental entities could enter into agreements with private land owners, individuals and corporations, to allow public recreational use of private lands. This protects the land owners from liability and from adverse possession of their property. There are already liability laws in Kentucky but basically they are hunting, fishing, and other wildlife association recreation as long as the landowner does not receive any compensation or does not charge for that access. They are proposing that if the state compensates the land owner could still enjoy those same protections.
The Commissioner said a new item before the legislature this year is civil penalties for fish and wildlife violations. This bill would allow the Commissioner of Fish and Wildlife to pursue civil penalties, in addition to the criminal penalties, for individuals convicted of certain fish and wildlife violations. Civil penalties would focus on "trophy wildlife" to reflect the seriousness of poaching and to help offset the cost of response/clean-up/replacement of illegal taking of certain wildlife.
The Commissioner said a boating and safety penalties bill will provide for a probable cause provision for boating under the influence (BUI). This bill will provide for a probable cause provision for boating under the influence (BUI). This will provide conservation officers to charge a suspect with BUI based upon probable cause. Currently, they can not charge for BUI without a warrant. They are trying to change boating safety, under the influence law, from a probable cause perspective to being charged with a DUI.
Commissioner Gassett said they would also like to look at enhancing and re-structuring penalties for BUI. Increasing penalties and potential imprisonment for multiple offenses reflects the seriousness of BUI. He said Kentucky is currently tied for number eight with Alaska and Wisconsin in the number of boating fatalities in the country and half of the boating fatalities in Kentucky involve BUI.
The Commissioner said other important legislation that KDFWR will promote: (1) Enhancing penalties for hunting on private lands without permission; (2) Extending the mandatory boater education program to include all boaters; and (3) Allowing KDFWR to provide administrative support to the Kentucky Fish and Wildlife Education Foundation. KSFWR is thinking that in order to enhance the penalties they would add a penalty for the revocation of their hunting license for the remainder of that year for the first offense. Currently, they are looking into entering into a wildlife violators compact with 26 other states.
The Commissioner said they would like to extend the mandatory boater education program to include all boaters. Currently, boater education is only required for people ages 12 to 16 who are operating a boat with a 10 horse power motor or larger. They are wanting to mirror the hunter education program that has been so successful in Kentucky with a boater education program.
The final item discussed was permission to allow Fish and Wildlife to provide administrative support to the Kentucky Fish and Wildlife Education Foundation. They have a foundation that is very loosely charged to fund raise for Salato Center for conservation education, conservation camps, and conservations School.
Senator Harris said that most proposals seemed well founded and worthy legislation. He asked if there would be multiple bills since they were different subjects. Commissioner Gassett said they would be.
Representative Webb said that the conservation tax credit bill has been a bill that she has sponsored before. There needs to be some credence given to this bill because public access is a problem all over the nation. She said she filed the KLEFPF bill last year and it had over whelming support from the agencies and there is no sound reason that it can't occur financially or otherwise. She said she had a problem with singling out trophies. Representative Webb said she supports the officers but said she has seen some pretty bizarre scenarios in regard to boating. Representative Webb said she gets many complaints about Fish and Wildlife officers on the water. She said in her law practice she has seen some pretty disturbing scenarios. She said she would need to have a better comfort level with the training and approach of the officers when it comes to BUI offenses. Commissioner Gassett said he would be willing to work with Representative Webb to get her comfort level up to where it needs to be to support this legislation. He said he felt 95 percent of the officers are courteous and act appropriately on the water but there are some that are a little more aggressive than they should be, and he is working on that issue.
Representative Pullin said that she looks forward to reviewing the bill about the law enforcement stipend and that the Military Affairs Public Protection Committee would be reviewing it. She said she would like for that committee to also look at the conservation officers program in its totality and review it. Representative Pullin said that the cost of hunting license has put hunting preserves in a severe competitive disadvantage to those in Ohio, West Virginia, and Tennessee. She had sent a letter dated August 9, 2007 asking for a report on how this situation could be remedied and as of yet she has not received a reply. Commissioner Gassett said he was working to try to figure out some alternatives. In an effort to streamline and make more convenient the licensing process they have done away with the shooting preserve license. Now they have a short term, one day hunting license, that would be good for any where in the state, not only for hunting on shooting preserves but good for public or private land with permission, and for the time period specified. He said he thought they were about $7.00 a day. They are trying to figure out a way to come up with an on-line service for these licenses. They don't want to go back to printing a paper license. That would require them having to have an employee that was dedicated totally to sending them out and receiving them back.
Representative Pullin said that since she didn't get an answer to her August 9, letter she proceeded to have legislation drafted. She said that when you do a $7.00 a day license and folks come from West Virginia to Kentucky several weekends then they would have to spend $50 to $60 a season, in addition to the preserve fee. They can go to Ohio and not pay those fees and they then will choose to go to Ohio.
Representative Collins said that there have been people arrested by mistake, that is the main thing that he hears from his constituents. Representative Collins asked Commissioner Gassett what he credits the number one or two causes for fatalities with boating. Commissioner Gassett said that number one would be alcohol and number two, no boater safety education. Representative Collins asked if the training comes on the retail end. Commissioner Gassett said no it is not required there and the only training they have is for people 12 to 16 years of age if they are operating a vehicle over 10 horse power. What KDFWR would like to see is if you are born on or after a certain date, then in order to operate a vessel, you would have to have to attend a boater education training.
Representative Collins said he wanted to know about bears in an area where there are people. Commissioner Gassett said if a bear is endangering your personal safety or your property by law you can destroy the animal but it needs to be reported to Wildlife authorities immediately so it can be disposed of properly. Representative Collins asked what proof is needed in order to prove this circumstance. Commissioner Gassett if you feel it is a legitimate threat to your safety or to you property it is within the law. When the officer comes out and you are honest about it there would be no problem. The ones you hear about are the ones shot and but not reported.
Representative Collins asked how the spotlighting law was working. Commissioner Gassett said he hardly gets any complaints from people about spotlighting. It has significantly reduced the number of illegal spotlighting cases.
Commissioner Gassett said they are working on collecting data for a bear hunting in eastern Kentucky. Hopefully, they will have some data around the first of the year and be able to propose a bear season in the near future in Kentucky which should help alleviate some of the concerns about nuisance bears.
Representative Meeks said he was going to ask about a potential bear season. He asked if Commissioner Gassett could give a sense of the scope of the poaching problem for various animals. Commissioner Gassett said that as any state that grows high quality herds, or flocks of wildlife, or school of fish, you tend to see a greater instance of people wanting to advantage of the situation. It is a problem but it is driven by something that is going on in Kentucky and that is the high quality deer, elk, and turkey that we have.
Representative Moore said that in regard to spotlighting he said that he does see spotlighting when he is flying low level on night vision goggles. He said that he has a tendency to fly low and turn his lights on, to let them know someone is watching. Commissioner Gassett said that was an excellent idea and he had never thought of it. He said they spend a significant amount of dollars in aircraft time during the deer season and prior to the deer season to catch people spotlighting.
Senator Harris asked if KDFWR proposal was similar to what Virginia has done. Commissioner Gassett said that Virginia is the one that they are most similar with because they like what they are doing with the easement component. What KDFWR is doing in addition to Virginia is adding the access part. No one does the access agreement yet. Senator Harris said that what they would have to do, is come up with a variety of farms. Senator Harris said he could site neighbors who have 400 acres very valuable property in the Louisville area. Their farm might be worth millions of dollars. Some constituents might have 150 acres deep in the woods that are not very valuable. They need examples of how it benefits the farmers who have acreage in various areas. Commissioner Gassett said they need public access where the people are, and that would be within 50 miles of the golden triangle.
Senator Harris asked if the Commissioner Gassett had 300 officers right now. Commissioner Gassett said he has 150 right at present. Senator Harris asked where he got the 300 officer figure. Commissioner Gassett said that the agencies that are included in the KLEFPF right now include Fish and Wildlife (160), Department of Parks rangers (60), Office of the Attorney General (KBI) (40), Alcohol Beverage Control (39), Department of Insurance (10), Department of Charitable Gaming (9), Department of Agriculture (9), and School Security Officers (60). This totals up to about 305. Senator Harris asked how the pay for Commissioner Gassett's officers compares to the State Police. Commissioner Gassett said they loose officers regularly to vehicle enforcement, local municipalities, and various other agencies.
Senator Harris asked what Commissioner Gassett thought was the reasoning behind "for the Commissioners discretion". Commissioner Gassett said that may have been a poor choice of words. What he meant was that basically they would treat it like a fish kill now. If there is a criminal act and the person is charged criminally then they can go back and civilly access the damage to the states wildlife. It is a civil penalty versus a criminal penalty. Senator Harris asked how much of a problem is trespassing and the deterrent of potential to losing your license to hunt in the 26 other state. Commissioner Gassett said they would have an issue if it is towards the end of the hunting season. Most of the sportsmen are out there on the opening days of the season. Senator Harris asked if a change needed to be made if you were at the end of the season and committed a violation, you would loose your license for several months during the next season. Commissioner Gassett said the other option is that they could do a 12 month period from the day you are convicted.
Representative Webb said this is important and should not be brushed off like traffic violations. There is a fiscal side to this as well to the state and for the Department. Communications need to be enhanced and legislators should urge judges and prosecutors regarding the importance of this. Sports men and women need to step up and be aware of the people they have elected on those levels.
The next issue before the subcommittee was the Governor's Task Force on Wildland Arson. Ms. Leah MacSwords, Director of the Kentucky Division of Forestry (KDF), presented the report.
She said the forest provides homes for all the wildlife. The problem they have in trying to enhance tourism is that they are faced with the an ever increasing problem with wildland arson or what used to be called forest fires. Ms. MacSwords had a packet of information that was included in the meeting folders.
Ms. MacSwords said the task force was to come up with recommendations for reducing the fires that are deliberately set. She said there are fires in nearly every county in the state of Kentucky. The forest in Kentucky cover approximately 12 million acres. That is about 47 percent and 90 percent is under private ownership. There are forest, and forest industries in every county in the state.
Ms. MacSwords presented forest fire statistics and noted there have only been five other states that have ever burned more acres than Kentucky in one year, and they all had more forested acres than Kentucky. The major problems from wildland fires are of an economic impact. They devalue the forest. They produce a tremendous amount of smoke which causes respiratory ailments, school closings, and traffic accidents. There are threats to homes and communities as well. They are a strain on our resources and a danger to firefighters and residents.
Ms. MacSwords explained that it is extremely expensive to fight these fires. The KDF has $240,000 budgeted for wildland fires and anything spent above that is declared as a necessary government expense and they are reimbursed. In this century they have spent almost $23 million in wildland fire suppression. That is the KDF cost and does not include cost that were incurred by local fire departments, the federal government, the national guard, or any other agency that may have assisted them.
Ms. MacSwords discussed forest fire laws. She said it is interesting that Representative Webb mentioned prosecution of the wildlife statutes. They have the same difficulties in prosecution of wildland arson. She said there are two basic laws that are directly related to forest arson and they are KRS 149.380 that was enacted in 1964 and it was amended in 1966. It says that it is against the law to set fire to land that is owned by someone else. KRS 149.991 was also created in 1964 and amended in 1982. The penalty for setting fires is $1,000 to $10,000 and imprisonment for not more than five years. One can have a fine or both but it is rare to see that happen. Predominantly, in the state of Kentucky arson is someone setting fire on land not their own.
Ms. MacSwords then showed a comparison between fire causes in 1965 and in 2006. In the 1960's the predominant fire cause was debris burning. In 2006 the predominant fire cause is wildland arson. One can attribute that to the effectiveness to Smokey Bear and the fire prevention efforts. Also the availability of solid waste disposal in counties reduces the debris fires. Air quality prohibitions on open burning have caused a reduction in debris fires.
Ms. MacSwords had a ten year chart summary to show that arson caused fires over the last ten years account for 59 percent of the fires in the state. The second leading cause was debris burning. In 2006 and 2007 there was an increase in arson caused fires into the 60 percent level. No one knows with certainty why arsonists set fires. Because of arson there were three firefighters in Pike County almost killed by an arsonists starting a fire underneath them. It put them in danger and they were forced to take evasive action. They escaped being burned. Because of the seriousness of this and because it is more common that fire fighters are in danger, the Governor created a task force on wildland arson. Commissioner Susan Bush was the chair for the Task Force that included 18 members who were primarily from eastern Kentucky who represented law enforcement, county officials, Kentucky Farm Bureau, Fish and Wildlife resources, the forest industry, local fire departments, and forest land owners. The Task Force met through the summer of 2006 and came up with the this two-fold approach to addressing Kentucky' s wildland arson problem: 1) Increasing law enforcement efforts; and 2) Public awareness and education campaign.
What they recommended under law enforcement was: 1) Establish a dedicated KDF Law Enforcement Unit; their sole purpose would be to investigate and assist in the prosecution of wildland arsonists; have full police officer powers - looked at some tracking dogs, funding equipment and training, and peace officer and physical fitness standards; 2) Establish more aggressive prosecution, suggested amending KRS 149.380 to define wildland arson; or KRS 153 to add the definition of wildland arson to the states arson statute and then amend arson in the third degree to include wildland arson. They also recommended amending KRS 149.380 (3) to remove the word "intent."; and 3) They recommended a look at restitution along with suppression costs. They recommended a tiered severity for penalties; forfeiture of equipment and vehicles; increased training on preserving a crime scene; and more training on wildland fire origin and causes.
Law enforcement is not enough, Ms. MacSwords said, so the Task Force recommended a public awareness and education program to include: 1) Media campaign (create a major media/marketing campaign; hire professional media consultants to design this campaign ; create wildland arson prevention message as a cornerstone of a campaign; and focus on addressing wildland arson as a public safety and health issue); (2) KDF partnering with counties to increase ownership (Project Unite as an example); the need to identify wildland fire research so any results can be incorporated into the campaign; that KDF do fire prevention efforts; and (3) establish an organized fire prevention program in KDF with positions and funding.
The task force wanted KDF to create a program of public awareness and education to work with local officials and prosecutors to: 1) Raise the Target Arson reward; 2) Incorporate target arson hotline in a media campaign; 3) Educate county officials about the impact of wildland fires and arson does to their communities; and 4) use the Firewise program and target communities at risk. This program helps communities become more responsible for areas to make their communities safer from wildland fires.
The task force recommended that KDF work with the Department of Education to have wildland arson included in the school curriculum relating to environmental education. Smokey Bear was very effective in getting the word out about fire prevention and KDF thinks the same approach with wildland arson would be very beneficial.
Ms. MacSwords said the message that the task force thinks is critical for KDF to get out to all Kentuckians is that wildland arson is a crime. It is one of those situations that people don't realize that burning some ones forest is a determent, not only to the economy, the forest land owner, the wildlife, to the ecstatic values, to the health to the people that live near that area, but it is also a crime and needs to treated as one.
Representative Hall commended Ms. MacSwords for the work that she had done. He said he thinks statistics continue to show improvement in the awareness, continued decrease of fires, but arson does continue to be the big issue. He said he was surprised that with the draught this year that there were not more fires. Fires are very detrimental to people with black lung disease. In eastern Kentucky they have volunteer fire departments. A lot of times they ask about reimbursement for fuel, equipment used, or for what ever they use to fight fires and they want to know if there is an avenue where they can apply for reimbursement. Ms. MacSwords said that she was not aware of an avenue, but she knows there is not one through the KDF. The primary mission of local fire departments is structure protection. They are trained to provide that protection and so they don't have the manpower or training to get in the woods and spend days and days on a fire. Representative Hall said there needs to be something done for the fire departments in training and compensation or reimbursement. There needs to be more cooperation between KDF and the volunteer force. He said that with the coal severance funds his area had they would support the local fire department. Ms. MacSwords said that if you added to that the reduction of personnel in the KDF it would be harder for KDF to provide the same level of statewide protection that they have provided in the past. In the next budget cycle they will be requesting funds to get the numbers back up to where they should to be in order to provide that kind of protection.
Representative Moore asked what is the policy regarding allowing some level of natural burning to occur so that there is not a problem with the under growth that will cause a greater problems later. Ms. MacSwords said that fuels in Kentucky forest are much different than the fuels in California. The undergrowth that we have is much wetter instead of the dry bushy type fuels out west. There are areas where KDF encourages property owners to clean out the leafs in the gutters and provide defensible space to protect their property.
Representative Webb asked how much in KDF's agency budget did the task force recommend will be actually represented in the agency budget this year. Ms. MacSwords said that she believed that the funding for the law enforcement unit and the media campaign are both still in the cabinet's budget. Representative Webb wanted Ms. MacSwords to explain which entities are doing the research now, and what institutions in the state are doing research on fires and arson. Ms. MacSwords said that in terms on why arsonists start fires, she wasn't aware of any university in the state of Kentucky doing research. There has been research done on the location of fires, GIS mapping of fires, and relating that to fire causes. KDF has proposed a project with the USDA Forest Service working with the University of Kentucky to determine the devaluation of timber when a fire goes through. They will be able to tell a land owner that if they don't protect their land from wildland fire and if a fire goes through, their forest land will be reduced in value by "X" amount of dollars.
Representative Webb said that when Secretary Wilcher was here and there were several wild fires in south eastern Kentucky and she asked what the cause was with the wild fires in her area. Representative Webb told her to look at the people who were fighting the fires first to find the suspect. That is what she did, and in fact, she found the person. Ms. MacSwords said that the most recent case they had in Knox County where they actually thought it was two of their emergency laborers, but after they were arrested and tried, they were found not guilty. That is what they face when they try to bring any arson to prosecution.
Representative Webb asked Ms. MacSwords if they are utilizing inmates in the fighting of the forest fires. Ms. MacSwords said they do use inmate labor but the problem is that they are very restricted when the can get them out to fight fires and take when they have to have them back. KDF tries to rely on full time personnel, the interim employees they hire, and the emergency laborers to provide the first response. As the fire danger increases they will use inmate crews. Representative Webb asked how that might be done better with interagency agreements. Ms. MacSwords said they have an interagency agreement. Representative Webb said she knew they did but how can they make the inmates more available and cut down the pool of arsonists that are going to profit from this deal. Ms. MacSwords said they would have to look at that. There are requirements on how inmates must be treated and when they must be fed. That doesn't always fall within the fire emergency. Representative Webb said she would be interested in working with KDF and Corrections to make it a little more consistent. Ms. MacSwords said the task force did explore opportunities with working with Fish and Wildlife, the conservation officers, park rangers, or the Kentucky State Police to provide the arson investigations. The problem is that each of those agencies has its own mission and they are overloaded with the things they have been charged to enforce and they don't have the dedicated manpower for the investigation of arson wildland fires that KDF believes is needed to address the problem in Kentucky.
There being no further business the meeting was adjourned at 11:30 PM.