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MailTribune.com
  • Get-tough law considered too tough

  • By swapping a three-letter word for a five-letter word in a fish and wildlife law, the state may turn thousands of Oregon hunters and anglers into spectators for the smallest of misdeeds.
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  • By swapping a three-letter word for a five-letter word in a fish and wildlife law, the state may turn thousands of Oregon hunters and anglers into spectators for the smallest of misdeeds.
    A law that went into effect last month requires the Oregon Department of Fish and Wildlife to automatically revoke all fishing and wildlife permits, licenses and tags for any conviction of a fish or wildlife violation regardless of its severity or where it occurs — even in other states.
    And that's in addition to any other fines or punishments that come with the violation.
    In the past, judges had the discretion to revoke hunting and fishing licenses of convicted violators based on their view of the case. In short, the law said judges "may" revoke licenses and tags if they deemed it appropriate.
    But the writers of what eventually became House Bill 3089 replaced the word "may" with the word "shall," and the Oregon Legislature adopted it last fall.
    Now, the roughly 5,000 Oregonians pinched on fish or wildlife cases annually automatically shall lose their privilege to hunt, fish or crab in Oregon.
    Cast once above the fishing deadline at the Rogue River's Gold Ray Dam, and you could lose your fishing and hunting privileges.
    Also, a commercial fisherman out on a family crabbing trip who mistakenly keeps a Dungeness crab 1/4-inch short of legal would lose his job when his ODFW-issued commercial fishing license gets revoked.
    "Shall," says Ray White, a Jackson County Circuit Court judge who says he is less than enthused about the change. "(Legislators) put that 'shall' word in just about everything now.
    "It's unfortunate," says White, who is known to be tough on wildlife violators. "You can't listen to the facts and say, 'Oh, yes, this is a violation, but there were lots of extenuating circumstances.' We can't consider those when they use the 'shall' word."
    ODFW leadership has noticed the extent of the change and say they shall ask the Legislature, which is in session this month, to reconsider it.
    An immediate fix would be for the Legislature to change the "shall" back to "may," says Curt Melcher, the ODFW's deputy director.
    "I don't think that was the intent of the draft (bill)," Melcher says. "We're working on a possible short-term fix so the language doesn't become so sweeping.
    "It would be the equivalent of losing your driver's license for a rolling stop," Melcher says.
    A long-term fix, Melcher says, is to rework the language in the next legislative session to get at what conservation and sporting groups wanted from HB3089 all along — force lax judges to revoke licenses for the most egregious of violations.
    For the most part, the new law is one of the better get-tough-on-poaching changes to hit Oregon in years. It sets some serious restitution minimums for poachers to pay Oregonians for their illegal kills.
    Illegally shoot a small buck or doe deer and the restitution is $800. A four-point buck deer's restitution now is $7,500, and a poached 6-point elk costs an extra $15,000.
    Kill an undersized Rogue wild winter steelhead and pay an extra $250. Keep an oversize sturgeon and pay an extra $1,000. Whack a goshawk and pay $5,000.
    But the heartburn is the mandatory revocation of all licenses, tags and permits associated with fish and wildlife convictions where the base fine on the offense is $50 or more.
    There are no fish and wildlife violations with a scheduled bail of less than $50, so any violation fits the bill.
    Considering that the Oregon State Police's Fish and Wildlife Division writes an average of about 5,000 citations a year, revocations would become an epidemic.
    "I see that as an issue we need to work through," says Capt. Walt Markee, head of the OSP's Fish and Wildlife Division. "I don't think the intent is to suspend someone for having a barbed hook."
    Even more far-reaching is language in there about convictions in other states that join Oregon in the so-called Wildlife Violator Compact that recognize suspensions of hunting and fishing privileges in one member state as suspensions in all states — including most in the West.
    So a conviction in Montana for forgetting to mash down a barb while fly-fishing a barbless-only stream automatically would lead to a revocation of all licenses and tags in Oregon.
    Melcher says exactly how that "may" turned into a "shall" and found its way into law is somewhat unclear.
    During last year's session, several groups were pitching bills to stiffen poaching penalties, and they eventually all were put into what turned into HB 3089, Melcher says.
    The bill underwent several rewrites, and only recently have the OSP and ODFW leadership noticed just what the "shall" word entails here, Melcher says.
    "I think the intent was mandatory (revocations) for some egregious violations," Melcher says.
    But the legislative approach to telling judges what to do is emblematic of a bigger problem, says White, who occasionally calls wildlife violators "game pigs" before sentencings.
    "It's just another situation where the Legislature's putting mandates that take away our discretion," White says. "It's happening in almost everything we do, actually.
    "Who thought this was a good idea?" he says.
    Reach reporter Mark Freeman at 541-776-4470, or e-mail mfreeman@mailtribune.com. Follow him on Twitter at http://twitter.com/MarkCFreeman
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