Senator Michael K. McKell proposes the following substitute bill:


1     
BIG GAME AMENDMENTS

2     
2022 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Casey Snider

5     
Senate Sponsor: Michael K. McKell

6     

7     LONG TITLE
8     General Description:
9          This bill addresses provisions related to big game.
10     Highlighted Provisions:
11          This bill:
12          ▸     amends the definition provision;
13          ▸     modifies provisions related to damage to cultivated crops, livestock forage, fences,
14     or irrigation equipment;
15          ▸     addresses under what circumstances a landowner or lessee may kill big game
16     animals;
17          ▸     amends provisions related to compensation for damage caused by big game animals;
18          ▸     addresses appeals;
19          ▸     enacts limitations on compensating people to locate big game animals; and
20          ▸     makes technical changes.
21     Money Appropriated in this Bill:
22          None
23     Other Special Clauses:
24          None
25     Utah Code Sections Affected:
26     AMENDS:
27          23-16-1.1, as enacted by Laws of Utah 2003, Chapter 228
28          23-16-3, as last amended by Laws of Utah 2011, Chapter 297
29          23-16-3.1, as enacted by Laws of Utah 2003, Chapter 228
30          23-16-3.2, as last amended by Laws of Utah 2008, Chapter 382
31          23-16-4, as last amended by Laws of Utah 2011, Chapter 297
32     ENACTS:
33          23-20-33, Utah Code Annotated 1953
34     

35     Be it enacted by the Legislature of the state of Utah:
36          Section 1. Section 23-16-1.1 is amended to read:
37          23-16-1.1. Definitions.
38          As used in this chapter:
39          (1) "72 hours" means a time period that begins with the hour a request for action is
40     made pursuant to Section 23-16-3 and ends 72 hours later with the exclusion of any hour that
41     occurs on the day of a legal holiday that is on a Monday or Friday and listed in Section
42     63G-1-301.
43          [(1)] (2) "Cultivated crops" means:
44          (a) annual or perennial crops harvested from or on cleared and planted land; [and]
45          (b) perennial orchard trees on cleared and planted land;
46          [(b)] (c) crop residues that have forage value for livestock[.]; and
47          (d) pastures.
48          [(2)] (3) "Depredation mitigation plan" means the plan described in Subsection
49     23-16-3(2).
50          (4) "Growing season" means the portion of a year in which local conditions permit
51     normal plant growth.
52          (5) "Management unit" means a prescribed area of contiguous land designated by the
53     division for the purpose of managing a species of big game animal.
54          [(3)] (6) "Mitigation review panel" means the panel created under Section 23-16-3.2.
55          Section 2. Section 23-16-3 is amended to read:
56          23-16-3. Damage to cultivated crops, livestock forage, fences, or irrigation
57     equipment by big game animals -- Notice to division -- Depredation mitigation plan.
58          (1) (a) If on private land big game animals [are damaging] damage cultivated crops,
59     livestock forage, fences, or irrigation equipment [on private land], the landowner or lessee shall
60     immediately, upon discovery of the damage, request that the division take action to alleviate
61     the depredation problem.
62          (b) The landowner or lessee shall allow division personnel reasonable access to the
63     property sustaining damage to verify and alleviate the depredation problem.
64          (2) (a) Within 72 hours after receiving the request for action under Subsection (1)(a),
65     the division shall investigate the situation, and if it appears that depredation by big game
66     animals may continue, the division shall:
67          (i) remove the big game animals causing depredation; or
68          (ii) implement a depredation mitigation plan [which has been] that is approved, in
69     writing, by the landowner or lessee.
70          (b) A depredation mitigation plan may provide for any or all of the following:
71          (i) the scheduling of a depredation hunt;
72          (ii) issuing permits to the landowners or lessees, to take big game animals causing
73     depredation during a general or special season hunt authorized by the Wildlife Board;
74          (iii) allowing landowners or lessees to designate recipients who may obtain a
75     mitigation permit to take big game animals on the landowner's or lessee's land during a general
76     or special season hunt authorized by the Wildlife Board; or
77          (iv) a description of how the division will assess and compensate the landowner or
78     lessee under Section 23-16-4 for damage to cultivated crops, fences, or irrigation equipment.
79          (c) (i) The division shall specify the number and sex of the big game animals that may
80     be taken pursuant to Subsections (2)(b)(ii) and (iii).
81          (ii) Control efforts shall be directed toward antlerless animals, if possible.
82          (d) A permit issued for an antlered animal shall be approved by the division director or
83     the director's designee.
84          (e) The division and the landowner or lessee shall jointly determine the number of big
85     game animals taken pursuant to Subsection (2)(b)(ii) of which the landowner or lessee may
86     retain possession.
87          (f) In determining appropriate remedial action under this Subsection (2), the division
88     shall consider:
89          (i) the extent of damage experienced or expected in a single growing season; and
90          (ii) any revenue the landowner derives from:
91          (A) participation in a cooperative wildlife management unit;
92          (B) use of landowner association permits;
93          (C) use of mitigation permits; and
94          (D) charging for hunter access.
95          (3) Any fee for accessing the owner's or lessee's land shall be determined by the
96     landowner or lessee.
97          (4) (a) If the landowner or lessee who approved the depredation mitigation plan under
98     Subsection (2)(a)(ii) subsequently determines that the plan is not acceptable, the landowner or
99     lessee may revoke [his or her] the landowner's or lessee's approval of the plan and again request
100     that the division take action pursuant to Subsection (2)(a)(i).
101          (b) A subsequent request for action provided under Subsection (4)(a) shall be
102     considered to be a new request for purposes of the 72-hour time limit specified in Subsection
103     (2)(a).
104          (5) (a) The division may enter into a conservation lease with the owner or lessee of
105     private lands for a fee or other remuneration as compensation for depredation.
106          (b) Any conservation lease entered into under this section shall provide that the
107     claimant may not unreasonably restrict hunting on the land or passage through the land to
108     access public lands for the purpose of hunting, if those actions are necessary to control or
109     mitigate damage by big game animals.
110          Section 3. Section 23-16-3.1 is amended to read:
111          23-16-3.1. Landowner or lessee authorized to kill big game animals.
112          (1) (a) A landowner or lessee may kill big game animals damaging those cultivated
113     crops on private land if:
114          (i) it is necessary to protect cultivated crops;
115          (ii) 72 hours has expired since [notice was] a request for action is given pursuant to
116     Subsection 23-16-3(1)(a);
117          (iii) the landowner or lessee has provided or sent written notice of an intent to kill the
118     big game animal to the nearest regional office;
119          (iv) the landowner or lessee kills the big game animal within 90 days, or a longer
120     period, if approved, in writing, by the division, after having requested that the division take
121     action to prevent depredation under Subsection 23-16-3(1)(a); and
122          (v) the killing is not prohibited by Subsection (2)(a) or (3).
123          (b) Immediately after killing a big game animal under Subsection (1)(a), the landowner
124     or lessee shall notify the division of the killing.
125          (c) The carcass of [an] a big game animal killed under Subsection (1)(a) [shall become]
126     is the property of the division and [shall be disposed of by the division] the division shall
127     dispose of the carcass.
128          (d) [Any money] Money derived from the sale of big game animals killed shall be
129     placed in the Wildlife Resources Account created in Section 23-14-13.
130          (e) A landowner or lessee who kills big game animals pursuant to this section shall:
131          (i) make reasonable effort to prevent the big game animals from wasting; and
132          (ii) provide the division reasonable access to the landowner's or lessee's land to retrieve
133     and dispose of the big game animals.
134          (2) (a) The division director may prohibit the killing of big game animals under
135     Subsection (1)(a) if, within 72 hours after a landowner or lessee has requested that the division
136     take action to remove depredating big game animals, the division:
137          (i) determines that the restitution value of the big game animal or animals, as
138     established under Section 23-20-4.5, is more than twice the estimated value of the cultivated
139     crops that have been or will be damaged or consumed within a single growing season;
140          (ii) determines that the prohibition is consistent with the management plan established
141     under Section 23-16-7;
142          (iii) notifies the landowner or lessee of the prohibition; and
143          (iv) offers the landowner or lessee a depredation mitigation plan.
144          (b) A landowner or lessee who is offered a depredation mitigation plan may:
145          (i) accept the plan in writing; or
146          (ii) refuse to accept the plan and appeal the plan, in writing, to the division director.
147          (3) After a landowner or lessee has killed a big game animal under Subsection (1)(a),
148     the division director may prohibit any further killing of big game animals if:
149          (a) the division takes the actions described in Subsections (2)(a)(i) through (iv); [and]
150     or
151          (b) the mitigation review panel reviews and approves the depredation mitigation plan.
152          Section 4. Section 23-16-3.2 is amended to read:
153          23-16-3.2. Mitigation review panel.
154          (1) A mitigation review panel may be convened to review [the]:
155          (a) a depredation mitigation [plans.] plan; or
156          (b) division action under Section 23-16-4.
157          (2) Membership of the mitigation review panel shall consist of:
158          (a) the division director or the director's designee;
159          (b) (i) the commissioner of the Department of Agriculture and Food or the
160     commissioner's designee; or
161          (ii) a representative of agricultural interests appointed by the commissioner of the
162     Department of Agriculture and Food; and
163          (c) a representative of Utah State University Extension Service appointed by the Vice
164     President and Dean for University Extension.
165          (3) (a) The division director shall convene a mitigation review panel if:
166          (i) a landowner or lessee appeals a depredation mitigation plan under Subsection
167     23-16-3.1(2)(b)(ii); [or]
168          (ii) the division director requests review of a depredation mitigation plan[.]; or
169          (iii) the division receives a petition of an aggrieved party to a final division action
170     under Section 23-16-4.
171          (b) Within five business days of an appeal under Subsection 23-16-3.1(2)(b)(ii) or a
172     division request for review [under Subsection 23-16-3.1(3)(b)], the mitigation review panel
173     shall review the depredation mitigation plan and approve or modify the plan.
174          (c) A mitigation review panel shall act on a petition described in Subsection (3)(a)(iii)
175     in accordance with rules made by the Wildlife Board under Subsection 23-16-4(6).
176          (4) Judicial review of a mitigation review panel action [shall be] under this section is
177     governed by Title 63G, Chapter 4, Administrative Procedures Act.
178          Section 5. Section 23-16-4 is amended to read:
179          23-16-4. Compensation for damage to crops, fences, or irrigation equipment --
180     Limitations -- Appeals.
181          (1) The division may provide compensation to claimants for damage caused by big
182     game animals to:
183          (a) cultivated crops [from or on cleared and planted] on private land;
184          (b) fences on private land; or
185          (c) irrigation equipment on private land.
186          (2) To be eligible to receive compensation as provided in this section, the claimant
187     shall:
188          (a) notify the division of the damage within 72 hours after the damage is discovered;
189     and
190          (b) allow division personnel reasonable access to the property to verify and alleviate
191     the depredation problem.
192          (3) (a) The appraisal of the damage shall be made by the claimant and the division as
193     soon after notification as possible.
194          (b) In determining damage payment, the division and claimant shall consider:
195          (i) the extent of damage experienced; and
196          (ii) any revenue the landowner derives from:
197          (A) participation in a cooperative wildlife management unit;
198          (B) use of landowner association permits;
199          (C) use of mitigation permits; and
200          (D) charging for hunter access.
201          (c) The division and claimant may not include speculative damages or claims of future
202     value in an appraisal or damage payment beyond the growing season when the damage
203     occurred under this section.
204          [(c)] (d) In determining how to assess and compensate for damages to cultivated crops,
205     the division's determination shall be based on the:
206          (i) estimated number of big game animals that damaged or consumed cultivated crops;
207          (ii) estimated quantity of cultivated crops damaged or consumed by big game animals;
208          [(i)] (iii) [full replacement value in the local market] local market value of the
209     cultivated crops that actually have been or will be damaged or consumed by big game animals;
210     [and]
211          [(ii) cost of delivery of a replacement crop to the location of the damaged crop or other
212     location that is not farther from the source of the replacement crop.]
213          (iv) replacement value of an equivalent aged tree for perennial orchard trees; and
214          (v) other documented costs directly incurred by the landowner or lessee because of
215     damage to cultivated crops by big game animals.
216          [(d)] (e) If the claimant and the division are unable to agree on a fair and equitable
217     damage payment, [they] the claimant and division shall designate a third party, consisting of
218     one or more persons familiar with the crops, fences, or irrigation equipment and the type of big
219     game animals doing the damage, to appraise the damage.
220          (4) (a) [Notwithstanding Section 63J-1-504, the] The total amount of compensation
221     that may be provided by the division pursuant to this section and the total cost of fencing
222     materials provided by the division to prevent crop damage may not exceed the legislative
223     appropriation for fencing material and compensation for damaged crops, fences, and irrigation
224     equipment.
225          (b) (i) [Any] A claim of $1,000 or less may be paid after appraisal of the damage as
226     provided in Subsection (3), unless the claim brings the total amount of claims submitted by the
227     claimant in the fiscal year to an amount in excess of $1,000.
228          (ii) [Any] A claim for damage to irrigation equipment may be paid after appraisal of
229     the damage as provided in Subsection (3).
230          (c) (i) [Any] A claim in excess of $1,000, or claim that brings the total amount of
231     claims submitted by the claimant in the fiscal year to an amount in excess of $1,000, shall be
232     treated as follows:
233          (A) $1,000 may be paid pursuant to the conditions of this section; and
234          (B) the amount in excess of $1,000 may not be paid until the total amount of the
235     approved claims of all the claimants and expenses for fencing materials for the fiscal year are
236     determined.
237          (ii) If the total exceeds the amount appropriated by the Legislature pursuant to
238     Subsection (4)(a), claims in excess of $1,000, or [any] a claim that brings the total amount of a
239     claimant's claims in a fiscal year to an amount in excess of $1,000, shall be prorated.
240          (5) The division may deny or limit compensation if the claimant:
241          (a) [has failed] fails to exercise reasonable care and diligence to avoid the loss or
242     minimize the damage; [or]
243          (b) fails to provide the division reasonable access to the property;
244          (c) fails to allow the division to use reasonable mitigation tools to alleviate the damage;
245          [(b)] (d) [has] unreasonably [restricted] restricts hunting on land under the claimant's
246     control or passage through the land to access public lands for the purpose of hunting, after
247     receiving written notification from the division of the necessity of allowing [such] the hunting
248     or access to control or mitigate damage by big game[.] animals; or
249          (e) fails to provide supporting evidence of cultivated crop values and claimed costs to
250     the division during the damage appraisal process.
251          (6) (a) The Wildlife Board shall make rules, in accordance with Title 63G, Chapter 3,
252     Utah Administrative Rulemaking Act, and consistent with Subsection (6)(d), specifying
253     procedures for the appeal of division actions under this section.
254          (b) Upon the petition of an aggrieved party to a final division action, [the Wildlife
255     Board] a mitigation review panel may review the action on the record and issue an order
256     modifying or rescinding the division action.
257          (c) [A qualified hearing examiner may be appointed] A mitigation review panel may
258     appoint a third party designated under Subsection (3)(e) for purposes of taking evidence and
259     making recommendations for [a board] an order of the mitigation review panel. The [board]
260     mitigation review panel shall consider the recommendations of the [examiner] designated third
261     party in making decisions.
262          (d) [Board] A mitigation review panel's review of final agency action and judicial
263     review of final [board action shall be] action by a mitigation review panel is governed by Title
264     63G, Chapter 4, Administrative Procedures Act.
265          Section 6. Section 23-20-33 is enacted to read:
266          23-20-33. Limitation on compensating people to locate big game animals.
267          (1) As used in this section:
268          (a) "Compensate" or "compensated" means anything of value in excess of $25 that is
269     paid, loaned, given, granted, donated, or transferred to a person for or in consideration of
270     locating or monitoring the location of big game animals.
271          (b) "Retain" or "retained" means a written or oral agreement for the delivery of
272     outfitting services or hunting guide services between an outfitter or hunting guide and the
273     recipient of those services.
274          (2) Except as provided in Subsections (3) and (4), a person may not compensate
275     another person to locate or monitor the location of big game animals on public land in
276     connection with or furtherance of taking a big game animal under this title.
277          (3) A person may compensate a registered outfitter or hunting guide, as defined in
278     Section 58-79-102, to help the person locate and take a big game animal on public land if:
279          (a) the outfitter or hunting guide is registered and in good standing under Title 58,
280     Chapter 79, Hunting Guides and Outfitters Registration Act;
281          (b) the person has retained the outfitter or hunting guide and is the recipient of the
282     outfitting services and hunting guide services, as defined in Section 58-79-102;
283          (c) the person possesses the licenses and permits required to take a big game animal;
284          (d) the person retains and uses not more than one outfitter or hunting guide in
285     connection with taking a big game animal; and
286          (e) the retained outfitter or hunting guide uses no more than one compensated
287     individual in locating or monitoring the location of big game animals on public land.
288          (4) A registered outfitter or hunting guide in good standing may compensate another
289     person to locate or monitor the location of big game animals on public land if:
290          (a) the outfitter or hunting guide has been retained by the recipient of the outfitting
291     services or hunting guide services to assist the recipient take a big game animal on public land;
292          (b) the recipient possesses the licenses and permits required to take a big game animal;
293          (c) the recipient is not simultaneously using another outfitter or hunting guide to assist
294     in taking the same species and sex of big game animal; and
295          (d) the outfitter or hunting guide compensates not more than one other individual to
296     locate or monitor the location of big game animals in connection with assisting the recipient
297     take a big game animal on public land.
298          (5) A violation of:
299          (a) this section constitutes an unlawful take under Section 23-20-3; and
300          (b) Subsection (4) constitutes unlawful conduct under Sections 58-1-501, 58-1-502,
301     and 58-79-501.