Revision: April 23, 2010, midnight
HB 1544-FN – VERSION ADOPTED BY BOTH BODIES
24Mar2010… 0907h
2010 SESSION
08/10
HOUSE BILL 1544-FN
AN ACT relative to penalties for forestry violations.
SPONSORS: Rep. Theberge, Coos 4; Rep. S. Smith, Graf 7; Sen. Odell, Dist 8
COMMITTEE: Resources, Recreation and Development
This bill enables the commissioner of the department of resources and economic development to make certain rules about forestry violations.
This bill also makes failing to comply with a cease and desist order against a timber operation a misdemeanor.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
24Mar2010… 0907h
10-2281
08/10
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Ten
AN ACT relative to penalties for forestry violations.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 New Section; Enhanced Forestry Penalties. Amend RSA 277-G by inserting after section 9 the following new section:
227-G:10 Enhanced Penalty. A court may, upon separate petition of the attorney general, or in connection with a petition for equity relief filed by the attorney general, levy upon any person who meets the requirements for enhanced penalties as defined in departmental rule, a civil penalty in an amount not to exceed $10,000 per violation, along with any other injunctive relief deemed necessary by the court. The proceeds of any civil penalty levied pursuant to this section shall be deposited by the commissioner into the forest management and protection fund established under RSA 227-G:5, I.
2 New Paragraph; Rulemaking; Forestry Penalties. Amend RSA 227-G:4 by inserting after paragraph X the following new paragraph:
X-a. The requirements for enhanced penalties pursuant to RSA 227-G:10.
3 Forestry Penalties. Amend RSA 227-J:2, II(c) to read as follows:
(c) Issue a written cease and desist order against any timber operation in violation of this chapter, with the exception of RSA 227-J:4. Any such violation may be enjoined by the superior court, upon application of the attorney general. A person failing to comply with the cease and desist order shall be guilty of a [violation] class A misdemeanor.
4 Effective Date. This act shall take effect January 1, 2011.
LBAO
10-2281 Amended 03/25/10
HB 1544 FISCAL NOTE
AN ACT relative to penalties for forestry violations.
FISCAL IMPACT:
The Judicial Branch, the Judicial Council, the Department of Justice and the New Hampshire Association of Counties state this bill, as amended by the House (Amendment #2010-0907h), may increase state and county expenditures by an indeterminable amount in FY 2011 and each year thereafter. The Department of Resources and Economic Development states this bill may increase state restricted revenue by $5,000 in FY 2012 and FY 2014. There will be no fiscal impact on local expenditures or county and local revenue.
METHODOLOGY:
The Judicial Branch states this bill will add RSA 227-G:10, which allows for civil penalties of up to $10,000 per violation on petition of the attorney general or in connection with a petition for equity relief and amends RSA 227-J, II(c ) to increase the penalty for failing to comply with a cease and desist order. The Branch has no information to estimate how many petitions for civil penalties or additional class A misdemeanor prosecutions would be brought as a result of the changes contained in this bill to determine the fiscal impact on expenditures. The costs associated with petitions for civil penalty would be most like a complex equity case. The average cost of a complex equity case is $506.50 in FY 2011 and each year thereafter. The Branch states it would take 20 additional charges annually in the superior court to have a fiscal impact in excess of $10,000.
The Branch states this bill will increase the penalty for failing to comply with a cease and desist order from a violation to a class A misdemeanor. The cost to the Branch for an average violation is $35.75 per violation in fiscal year 2011 and each year thereafter. The cost of a class A misdemeanor is $51.14 in FY 2011 and each year thereafter. The increased cost from a violation to a class A misdemeanor is $15.39. The Branch states it would take 650 charges annually where a violation is now charged as a class A misdemeanor. However, the possibility of appeals reduces the number of cases needed for a fiscal impact to the Branch in excess of $10,000.
The Department of Justice states the criminal offense created by this bill could be prosecuted by a local prosecutor or county attorney’s office. If an appeal is filed, the Department would have increased expenditures. The Department is unable to estimate how many cases would be prosecuted by the Department or appealed to the Supreme Court.
The Judicial Council states this bill may result in an indeterminable increase in general fund expenditures. The Council states if an individual is found to be indigent, the flat fee of $275 per misdemeanor is charged by a public defender or contract attorney. If an assigned counsel attorney is used the fee is $60 per hour with a cap of $1,400 for a misdemeanor charge. The Council also states additional costs could be incurred if an appeal is filed. The public defender, contract attorney and assigned counsel rates for Supreme Court appeals is $2,000 per case, with many assigned counsel attorneys seeking permission to exceed the fee cap. Requests to exceed the fee cap are seldom granted. Finally, expenditures would increase if services other than counsel are requested and approved by the court during the defense of a case or during an appeal.
The New Hampshire Association of Counties states to the extent an individual is prosecuted, convicted, and sentenced to incarceration, the counties may have increased expenditures. The Association is unable to determine the number of individuals who might be detained or incarcerated as a result of this bill. The average cost to incarcerate an individual in a county facility is $35,342 a year.
The Department of Resources and Economic Developments assumes the bill will impact a small number of the total loggers/operators. The Department assumes a fine would be levied once every other year for $5,000. Any fine revenue collected as result of this bill will be deposited into the Forest Management and Protection account established by RSA 227-G:5,I.