THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

INTRODUCED BY HANNA, BRENNAN, CAUSER, CONKLIN, GEORGE, HALUSKA, KORTZ, KOTIK, MAHONEY, PHILLIPS, SOLOBAY, WALKO AND YOUNGBLOOD, FEBRUARY 18, 2009

REFERRED TO COMMITTEE ON GAME AND FISHERIES, FEBRUARY 18, 2009  

AN ACT

Amending Title 34 (Game) of the Pennsylvania Consolidated

Statutes, in fiscal affairs, further providing for deterrent

fences for deer, bear and elk and the payment of claims for

damages by certain elk; imposing duties on the Department of

Agriculture; and providing for the establishment of the Elk

Damage Fund.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1.  Section 541 of Title 34 of the Pennsylvania

Consolidated Statutes is amended to read:

§ 541.  Authority to provide deterrent fences for deer.

[(a)  Fences for deer or elk.--]In areas of this Commonwealth

where deer [and elk] are present on lands open to public hunting

and are, in a material way, injuring or destroying farm crops,

fruit orchards or commercial tree nurseries where ornamental or

fruit trees are grown for sale or regeneration on commercial

forest lands, the owners or lessees of such farms, fruit

orchards, commercial tree nurseries or commercial forest lands

may make application to the commission for assistance in the

erection of a deterrent fence. Except where produce is raised

for market on a commercial basis, the provisions of this section

shall not apply to gardens or truck patches.

[(b)  Fences for bears.--In areas of this Commonwealth where

bears are present on lands open to public hunting and are, in a

material way, damaging or destroying beehives where ten or more

hives are placed at one location or imminent danger exists of

such damage or destruction, the owner of such beehives may make

application to the director for assistance in the erection of a

deterrent fence.]

Section 2.  Title 34 is amended by adding sections to read:

§ 541.1.  Authority to provide deterrent fences for bear.

In areas of this Commonwealth where bears are present on

lands open to public hunting and are, in a material way,

damaging or destroying beehives where ten or more hives are

placed at one location or imminent danger exists of such damage

or destruction, the owner of such beehives may make application

to the director for assistance in the erection of a deterrent

fence.

§ 541.2.  Authority to provide deterrent fences for elk.

In areas of this Commonwealth where elk are present, the

owners or lessees of land which has been damaged or is likely to

be damaged by elk may make application to the commission for

assistance in the erection of deterrent fences. In investigating

applications under this section, the commission using standards

and priorities established by the Department of Agriculture

shall evaluate both the damage or potential for damage to the

land and the protection of the elk. This section applies to all

land whether used for commercial or noncommercial purposes.

Section 3.  Section 543(b) of Title 34 is amended and the

section is amended by adding a subsection to read:

§ 543.  Purchase of materials and construction.

* * *

(b)  Construction of deer [or elk] deterrent fences.--

(1)  The commission may construct, or may enter into

contracts for the construction of, or enter into a written

agreement with the applicant for the construction of[, deer

or elk] deer deterrent fences on sites approved by the

commission.

(2)  In making application for a deterrent fence under

the provisions of [this subsection] section 541 (relating to

authority to provide deterrent fences for deer), the

applicant shall agree to one of the following three fence

construction options:

(i)  The commission may construct, or may contract

for the construction of, the deterrent fence.

(ii)  The applicant may, within six months of

delivery of materials, construct the deterrent fence.

(iii)  The applicant may contract with a third party

for the construction of the deterrent fence.

The commission may, by regulation, establish a baseline cost

per foot of fence.

(3)  After any deterrent fence for deer is constructed

and approved by the commission under the option specified in

paragraph (2)(i), the commission shall pay for the cost of

installation, and the landowner or lessee shall then

reimburse the commission for 50% of the cost of installation.

* * *

(c.1)  Construction of elk deterrent fence.--

(1)  The commission may construct, may enter into

contracts for the construction of or enter into a written

agreement with the applicant for the construction of elk

deterrent fences on sites approved by the commission.

(2)  In making application for a deterrent fence under

the provisions of section 541.2 (relating to authority to

provide deterrent fences for elk), the applicant shall agree

to one of the following four fence construction options:

(i)  The commission may construct or may contract for

the construction of the deterrent fence.

(ii)  The applicant may, within six months of

delivery of materials, construct the deterrent fence.

(iii)  The applicant may contract with a third party

for the construction of the deterrent fence.

(iv)  Any other procedures for the construction of

the elk deterrent fence agreed to by the landowner or

lessee and the commission.

The commission may, by regulation, establish a baseline cost

per foot of fence.

* * *

Section 4.  Section 544 of Title 34 is amended to read:

§ 544.  Maintenance, repair or replacement.

[All] (a)  General rule.--Except as provided in subsection

(b), deterrent fences for deer and bear, after erection, shall

be maintained by the individuals interested, and the commission

shall bear no part of any future maintenance.

(b)  Deterrent fences for elk.--Responsibility for the

maintenance of deterrent elk fencing shall be based on the

written agreement between the landowner or lessee and the

commission.

(c)  Replacement of deterrent fences.--Replacement of the

deterrent fences when worn out may be on the same basis as the

erection of the original fence. The commission shall decide when

the replacement deterrent fence is necessary.

Section 5.  Title 34 is amended by adding sections to read:

§ 548.  Payment for elk damage.

(a)  General rule.--The commission shall be responsible for

and may make payment for damage caused by elk within or outside

of areas protected by elk deterrent fences. Damage reports must

be submitted to an office of the commission within 48 hours of

discovery. The commission shall investigate all complaints of

elk damage within 24 hours of receipt of a damage claim. The

refusal of a claimant to erect elk deterrent fencing or the

killing of an elk by a claimant are relevant factors in

determining whether to pay an elk damage claim.

(b)  Source of funds for payments.--All costs associated with

the purchase and erection of elk deterrent fencing and the

payment of approved elk damage claims shall be paid from the Elk

Damage Fund established in subsection (c).

(c)  Elk Damage Fund.--

(1)  There is established within the State Treasury a

special fund to be known as the Elk Damage Fund which shall

be used for the purchase, construction or maintenance of elk

deterrent fences, for the payment of elk damage claims

arising under subsection (a) and for the costs of

implementation and staffing incurred by the Department of

Agriculture for implementation of this section.

(2)  All moneys deposited into the Elk Damage Fund are

appropriated on a continuing basis to the Department of

Agriculture for the purposes specified in paragraph (1).

(d)  Review.--When the commission's officers and the claimant

cannot agree upon the value of the damages, the claimant may,

within ten days of the conclusion of discussions, request, in

writing, that the director review the matter as provided in

Subchapter E (relating to review procedures).

§ 549.  Unlawful acts.

(a)  General rule.--It is unlawful for any landowner or

lessee to file a fraudulent claim for damage of any kind alleged

to have been done by elk or for any person to violate any other

provision of this subchapter.

(b)  Penalties.--A person who collects or attempts to collect

a fraudulent claim for damage by elk contrary to this subchapter

commits a summary offense of the first degree. Any other

violation of this subchapter is a summary offense of the fifth

degree.

Section 6.  Section 561 of Title 34 is amended to read:

§ 561.  Appointment of hearing examiner.

Within 15 days following receipt of a request for review

under section 545 (relating to request for review) [or], 554

(relating to request for review) or 548(d) (relating to payment

for elk damage), a hearing examiner designated by the director

shall select a location and a time for hearing the review, which

location shall be within the county of origin of the dispute.

The applicant for review or the commission officer investigating

the claim may, at the time of the review, appear personally or

with counsel to testify and present witnesses and evidence in

their behalf and to confront and examine witnesses. The hearing

shall be conducted in accordance with the provisions of Title 2

(relating to administrative law and procedure) and the

regulations promulgated by the commission.

Section 7.  The Executive Director of the Pennsylvania Game

Commission and the Secretary of Agriculture may enter into such

cooperative agreements as may be necessary to implement and

administer the provisions of 34 Pa.C.S. § 548.

Section 8.  This act shall take effect immediately.