Ongoing Projects:

State Project(s):

The West Virginia Department of Environmental Protection (“WVDEP”) runs a volunteer water quality monitoring program: WV Save our Streams.  See WV Save Our Streams, W. Va. Dep’t of Envtl. Protection, http://www.dep.wv.gov/WWE/getinvolved/sos/Pages/default.aspx (last visited Feb. 7, 2019). Through the program, volunteers monitor macroinvertebrate populations, using them as indicator species for water quality.  See id.  WVDEP appears to have created this program on its own initiative.

In April 2017, the West Virginia Division of Natural Resources launched a citizen science initiative to document the distribution of timber rattlesnakes in the state. See Help Biologists Track the Distribution of West Virginia’s State Reptile, W. Va. Division of Nat. Resources, http://www.wvdnr.gov/rattlesnakereport/ (last visited Feb. 7, 2019).

Collection of Information:

Scientific Collecting Permit:

Only qualified individuals and institutions may acquire a scientific collection permit to collect fish or wildlife for research purposes. See W. Va. Code § 20-2-50; W. Va. Code R. 58-42-1 et seq.; West Virginia Scientific Collecting Permit Application Requirements, W.Va. Division of Nat. Resources, http://www.wvdnr.gov/wildlife/scollectpermit.shtm (last visited Feb. 7, 2019).

Other Provisions: 

See infra “Drone Laws.”

Trespass Law:

Criminal Liability for Trespass Despite Lack of Notice:

No.  Entry upon property does not constitute criminal trespass unless “notice against entering or remaining is either given by actual communication . . . or by posting, fencing, or cultivation.”  W. Va. Code § 61-3B-3(a).

Drone Law:

Law:

“[A] person may not operate an unmanned aircraft system:

1. To knowingly and intentionally capture or take photographs, images, video, or audio of another person or the private property of another, without the other person’s permission, in a manner that would invade the individual’s reasonable expectation of privacy, including, but not limited to, capturing, or recording through a window;

2. To knowingly and intentionally view, follow, or contact another person or the private property of another without the other person’s permission in a manner that would invade the individual’s reasonable expectation of privacy, including, but not limited to, viewing, following, or contacting through a window….” W. Va. Code § 61-16-2(a)(1)-(2).

“Any person violating the provisions of subsection (a) of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $100 nor more than $1,000 or confined in jail for not more than one year, or both fined and confined.” Id. § 61-16-2(b).

Harassment of Wildlife:

It is prohibited to “[u]se a drone or other unmanned aircraft to hunt, take, wound, harass, transport, or kill a wild bird or wild animal[.]” W. Va. Code § 20-2-5(a)(5).

State Parks:

“Persons who intend to operate an unmanned aircraft system shall register at the area superintendent’s office prior to engaging or participating in the operation of any unmanned aircraft system and specify where the activity will take place.… Participants in drone operation activities assume full responsibility and liability for any risk or injury related to using an unmanned aircraft system.” W. Va. Code § 20-5-2(b)(16).

Stalking Laws:

Criminal Law: 

“Any person who repeatedly follows another knowing or having reason to know that the conduct causes the person followed to reasonably fear for his or her safety or suffer significant emotional distress, is guilty of a misdemeanor and, upon conviction thereof, shall be incarcerated in the county or regional jail for not more than six months or fined not more than one thousand dollars, or both.”  W. Va. Code § 61-2-9a(a).

Use of Information:

Although our research is incomplete, this provision could be construed to allow the use of information collected by citizens.

Explicitly Allows:

“In enforcing emission limitations in any rule, including any rule which has been incorporated into the State Implementation Plan by [the U.S. Environmental Protection Agency], any credible evidence may be used by the Director for the purpose of establishing whether a person has violated or is in violation.”  W. Va. Code R. § 45-38-5.1.

Evidentiary Standards:

Pleading a Claim:

Requires certification that “the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.”  W. Va. R. Civ. P. 11(b)(3).

Authentication or Chain of Custody:

“To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.”  W. Va. R. Evid. 901(a).

Expert Testimony:

Wilt-Daubert standard, but only for scientific knowledge.  See Gentry v. Mangum, 466 S.E.2d 171, 185-86 (W. Va. 1995); Wilt v. Buracker, 443 S.E.2d 196, 203 (W. Va. 1993).