Bill Text: NH HB1298 | 2016 | Regular Session | Chaptered


Bill Title: Relative to damage to private property and relative to the authority of federal border patrol agents to make arrests in Coos county.

Spectrum: Moderate Partisan Bill (Republican 4-1)

Status: (Passed) 2016-06-21 - Signed by Governor Hassan 06/20/2016; Chapter 278; Eff. 1/1/2017 [HB1298 Detail]

Download: New_Hampshire-2016-HB1298-Chaptered.html

CHAPTER 278

HB 1298 - FINAL VERSION

11Feb2016... 0228h

11Feb2016... 0255h

23Mar2016... 1001h

05/05/2016   1794s

2016 SESSION

16-2319

08/09

 

HOUSE BILL 1298

 

AN ACT relative to damage to private property and relative to the authority of federal border patrol agents to make arrests in Coos county.

 

SPONSORS: Rep. Chandler, Carr. 1; Rep. Sanders, Rock. 12; Rep. Theberge, Coos 3; Sen. Forrester, Dist 2; Sen. Bradley, Dist 3

 

COMMITTEE: Resources, Recreation and Development

 

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AMENDED ANALYSIS

This bill:

 

I.  Creates a cause of action for a landowner whose land is damaged by pollution.

 

II.  Creates a cause of action for a landowner whose land is damaged by OHRV.

 

III.  Creates a cause of action for a landowner whose land is damaged by snowmobile use.

 

IV.  Grants federal border control agents the authority to make arrests in Coos county.

 

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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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

11Feb2016... 0228h

11Feb2016... 0255h

23Mar2016... 1001h 16-2319

05/05/2016   1794s 08/09

 

STATE OF NEW HAMPSHIRE

 

In the Year of Our Lord Two Thousand Sixteen

 

AN ACT relative to damage to private property and relative to the authority of federal border patrol agents to make arrests in Coos county.

 

Be it Enacted by the Senate and House of Representatives in General Court convened:

 

278:1  New Chapter; Landowner's Right of Action.  Amend RSA by inserting after chapter 149-O the following new chapter:

CHAPTER 149-P

LANDOWNER'S RIGHT OF ACTION

149-P:1  Landowner’s Right of Action.

I.  It is hereby declared to be in the public interest to encourage the preservation and conservation of the land, water, forest, agricultural, and wildlife resources of this state.  It is also declared to be in the public interest to discourage and provide means for preventing the spoliation of such resources from the effects of illegal dumping, and to create rights in landowners to provide the means for obtaining such objectives.  It is the intention of this chapter to create a landowner's right of action in support of these purposes.

II.  Notwithstanding any rules adopted by the department of environmental services, any ordinance adopted by a municipality, or any provision of law, any person, as defined in RSA 147-A:2, XII, who without authorization, intentionally, recklessly, or negligently discharges, spills, releases, pollutes, disposes, dumps, leaks, injects, or places oil, gasoline, diesel fuel, fuel oil, motor oil, automotive oil, gasoline ethers, offensive matter, hazardous waste, waste, refuse, or solid waste as those terms are defined in RSA 146-A through RSA 149-O, upon the land of another, shall be liable to the owner of the land.

III.  Upon such discharge occurring, the owner of the land may:

(a)  Commence an action for the cost of cleanup and any such damages as may result from the discharge;

(b)  Seek injunctive relief enjoining any activity described in paragraph II, if such activity is imminent or likely;

(c)  Obtain a court order requiring the  person  causing  the discharge to contain, clean up, and remediate the discharge at such person's expense;

(d)  Obtain multiple damages against the person causing the discharge of up to 3 times actual damages, based upon the degree of culpability, as determined by the trier of fact;

(e)  Obtain  reasonable  attorneys'  fees  and  professional  fees  associated  with  the containment, cleanup, and remediation, and the seeking and obtaining relief and damages;

(f)  Require the person causing the discharge to provide a bond, or other assurances sufficient to cover the costs of containment, cleanup, and remediation, upon a showing by the owner that there is a reasonable likelihood of a judgment; and

(g)  Obtain an attachment, prejudgment attachment, or trustee process in accordance with RSA 511, RSA 511-A and RSA 512.

IV.(a)  This chapter shall only apply to discharges that are made directly upon the landowner’s land and shall not apply to those discharges that originate from the land of another, including without limitation, discharges from any above ground or underground storage tank.  However, this chapter shall not otherwise limit any other rights afforded a landowner for such discharges originating from the land of another.

(b)  For the purposes of this chapter, a landowner shall include any owner holding an entire, joint, fractional, mortgage, or other ownership interest in the land, but any separate claims made by more than one such owner shall be consolidated into a single action.

(c)  This chapter shall not apply to or benefit any owner holding an interest in the land making claim against any other owner holding an interest in the same land.

(d)  This chapter shall not apply to a discharge on a landowner’s land, when the discharge results from a motor vehicle involved in a motor vehicle accident not originating on the landowner’s land.

(e)  The rights and benefits conferred upon a landowner under this chapter shall not apply to any claim or claims against the state and its subdivisions.

278:2  Penalties; OHRV/Operator Responsibilities; Roads Included.  Amend RSA 215-A:19, I(a)(1) to read as follows:

(1)  To the owner of any lands where trees, shrubs, roads, or other property have been damaged as a result of travel over [their] the owner's premises by such vehicles.

278:3  New Subparagraph; Penalties; OHRV/Operator Responsibilities; Damage to  Public or Private Property.  Amend RSA 215-A:19, V by inserting after subparagraph (e) the following new subparagraph:

(f)  The use of the OHRV has resulted in damage to public or private property.

278:4  New Paragraph; Penalties; OHRV/Operator Responsibilities.  Amend RSA 215-A:19 by inserting after paragraph IX the following new paragraph:

X.  In addition to any other penalty or obligation imposed, the owner of any lands which have been damaged in violation of this chapter may bring an action to recover such damages, in the superior court for the county in which the lands are located, against any person who is responsible and accountable under subparagraph I(a).  In bringing such action, the owner shall be entitled to:

(a)  The cost of clean-up and restoration to the prior condition of the lands;

(b)  Multiple damages of up to 3 times actual damages, based upon the level of culpability for the conduct, as determined by the trier of fact; and

(c)  Reasonable attorney's fees necessary to the action.

278:5  Damage to Land; Snowmobile Operator Responsibilities.  Amend RSA 215-C:34, I(a)(1) to read as follows:

(1)  To the owner of any lands where trees, shrubs, roads, or other property have been damaged as a result of travel over [his or her] the owner's premises by such vehicles.

278:6  New Subparagraph; Damage to Property; Snowmobile Operator Responsibilities.  Amend RSA 215-C:34, V by inserting after subparagraph (e) the following new subparagraph:

(f)  The use of the snowmobile has resulted in damage to public or private property.

278:7  New Paragraph; Damage to Property; Snowmobile Operator Responsibilities.  Amend RSA 215-C:34 by inserting after paragraph VIII the following new paragraph:

IX.  In addition to any other penalty or obligation imposed, the owner of any lands which have been damaged in violation of this chapter may bring an action to recover such damages, in the superior court for the county in which the lands are located, against any person who is responsible and accountable under subparagraph I(a).  In bringing such action, the owner shall be entitled to:

(a)  The cost of clean-up and restoration to the prior condition of the lands;

(b)  Multiple damages of up to 3 times actual damages, based upon the level of culpability of the conduct, as determined by the trier of fact; and

(c)  Reasonable attorney’s fees.

278:8  Police Standards and Training Council; Power to Certify Border Patrol Agents.  Amend RSA 188-F:26, IV to read as follows:

IV.  Certify persons as being qualified under the provisions of this subdivision to be police officers, state corrections officers, [or] state probation-parole officers, or certified border patrol agents for the purposes of RSA 594:26, and establish rules under RSA 541-A for the suspension or revocation of the certification of such persons in the case of egregious misconduct or failure to comply with council standards.

278:9   Arrests in Criminal Cases; Definition of Officer.   Amend RSA 594:1, III to read as follows:

III.  "Officer'' or "peace officer'' is any sheriff or deputy sheriff, mayor or city marshal, constable, police officer or watchman, member of the national guard acting under orders while in active state service ordered by the governor under RSA 110-B:6, certified border patrol agent as defined in RSA 594:26, I, or other person authorized to make arrests in a criminal case.

278:10   New Subdivision; Certified Border Patrol Agents.   Amend RSA 594 by inserting after section 25 the following new subdivision:

Certified Border Patrol Agents

594:26   Power of Arrest for New Hampshire Crimes.

I.   In this section, “a certified border patrol agent” means a person who:

(a)   Is employed as a border patrol agent by the United States Department of Homeland Security, Customs and Border Protection;

(b)   Has satisfactorily completed a course of study in New Hampshire laws and criminal procedures approved by the police standards and training council, at the expense of the agent’s agency;

(c)   Has been certified by the director of police standards and training pursuant to paragraph II and whose certification has not expired or been suspended or revoked; and

(d)   Has taken an oath administered by the commissioner of safety or by the commissioner’s designee to uphold the constitution of the state of New Hampshire.

II.   The director of police standards and training may certify a border patrol agent who applies for certification if the agent satisfies the employment and study requirements listed in paragraph I.   Border patrol agents certified under this section shall be exempt from regular physical fitness examinations required of state or municipal law enforcement officers.   A certification under this paragraph shall automatically terminate immediately upon the agent's suspension or termination of employment from the federal agency in which he or she was employed at the time the certification occurred.

III.   A certified border patrol agent may make an arrest pursuant to New Hampshire law for violation of New Hampshire laws in Coos county if the agent determines that it is necessary to do any of the following:

(a)   Protect an individual in the presence of the agent from the imminent infliction of serious bodily injury, as defined in RSA 625:11, VI; or

(b)   Provide immediate assistance to an individual who has suffered or is threatened with serious bodily injury, as defined in RSA 625:11, VI; or

(c)   Prevent the escape of any individual whom the agent has probable cause to believe has committed a crime in the presence of the agent; or

(d)   Prevent the escape of any individual whom the agent has probable cause to believe has committed a felony under New Hampshire law.

IV.   A certified border patrol agent who makes an arrest under this section shall report the arrest, without delay, to the division of state police.

V.   A certified border patrol agent who makes an arrest under the authority of this section shall have the same immunity from liability that a state or municipal law enforcement officer has under the laws of this state.

VI.  The state of New Hampshire shall not be responsible for employment benefits, supervision, and defense of the certified border patrol agent, including when exercising authority under this section.  This section is not intended to limit existing authority of federal officers under federal law or to interfere with the performance of federal duties by federal officers.

278:11  Effective Date.  This act shall take effect January 1, 2017.

Approved: June 20, 2016

Effective Date: January 1, 2017

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