Revision: March 8, 2016, midnight
\t \t\tHB 1298 - AS AMENDED BY THE HOUSE
11Feb2016... 0228h
11Feb2016... 0255h
2016 SESSION
\t16-2319
\t08/09
HOUSE BILL\t1298
AN ACT\trelative to damage to private property.
SPONSORS:\tRep. Chandler, Carr. 1; Rep. Sanders, Rock. 12; Rep. Theberge, Coos 3; Sen. Forrester, Dist 2; Sen. Bradley, Dist 3
COMMITTEE:\tResources, Recreation and Development
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AMENDED ANALYSIS
\tThis bill:
\tI. Creates a cause of action for a landowner whose land is damaged by pollution.
\tII. Creates a cause of action for a landowner whose land is damaged by OHRV.
\tIII. Creates a cause of action for a landowner whose land is damaged by snowmobile use.
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Explanation:\tMatter added to current law appears in bold italics.
\t\tMatter removed from current law appears [in brackets and struckthrough.]
\t\tMatter which is either (a) all new or (b) repealed and reenacted appears in regular type.
11Feb2016... 0228h
11Feb2016... 0255h\t16-2319
\t08/09
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Sixteen
AN ACT\trelative to damage to private property.
Be it Enacted by the Senate and House of Representatives in General Court convened:
\t1 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
\t149-P:1 Landowner’s Right of Action.
\t\tI. 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.
\t\tII. 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 146-O, upon the land of another, shall be liable to the owner of the land.
\t\tIII. Upon such discharge occurring, the owner of the land may:
\t\t\t(a) Commence an action for the cost of cleanup and any such damages as may result from the discharge;
\t\t\tb) Seek injunctive relief enjoining any activity described in paragraph II, if such activity is imminent or likely;
\t\t\t(c) a court order requiring the person causing the discharge to contain, clean up, and remediate the discharge at such person's expense;
\t\t\t(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;
\t\t\t(e) Obtain reasonable attorneys' fees and professional fees associated with the containment, cleanup, and remediation, and the seeking and obtaining relief and damages;
\t\t\t(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
\t\t\t(g) Obtain an attachment, prejudgment attachment, or trustee process in accordance with RSA 511, RSA 511-A and RSA 512.
\t\tIV.(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.
\t\t\t(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.
\t\t\t(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.
\t\t\t(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.
\t\t\t(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.
\t2 Penalties; OHRV/Operator Responsibilities; Roads Included. Amend RSA 215-A:19, I(a)(1) to read as follows:
\t\t\t\t(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.
\t3 New Subparagraph; Penalties; OHRV/Operator Responsibilities; Damage to Private Property. Amend RSA 215-A:19, V by inserting after subparagraph (e) the following new subparagraph:
\t\t\t(f) The use of the OHRV has resulted in damage to public or private property.
\t4 New Paragraph; Penalties; OHRV/Operator Responsibilities. Amend RSA 215-A:19 by inserting after paragraph IX the following new paragraph:
\t\tX. 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:
\t\t\t(a) The cost of clean-up and restoration to the prior condition of the lands.
\t\t\t(b) Multiple damages of up to 3 times actual damages, based upon the recklessness or severity of the conduct, as determined by the trier of fact.
\t\t\t(c) Reasonable attorney's fees necessary to the action.
\t5 Damage to Land; Snowmobile Operator Responsibilities. Amend RSA 215-C:34, I(a)(1) to read as follows:
\t\t\t\t(1) To the owner of any lands where trees, shrubs, or other property have been damaged as a result of travel over [his or her] the owner's premises by such vehicles.
\t6 New Subparagraph; Damage to Property; Snowmobile Operator Responsibilities. Amend RSA 215-C:34, V by inserting after subparagraph (e) the following new subparagraph:
\t\t\t(f) The use of the snowmobile has resulted in damage to public or private property.
\t7 New Paragraph; Damage to Property; Snowmobile Operator Responsibilities. Amend RSA 215-C:34 by inserting after paragraph VIII the following new paragraph:
\t\tIX. 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:
\t\t\t(a) The cost of clean-up and restoration to the prior condition of the lands;
\t\t\t
\t\t\t(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
\t\t\t(c) Reasonable attorney’s fees.
\t8 Effective Date. This act shall take effect January 1, 2017.