Effective 4/1/2024
| (1) |
As used in this section:
Terms Used In Utah Code 56-1-12 v2- Appeal: A request made after a trial, asking another court (usually the court of appeals) to decide whether the trial was conducted properly. To make such a request is "to appeal" or "to take an appeal." One who appeals is called the appellant.
- Contract: A legal written agreement that becomes binding when signed.
- Damages: Money paid by defendants to successful plaintiffs in civil cases to compensate the plaintiffs for their injuries.
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Fair market value: The price at which an asset would change hands in a transaction between a willing, informed buyer and a willing, informed seller.
- Indemnification: In general, a collateral contract or assurance under which one person agrees to secure another person against either anticipated financial losses or potential adverse legal consequences. Source: FDIC
- Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- Property: includes both real and personal property. See Utah Code 68-3-12.5
- State: when applied to the different parts of the United States, includes a state, district, or territory of the United States. See Utah Code 68-3-12.5
| (a) |
“Actual fair market value” means the actual value of damages to livestock as determined by the Livestock Damages Board. |
| (b) |
“Damage” means injury or loss to livestock resulting from a strike by a railroad operation. |
| (c) |
“Department” means the Department of Agriculture and Food created in Section 4-2-102. |
| (d) |
“Estimated market value” means the market value of livestock as determined in rules made in accordance with Subsection (8). |
| (e) |
“Indemnification provision” means a covenant, promise, agreement or understanding in, in connection with, or collateral to a railroad contract requiring the other entity to insure, hold harmless, indemnify, or defend a railroad against liability if:
| (i) |
the damages arise out of:
| (A) |
damage to property, including livestock; or |
| (B) |
other related economic loss; and |
|
| (ii) |
the damages are caused by or resulting from the fault, in whole or in part, of the railroad or the railroad’s agents or employees. |
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| (f) |
“Law enforcement agency” means the same as that term is defined in Section 53-1-102. |
| (g) |
“Livestock” means the same as that term is defined in Section 4-1-109. |
| (h) |
“Livestock Damages Board” means the Livestock Damages Board created in Subsection (9). |
| (j) |
“Railroad Livestock Damage Fund” or “fund” means the Railroad Livestock Damage Fund created in Subsection (7). |
| (k) |
“Statewide railroad engineer” means the statewide railroad engineer within the Department of Transportation. |
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| (2) |
Each railroad that operates in this state shall provide to the department current contact information suitable for communication between the department and the railroad regarding injury to livestock caused by a railroad. |
| (3) |
| (a) |
A railroad operator that strikes, injures, or kills livestock during the operation of an engine or car shall:
| (i) |
immediately record the location of the strike; and |
| (ii) |
within 24 hours of the strike, notify and provide pertinent information to the department and the statewide railroad engineer. |
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| (b) |
| (i) |
If a railroad fails to report a strike as required in Subsection (3)(a), the railroad is liable for a civil penalty of at least $5,000 per incident. |
| (ii) |
It is prima facie evidence that a railroad has failed to report if:
| (A) |
an investigation described in Subsection (3)(c) determines that livestock was struck by railroad; |
| (B) |
the investigation under Subsection (3)(c) resulted from a notification from a livestock owner of a potential strike as described in Subsection (4)(c); and |
| (C) |
the railroad has not reported a corresponding strike under Subsection (3)(a). |
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| (iii) |
If the department determines that a railroad has failed to report as described in Subsection (3)(b)(ii):
| (A) |
the department shall notify the railroad and assess a civil penalty; and |
| (B) |
the railroad shall pay the civil penalty assessed by the department. |
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| (iv) |
The department shall deposit into the Railroad Livestock Damage Fund any money received for a civil penalty under this Subsection (3)(b). |
| (v) |
Payment of a civil penalty described in this Subsection (3)(b) does not release a railroad from liability for damage to livestock. |
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| (c) |
After receiving the notification described in Subsection (3)(a), the department shall:
| (i) |
notify the relevant law enforcement agency with jurisdiction over the location of the livestock strike; and |
| (ii) |
in consultation with the relevant law enforcement agency and the statewide railroad engineer, make reasonable efforts to:
| (A) |
investigate the scene of the strike; |
| (B) |
identify the livestock that was struck; |
| (C) |
determine ownership of the livestock that was struck; |
| (D) |
assess the state of repair of the fences along the railroad right-of-way; and |
| (E) |
document and preserve relevant evidence of the scene of the strike. |
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| (d) |
| (i) |
After the investigation described in Subsection (3)(b), if possible, the department and relevant law enforcement agency shall notify the owner of the livestock that was struck. |
| (ii) |
The department shall create and maintain a website to document and provide notice and information to the public regarding livestock strikes within this state. |
| (iii) |
If the relevant law enforcement agency and department are unable to identify the owner of the injured livestock as described in Subsection (3)(b), the department shall post and maintain relevant information regarding the strike on a website to provide notice to the public regarding each livestock strike. |
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| (4) |
| (a) |
If livestock is struck by an implement of railroad operations, the owner of the livestock may receive compensation for the estimated market value or the actual fair market value of the damage. |
| (b) |
To obtain compensation, the owner of the damaged livestock shall notify the department as soon as possible after discovering the damage. |
| (c) |
A livestock owner shall notify the department each time the owner believes livestock has been damaged by railroad operations. |
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| (5) |
A livestock owner shall file a proof of loss form, provided by the department, no later than 30 days after the date of the original notification livestock damage:
| (a) |
has been received by the livestock owner pursuant to Subsection (3)(c); or |
| (b) |
has been received by the department pursuant to Subsection (4)(c). |
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| (6) |
The department shall:
| (a) |
within 30 days after the day the department receives a proof of loss form from a livestock owner, either accept or deny the claim for damages to livestock; and |
| (b) |
to the extent money is available in the Railroad Livestock Damage Fund created in Subsection (7), pay all accepted claims in accordance with the livestock estimated market value established pursuant to Subsection (8). |
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| (7) |
| (a) |
There is created an expendable special revenue fund called the Railroad Livestock Damage Fund. |
| (b) |
The fund shall consist of:
| (i) |
deposits by the Legislature; |
| (ii) |
an initial deposit by each railroad as described in Subsection (7)(c); |
| (iii) |
periodic payments by each railroad as required in Subsection (7)(d); |
| (iv) |
annual deposits by each railroad for administrative costs as provided under Subsection (7)(e); |
| (v) |
money deposited by the department from a civil penalty described in Subsection (3); |
| (vi) |
other donations or deposits into the fund; and |
| (vii) |
interest earned on the balance of the fund. |
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| (c) |
Before December 31, 2023, each railroad shall pay into the Railroad Livestock Damage Fund:
| (i) |
an initial, one-time fee of $150 per mile of railroad track owned by the railroad in this state, in accordance with rules made under Subsection (8)(b), to capitalize the fund for payment of claims as provided in this section; and |
| (ii) |
an initial, one-time fee of $75 per mile of railroad track owned by the railroad in this state, in accordance with rules made under Subsection (8)(b), to pay for staff salaries and other costs to administer the fund and the department responsibilities under this section. |
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| (d) |
| (i) |
If the department issues payment from the fund in accordance with Subsection (6), the department shall notify the relevant railroad that is liable for the damage. |
| (ii) |
The department shall include in the notice to the railroad described in Subsection (7)(d)(i) relevant information, including:
| (A) |
the date or approximate date that the damage occurred; |
| (B) |
the location where the damage occurred; |
| (C) |
the type of livestock that was damaged; |
| (D) |
the name of the owner of the livestock that was damaged; and |
| (E) |
the estimated market value of the damage for which the railroad is responsible. |
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| (iii) |
Within 30 days of the date the railroad receives the notice described in Subsection (7)(d)(iii), the railroad shall remit to the department the value of the damage. |
| (iv) |
If a railroad fails to remit to the department the value of the damage as required in Subsection (7)(d)(i), the department may impose a civil penalty up to $10,000:
| (A) |
for the failure to pay within 30 days as described in Subsection (7)(d)(iii); and |
| (B) |
for every additional 30-day period of delinquency. |
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| (v) |
Payment of a civil penalty described in Subsection (7)(d)(iv) does not release a railroad from liability for damage to livestock. |
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| (e) |
| (i) |
Between July 1, 2023, and December 31, 2023, the department shall gather data from livestock strikes reported as required in this section to determine how many livestock strikes occurred during that six months. |
| (ii) |
Based on the information gathered under Subsection (7)(e)(i) and extrapolated and adjusted to estimate annual strike rates, beginning on July 1, 2024, the department shall establish and charge an administrative fee for each claim the department processes under this section sufficient to cover the staff salary and other administrative costs directly related to the administration of this section. |
| (iii) |
The department shall establish and publish the fee amount in rules made pursuant to Subsection (8). |
| (iv) |
The department may not charge more than necessary to cover the costs of salary and administration directly related to the duties under this chapter. |
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| (f) |
In addition to payment of claims for damage to livestock as described in this section, the department may use money in the Railroad Livestock Damage Fund to pay for the costs of administration, staff salary, and other support related to the Railroad Livestock Damage Fund and administration of this section. |
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| (8) |
In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the department shall make rules necessary to implement and enforce this section, including rules to establish the:
| (a) |
estimated market value of each type of livestock; |
| (b) |
official mileage calculation for each railroad for the fee established in Subsection (7)(c); and |
| (c) |
administrative fee per claim as described in Subsection (7)(e). |
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| (9) |
| (a) |
A livestock owner may appeal the estimated market value granted by the department for damage to livestock by appealing to the Livestock Damages Board. |
| (b) |
There is created the Livestock Damages Board, which shall consist of three members appointed as described in Subsection (9)(c). |
| (c) |
The commissioner of the department shall appoint three members to the Livestock Damages Board as follows:
| (i) |
one member who owns or administers a livestock auction; |
| (ii) |
one member who owns livestock and is engaged in a livestock business; and |
| (iii) |
one member who works for the department. |
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| (d) |
Except as described in Subsection (9)(e)(ii), a member of the Livestock Damages Board may serve for up to two terms of four years. |
| (e) |
| (i) |
The commissioner shall appoint the first members to the Livestock Damages Board on or before January 1, 2024. |
| (ii) |
The commissioner shall stagger the initial terms of the members of the Livestock Damages Board appointed on or before January 1, 2024, by:
| (A) |
designating one appointee to serve an initial term of five years; and |
| (B) |
designating one appointee to serve an initial term of three years. |
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| (f) |
| (i) |
The Livestock Damages Board may convene twice each year to hear appeals regarding the value of livestock damaged by a railroad operation. |
| (ii) |
If a livestock owner provides clear and convincing evidence that the value of the damage to livestock caused by a railroad operation exceeds the estimated market value established pursuant to Subsection (8), the Livestock Damages Board may issue payment from the fund at the actual fair market value amount established in the hearing. |
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| (10) |
An indemnification provision in a contract between a railroad and another entity that operates on a railroad facility is against public policy and is void and unenforceable to the extent the indemnification provision is related to damages to livestock or another provision in this section. |
Repealed and Re-enacted by Chapter 232, 2023 General Session
