House Bill 1263

(As Passed the House)

AN ACT TO REQUIRE THE DEPARTMENT OF TRANSPORTATION, CERTAIN LOCAL AGENCIES AND RAILROADS TO ACCOMMODATE EACH OTHER WHEN A PUBLIC IMPROVEMENT PROJECT CONFLICTS WITH RAILROAD OPERATIONS OR FACILITIES; TO REQUIRE A PUBLIC ENTITY OR RAILROAD TO ISSUE NECESSARY EASEMENTS, WORK PERMITS AND LICENSES WITHIN 60 DAYS OF ENGINEERING DATA SUBMISSION; TO REQUIRE RAILROADS AND PUBLIC ENTITIES TO COMPLY WITH THE TERMS OF A PERMIT UNLESS 30 DAYS NOTICE IS PROVIDED; TO PROVIDE PROCEDURES FOR SEEKING RELIEF DUE TO DELAY OR BREACH OF A PERMIT; TO AMEND SECTION 65-1-69, MISSISSIPPI CODE OF 1972, IN CONFORMITY TO THE PROVISIONS OF THIS ACT; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. (1) The following words and phrases shall have the meanings ascribed in this section unless the context clearly indicates otherwise:

(a) "Public entity" means the Mississippi Transportation Commission, Mississippi Department of Transportation or a local governmental entity engaged in a project that is under the oversight of the Mississippi Department of Transportation.

(b) "Public improvement project" means any construction, reconstruction, repair, renovation or any other improvement project by the Mississippi Transportation Commission or the Mississippi Department of Transportation, or any such local governmental project that is under the oversight of the Mississippi Department of Transportation.

(c) "Railroad improvement project" means any construction, reconstruction, repair, renovation or any other improvement project by a railroad authorized to operate within the State of Mississippi.

(2) Whenever any proposed public improvement project conflicts with railroad operations, facilities or property, the railroad and the public entity, including a contractor of any listed party, shall reasonably accommodate one another, by timely issuing such necessary easements, work permits and licenses as soon as practicable to prevent unnecessary delays to the schedule of the public improvement project. In no event shall the railroad delay the issuance of a necessary easement, work permit or license for more than sixty (60) days after the submission of the requisite engineering documentation and data by the Mississippi Department of Transportation. Additionally, whenever any proposed railroad improvement project conflicts with public operations, facilities or property, the public entity shall issue necessary permits and licenses to the railroad within sixty (60) days after the submission of the requisite documentation and data. Failure to respond within sixty (60) days as provided shall constitute prima facie evidence of unreasonable delay and the aggrieved party shall be permitted to pursue an action for injunctive relief for such unnecessary delay.

(3) Once a public entity or a railroad has issued a permit for work along or across its property to the other, or to a contractor for either party, both parties shall fully comply with the terms of the permit, unless the party provides a minimum of thirty (30) days advance notice to the other party or contractor of any change to the timing or duration of the permit or of its cancellation. Failure to comply with the terms of the permit, or failure to give the minimum notice required shall constitute prima facie evidence of unreasonable delay and the aggrieved party or the contractor, as may be appropriate, shall be permitted to pursue an action for injunctive relief for such unnecessary delay.

(4) The following procedures shall apply to a cause of action accruing under subsections (2) or (3) of this section:

(a) Venue shall be located in the circuit court of the county where the public or railroad improvement project in question is located, and if the project is located in more than one county, venue shall be proper in any of those applicable counties.

(b) A court of competent jurisdiction shall hold an initial hearing within five (5) days of the filing of a complaint and determine whether the delay is unreasonable, and if so, render the appropriate relief. The court shall render its decision within ten (10) days after the conclusion of any final hearing.

(c) Upon finding that either party has unnecessarily delayed the issuance of an easement, work permit or license, or has not complied with the terms of a work permit, the court may:

(i) require the timely issuance of an easement, work permit or license;

(ii) enforce the terms of the work permit;

(iii) award attorney's fees and costs, including expert witness costs and other related litigation costs; and

(iv) enter such orders as it deems appropriate under the circumstances.

SECTION 2. Section 65-1-69, Mississippi Code of 1972, is amended as follows:

65-1-69. Whenever any railroad and state highway or part thereof shall cross each other at the same level and, in the opinion of the * * *~~State Highway~~ Mississippi Transportation Commission, such crossing is dangerous to public safety or traffic is unreasonably impeded thereby and such crossing should be removed, the * * *~~State Highway~~ Mississippi Transportation Commission may order such crossing eliminated either by having the * * *~~State Highway~~ Mississippi Department of Transportation carry such state highway under or over the tracks of such railroad.

The plans covering such proposed changes may be made either by the Director of the * * *~~State Highway~~ Mississippi Department of Transportation, subject to the approval of the * * *~~highway~~ Transportation Commission or the railroad company affected, but shall in either event be approved by both the * * *~~highway~~ Transportation Commission and the railroad company before contract is awarded; but such provision shall not be used to unreasonably delay the construction of any proposed structure. When plans have been approved, such proposed work shall be advertised and contract awarded as elsewhere provided in this chapter for the advertising and awarding of contracts. Joint supervision of construction may be had by both the * * *~~State Highway~~ Mississippi Department of Transportation and the railroad company. The * * *~~state highway~~ Mississippi Transportation Commission and the railroad company shall pay equal parts of the cost of any underpass or overpass across the right-of-way of the railroad company. Such work shall be so planned and prosecuted as to allow the safe and regular operations of trains at every stage of the work. Any work undertaken in accordance with this section shall comply with the provisions set forth in Section 1 of this act, if applicable.

Appeals from decisions or determinations of the * * *~~State Highway~~ Mississippi Transportation Commission may be made by any party affected under this section, and the procedure for such appeal shall be the same as is provided by law for appeals from decisions and determinations of the boards of supervisors.

SECTION 3. This act shall take effect and be in force from and after its passage.