House Bill 764

AN ACT TO AMEND SECTION 51-1-4, MISSISSIPPI CODE OF 1972, TO CLASSIFY A THIRD OR SUBSEQUENT VIOLATION OF THE LAW PROHIBITING THE OPERATION OF CERTAIN MOTOR VEHICLES IN THE BED OF PUBLIC WATERWAYS AS A CLASS I VIOLATION; TO AMEND SECTIONS 49-7-141, 49-7-251, 49-7-253 AND 49-7-257, WHICH RELATE TO CLASS I VIOLATIONS AND FORFEITURES, IN CONFORMITY WITH THE PROVISIONS OF THIS ACT; AND FOR RELATED PURPOSES.

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

SECTION 1. Section 51-1-4, Mississippi Code of 1972, is amended as follows:

51-1-4. (1) * * *~~Those~~ The portions of all natural flowing streams in this state having a mean annual flow of not less than one hundred (100) cubic feet per second, as determined and designated on appropriate maps by the Mississippi Department of Environmental Quality, shall be public waterways of the state on which the citizens of this state and other states shall have the right of free transport in the stream and the right to fish and engage in water sports.

Persons exercising the rights granted by this section shall do so at their own risk, and such persons, their heirs or others on their behalf shall not be entitled to recover any damages against any owner of property or an interest in property on or along such public waterways or against anyone using such property with permission of the owner for any injury to or death of persons or damage to property arising out of the exercise of rights granted by this section, other than those damages which may be recovered for intentional or malicious torts or for gross or willful negligence against the owner of property or an interest therein or against anyone using such property with permission of the owner.

(2) Nothing contained in this section shall authorize anyone utilizing public waterways, under the authority granted by this section, to trespass upon adjacent lands or to launch or land any commercial or pleasure craft along or from the shore of such waterways except at places established by public or private entities for such purposes.

(3) Nothing contained in this section shall authorize any person utilizing those public waterways, under the authority granted by this section, to disturb the banks or beds of such waterways or the discharge of any object or substance into such waters or upon or across any lands adjacent thereto or to hunt or fish or go on or across any adjacent lands under floodwaters beyond the natural banks of the bed of the public waterway. Floodwater which has overflowed the banks of a public waterway is not a part of the public waterway.

(4) The right of the public to use public waterways does not include the use of motorized vehicles in the beds of a public waterway without the written permission of the landowner. Any person who uses a motorized vehicle in the bed of a public waterway without the written permission of the landowner may be punished as provided in Section 97-17-93.

(a) It shall be unlawful for any person to operate any all-terrain vehicle, four-wheel-drive motorized vehicle, or other wheeled or tracked conveyance within the bed of a public waterway and following the meanders thereof in such a way as to cause damage to the streambed.

(b) It shall be unlawful for any person to offer a permission or a license for a fee for the operation of any of the conveyances prohibited in this subsection within the bed of a public waterway.

(c) A first or second violation of this subsection shall be a Class II violation and, upon conviction thereof, may be punished as provided in Section 49-7-143. A third or subsequent violation of paragraph (a) of this subsection (4) shall be a Class I violation, and upon conviction, may be punished as provided in Section 49-7-141(3).

(d) Nothing in this subsection shall be construed as prohibiting the normal, usual and ordinary fording of streams by persons authorized to do so for legitimate recreational, agricultural, forestry or other lawful purposes.

(5) Nothing contained in this section shall be construed to prohibit the construction of dams and reservoirs by the State of Mississippi or any of its agencies or political subdivisions, or riparian owners, in the manner now or hereafter authorized by law, or in any way to affect the rights of riparian landowners along such waterways except as specifically provided hereinabove or to amend or repeal any law relating to pollution or water conservation, or to affect in any manner the title to the banks and beds of any such stream or the title to any minerals thereunder, or to restrict the mining or extraction of such minerals or the right of ingress and egress thereto.

(6) The provisions of this section limiting the liability of owners of property along public waterways and persons using such property with permission of the owners shall not be construed to limit any rights of claimants for damages under federal statutes or acts applying to navigable streams or waterways or any other civil causes of action subject to admiralty or maritime jurisdiction, nor shall those provisions be construed to limit the rights of any parties involved in litigation founded upon the commercial or business usage of any navigable streams or waterways.

(7) This section shall apply only to natural flowing streams.

(8) Any lake hydrologically connected to a natural flowing stream and listed as a public waterway under subsection (1) on July 1, 2000, and subsequently removed from that list before July 1, 2001, by the Commission on Environmental Quality because the lake did not meet the requirements of subsection (1), shall be presumed to be a public waterway until a court of competent jurisdiction determines otherwise. Nothing in this subsection shall be construed to determine the property rights in the bed or banks of the lake, the right of ingress or egress across private property to the lake, or mineral interests.

SECTION 2. Section 49-7-141, Mississippi Code of 1972, is amended as follows:

49-7-141. (1) Any person who has been convicted of a Class I violation shall be fined not less than Two Thousand Dollars ($2,000.00) nor more than Five Thousand Dollars ($5,000.00) and shall be imprisoned in the county jail for five (5) days. The person shall also forfeit all hunting, trapping and fishing privileges for a period of not less than twelve (12) consecutive months from the date of conviction.

(2) In addition to the penalty provided in subsection (1) of this section, any person convicted of a violation of Section 49-7-51 or 49-7-53, Mississippi Code of 1972, may, in the discretion of the court, be fined One Hundred Dollars ($100.00) for each game animal, game bird or game fish, or part thereof, bought, sold, offered for sale, exchanged for merchandise or other consideration, received for shipment, shipped, transported, carried or possessed with the intent to ship, transport or carry.

(3) Any person convicted of a third or subsequent violation of Section 51-1-4(4)(a) shall be fined not less than Three Thousand Dollars ($3,000.00) nor more than Five Thousand Dollars ($5,000.00), shall be imprisoned in the county jail for six (6) months, and shall forfeit the all-terrain vehicle, four-wheel-drive motorized vehicle or other wheeled or tracked conveyance that was used at the time of the third or subsequent violation, in accordance with the provisions of Sections 49-7-251 through 49-7-257.

SECTION 3. Section 49-7-251, Mississippi Code of 1972, is amended as follows:

49-7-251. (1) Except as otherwise provided in Section 49-7-257, when any property is seized pursuant to Section 49-7-103, 49-7-141(3), 49-15-21(2) or 59-21-33, Mississippi Code of 1972, proceedings under this section shall be instituted promptly. Provided, however, that the seizing law enforcement agency may, in the sound exercise of discretion, decide not to bring a forfeiture action if the interests of bona fide lienholders or secured creditors equal or exceed the value of the seized property, or if other factors would produce a negative economic result. Provided further, that no property shall be subject to forfeiture which has been stolen from its owner if the owner can be identified and prosecution for the theft has been initiated.

(2) A petition for forfeiture shall be filed promptly in the name of the State of Mississippi, the county or the municipality and may be filed in the county in which the seizure is made, the county in which the criminal prosecution is brought or the county in which the owner of the seized property is found. Forfeiture proceedings may be brought in the circuit court or the county court if a county court exists in the county and the value of the seized property is within the jurisdictional limits of the county court as set forth in Section 9-9-21, Mississippi Code of 1972. A copy of such petition shall be served upon the following persons by service of process in the same manner as in civil cases:

(a) The owner of the property, if address is known;

(b) Any secured party who has registered his lien or filed a financing statement as provided by law, if the identity of such secured party can be ascertained by the Department of Wildlife Conservation or the local law enforcement agency by making a good faith effort to ascertain the identity of such secured party as described in subsections (3), (4), (5), (6) and (7) of this section;

(c) Any other bona fide lienholder or secured party or other person holding an interest in the property in the nature of a security interest of whom the Department of Wildlife Conservation or the local law enforcement agency has actual knowledge; and

(d) Any person in possession of property subject to forfeiture at the time that it was seized.

(3) If the property is a motor vehicle susceptible of titling under the Mississippi Motor Vehicle Title Law and if there is any reasonable cause to believe that the vehicle has been titled, the Department of Wildlife Conservation or the local law enforcement agency shall make inquiry of the State Tax Commission as to what the records of the State Tax Commission show as to who is the record owner of the vehicle and who, if anyone, holds any lien or security interest which affects the vehicle.

(4) If the property is a motor vehicle and is not titled in the State of Mississippi, then the Department of Wildlife Conservation or the local law enforcement agency shall attempt to ascertain the name and address of the person in whose name the vehicle is licensed, and if the vehicle is licensed in a state which has in effect a certificate of title law, the Department of Wildlife Conservation or the local law enforcement agency shall make inquiry of the appropriate agency of that state as to what the records of the agency show as to who is the record owner of the vehicle and who, if anyone, holds any lien, security interest or other instrument in the nature of a security device which affects the vehicle.

(5) If the property is of a nature that a financing statement is required by the laws of this state to be filed to perfect a security interest affecting the property and if there is any reasonable cause to believe that a financing statement covering the security interest has been filed under the laws of this state, the Department of Wildlife Conservation or the local law enforcement agency shall make inquiry of the appropriate office designated in Section 75-9-501, Mississippi Code of 1972, as to what the records show as to who is the record owner of the property and who, if anyone, has filed a financing statement affecting the property.

(6) If the property is an aircraft or part thereof and if there is any reasonable cause to believe that an instrument in the nature of a security device affects the property, then the Department of Wildlife Conservation or the local law enforcement agency shall make inquiry of the Administrator of the Mississippi Aeronautics Commission as to what the records of the Federal Aviation Administration show as to who is the record owner of the property and who, if anyone, holds an instrument in the nature of a security device which affects the property.

(7) In the case of all other personal property subject to forfeiture, if there is any reasonable cause to believe that an instrument in the nature of a security device affects the property, then the Department of Wildlife Conservation or the local law enforcement agency shall make a good faith inquiry to identify the holder of any such instrument.

(8) In the event the answer to an inquiry states that the record owner of the property is any person other than the person who was in possession of it when it was seized, or states that any person holds any lien, encumbrance, security interest, other interest in the nature of a security interest, mortgage or deed of trust which affects the property, the Department of Wildlife Conservation or the local law enforcement agency shall cause any record owner and also any lienholder, secured party, other person who holds an interest in the property in the nature of a security interest which affects the property to be named in the petition of forfeiture and to be served with process in the same manner as in civil cases.

(9) If the owner of the property cannot be found and served with a copy of the petition of forfeiture, or if no person was in possession of the property subject to forfeiture at the time that it was seized and the owner of the property is unknown, the Department of Wildlife Conservation or the local law enforcement agency shall file with the clerk of the court in which the proceeding is pending an affidavit to such effect, whereupon the clerk of the court shall publish notice of the hearing addressed to "the Unknown Owner of _______________," filling in the blank space with a reasonably detailed description of the property subject to forfeiture. Service by publication shall contain the other requisites prescribed in Section 11-33-41, Mississippi Code of 1972, and shall be served as provided in Section 11-33-37, Mississippi Code of 1972, for publication of notice for attachments at law.

(10) No proceedings instituted pursuant to the provisions of this section shall proceed to hearing unless the judge conducting the hearing is satisfied that this section has been complied with. Any answer received from an inquiry required by subsections (3) through (7) of this section shall be introduced into evidence at the hearing.

SECTION 4. Section 49-7-253, Mississippi Code of 1972, is amended as follows:

49-7-253. (1) Except as otherwise provided in Section 49-7-257, an owner of property that has been seized pursuant to Section 49-7-103, 49-7-141(3), 49-15-21(2) or 59-21-33, Mississippi Code of 1972, shall file an answer within thirty (30) days after the completion of service of process. If an answer is not filed, the court shall hear evidence that the property is subject to forfeiture and forfeit the property to the Mississippi Department of Wildlife, Fisheries and Parks or the local law enforcement agency. If an answer is filed, a time for hearing on forfeiture shall be set within thirty (30) days of filing the answer or at the succeeding term of court, if court would not be in progress within thirty (30) days after filing the answer. Provided, however, that upon request by the Mississippi Department of Wildlife, Fisheries and Parks, the local law enforcement agency or the owner of the property, the court may postpone said forfeiture hearing to a date past the time any criminal action is pending against said owner.

(2) If the owner of the property has filed an answer denying that the property is subject to forfeiture, then the burden is on the petitioner to prove that the property is subject to forfeiture. However, if an answer has not been filed by the owner of the property, the petition for forfeiture may be introduced into evidence and is prima facie evidence that the property is subject to forfeiture. The standard of proof placed upon the petitioner in regard to property forfeited under the provisions of this article shall be by a preponderance of the evidence.

(3) At the hearing any claimant of any right, title or interest in the property may prove his lien, encumbrance, security interest or other interest in the nature of a security interest to be bona fide and created without knowledge or consent that the property was to be used so as to cause the property to be subject to forfeiture.

(4) If it is found that the property is subject to forfeiture, then the judge shall forfeit the property to the Mississippi Department of Wildlife, Fisheries and Parks or the local law enforcement agency. However, if proof at the hearing discloses that the interest of any bona fide lienholder, secured party, other person holding an interest in the property in the nature of a security interest is greater than or equal to the present value of the property, the court shall order the property released to him. If such interest is less than the present value of the property and if the proof shows that the property is subject to forfeiture, the court shall order the property forfeited to the Mississippi Department of Wildlife, Fisheries and Parks or the local law enforcement agency.

SECTION 5. Section 49-7-257, Mississippi Code of 1972, is amended as follows:

49-7-257. (1) When any property the value of which does not exceed Five Thousand Dollars ($5,000.00), is seized pursuant to Section 49-7-103, 49-7-141(3), 49-15-21(2) or 59-21-33, Mississippi Code of 1972, the property may be forfeited by the administrative forfeiture procedures provided for in this section.

(2) The attorney for the seizing law enforcement agency shall provide notice of intention to forfeit the seized property administratively, by certified mail, return receipt requested, to all persons who are required to be notified pursuant to Section 49-7-251(2).

(3) In the event that notice of intention to forfeit the seized property administratively cannot be given as provided in subsection (2) of this section because of refusal, failure to claim, insufficient address or any other reason, the attorney for the seizing law enforcement agency shall provide notice by publication in a newspaper of general circulation in the county in which the seizure occurred for once a week for three (3) consecutive weeks.

(4) Notice pursuant to subsections (2) and (3) of this section shall include the following information:

(a) A description of the property;

(b) The approximate value of the property;

(d) The connection between the property and the violation of the Game and Fish Law, as set forth in Section 49-7-103, Mississippi Code of 1972;

(e) The instructions for filing a request for judicial review; and

(f) A statement that the property will be forfeited to the seizing law enforcement agency if a request for judicial review is not timely filed.

(5) Persons claiming an interest in the seized property may initiate judicial review of the seizure and proposed forfeiture by filing a request for judicial review with the attorney for the seizing law enforcement agency, within thirty (30) days after receipt of the certified letter or within thirty (30) days after the first publication of notice, whichever is applicable.

(6) If no request for judicial review is timely filed, the attorney for the seizing law enforcement agency shall prepare a written declaration of forfeiture of the subject property and the forfeited property shall be used, distributed or disposed of in accordance with the provisions of Section 49-7-255.

(7) Upon receipt of a timely request for judicial review, the attorney for the seizing law enforcement agency shall promptly file a petition for forfeiture and proceed as provided in Section 49-7-251.

SECTION 6. This act shall take effect and be in force from and after July 1, 2018.