MISSISSIPPI LEGISLATURE
2025 Regular Session
To: Ports and Marine Resources
By: Senator(s) Thompson
AN ACT TO CREATE AN ADMINISTRATIVE HEARING PROCEDURE FOR THE MISSISSIPPI DEPARTMENT OF MARINE RESOURCES; TO AMEND SECTION 49-15-67, MISSISSIPPI CODE OF 1972, TO CHANGE COMMISSION TO DEPARTMENT; TO AMEND SECTION 49-15-401, MISSISSIPPI CODE OF 1972, TO CREATE A DESIGNATED INTAKE EMPLOYEE WITHIN THE DEPARTMENT OF MARINE RESOURCES; TO AMEND SECTION 49-15-403, MISSISSIPPI CODE OF 1972, TO DEFINE THE POWERS AND DUTIES OF THE DESIGNATED INTAKE EMPLOYEE; TO AMEND SECTION 49-15-411, MISSISSIPPI CODE OF 1972, TO CLARIFY HARMLESS ERROR IN COMPLYING WITH PROCEDURAL REQUIREMENTS; TO AMEND SECTION 49-15-417, MISSISSIPPI CODE OF 1972, TO CHANGE COMMISSION TO DEPARTMENT; TO AMEND SECTIONS 49-27-33 AND 49-27-35, MISSISSIPPI CODE OF 1972, TO CLARIFY RECOMMENDING AUTHORITY OF THE COMMISSION; TO AMEND SECTION 49-27-37, MISSISSIPPI CODE OF 1972, TO REQUIRE WRITTEN RECOMMENDATIONS OF THE COMMISSION INCORPORATING ITS FINDINGS AND REASONS AND TO CLARIFY THE EXECUTIVE DIRECTOR'S FINAL DECISION-MAKING AUTHORITY; TO AMEND SECTION 49-27-51, MISSISSIPPI CODE OF 1972, TO FURTHER CLARIFY THE COMMISSION'S RECOMMENDING AUTHORITY AND THE EXECUTIVE DIRECTOR'S FINAL DECISION-MAKING AUTHORITY; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 49-15-67, Mississippi Code of 1972, is amended as follows:
49-15-67. (1) (a) Any
party may file an appeal from the decision of the * * * department with the Chancery
Court of Harrison County, Second Judicial District. The appeal shall be filed
within thirty (30) days of the decision of the * * * department. An appeal to
the chancery court shall not stay the execution of an order of the * * * department. Any party
aggrieved by an order of the * * * department may petition the
chancery court for an appeal with supersedeas and the court shall grant a
hearing on the petition, and upon good cause shown may grant the appeal with
supersedeas. If granted, the appellant shall be required to post a bond with sufficient
sureties according to law in an amount to be determined by the court.
(b) If the court finds
that the order appealed from is supported by substantial evidence, is not
arbitrary and capricious and does not violate constitutional rights, the court
shall affirm the order of the * * * department.
(2) Upon the filing of an
appeal, the clerk of the chancery court shall serve notice upon the * * * department. The * * * department shall within
sixty (60) days from the service of the notice, or within such additional time
as the court may for cause allow, certify to the court the record in the case.
The record shall include transcript of all testimony, objections, exhibits or
copies thereof, pleadings, proceedings, orders, findings and opinions entered
in the case. However, the parties and * * * department may stipulate
that only a specified portion of the record shall be certified to the court as
the record on appeal.
(3) If, upon hearing the
appeal, it appears to the court that any testimony has been improperly excluded
by the * * *
department or that the facts disclosed by the record are insufficient
for the equitable disposition of the appeal, the court shall refer the case
back to the * * * department to take such evidence as the court may
direct and report the evidence to the court with the * * * department's findings of
fact and conclusions of law.
SECTION 2. Section 49-15-401, Mississippi Code of 1972, is amended as follows:
49-15-401. (1) It
is the purpose of this article to establish an administrative hearing procedure
for the Mississippi Department of Marine Resources to enforce the rules and
regulations set forth in Title 22 of the Administrative Code and Sections 49-15-1
through 49-15-321, * * * 59-21-111, and such other statutes
within the jurisdiction of the Department of Marine Resources. Sections 49-27-1
through 49-27-71 shall control administrative hearing procedure for The Coastal
Wetlands Protection Act. Unless specifically authorized, the department
shall not seek both administrative and criminal penalties against violators of
the statutes referred to herein for the same offense, except as provided in
Section 49-15-63.
(2) For the purpose of administering this article there is hereby establish a designated intake employee within the Mississippi Department of Marine Resources. The powers and duties of the designated intake employee shall be as established in Section 49-15-403.
SECTION 3. Section 49-15-403, Mississippi Code of 1972, is amended as follows:
49-15-403. (1) When any allegation or charge in the form of a complaint has been made against a person for violations pursuant to the authorities outlined in Section 49-15-401 and such matter has been brought before the department for administrative penalty processing, the department shall:
(a) Cause the complaint to be in writing, signed by the person and/or office making the charge and include the recommended fine;
(b) Ensure that the
complaint is filed with the * * * designated intake
employee;
(c) Cause the * * *
designated intake employee to review the complaint; and
(d) Send or deliver a copy of the complaint and any supporting documents to the alleged violator along with a request for the alleged violator to respond to the allegations within thirty (30) days. The notification shall be accomplished by any of the methods provided for by the Mississippi Rules of Civil Procedure. Citations issued at the time of the alleged violation by marine enforcement officers shall constitute sufficient notice.
(2) Upon receipt of the
response and any supporting documents from the alleged violator, the * * * designated
intake employee shall review all information on file to determine a
recommendation on the merit of the complaint.
(3) If the * * * designated
intake employee's review determines that the complaint lacks merit, the * * * designated intake
employee may * * * recommend dismissal of the complaint. * * * If the * * * designated
intake employee determines that there are reasonable grounds to indicate
that a violation has occurred or if the alleged violator admits to the truth of
the allegations upon which the complaint is based, the * * * designated intake
employee may * * * recommend imposing a fine not to exceed Ten Thousand
Dollars ($10,000.00) for each violation. The * * * designated intake
employee shall send a copy of * * * his
or her written recommendation to the commission for review and recommendation
to the executive director who will make the final decision regarding the
complaint.
(4) The alleged violator shall have fifteen (15) days from receipt of the finding and imposed fine of the executive director within which to file a written request for an informal settlement conference with the executive director, or his designee. If the alleged violator requests a conference, the executive director, or his designee, shall meet with the alleged violator to discuss the proposed penalty and the possibility of an agreed settlement. The alleged violator may present evidence and written or oral comments at the executive director's conference. The alleged violator may be represented by legal counsel, at his or her own expense. If, in the judgment of the executive director, or his designee, a reasonable settlement is reached, the recommended penalty shall be revised accordingly. The executive director shall make the final decision regarding the penalty to be issued, which may include dismissal of the complaint, issuance of a warning in lieu of a penalty or a monetary penalty not to exceed Ten Thousand Dollars ($10,000.00) for each violation. If a request for information settlement is not received within the timeframe provided, the executive director's recommended fine will be the final decision.
SECTION 4. Section 49-15-411, Mississippi Code of 1972, is amended as follows:
49-15-411. (1) Any individual aggrieved by a final decision of the executive director shall be entitled to judicial review.
(2) Any appeal from the executive director's decision shall be filed in the Chancery Court of the Second Judicial District of Harrison County, Mississippi, on the record made, including a verbatim transcript of the testimony at the hearing held before the hearing officer. The appeal shall be filed within thirty (30) days after notification of the final decision of the executive director is mailed or served, and the proceedings in chancery court shall be conducted as other matters coming before the court on appeal. The appeal shall be perfected upon filing notice of the appeal and by the prepayment of all estimated costs, including the cost of preparation of the record of the proceedings before the executive director, and the filing of a bond in the sum of Five Hundred Dollars ($500.00) conditioned that if the executive director's final decision be affirmed by the chancery court, the aggrieved party shall pay the costs of the appeal to the chancery court.
(3) The scope of review of the chancery court in such cases shall be limited to a review of the record made before the executive director's final decision to determine if the decision is unlawful for the reason that it was:
(a) Not supported by any substantial evidence;
(b) Arbitrary or capricious; or
(c) In violation of some statutory or constitutional right of the individual.
(4) No relief shall be
granted based upon the court's finding of harmless error by the * * * department in
complying with the procedural requirements of this article. If there is a
finding of prejudicial error in the proceedings, the cause may be remanded for
a rehearing consistent with the findings of the court.
(5) Any party aggrieved by action of the chancery court may appeal to the State Supreme Court in the manner provided by law.
SECTION 5. Section 49-15-417, Mississippi Code of 1972, is amended as follows:
49-15-417. No person shall
be subject to criminal prosecution or to any penalty or forfeiture in a
separate proceeding for or on account of any transaction, matter or issue
concerning which he may be required to testify to or produce evidence, or
provide documentation, before the * * * department or at any of its
hearings or conferences, or in compliance with any subpoena; however, no person
testifying shall be exempt from prosecution and punishment for perjury
committed in so testifying.
SECTION 6. Section 49-27-33, Mississippi Code of 1972, is amended as follows:
49-27-33. The commission, after reasonable notice in writing to the holder of a permit and after a hearing in the manner as provided in Sections 49-27-15 through 49-27-21 of this chapter, shall recommend to suspend or revoke a permit if it finds that the applicant has not substantially complied with one or more of the conditions or limitations set forth in the permit or has exceeded the scope of the activities as set forth in the application.
SECTION 7. Section 49-27-35, Mississippi Code of 1972, is amended as follows:
49-27-35. The commission
shall state, upon its record, its findings and reasons for all * * * recommendations taken pursuant
to Sections 49-27-23 through 49-27-37. When a permit is granted or modified,
the commission shall describe the public interest to be served by granting or
modifying the permit. When a permit or modification is denied, the commission
shall describe the public interest which would be adversely affected by
granting or modifying the permit.
SECTION 8. Section 49-27-37, Mississippi Code of 1972, is amended as follows:
49-27-37. (1) The commission shall issue a written recommendation incorporating its findings and reasons for all actions recommended pursuant to Sections 49-27-23 through 49-27-37.
(2) The commission's recommendation shall then be forwarded to the executive director who will make the final decision regarding any order in issuance, denial, revocation or suspension of a permit or the issuance of a permit or modified or conditional permit.
( * * *3) The * * * department shall send a copy
of any order in issuance, denial, revocation or suspension of a permit to the
parties stated in Section 49-27-17, and such orders must be sent within ninety
(90) days from the receipt of a complete application, or within ninety (90)
days from an amendment to the application as provided by Section 49-27-11(2),
in the case of granting or denying or thirty (30) days from the date of the
hearing in the case of suspension or revocation, unless an extension is
requested as provided in subsection ( * * *4) and approved by the * * * department.
( * * *4) An applicant may request, in
writing, additional extensions up to ninety (90) days for the processing
of an application.
SECTION 9. Section 49-27-51, Mississippi Code of 1972, is amended as follows:
49-27-51. (1) (a) If a
person in violation of this chapter submits a proper application for any
unauthorized work and the commission determines that the work has been
conducted in accordance with the public policy as set forth in Section 49-27-3,
the commission * * * may recommend issuing after-the-fact authorization for
the work.
(b) For conducting the
work without first obtaining a current and valid permit and other violations of
this chapter, the commission may * * * recommend ordering and
levying a penalty of not less than Fifty Dollars ($50.00) nor more than
Five Hundred Dollars ($500.00) per day for each day the violation has existed
for residential type regulated activity and a penalty of not less than One
Thousand Dollars ($1,000.00) nor more than Ten Thousand Dollars ($10,000.00)
per day for each day the violation has existed for commercial and industrial
type regulated activity.
(c) The commission shall issue a written recommendation incorporating its findings and reasons for all actions and recommendations pursuant to this section.
(d) The commission's recommendation shall then be forwarded to the executive director who will make the final decision regarding any after-the-fact authorization, order or levy of a penalty.
(2) If the person continues
the violation, the Attorney General of the State of Mississippi at the request
of the * * *
department, a district attorney having jurisdiction, or a county attorney
having jurisdiction may initiate the civil or criminal actions, or both civil
and criminal actions, as described in this chapter against the person.
(3) The Attorney General, * * * department, district
attorney or county attorney may initiate action to enjoin any person in
violation of this chapter.
SECTION 10. This act shall take effect and be in force from and after July 1, 2025.