Representative Ken Ivory proposes the following substitute bill:


1     
CATASTROPHIC WILDFIRE AND OTHER PUBLIC

2     
NUISANCE REVISIONS

3     
2019 GENERAL SESSION

4     
STATE OF UTAH

5     
Chief Sponsor: Ken Ivory

6     
Senate Sponsor: Ronald Winterton

7     

8     LONG TITLE
9     General Description:
10          This bill modifies the Catastrophic Public Nuisance Act.
11     Highlighted Provisions:
12          This bill:
13          ▸     expands notification requirements; and
14          ▸     provides that, under certain circumstances, the state shall indemnify, defend, and
15     hold a chief executive officer or county sheriff harmless from any claims or
16     damages, including court costs and attorney fees that are assessed as a result of the
17     chief executive officer's or county sheriff's action in abating a catastrophic public
18     nuisance subject to a cap.
19     Money Appropriated in this Bill:
20          None
21     Other Special Clauses:
22          None
23     Utah Code Sections Affected:
24     AMENDS:
25          11-51a-103, as enacted by Laws of Utah 2015, Chapter 419

26          11-51a-104, as enacted by Laws of Utah 2015, Chapter 419
27     

28     Be it enacted by the Legislature of the state of Utah:
29          Section 1. Section 11-51a-103 is amended to read:
30          11-51a-103. Declaration of catastrophic public nuisance -- Authority to declare
31     and demand abatement.
32          (1) The chief executive officer of a political subdivision or a county sheriff may
33     determine that a catastrophic public nuisance exists on land within the borders of the political
34     subdivision.
35          (2) In evaluating whether a catastrophic public nuisance exists, the chief executive
36     officer of a political subdivision or a county sheriff may consider:
37          (a) tree density and overall health of a forested area, including the fire regime condition
38     class;
39          (b) insect and disease infestation, including insect and disease hazard ratings;
40          (c) fuel loads;
41          (d) forest or range type;
42          (e) slope and other natural characteristics of an area;
43          (f) watershed protection criteria;
44          (g) weather and climate; and
45          (h) any other factor that the chief executive officer of a political subdivision or a
46     county sheriff reasonably considers to be relevant, under the circumstances.
47          (3) Except as provided in Section 11-51a-104, upon making the determination
48     described in Subsection (1), the chief executive officer of a political subdivision or a county
49     sheriff shall after consultation with the attorney general:
50          (a) serve notice of the determination described in Subsection (1), by hand or certified
51     mail, on the federal or state agency that manages the land upon which the catastrophic nuisance
52     exists; and
53          (b) provide a copy of the determination that is served under Subsection (3)(a) to,
54     together with a proposed detailed abatement plan:
55          (i) the governor[,];
56          (ii) the attorney general[, and];

57          (iii) if the catastrophic public nuisance exists on federally managed land, the state's
58     congressional delegation[.];
59          (iv) the chairs of the Executive Appropriations Committee of the Legislature; and
60          (v) the Office of the Legislative Fiscal Analyst.
61          (4) The notice described in Subsection (3)(a) shall include:
62          (a) a detailed explanation of the basis for determination that a catastrophic public
63     nuisance exists on the land in question;
64          (b) a demand that the federal or state agency formulate a plan to abate the catastrophic
65     nuisance; and
66          (c) a specific date, no less than 30 days after the day on which the notice is received, by
67     which time the federal or state agency that manages the land shall:
68          (i) abate the catastrophic public nuisance; or
69          (ii) produce a plan for mitigating the catastrophic public nuisance that is reasonably
70     acceptable to the county or subdivision.
71          (5) The chief executive officer of a political subdivision or a county sheriff may enter
72     into a plan with the relevant federal or state agency, or both, to abate the catastrophic public
73     nuisance.
74          (6) If, after receiving the notice described in Subsections (3)(a) and (4), the federal or
75     state agency does not respond by the date requested in the notice or otherwise indicates that the
76     federal or state agency is unwilling to take action to abate the catastrophic public nuisance, the
77     chief executive officer of a political subdivision or a county sheriff shall consult with the
78     county attorney and attorney general.
79          Section 2. Section 11-51a-104 is amended to read:
80          11-51a-104. Emergency abatement of a catastrophic public nuisance.
81          (1) If a chief executive officer of a political subdivision or a county sheriff determines
82     that a public nuisance exists on federally managed land, pursuant to Subsection 11-51a-103(1),
83     and the chief executive officer of a political subdivision or the county sheriff also finds that the
84     catastrophic public nuisance in question adversely affects, or constitutes a threat to, the public
85     health, safety, and welfare of the people of the political subdivision, the chief executive officer
86     of the political subdivision or the county sheriff may, after consulting with the attorney general,
87     pursue all remedies allowed by law.

88          (2) In seeking an emergency abatement of a catastrophic public nuisance, a chief
89     executive officer of a political subdivision or a county sheriff shall attempt, as much as
90     possible, to:
91          (a) coordinate with state and federal agencies; and
92          (b) seek the advice of professionals, including private sector professionals, with
93     expertise in abating a catastrophic public nuisance.
94          (3) (a) Subject to Subsection (3)(b), the state shall indemnify, defend, and hold a chief
95     executive officer or county sheriff harmless from any claims or damages, including court costs
96     and attorney fees, that are assessed as a result of the chief executive officer's or county sheriff's
97     action, if:
98          (i) the chief executive officer or county sheriff has complied with this chapter;
99          (ii) the court challenge against the chief executive officer or county sheriff addresses
100     the chief executive officer's or county sheriff's action in abating a catastrophic public nuisance;
101     and
102          (iii) the chief executive officer's or county sheriff's action abating the catastrophic
103     public nuisance were in reasonable furtherance of the detailed proposed abatement plan
104     described in Subsection 11-51a-103(3)(b).
105          (b) The state shall indemnify or hold harmless a chief executive officer or county
106     sheriff under this Subsection (3) up to 90% of the claims or damages assessed against the chief
107     executive officer or county sheriff under Subsection (3)(a).