SB439: Bill Text

Analysis by the Legislative Reference Bureau

Current law regulates snowmobile rail crossings (crossings) that are not located on highways or streets. Under that law, only a snowmobile organization may construct a crossing. Current law defines a snowmobile organization as a snowmobile club, a snowmobile alliance or a county. In order to construct a crossing, the snowmobile organization must obtain a permit from the department of natural resources (DNR). Current law also regulates established crossings which are defined as crossings that have been used by snowmobiles for at least five winters of the last ten years. This bill makes changes to certain procedures and requirements under current law that apply to snowmobile organizations and to rail authorities that construct or maintain crossings. Those changes include the following:

1. Under current law, DNR must promulgate rules to establish uniform maintenance standards and uniform design and construction standards for crossings after consulting with the snowmobile recreational council. Under this bill, DNR must instead consult with an established snowmobile association that represents snowmobile clubs and with the office of the commissioner of railroads.

2. The bill requires that each rail authority that has rail lines in this state designate an agent who is authorized on behalf of the rail authority to receive copies of crossing permit applications filed with DNR and that DNR send copies of crossing permit applications to the designated agents of the applicable rail authorities.

3. Current law requires DNR to approve or deny a crossing permit application within 60 days after receipt and provides that DNR may deny the application only if DNR determines that the proposed crossing does not comply with rules promulgated by DNR. The bill provides that DNR must approve the application within 90 days of sending a copy of the application to the rail authority's designated agent, provided certain conditions are met. The conditions require, among other things, that the permit applicant contact the rail authority to discuss the advisability and feasibility of the proposed crossing, that the application comply with certain rules promulgated by DNR and that the rail authority not object to the application. The bill establishes a hearing procedure that applies if the rail authority does object to the application. The bill requires that the office of the commissioner of railroads give testimony at such a hearing addressing certain issues including whether the proposed rail crossing could pose a substantial danger to public safety.

4. Under current law, DNR may charge an initial application fee not to exceed $150. The bill requires that in addition to this fee, an applicant who receives a permit must pay the rail authority $1,500 to compensate the rail authority for the cost of construction and to pay for the use of the crossing by snowmobile operators.

5. Under current law, a snowmobile organization must maintain liability insurance to indemnify the applicable rail authority for damages resulting from the design, construction or maintenance of a crossing for which there is a permit. Under the bill, the insurance must also indemnify the rail authority for damages resulting from the existence or use of the crossing. The bill also provides that the snowmobile organization need not maintain the insurance to indemnify the rail authority for injuries sustained by a person engaged in a recreational activity if the rail authority would be immune from liability for those injuries under current law.

6. Under current law, the initial term for a crossing permit is 11 years. The permit may be renewed for additional periods of time not to exceed 11 years per renewal. This bill eliminates the term limit for a crossing permit.

7. Under current law, only DNR is authorized to inspect an established snowmobile rail crossing to determine whether the snowmobile organization is maintaining the crossing in conformance with rules promulgated by DNR and is maintaining required liability insurance. This bill authorizes the office of the commissioner of railroads to also conduct such an inspection.

8. The bill specifies which portion of a crossing for which a permit is issued that the rail authority must construct and which portion of an established crossing that a snowmobile organization must maintain.

9. Current law provides that a rail authority may not close or remove a snowmobile crossing that is subject to permit unless the rail authority first petitions DNR for an order authorizing the rail authority to close or remove the crossing. This bill provides that a rail authority may close or remove a crossing, whether or not the crossing is subject to a permit, if it enters into an agreement with the snowmobile organization to close or remove the crossing. The bill also authorizes a rail authority to petition DNR to close or remove a crossing without first obtaining an agreement from the snowmobile organization.

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

SB439, s. 1 Section 1. 195.03 (30) (a) of the statutes is created to read:

SB439,3,4 195.03 (30) (a) The office shall give testimony at the hearing under s. 350.138 (4) (b), or shall submit a written report for introduction into the hearing record, on the factors stated in s. 350.138 (4) (d) 1., 2., 3. and 4.

SB439, s. 2 Section 2. 195.03 (30) (b) of the statutes is created to read:

SB439,3,9 195.03 (30) (b) The office shall give the department of natural resources its opinion on whether the snowmobile crossing should be closed or removed in testimony at the hearing under s. 350.1395 (2) (b) 2. or in a written report for introduction into the hearing record.

SB439, s. 3 Section 3. 195.307 of the statutes is created to read:

SB439,3,13 195.307 Snowmobile rail crossings. Sections 195.28, 195.285, 195.286 and 195.29 do not apply to snowmobile rail crossings for which a permit is issued under s. 350.138.

SB439, s. 4 Section 4. 350.137 (1) of the statutes is amended to read:

SB439,4,8 350.137 (1) The department, after having consulted with the snowmobile recreational council each rail authority, as defined in s. 350.138 (1) (b), in this state, that has furnished the department with the information required under s. 350.138 (2m), an established snowmobile association that represents snowmobile clubs, as defined in s. 350.138 (1) (e), in this state and the office of the commissioner of railroads, shall promulgate rules to establish uniform maintenance standards and uniform design and construction standards for snowmobile rail crossings under ss. 350.138 and 350.139.

SB439, s. 5 Section 5. 350.137 (2) (a) of the statutes is amended to read:

SB439,4,13 350.137 (2) (a) Preclude the use of a proposed site for a snowmobile rail crossing because the site would be unsafe due to poor visibility of the proposed snowmobile rail crossing from the cab of a railroad engine an approaching train from the position of a snowmobile operator who is stopped on the approach to the proposed crossing.

SB439, s. 6 Section 6. 350.137 (3) of the statutes is repealed.

SB439, s. 7 Section 7. 350.138 (2) of the statutes is amended to read:

SB439,4,25 350.138 (2) Permit required. No person may construct a snowmobile rail crossing that is not located on a railroad crossing of a public highway or street unless the person is a snowmobile organization and has a permit approved issued under this section. No person may maintain a snowmobile rail crossing that is not located on a railroad crossing of a public highway or street unless the person is a snowmobile organization and either the person has a permit approved issued under this section or the snowmobile rail crossing is an established snowmobile rail crossing. In order to obtain a permit required under this section, a snowmobile organization shall apply to the department. A separate permit is required for each snowmobile rail crossing subject to this section.

SB439, s. 8 Section 8. 350.138 (2m) of the statutes is created to read:

SB439,5,8 350.138 (2m) Designation of agents. Each rail authority with rail lines in this state shall furnish the department with the name and address of an agent who is authorized on behalf of the rail authority to receive copies of snowmobile crossing permit applications filed with the department. A rail authority that has rail lines in this state on the effective date of this subsection .... [revisor inserts date], shall furnish this information to the department within 30 days of the effective date of this subsection .... [revisor inserts date].

SB439, s. 9 Section 9. 350.138 (3) of the statutes is amended to read:

SB439,5,21 350.138 (3) Contents of Procedures for permit application. An application submitted under sub. (2) shall include adequate descriptions and drawings showing the proposed location of the snowmobile rail crossing, the design of the snowmobile rail crossing and the location of snowmobile trails that connect with the snowmobile rail crossing. The department shall, upon receipt of an application submitted under sub. (2), send a copy of the application to the agent designated under sub. (2m) for the applicable rail authority and shall, immediately thereafter, send notice to the applicant that a copy of the application was sent to the designated agent. The notice to the applicant must include the name and address of the designated agent to whom the department sent a copy of the application. The department may reject an application within 15 days after it is submitted if the application is incomplete or is not sufficiently detailed to determine whether to approve or deny the application.

SB439, s. 10 Section 10. 350.138 (4) of the statutes is renumbered 350.138 (4) (a) (intro.) and amended to read:

SB439,6,5 350.138 (4) (a) (intro.) The Except as provided under par. (e), the department shall approve or deny an application submitted under sub. (2) within 60 days after receiving a complete and sufficiently detailed application. The department may deny an application only within 90 days after sending a copy of the application to the rail authority's designated agent under sub. (3) if the department determines that the proposed snowmobile rail crossing does not comply with the rules promulgated under s. 350.137. all of the following conditions have been met:

SB439, s. 11 Section 11. 350.138 (4) (a) 1., 2., 3. and 4. of the statutes are created to read:

SB439,6,10 350.138 (4) (a) 1. Within 30 days after the date that the department sent a copy of the application to the applicable rail authority, the applicant contacted the applicable rail authority in writing to discuss the advisability and feasibility of the proposed rail crossing.

SB439,6,12 2. The applicant furnished the department with a copy of the writing by which the applicant contacted the applicable rail authority under subd. 1.

SB439,6,16 3. The rail authority did not file an objection with the department to the application within 60 days after receiving notice under sub. (3) or did not object, within that period, to a modification of the application as agreed to by the rail authority and the applicant.

SB439,6,17 4. The application complies with the rules promulgated under s. 350.137.

SB439, s. 12 Section 12. 350.138 (4) (b) of the statutes is created to read:

SB439,6,22 350.138 (4) (b) The department shall hold a hearing on the application if the conditions under par. (a) 1. and 4. are met, if the rail authority files with the department an objection to the application within 60 days after receiving notice under sub. (3) and the objection contains all of the following:

SB439,6,25 1. A statement that after discussing the advisability and feasibility of the proposed rail crossing with the applicant in good faith, the rail authority opposes the application.

SB439,7,1 2. A statement of the basis for the rail authority's objection.

SB439, s. 13 Section 13. 350.138 (4) (c) of the statutes is created to read:

SB439,7,6 350.138 (4) (c) The department shall give notice of any hearing scheduled under par. (b) to the applicant, the applicable rail authority and to the office of the commissioner of railroads. The hearing shall be a contested case hearing under ch. 227. The department's order is a final order subject to judicial review under ch. 227.

SB439, s. 14 Section 14. 350.138 (4) (d) of the statutes is created to read:

SB439,7,12 350.138 (4) (d) The department shall issue a permit to the applicant after a hearing under par. (b), and after giving substantial weight to the testimony or report given under s. 195.03 (30), if the department finds that the proposed snowmobile crossing is advisable and feasible. In making its finding, the department shall consider, but not be limited to, all of the following factors:

SB439,7,14 1. Whether the proposed snowmobile rail crossing could pose a substantial danger to public safety.

SB439,7,16 2. Whether a snowmobile rail crossing that is located near the proposed snowmobile rail crossing provides an adequate crossing for snowmobiles.

SB439,7,18 3. Whether the proposed snowmobile rail crossing would have a substantial adverse effect on railroad operations.

SB439,7,20 4. Whether the proposed snowmobile rail crossing conforms with the requirements of the rules promulgated under s. 350.137.

SB439, s. 15 Section 15. 350.138 (4) (e) of the statutes is created to read:

SB439,7,24 350.138 (4) (e) If the department issues a permit to an applicant under this section, the rail authority shall construct that portion of the snowmobile rail crossing that is on the track and that portion that extends outward 4 feet from each outer rail.

SB439, s. 16 Section 16. 350.138 (5) of the statutes is renumbered 350.138 (5) (a) and amended to read:

SB439,8,8 350.138 (5) (a) The department may charge an initial application fee not to exceed $150 for the costs of reviewing a permit application under sub. (4). Neither a rail authority nor the department may charge any other fee or amount for the construction or use of a snowmobile rail crossing or for the use of the right-of-way for the crossing. If the department charges the fee, the applicant must include the fee with the permit application.

SB439, s. 17 Section 17. 350.138 (5) (b) of the statutes is created to read:

SB439,8,14 350.138 (5) (b) Except as provided under par. (c), if the department issues a permit to an applicant under this section, the applicant shall pay the rail authority $1,500 within 30 days after the date on which the permit is issued, to compensate the rail authority for the the cost of constructing the snowmobile rail crossing and to pay for the use of the snowmobile rail crossing by snowmobile operators.

SB439, s. 18 Section 18. 350.138 (5) (c) of the statutes is created to read:

SB439,8,19 350.138 (5) (c) Biennially, beginning January 1, 2002, the department shall adjust the fee under par. (b) by a percentage that is equal to the percentage change in the U.S. consumer price index for all urban consumers, U.S. city average for the 24-month period ending on December 31 of the previous calendar year.

SB439, s. 19 Section 19. 350.138 (6) of the statutes is amended to read:

SB439,9,16 350.138 (6) Liability insurance. The department shall require a snowmobile organization to maintain in effect liability insurance to indemnify the applicable rail authority for damages resulting from the design, construction or, maintenance, existence or use of a snowmobile rail crossing for which a permit is approved issued under this section, except that the department shall not require the snowmobile organization to maintain in effect liability insurance to indemnify the applicable rail authority for injuries sustained by a person engaged in a recreational activity, if the rail authority would be immune from liability for those injuries under s. 895.52. Regardless of the number of snowmobile rail crossings that the snowmobile organization maintains under this section and s. 350.139, the amount of the liability insurance that is required to be maintained under this subsection shall be at least $1,000,000 $2,000,000 for each snowmobile organization. Beginning on January 1, 1997, this minimum amount shall increase to $2,000,000. The snowmobile organization shall designate the applicable rail authority as a named insured on the policy. Any liability insurance that is required under this subsection for the purpose of indemnifying a rail authority that is a rail transit body shall also indemnify the owners and operators of any railroad using the tracks of the rail transit body. Annually, beginning on the first day of the 3rd month beginning after the effective date of this subsection .... [revisor inserts date], each snowmobile organization that is required to maintain liability insurance under this subsection shall furnish proof of that insurance to the applicable rail authority and to the department.

SB439, s. 20 Section 20. 350.138 (8) (title) of the statutes is amended to read:

SB439,9,18 350.138 (8) (title) Terms Revocation of permits.

SB439, s. 21 Section 21. 350.138 (8) (a) of the statutes is repealed.

SB439, s. 22 Section 22. 350.138 (8) (b) of the statutes is renumbered 350.138 (8) and amended to read:

SB439,9,25 350.138 (8) The department may revoke or refuse to renew a permit that it previously approved only issued if the department determines that the snowmobile rail crossing is not constructed or maintained in compliance with the rules promulgated under s. 350.137, the. The department must revoke a permit that it issued if the snowmobile organization does not maintain any liability insurance that is required under sub. (6) or the snowmobile rail crossing is not maintained for use by snowmobiles for at least 5 winters in any 10-year period. The 10-year period for purposes of this paragraph subsection shall begin on the first December 15 following the date of the issuance of the permit.

SB439, s. 23 Section 23. 350.138 (9) of the statutes is amended to read:

SB439,10,11 350.138 (9) Inspection authorized. The department or the office of the commissioner of railroads may inspect the site of a proposed or snowmobile rail crossing or the site of a snowmobile rail crossing for which a permit has been issued to determine whether there are grounds to refuse to issue a permit under sub. (4) or to revoke a permit under sub. (8) (b).

SB439, s. 24 Section 24. 350.139 (1) (a) of the statutes is amended to read:

SB439,10,15 350.139 (1) (a) "Established snowmobile rail crossing" means a snowmobile rail crossing that has been used by snowmobiles, or maintained by a snowmobile organization for use by snowmobiles, for at least 5 winters of the last 10 years.

SB439, s. 25 Section 25. 350.139 (3) of the statutes is amended to read:

SB439,10,20 350.139 (3) Charges prohibited. Neither the department nor a rail authority may charge a fee or any other amount for the use of an established snowmobile rail crossing or for the use of a right-of-way for the established snowmobile rail crossing, unless otherwise agreed upon by the rail authority and a snowmobile organization.

SB439, s. 26 Section 26. 350.139 (4) (title) of the statutes is amended to read:

SB439,10,22 350.139 (4) (title) Requirements Use and maintenance requirements.

SB439, s. 27 Section 27. 350.139 (4) (intro.) of the statutes is amended to read:

SB439,11,3 350.139 (4) (intro.) The department shall require a snowmobile organization that uses or maintains any part of an established snowmobile rail crossing to do all of the following:

SB439, s. 28 Section 28. 350.139 (4) (a) of the statutes is amended to read:

SB439,11,8 350.139 (4) (a) Maintain that portion of the established snowmobile rail crossing in conformance with the rules promulgated under s. 350.137 that is outside of the portion of the snowmobile rail crossing that extends outward 4 feet from each outer rail.

SB439, s. 29 Section 29. 350.139 (4) (b) of the statutes is amended to read:

SB439,12,4 350.139 (4) (b) Maintain in effect liability insurance to indemnify the applicable rail authority for damages resulting from the design, construction or, maintenance, existence or use of the established snowmobile rail crossing, except that the department shall not require the snowmobile organization to maintain in effect liability insurance to indemnify the applicable rail authority for injuries sustained by a person engaged in a recreation activity, if the rail authority would be immune from liability for those injuries under s. 895.52. Regardless of the number of established snowmobile rail crossings and snowmobile rail crossings under s. 350.138 that each snowmobile organization maintains, the amount of the liability insurance that is required to be maintained under this paragraph shall be at least $1,000,000 $2,000,000 for each snowmobile organization. Beginning on January 1, 1997, this minimum amount shall increase to $2,000,000. The snowmobile organization shall designate the applicable rail authority as a named insured on the policy. Any liability insurance that is required under this paragraph for the purpose of indemnifying a rail authority that is a rail transit body shall also indemnify the owners and operators of any railroad using the tracks of the rail transit body. Annually, beginning on the first day of the 3rd month beginning after the effective date of this paragraph .... [revisor inserts date], each snowmobile organization that is required to maintain liability insurance under this paragraph shall furnish proof of that insurance to the applicable rail authority and to the department.

SB439, s. 30 Section 30. 350.139 (5) of the statutes is amended to read:

SB439,12,9 350.139 (5) Inspection authorized. The department or the office of the commissioner of railroads may inspect an established snowmobile rail crossing to determine whether the snowmobile organization maintaining the crossing is in compliance with the requirements imposed under sub. (4).

SB439, s. 31 Section 31. 350.1395 (title) of the statutes is amended to read:

SB439,12,12 350.1395 (title) Snowmobile rail crossings; closing and removal; review of rail authorities; insurance rules.

SB439, s. 32 Section 32. 350.1395 (1) (a) of the statutes is repealed.

SB439, s. 33 Section 33. 350.1395 (2) (a) of the statutes is amended to read:

SB439,12,24 350.1395 (2) (a) Except as provided in par. (b), no A rail authority may close or remove a snowmobile rail crossing subject to a permit under s. 350.138 or an established snowmobile rail crossing if it enters into a written agreement with the snowmobile organization under which the snowmobile organization agrees to allow the rail authority to close or remove the snowmobile rail crossing. Each rail authority that enters into a written agreement with a snowmobile organization that holds a permit under s. 350.138 or that maintains an established snowmobile rail crossing under s. 350.139 to close or remove a snowmobile rail crossing shall notify the department of the agreement and that the snowmobile rail crossing has been closed or removed.

SB439, s. 34 Section 34. 350.1395 (2) (b) of the statutes is renumbered 350.1395 (2) (b) 1. and amended to read:

SB439,13,11 350.1395 (2) (b) 1. A rail authority may petition the department to review any failure of a snowmobile organization to comply with any requirements imposed under s. 350.138 or 350.139 (4), and to issue an order authorizing authorize the rail authority to close or remove an established a snowmobile rail crossing. The department shall decide the matter after notice and hearing. The order issued by the department is a final order of the department subject to judicial review under ch. 227. The rail authority may file a petition under this subdivision without requesting or obtaining a written agreement from the snowmobile organization to close or remove the snowmobile rail crossing.

SB439, s. 35 Section 35. 350.1395 (2) (b) 2. of the statutes is created to read: