BILL REQ. #:  S-0377.2 

Read first time 01/14/09.   Referred to Committee on Natural Resources, Ocean & Recreation.

     AN ACT Relating to addressing natural resource impacts from off-road vehicle use; amending RCW 46.09.117, 4.24.210, 46.09.120, and 46.09.200; reenacting and amending RCW 46.09.170; and creating a new section.

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

NEW SECTION.  Sec. 1   The legislature finds that the vast majority of off-road vehicle or ORV users in Washington state are law abiding and conscientious. However, as the population of Washington and the popularity of recreational ORV use have increased, unauthorized ORV use on public and private natural resource lands has resulted in significant natural resource damage.
     ORV damage typically involves soil disturbance, erosion, or rutting, but may also include damage to vegetation or other property. Stream banks and lakeshores are especially sensitive areas and easily susceptible to damage. In turn, these riparian areas provide water, food, and shelter to wildlife.
     Therefore, the legislature intends to take steps to minimize further damage to public and private natural resource lands caused by unauthorized ORV use while also continuing to maximize outdoor recreation opportunities.

Sec. 2   RCW 46.09.117 and 2005 c 213 s 5 are each amended to read as follows:
     (1) Except as specified in subsection (2) of this section, no person under ((thirteen)) eighteen years of age may operate an off-road vehicle on or across a highway or nonhighway road in this state without a valid license to operate a motor vehicle issued under chapter 46.20 RCW.
     (2) Persons ((under thirteen years of age)) may operate an off-road vehicle on a nonhighway road designated for off-road vehicle use under the direct supervision of a person eighteen years of age or older possessing a valid license to operate a motor vehicle under chapter 46.20 RCW.

Sec. 3   RCW 4.24.210 and 2006 c 212 s 6 are each amended to read as follows:
     (1) Except as otherwise provided in subsection (3) or (4) of this section, any public or private landowners or others in lawful possession and control of any lands whether designated resource, rural, or urban, or water areas or channels and lands adjacent to such areas or channels, who allow members of the public to use them for the purposes of outdoor recreation, which term includes, but is not limited to, the cutting, gathering, and removing of firewood by private persons for their personal use without purchasing the firewood from the landowner, hunting, fishing, camping, picnicking, swimming, hiking, bicycling, skateboarding or other nonmotorized wheel-based activities, hanggliding, paragliding, rock climbing, the riding of horses or other animals, clam digging, pleasure driving of off-road vehicles, snowmobiles, and other vehicles, boating, nature study, winter or water sports, viewing or enjoying historical, archaeological, scenic, or scientific sites, without charging a fee of any kind therefor, shall not be liable for unintentional injuries to such users.
     (2) Except as otherwise provided in subsection (3) or (4) of this section, any public or private landowner or others in lawful possession and control of any lands whether rural or urban, or water areas or channels and lands adjacent to such areas or channels, who offer or allow such land to be used for purposes of a fish or wildlife cooperative project, or allow access to such land for cleanup of litter or other solid waste, shall not be liable for unintentional injuries to any volunteer group or to any other users.
     (3) Any public or private landowner, or others in lawful possession and control of the land, may charge an administrative fee of up to twenty-five dollars for the cutting, gathering, and removing of firewood from the land.
     (4)(a) Nothing in this section shall prevent the liability of a landowner or others in lawful possession and control for injuries sustained to users by reason of a known dangerous artificial latent condition for which warning signs have not been conspicuously posted.
     (i) A fixed anchor used in rock climbing and put in place by someone other than a landowner is not a known dangerous artificial latent condition and a landowner under subsection (1) of this section shall not be liable for unintentional injuries resulting from the condition or use of such an anchor.
     (ii) A public or private landowner under subsection (1) of this section shall not be liable for unintentional injuries resulting from the condition or use of the land where a person is injured while operating an off-road vehicle without landowner authorization or outside of authorized off-road vehicle use areas.
     (b) Nothing in RCW 4.24.200 and this section limits or expands in any way the doctrine of attractive nuisance.
     (c) Usage by members of the public, volunteer groups, or other users is permissive and does not support any claim of adverse possession.
     (5) For purposes of this section, the following are not fees:
     (a) A license or permit issued for statewide use under authority of chapter 79A.05 RCW or Title 77 RCW; and
     (b) A daily charge not to exceed twenty dollars per person, per day, for access to a publicly owned ORV sports park, as defined in RCW 46.09.020, or other public facility accessed by a highway, street, or nonhighway road for the purposes of off-road vehicle use.

Sec. 4   RCW 46.09.170 and 2007 c 522 s 953 and 2007 c 241 s 16 are each reenacted and amended to read as follows:
     (1) From time to time, but at least once each year, the state treasurer shall refund from the motor vehicle fund one percent of the motor vehicle fuel tax revenues collected under chapter 82.36 RCW, based on a tax rate of: (a) Nineteen cents per gallon of motor vehicle fuel from July 1, 2003, through June 30, 2005; (b) twenty cents per gallon of motor vehicle fuel from July 1, 2005, through June 30, 2007; (c) twenty-one cents per gallon of motor vehicle fuel from July 1, 2007, through June 30, 2009; (d) twenty-two cents per gallon of motor vehicle fuel from July 1, 2009, through June 30, 2011; and (e) twenty-three cents per gallon of motor vehicle fuel beginning July 1, 2011, and thereafter, less proper deductions for refunds and costs of collection as provided in RCW 46.68.090.
     (2) The treasurer shall place these funds in the general fund as follows:
     (a) Thirty-six percent shall be credited to the ORV and nonhighway vehicle account and administered by the department of natural resources solely for acquisition, planning, development, maintenance, and management of ORV, nonmotorized, and nonhighway road recreation facilities, and information programs and maintenance of nonhighway roads;
     (b) Three and one-half percent shall be credited to the ORV and nonhighway vehicle account and administered by the department of fish and wildlife solely for the acquisition, planning, development, maintenance, and management of ORV, nonmotorized, and nonhighway road recreation facilities and the maintenance of nonhighway roads;
     (c) Two percent shall be credited to the ORV and nonhighway vehicle account and administered by the parks and recreation commission solely for the acquisition, planning, development, maintenance, and management of ORV, nonmotorized, and nonhighway road recreation facilities; and
     (d) Fifty-eight and one-half percent shall be credited to the nonhighway and off-road vehicle activities program account to be administered by the board for planning, acquisition, development, maintenance, and management of ORV, nonmotorized, and nonhighway road recreation facilities and for education, information, and law enforcement programs. The funds under this subsection shall be expended in accordance with the following limitations:
     (i) Not more than thirty percent may be expended for education, information, and law enforcement programs under this chapter;
     (ii) Not less than seventy percent may be expended for ORV, nonmotorized, and nonhighway road recreation facilities. Except as provided in (d)(iii) of this subsection, of this amount:
     (A) Not less than thirty percent, together with the funds the board receives under RCW 46.09.110, may be expended for ORV recreation facilities. Prior to expending funds for ORV recreation facilities, the board must accept applications and fund appropriate projects submitted by the department of natural resources, the department of fish and wildlife, and the parks and recreation commission to repair or mitigate for soil erosion or damage to trees, crops, riparian areas, or other vegetation resulting from off-road vehicle use on lands managed by these agencies;
     (B) Not less than thirty percent may be expended for nonmotorized recreation facilities. Funds expended under this subsection (2)(d)(ii)(B) shall be known as Ira Spring outdoor recreation facilities funds; and
     (C) Not less than thirty percent may be expended for nonhighway road recreation facilities;
     (iii) The board may waive the minimum percentage cited in (d)(ii) of this subsection due to insufficient requests for funds or projects that score low in the board's project evaluation. Funds remaining after such a waiver must be allocated in accordance with board policy.
     (3) On a yearly basis an agency may not, except as provided in RCW 46.09.110, expend more than ten percent of the funds it receives under this chapter for general administration expenses incurred in carrying out this chapter.
     (4) During the 2007-09 fiscal biennium, the legislature may appropriate such amounts as reflect the excess fund balance in the NOVA account to the department of natural resources for planning and designing consistent off-road vehicle signage at department-managed recreation sites, and for planning recreation opportunities on department-managed lands in the Reiter block and Ahtanum state forest. This appropriation is not required to follow the specific distribution specified in subsection (2) of this section.

Sec. 5   RCW 46.09.120 and 2006 c 212 s 3 are each amended to read as follows:
     (1) Except as provided in subsection (4) of this section, it is a traffic infraction for any person to operate any nonhighway vehicle:
     (a) In such a manner as to endanger the property of another;
     (b) On lands not owned by the operator or owner of the nonhighway vehicle without a lighted headlight and taillight between the hours of dusk and dawn, or when otherwise required for the safety of others regardless of ownership;
     (c) On lands not owned by the operator or owner of the nonhighway vehicle without an adequate braking device or when otherwise required for the safety of others regardless of ownership;
     (d) Without a spark arrester approved by the department of natural resources;
     (e) Without an adequate, and operating, muffling device which effectively limits vehicle noise to no more than eighty-six decibels on the "A" scale at fifty feet as measured by the Society of Automotive Engineers (SAE) test procedure J 331a, except that a maximum noise level of one hundred and five decibels on the "A" scale at a distance of twenty inches from the exhaust outlet shall be an acceptable substitute in lieu of the Society of Automotive Engineers test procedure J 331a when measured:
     (i) At a forty-five degree angle at a distance of twenty inches from the exhaust outlet;
     (ii) With the vehicle stationary and the engine running at a steady speed equal to one-half of the manufacturer's maximum allowable ("red line") engine speed or where the manufacturer's maximum allowable engine speed is not known the test speed in revolutions per minute calculated as sixty percent of the speed at which maximum horsepower is developed; and
     (iii) With the microphone placed ten inches from the side of the vehicle, one-half way between the lowest part of the vehicle body and the ground plane, and in the same lateral plane as the rearmost exhaust outlet where the outlet of the exhaust pipe is under the vehicle;
     (f) On lands not owned by the operator or owner of the nonhighway vehicle upon the shoulder or inside bank or slope of any nonhighway road or highway, or upon the median of any divided highway;
     (g) ((On lands not owned by the operator or owner of the nonhighway vehicle in any area or in such a manner so as to unreasonably expose the underlying soil, or to create an erosion condition, or to injure, damage, or destroy trees, growing crops, or other vegetation;
     (h))) On lands not owned by the operator or owner of the nonhighway vehicle or on any nonhighway road or trail, when these are restricted to pedestrian or animal travel;
     (((i))) (h) On any public lands in violation of rules and regulations of the agency administering such lands; and
     (((j))) (i) On a private nonhighway road in violation of RCW 46.09.115(3).
     (2) It is a misdemeanor for any person to:
     (a) Operate any nonhighway vehicle while under the influence of intoxicating liquor or a controlled substance; or
     (b) Operate any nonhighway vehicle on lands not owned by the operator or owner of the nonhighway vehicle in any area that has not been authorized for nonhighway vehicle use in such a manner so as to unreasonably expose the underlying soil; create an erosion condition; or injure, damage, or destroy trees, growing crops, or other vegetation.
     (3)(a) Except for an off-road vehicle equipped with seat belts and roll bars or an enclosed passenger compartment, it is a traffic infraction for any person to operate or ride an off-road vehicle on a nonhighway road without wearing upon his or her head a motorcycle helmet fastened securely while in motion. For purposes of this section, "motorcycle helmet" has the same meaning as provided in RCW 46.37.530.
     (b) Subsection (3)(a) of this section does not apply to an off-road vehicle operator operating on his or her own land.
     (c) Subsection (3)(a) of this section does not apply to an off-road vehicle operator operating on agricultural lands owned or leased by the off-road vehicle operator or the operator's employer.
     (4) It is not a traffic infraction to operate an off-road vehicle on a street, road, or highway as authorized under RCW 46.09.180.

Sec. 6   RCW 46.09.200 and 2001 c 253 s 3 are each amended to read as follows:
     (1) The provisions of this chapter shall be enforced by all persons having the authority to enforce any of the laws of this state, including, without limitation, officers of the state patrol, county sheriffs and their deputies, all municipal law enforcement officers within their respective jurisdictions, fish and wildlife officers, state park rangers, and those employees of the department of natural resources designated by the commissioner of public lands under RCW ((43.30.310)) 43.12.065, 76.04.035, and 76.04.045.
     (2)(a) A nonhighway vehicle under operation during a violation of RCW 46.09.120(2)(b) is subject to seizure and forfeiture and no property right exists in it.
     (b) A nonhighway vehicle may be seized by any law enforcement officer of this state upon process issued by any court having jurisdiction over the property. Whenever any law enforcement officer authorized to enforce this chapter has probable cause to believe that a person is operating any nonhighway vehicle in violation of RCW 46.09.120(1)(g), the officer may seize the nonhighway vehicle without process.
     (c) Proceedings for forfeiture shall be deemed commenced by the seizure. The law enforcement agency under whose authority the seizure was made shall cause notice to be served within fifteen days following the seizure on the owner of the property seized and the person in charge thereof and any person having any known right or interest therein, including any community property interest, of the seizure and intended forfeiture of the seized property. The notice of seizure may be served by any method authorized by law or court rule including but not limited to service by certified mail with return receipt requested. Service by mail shall be deemed complete upon mailing within the fifteen-day period following the seizure.
     (d) If no person notifies the seizing law enforcement agency in writing of the person's claim of ownership or right to possession of items specified in (a) of this subsection within forty-five days of the seizure, the item seized shall be deemed forfeited.
     (e) If a person notifies the seizing law enforcement agency in writing of the person's claim of ownership or right to possession of the seized property within forty-five days of the seizure, the law enforcement agency shall give the person or persons a reasonable opportunity to be heard as to the claim or right. The hearing shall be before the chief law enforcement officer of the seizing agency or the chief law enforcement officer's designee, except where the seizing agency is a state agency as defined in RCW 34.12.020(4), the hearing shall be before the chief law enforcement officer of the seizing agency or an administrative law judge appointed under chapter 34.12 RCW, except that any person asserting a claim or right may remove the matter to a court of competent jurisdiction. Removal may only be accomplished according to the rules of civil procedure. The person seeking removal of the matter must serve process against the state, county, political subdivision, or municipality that operates the seizing agency, and any other party of interest, in accordance with RCW 4.28.080 or 4.92.020, within forty-five days after the person seeking removal has notified the seizing law enforcement agency of the person's claim of ownership or right to possession. The court to which the matter is to be removed shall be the district court when the aggregate value of the property is within the jurisdictional limit set forth in RCW 3.66.020. A hearing before the seizing agency and any appeal therefrom shall be under Title 34 RCW. In a court hearing between two or more claimants to the property involved, the prevailing party shall be entitled to a judgment for costs and reasonable attorneys' fees. The burden of producing evidence shall be upon the person claiming to be the lawful owner or the person claiming to have the lawful right to possession of the property. The seizing law enforcement agency shall promptly return the property to the claimant upon a determination by the administrative law judge or court that the claimant is the present lawful owner or is lawfully entitled to possession of the property.
     (f) When property is forfeited under this chapter, the seizing law enforcement agency may:
     (i) Retain it for official use or upon application by any law enforcement agency of this state release such property to such agency for the exclusive use for law enforcement purposes; or
     (ii) Sell the property and use moneys received exclusively for the expansion and improvement of law enforcement activity. Money retained under this section may not be used to supplant preexisting funding sources.