Section 350.138. Snowmobile rail crossings requiring permits.

 

(1)   Definitions. In this section:

(a) “Established snowmobile rail crossing" has the meaning given in s. 350.139 (1) (a) .

(b) “Rail authority" means a rail transit body or a railroad corporation.

(c) “Rail transit body" means any transit or transportation commission or authority or public corporation established by law or by interstate compact to provide rail service.

(d) “Snowmobile alliance" means an organization that consists of or represents any combination of 2 or more snowmobile clubs or counties.

(e) “Snowmobile club" means an organization that meets at least 3 times a year, that has at least 10 members, that promotes snowmobiling and that participates in the department's program under s. 350.12 (4) (b) 2.

(f) “Snowmobile organization" means a snowmobile club, a snowmobile alliance or a county.

(2)   Permit required. No person may construct a snowmobile rail crossing that is not located on a railroad crossing of a highway or street unless the person is a snowmobile organization and has a permit issued under this section. No person may maintain a snowmobile rail crossing that is not located on a railroad crossing of a highway or street unless the person is a snowmobile organization and either the person has a permit 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.

(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 September 1, 2001, shall furnish this information to the department within 30 days of September 1, 2001.

(3)   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.

(4)   Permit application approval and denials.

(a) Except as provided under par. (d) , the department shall approve an application submitted under sub. (2) 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 all of the following conditions have been met:

1. Within 30 days after the date on which the department sent a copy of the application to the applicable rail authority, the applicant provided to the applicable rail authority a written offer to discuss the advisability and feasibility of the proposed rail crossing.

2. The applicant furnished the department with a copy of the written offer provided to the applicable rail authority under subd. 1.

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.

4. The application complies with the rules promulgated under s. 350.137 .

(b) The department shall hold a hearing on the application if the conditions under par. (a) 1. , 2. , 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 if the objection contains all of the following:

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.

2. A statement of the basis for the rail authority's objection.

(c) The department shall give notice of any hearing scheduled under par. (b) to the applicant, to 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 issuing or denying a permit is a final order subject to judicial review under ch. 227 .

(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:

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

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

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

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

(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.

(5)   Charges.

(a) The department may charge an initial application fee not to exceed $150 for the costs of reviewing a permit application under sub. (4) . If the department charges the fee, the applicant must include the fee with the permit application.

(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 cost of constructing the snowmobile rail crossing and to pay for the use of the snowmobile rail crossing by snowmobile operators.

(c) Biennially, beginning on January 1, 2004, 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.

(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, maintenance, existence, or use of a snowmobile rail crossing for which a permit is issued under this section, except that the department may 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 $2,000,000 for each snowmobile organization. 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 December 1, 2001, 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.

(7)   Rights-of-way. For each application approved under sub. (4) , the applicable rail authority shall give the snowmobile organization access to any right-of-way that the rail authority may have to permit the snowmobile organization to construct and maintain the snowmobile rail crossing.

(8)   Revocation of permits. The department may revoke a permit that it 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 department shall 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 subsection shall begin on the first December 15 following the date of the issuance of the permit.

(9)   Inspection authorized. The department or the office of the commissioner of railroads may inspect the site of a proposed 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) .

1993 a. 120 ; 2001 a. 14 . Cross-reference: See also ss. NR 6.40 , 6.41 , 6.42 , 6.43 , 6.44 , 6.45 , and 6.46 , Wis. adm. code.