SB 1031 - This act established a statutory cause of action for damages arising out of a public nuisance and replaces any such common law cause of action to the contrary. This act defines a public nuisance as an unlawful condition that violates an established public right, which is defined as those rights commonly held by all members of the public to the use of public land, air, and water.

The provisions of this act provide the only remedies for a civil action for damages arising out of a public nuisance in this state. However, the provisions of this act shall not affect the following:

(1) The availability of a remedy for criminal conduct and designated as a public and common nuisance; or

(2) The authority of a governmental entity to take regulatory or enforcement action authorized by law in connection with a condition designated by statute or local ordinance as a public nuisance.

The act shall apply only to any cause of action that accrues on or after August 28, 2024, and current law shall continue to apply to any cause of action accruing before such date.

This act provides that a person shall be held liable for a public nuisance if the person causes an unlawful condition and controls that unlawful condition at the time the condition violates an established public right. Conditions arising from the following conduct shall not be considered unlawful conditions:

(1) An activity expressly authorized or encouraged by a provision of law, ordinance, rule, or other measure adopted by this state, political subdivision of this state, the United States, or an agency of this state or the United States;

(2) The lawful manufacturing, distributing, selling, advertising, or promoting of a lawful product.

The aggregation of multiple individual injuries or private nuisances does not constitute violations of an established public right. Additionally, this act provides that public nuisance actions may only be brought by the state or a political subdivision thereof and only through a government attorney of the relevant jurisdiction unless there is a contract to retain a private attorney that meets certain requirements provided by this act. Furthermore, this act requires that the state or political subdivision bringing the action shall have a substantial ownership interest in or authority over the real property or waterway, or ancillary space related to such real property or waterway, to which the public nuisance relates. Absent clear and convincing evidence, it shall be presumed that only a single governmental entity within this state has standing to file or maintain a public nuisance action relating to the real property, waterway, or ancillary space to which the public nuisance relates.

However, an individual may maintain an action to enjoin a public nuisance only if the individual can show a special injury by clear and convincing evidence. Use of or damage to public land, air, or water with only personal, spiritual, cultural, or emotional significance to the individual is not a special injury. Additionally, this act provides that an individual is not allowed to seek relief for both a public nuisance and a private nuisance for harm related to the same unlawful condition.

Remedies available for a public nuisance action are limited to injunctive relief sufficient to prevent the unlawful condition from violating an established public right and monetary and nonmonetary resources necessary to abate the public nuisance.

This act is identical to SB 207 (2023), a provision in SB 708 (2023), HB 1119 (2023), and SB 1174 (2022), and is substantially similar to HB 2807 (2022).

KATIE O'BRIEN