STATE STATUTES & CODES
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KANSAS STATUTES AND CODES
49-426. Civil action to compel compliance with act; limitations; award of costs of litigation; rights to seek other relief not restricted; action for damages for injuries.
49-426
49-426. Civil action to compel compliance with act; limitations; awardof costs of litigation; rights to seek other relief not restricted; actionfor damages for injuries.(a) Except as provided in subsection (b), any person havingan interest which is or may be adversely affected may commence a civil actionon such person's behalf to compel compliance with this act:
(1) Against the state or any subdivision thereof which is alleged to bein violation of the provisions of this act or of any rule, regulation, orderor permit issued pursuant thereto, or against any other person who is allegedto be in violation of any rule, regulation, order or permit issued pursuantto this title; or
(2) against the secretary where there is alleged a failureof the secretary toperform any act or duty under this act which is not discretionary with thesecretary. Any actions hereunder shall be brought in any judicial districtwhere land involved in surface coal mining operations complained of lies.
(b) No action may be commenced:
(1) Under paragraph (1) of subsection (a):
(A) Prior to 60 days after the plaintiff has given notice in writingof the violation (i) to the secretary and (ii) to any alleged violator; or
(B) if the secretary has commenced and is diligentlyprosecuting a civil actionto require compliance with the provisions of this act, or any rule, regulation,order, or permit issued pursuant to this act, but in any such action anyperson may intervene as a matter of right; or
(2) under paragraph (2) of subsection (a)prior to 60 days afterthe plaintiff has given notice in writing of such action to thesecretary, insuch manner as the secretaryprescribes by rule and regulation, except that suchaction may be brought immediately after such notification in the case wherethe violation or order complained of constitutes an imminent threat to thehealth or safety of the plaintiff or would immediately affect a legal interestof the plaintiff.
(c) In such action under this section, the secretary, ifnot a party, may interveneas a matter of right.
(d) The court, in issuing any final order in any action brought pursuantto subsection (a), may award costs of litigation, includingattorney and expert witness fees, to any party, wherever the court determinessuch award is appropriate. The court, if a temporary restraining orderor preliminary injunction is sought, may require the filing of a bond or equivalentsecurity.
(e) Nothing in this section shall restrict any right which any person,or class of persons, may have under any statute or common law to seek enforcementof any of the provisions of this act and the regulations thereunder, orto seek any other relief, including relief against the secretary.
(f) Any person who is injured orwhose property is injured throughthe violation by any operator of any rule, regulation, order, or permitissued pursuant to this act may bring an action for damages, including reasonableattorney and expert witness fees, in any judicial district where land involvedin surface coal mining operations complained of lies. Nothing in this subsectionshall affect the rights established by or limits imposed under the workers'compensation laws of this state.
History: L. 1979, ch. 169, § 12;L. 1988, ch. 192, § 27; July 1.