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      RS 56:432.1     

  

§432.1.  Oyster Lease Acquisition and Compensation Program

A.  The legislature hereby acknowledges potential conflicts between the Department of Wildlife and Fisheries oyster leasing program and the Louisiana coastal restoration program provided for in R.S. 49:214.1 et seq.  Therefore, the Coastal Protection and Restoration Authority shall develop a program, subject to the requirements and conditions of this Section, for the acquisition of and compensation for oyster leases or portions of oyster leases upon which occurs or will occur dredging, direct placement of dredged or other materials, or other work or activities necessary for the construction or maintenance of a project for integrated coastal protection.

B.  The state of Louisiana, through the Coastal Protection and Restoration Authority, may acquire any oyster lease, in whole or in part, due to the impact of dredging, direct placement of dredged or other materials, or other work or activities necessary for the construction or maintenance of a project for integrated coastal protection.

(1)  Acquisition shall be implemented by a notice of acquisition issued to the leaseholder.  Such notice shall specify the acreage acquired and the effective date of the acquisition.  A plat or map depicting the acreage acquired shall be attached to the notice. The notice and acquisition shall be subject to the following:

(a)  The Coastal Protection and Restoration Authority shall issue any such notice in writing to the leaseholder at his address on file with the Department of Wildlife and Fisheries on the date of issuance, by hand delivery or certified mail, return receipt requested.  If the Coastal Protection and Restoration Authority attempts such issuance at least once and is unable to deliver the notice to the leaseholder, the Coastal Protection and Restoration Authority shall reissue the notice to the lessee at his address on file with the Department of Wildlife and Fisheries on the date of the re-issuance, by regular mail, and shall publish in the official journal for each parish in which the acquired acreage is located a summary of the notice including identification of the affected acreage, the effective date of the acquisition, and a contact person at the Coastal Protection and Restoration Authority for all inquiries regarding the acquisition.  The notice of acquisition may be recorded in the public records of any parish in which the acquired acreage is located.

(b)  The acquisition shall be effective on the date specified in the notice of acquisition regardless of whether the lessee actually receives the notice of acquisition. Upon the effective date of the acquisition, possession of the affected acreage shall revert to the state, free and clear of any lease or other obligation or encumbrance.

(c)  Lease payments as otherwise required by R.S. 56:428 or 429 shall no longer be payable for the acquired acreage for the calendar year after the date on which the notice of acquisition was issued.

(d)  Upon acquisition of a portion of leased acreage, the lease shall continue in full force and effect as to the remaining acreage under the lease.

(2)  The Coastal Protection and Restoration Authority shall determine the compensation for any acquisition pursuant to this Section in accordance with rules or regulations adopted by that department after consideration of recommendations by the Louisiana Oyster Task Force, subject to the following:

(a)  The Coastal Protection and Restoration Authority shall issue its determination of compensation to the leaseholder together with the notice of acquisition and by the same procedure provided for issuance of such notice.

(b)  The Coastal Protection and Restoration Authority shall consider any reasonably confirmable data or information provided by the leaseholder or any other person in making its determination of compensation, provided that the data or information is submitted in compliance with rules or regulations promulgated by that department prior to the date of initial issuance of the determination of compensation.  Such rules or regulations shall provide the leaseholder at least sixty days in which to submit such data or information before the initial issuance of the determination of compensation.

(3)  The Coastal Protection and Restoration Authority shall issue payment to the leaseholder in the full amount of its determination of compensation, except for and less any amount due on recorded liens and encumbrances to be paid out of said proceeds, together with the notice of acquisition, and by the same procedure provided for issuance of such notice.  Acceptance of such payment shall not preclude any claim for additional compensation, as provided in this Section.  If the Coastal Protection and Restoration Authority is unable to contact the leaseholder by the procedure provided in Subparagraph (1)(a) of this Subsection, that department shall transfer funds in the amount of the determined compensation except for and less any amount due on recorded liens and encumbrances to be paid out of said proceeds, to a trust account, instead of attaching such payment to the reissued notice.  Upon request of the leaseholder listed with the Department of Wildlife and Fisheries on the date notice of acquisition is initially issued, any such compensation may be withdrawn from the trust account for the benefit of the leaseholder.  Any funds placed in a trust account that remain unclaimed after a period of five years shall be declared to be abandoned and may be disposed of pursuant to the Uniform Unclaimed Property Act, R.S. 9:151 et seq.  Any amount due on a recorded lien or encumbrance shall be paid directly to the holder thereof, with a copy of all documentation of such payment issued to the leaseholder.  If the Coastal Protection and Restoration Authority is unable to contact the holder of the lien or encumbrance, that department shall transfer funds in the amount of the lien or encumbrance to a trust account, from which it may be withdrawn for the benefit of the lien or encumbrance holder.

(4)  To the extent that the Coastal Protection and Restoration Authority acquires any lease or portion thereof under this Section in relation to any project or action for integrated coastal protection performed by any department, agency, board, commission, or political subdivision of the state other than the Coastal Protection and Restoration Authority, such department, agency, board, commission, or political subdivision shall compensate the Coastal Protection and Restoration Authority for all costs incurred by the department which are associated with the acquisition.  However, the executive director of the Coastal Protection and Restoration Authority may waive this requirement.

C.  A leaseholder whose lease is acquired in whole or in part may seek an administrative hearing through the Coastal Protection and Restoration Authority as to whether the acquisition due to the impact of dredging, direct placement of dredged or other materials, or other work or activities necessary for the construction or maintenance of a project for integrated coastal protection is proper or whether the compensation issued by the Coastal Protection and Restoration Authority satisfies the rules or regulations of that department.  A leaseholder whose lease is not acquired but which was impacted by dredging, direct placement of dredged or other materials, or other work or activities necessary for the construction or maintenance of a project for integrated coastal protection has occurred, may also seek an administrative hearing through the Coastal Protection and Restoration Authority to determine if acquisition of such acreage would be proper.  Adjudication under this Section shall be conducted in accordance with the following:

(1)  Adjudication under this Section must be requested in writing and received by the Coastal Protection and Restoration Authority within sixty days after issuance of the notice of acquisition, determination of compensation, or payment as provided in Subsection B of this Section.  However, adjudication of the amount of the compensation must be requested in writing and received by the Coastal Protection and Restoration Authority within two years after completion of the project for which the lease or portion of the lease was acquired, if the leaseholder establishes that notice of the acquisition, determination of compensation, or payment was not issued as required in this Section. Adjudication of the lack of acquisition of leased acreage upon which dredging, direct placement of dredged or other materials, or other work or activities necessary for the construction or maintenance of a project for integrated coastal protection has occurred must be requested in writing and received by the Coastal Protection and Restoration Authority within two years after completion of the project.

(2)  Adjudication under this Section shall be conducted in accordance with Chapter 13-B of Title 49 of the Louisiana Revised Statutes of 1950, and pursuant to the rules and regulations promulgated by the Department of Natural Resources after consideration of recommendations by the Louisiana Oyster Task Force.  The administrative law judge shall consider any reasonably confirmable data or information provided to that department by the leaseholder or any other person on or before the date of the administrative review.

(3)  The final decision of the administrative law judge shall be issued to the leaseholder by certified mail at his address on file with the Department of Wildlife and Fisheries on the date of issuance or at such other address as the leaseholder may specify in his request for administrative review.

(4)  A request for an adjudication shall have no effect upon the validity of the acquisition of the lease, but only the compensation payable to the lessee.  However, the acquisition may be found invalid if an adjudication is sought timely and the project or action for which acquisition is sought does not further coastal protection, conservation, or restoration.

D.  A leaseholder may seek in accordance with the following, judicial review of the final decision of the administrative law judge based solely on the administrative record and, except as otherwise provided in this Section, in accordance with the provisions of Chapter 13-B of Title 49 of the Louisiana Revised Statutes of 1950.

(1)  Any petition for judicial review pursuant to this Subsection must be filed with the Nineteenth Judicial District Court within sixty days after issuance of the final decision of the administrative law judge.  No petition for judicial review may be filed, and any such petition is premature, unless adjudication has been timely sought and all administrative remedies have been exhausted.  The petition shall be served upon the executive director of the Coastal Protection and Restoration Authority and all parties of record.

(2)  A request for judicial review shall have no effect upon the validity of the acquisition of the lease, but only the compensation payable to the lessee.  However, the acquisition may be found invalid if review is sought timely and the project or action for which acquisition is sought does not further coastal protection, conservation, or restoration.

E.  No funds from, or dedicated to, the Louisiana Wildlife Conservation Fund established by Article VII, Section 10-A of the Constitution of Louisiana shall be obligated or expended in furtherance of or for any purpose of this Section.  However, funds paid to the Department of Wildlife and Fisheries expressly for the purposes of this Section may be expended accordingly.

Acts 1997, No. 1314, §1; Acts 2000, 1st Ex. Sess., No. 107, §1; Acts 2006, No. 425, §1, eff. June 15, 2006; Acts 2009, No. 523, §4, eff. July 10, 2009; Acts 2012, No. 604, §4, eff. June 7, 2012.



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