Current through Register Vol. 50, No. 9, September 20, 2024
A.
Should the secretary determine that an existing oyster lease issued by DWF is
located within the direct impact area of a project and the project is necessary
and proper for coastal protection, conservation, or restoration, the secretary
may acquire the affected acreage on behalf of the state in accordance with this
Section.
B. Acquisition shall be
implemented by issuance of a notice of acquisition. Notice of acquisition may
be mailed or delivered to the leaseholder no sooner than 60 days after the
completion of the oyster resource survey conducted in accordance with
§307 The notice shall be issued in
writing to the leaseholder by certified United States mail, return receipt
requested, postage pre-paid, or hand delivery, to the last address furnished to
DWF by the leaseholder on the date of issuance of notice. A copy of such notice
shall be recorded in the conveyance records of any parish in which the affected
acreage to be acquired or the affected lease is located.
C. Such notice of acquisition shall, at a
minimum, include:
1. a description specifying
affected acreage, or portion thereof, being acquired;
2. the effective date of
acquisition;
3. a brief description
of the coastal protection, conservation, or restoration project for which the
acreage is being acquired;
4. a
plat or map depicting the project and the affected lease or affected acreage to
be acquired;
5. a copy of these
regulations and
R.S.
56:432.1;
6. a statement that the department will
acquire the acreage described in the notice of acquisition, and that such
acquisition shall automatically occur on the date specified in the
notice;
7. a statement that the
leaseholder retains full use and possession of the affected acreage to be
acquired until the effective date of acquisition, and may, at his sole risk and
expense, harvest any oysters or take any other action permitted under the
affected lease until the effective date of acquisition;
8. a statement that the acquisition will be
effective regardless of whether the leaseholder actually received the notice of
acquisition;
9. a statement that
the affected lease shall continue in full force and effect as to all remaining
acreage under the lease other than the acquired acreage (in cases where only
part of the affected lease is being acquired);
10. a statement that lease payments as
otherwise required by
R.S.
56:428 or 429 shall no longer be payable as
to the acquired oyster lease acreage for the calendar year after the date on
which the notice of acquisition is issued; but that payment must still be paid
as to any remaining acreage under the lease if the lease is acquired only in
part;
11. a statement that the
leaseholder will either be allowed a period of one year or more from the date
of issuance of notice of acquisition herein in which to remove any and all
marketable oysters from the affected lease, at his sole risk and expense, and
that no compensation shall be allowed for oysters so removed or removable, or
if the department states an effective date for the acquisition that is less
than one year after the date of issuance, a statement that the compensation for
the acreage to be acquired includes compensation for the non-removable
marketable oysters as part of the attached acquisition payment;
12. a determination of compensation, stating
the dollar amount that the department has determined in accordance with these
regulations and
R.S.
56:432.1 to be paid for the acquired acreage
and the appraised value of the acquired acreage. If compensation is being paid
for non-removable marketable oysters, a statement of the value thereof is also
to be included;
13. a check,
attached only to a notice of acquisition sent to the leaseholder's last address
as furnished to DWF by the leaseholder on the date of issuance of notice, in
the full amount of the determination of compensation, except for and less any
amount due on recorded liens and encumbrances to be paid out of said proceeds,
in the name of the leaseholder of record in accordance with the records of DWF
on the date of issuance of notice of acquisition herein;
14. a statement that acceptance or
negotiation of the attached check (or draft) does not preclude a claim for
additional compensation as provided in these regulations and
R.S.
56:432.1;
15. if any amount due on a recorded lien or
encumbrance has been withheld from the check for compensation, a statement
indicating the name of the holder of the recorded lien or encumbrance, the
amount withheld, and that payment of said amount has been made by the
department to that holder;
16. a
statement that the leaseholder may seek an administrative hearing in writing
through the department within 60 days after issuance of the notice of
acquisition, determination of compensation, or payment, pursuant to these
regulations and
R.S.
56:432.1, 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 coastal protection, conservation, or restoration is proper or
whether the compensation issued by the department satisfied the regulations
under this Subchapter, and that administrative or judicial review may be
permissible, but that the procedures stated by law and these regulations must
be followed or such right of review may be lost or impaired; and
17. a statement that a request for
administrative or judicial review shall have no effect upon the validity of the
acquisition of the acquired acreage, but only the compensation payable to the
leaseholder, unless review is sought timely and the leaseholder proves that the
project or action for which the acreage was acquired does not further coastal
protection, conservation, or restoration.
D. Before issuing any notice of acquisition,
the department shall make a reasonable attempt to determine whether any amount
is due on a recorded lien or encumbrance in relation to any oyster lease
covering the acreage to be acquired. The holder of the lien or encumbrance and
the leaseholder may negotiate to allocate the compensation to be paid under the
notice of acquisition by written agreement among them. Any such written
agreement must fully release and indemnify the department from any claim in
relation to the acreage to be acquired or the compensation for such acreage.
1. If no such written agreement is provided
on or before the date when the department issues the notice of acquisition, the
department shall withhold the full amount of all liens or encumbrances covering
any of the acreage to be acquired, up to the full amount of the compensation
determined by the department. If the department timely receives such a written
agreement, the department shall withhold the amount agreed by the lienholder or
encumbrance holder. A statement of the name of the holder and the amount
withheld in relation to each lien or encumbrance shall be issued to the
leaseholder as part of the notice of acquisition.
2. Should the amount of compensation to be
paid for the acquired acreage be insufficient to pay the entirety of the lien
or encumbrance, any lien or encumbrance shall be paid in order of legal
preference and all holders of any remaining or unpaid lien or encumbrance shall
be notified of the reason for non-payment or partial payment and issued a copy
of the notice of acquisition.
3.
The department shall forward payment in the full amount of any withholding to
the holder of the lien or encumbrance by certified United States mail, return
receipt requested, postage pre-paid, or by pre-paid receipted courier or
delivery service, or hand delivery, to the last address on file with the
secretary of state, if any, or to any address provided to the department or DWF
by the lien or encumbrance holder. A copy of the notice of acquisition and
determination of compensation, showing the lien or encumbrance and the
withholding in relation thereto, shall be attached to the payment.
4. If the department is unable to make
delivery of the payment by these means, the department shall transfer funds in
the full amount of the withholding to a trust account from which it may be
drawn for the benefit of the holder of the lien or encumbrance by joint
agreement of the holder and the department, upon request of the lienholder of
record on the date the notice of acquisition is initially issued.
5. If funds deposited into a trust account
pursuant to this Subsection remain unclaimed after a period of five years, the
funds shall be declared to be abandoned and may be disposed of pursuant to the
Uniform Unclaimed Property Act,
R.S.
9:151 et seq., at the sole discretion of the
secretary.
E. If the
department attempts issuance of notice of acquisition, determination of
compensation, and the check pursuant to
§313 C, at least once, and is unable to
make delivery of the notice to the leaseholder thereby, the department shall
re-issue the notice and the determination of compensation by certified United
States mail, return receipt requested, to the leaseholder at his address on
file with DWF on the date of the re-issuance. In such event, the department
shall also publish a summary of such notice identifying the affected lease and
acreage to be acquired, stating the effective date of the acquisition and
providing a contact person at the department for all inquiries regarding the
acquisition, in the official journal for all parishes in which any part of the
acreage to be acquired is located. In addition, the following procedures shall
apply.
1. If a Notice of Acquisition is
re-issued under this Subsection, no check shall be attached to the re-issued
notice. Instead, payment in the full amount of the determination of
compensation, except for and less any amount due on recorded liens and
encumbrances to be paid out of said proceeds, shall be transferred into a trust
account from which it may be drawn for the benefit of the leaseholder by joint
agreement of the leaseholder and the department, upon request of the
leaseholder listed with DWF on the date the notice of acquisition is initially
issued. If said funds deposited into a trust account pursuant to this
Subsection remain unclaimed after a period of five years, the funds shall be
declared to be abandoned and may be disposed of pursuant to the Uniform
Unclaimed Property Act as set forth in
R.S.
9:151 et seq., at the sole discretion of the
secretary.
2. A re-issued notice
shall include a statement that compensation for the acquisition has been
deposited into a trust account, and that a contact person at the department
designated in the re-issued notice can assist the leaseholder in withdrawing
said funds from the trust account. The reissued notice shall also include a
statement that any funds in the trust account remaining unclaimed after five
years shall be declared abandoned and may be disposed of pursuant to the
Uniform Unclaimed Property Act,
R.S.
9:151 et seq.
F. Upon the effective date of acquisition of
affected acreage as stated in the notice of acquisition, possession of the
affected acreage acquired pursuant to the notice of acquisition, issued in
accordance with this section shall revert back to the state of Louisiana, free
and clear of any lease or other obligation or encumbrance, and regardless of
whether the leaseholder actually receives the notice of acquisition.
G. No lease shall be granted for any water
bottom for which any lease was previously acquired by the state for coastal
protection, conservation, or restoration, unless the secretary of DWF
determines that leasing would otherwise be appropriate under the provisions of
Subpart D of Part VII of Chapter I of Title 56 of the Louisiana Revised
Statutes of 1950 and the secretary of DNR affirms that the water bottom is not
necessary for coastal protection, conservation, or restoration, as provided by
and in accordance with the provisions of
R.S.
56:425(E). Unless this
determination has been made prior to issuance of the lease, a lease of water
bottom for which a lease was previously acquired shall be null and void for
such water bottom and shall be of no force or effect. No person shall have any
claim against either secretary, either department, the state of Louisiana, its
political subdivisions, the United States, or any agency, agent, contractor, or
employee thereof or any other person in relation to the nullity of such lease.
The determination of whether the water bottom sought to be leased is not
necessary for coastal protection, conservation, or restoration shall be at the
sole discretion of the secretary of DNR, upon consideration of existing,
planned, projected, or reasonably foreseeable projects or other actions needed
for coastal protection, conservation, or restoration.
H. Nothing in these regulations shall be
construed to require the secretary to engage in or perform any project or other
action for coastal protection, conservation, or restoration or any oyster
resource survey, appraisal, or valuation.
AUTHORITY NOTE:
Promulgated in accordance with
R.S.
49:213.1, et seq.,
R.S.
56:425, and
R.S.
56:432.1.
