Current through Register Vol. 50, No. 3, March 20, 2024
A.
1. At any time, the department may enter into
a joint lease agreement or agreements with a private claimant for the leasing
of "dual claim" water bottoms to an applicant for the purposes of oyster
cultivation. Such an agreement will be referred to as a dual claim agreement. A
copy of each dual claim agreement will be maintained at the department's oyster
lease section. The department, in consultation with the administrator of the
Office of State Lands, and the private claimant, through the dual claim
agreement, will designate water bottoms as "dual claim" and authorize the
department to enter into dual claim oyster leases (as defined in Subsection B)
with applicants on the "dual claim" water bottoms pursuant to Title 56, Part
VII, Subpart D of the LRS of 1950. Except as provided in Subsection E of this
Section, no dual claim agreement shall contain any restrictions on the
applicant more burdensome than those in a traditional state-issued oyster
lease. A dual claim agreement shall remain in effect as to the "dual claim"
water bottoms affected thereby:
a. for the
entire term and to the extent of any state-issued oyster lease or renewal
issued by the department thereon; or
b. until and to the extent that ownership of
the "dual claim" water bottoms is determined by a final, unappealable judgment
of a court of competent jurisdiction; or
c. until such time that no dual claim lease
has been issued, and no claimed water bottom remains subject to the dual claim
agreement by virtue of the exercise of withdrawal rights as provided in
Subsection C of this Section.
2. Neither the existence nor the terms of any
dual claim agreement or dual claim lease shall in any way be interpreted to
indicate, determine, allocate, or otherwise affect ownership of any water
bottoms or mineral rights beneath any water bottoms.
B. The term dual claim lease shall refer to
an oyster lease issued by the department on "dual claim" water bottoms that are
subject to a dual claim agreement, for which a private claimant holds record
title, to which the state also makes an ownership claim as a sovereign
navigable water bottom, and to which title has not been adjudicated to either
party by a final, unappealable judgment of a court of competent
jurisdiction.
C. Both the
department and the private claimant shall have the right to withdraw any dual
claim water bottoms or portions thereof from a dual claim agreement by and upon
written notice to the other ("withdrawal notice"), provided that the department
has not received an application for a dual claim lease on the water bottoms
affected by the withdrawal notice at the time the withdrawal notice is
received.
D. A dual claim lease
shall be executed on a department lease form and shall be subject to the same
rules and regulations that apply to traditional state-issued oyster leases,
except the dual claim lease shall be titled as such, and shall include and be
subject to the following clause:
The water bottoms that are the subject of this lease are
committed to a dual claim agreement entered into by and between the Louisiana
Department of Wildlife and Fisheries ("DWF") and ("private claimant"), as
authorized by
R.S.
56:425.1 (Act 570 of 2016). That dual claim
agreement is on file with the DWF Oyster Lease Section. Lessee hereunder
acknowledges that it has been provided a copy of the dual claim agreement in
connection with lessee's application or request for the issuance of this oyster
lease. This lease is subject to all terms and conditions of that dual claim
agreement in effect on the effective date of this lease. Neither the existence
nor the terms of any dual claim agreement or this lease shall in any way be
interpreted to indicate, determine, allocate, or otherwise affect ownership of
any water bottoms or mineral rights beneath any water bottoms.
E. Any state-issued oyster lease
may be amended with the consent of the lessee, in the lessee's sole discretion,
to:
1. incorporate the foregoing clause into
the existing state-issued oyster lease; and
2. convert the state-issued oyster lease to a
dual claim lease. Such conversion shall have no effect on the effective date of
the lease or any rights, privileges, or obligations of the lease, except as
modified by the clause established in Subsection D of this Section.
F. The department shall receive
the same annual rental payment for a dual claim lease as established by
R.S.
56:428 for any state-issued oyster lease.
However, as a condition of the dual claim agreement, a private claimant may
negotiate an additional private rental payment.
1. State-issued oyster leases in existence as
of July 1, 2016 may be subject to a dual claim agreement, but the department
shall not execute a dual claim agreement that requires private rental payment
for such water bottoms.
2. Any such
private payment shall be stated in or determinable from the dual claim
agreement.
3. Under no
circumstances may the department execute a dual claim agreement where the
private rental rate exceeds the rate received by the department.
4. If a private rental payment is required,
such payment shall be paid directly to the private claimant as lessor; the
department shall neither receive nor be the repository for any such payment,
nor have any right or responsibility in relation thereto.
5. The dual claim agreement may set forth
deadlines and penalties for untimely payment or non-payment of the private
payment, but no such deadlines or penalties may be more onerous in terms of
deadlines, amount, or consequences than those applicable to state-issued oyster
leases. If the dual claim agreement does not provide for such private deadlines
or penalties, the deadlines, amount, and consequences for non-payment or late
payment of the private payment shall be the same as those applicable to
state-issued oyster leases. Regardless, private claimants shall have no
responsibility to issue any notice of payment due or late. If a dual claim
lease terminates due to non-payment of either the state or private payment, the
dual claim lease shall immediately be terminated in its entirety and for all
purposes, and the dual claim agreement party whose payment was unpaid shall
immediately notify the other party and the lessee of the termination.
G. The department may not execute
a dual claim agreement unless it provides that both the private claimant and
the department are prohibited from entering into any oyster lease for water
bottoms subject to the dual claim agreement, except through a dual claim lease;
and that upon the effectiveness of any dual claim lease issued pursuant to the
dual claim agreement, the dual claim lease shall replace and supersede in its
entirety any then-existing oyster lease previously granted by the private
claimant, but only as to acreage within the dual claim lease.
AUTHORITY NOTE:
Promulgated in accordance with
R.S.
56:425.1 and Act 570 of the 2016 Regular
Legislative Session.
