La. Admin. Code tit. 76 § VII-505

Current through Register Vol. 50, No. 9, September 20, 2024

Section VII-505 - Oyster Lease Moratorium

A. A moratorium on the issuance of oyster leases for water bottoms not presently under lease is established. This includes a moratorium on the taking of oyster lease applications for water bottoms not presently under lease. This moratorium shall remain in place and may not be finally lifted until the following preferential rights have been claimed or forfeited in the following order. Upon the conclusion of the final oyster lease moratorium lifting phase, the secretary shall have the authority to fully and finally lift the moratorium. The secretary shall notify the Wildlife and Fisheries Commission of the lifting of the moratorium and post notice thereof on the department's website at least 30 days before the lifting becomes effective.

1. Phase 0: Processing Pre-Moratorium Lease Application Backlog

a. Applications pending at the time of the March 7, 2002 moratorium shall be processed. This includes all pending applications that have been held, along with all fees paid, but excludes applications as to which the applicant requested cancellation of the application and received a refund of fees.

b. In the event of the death of an applicant, the applicant's heirs or legatees shall so notify the department; and any lease ultimately issued shall issue only to persons placed in possession of the application by Judgment of Possession or to a court-appointed administrator or executor on behalf of a deceased applicant's estate.

c. Pending applications shall be subject to the application procedures established in R.S. 56:427(F) and LAC76:VII.501.B.

d. The Office of State Lands shall make a determination of ownership for water bottoms applied for in any pending application prior to the execution of such lease.

e. Pending applications may be issued as a "dual claim lease" under LAC 76:VIL502 if ownership of the water bottom is contested.

f. No water bottoms applied for in a pending lease application shall be leased if such water bottoms were encumbered by a private oyster lease that was in effect and properly recorded as of February 1, 2016 in the public records of the parish where the water bottoms are located, and at the time of the lease application, are encumbered by a private oyster lease, to the extent of the lease in effect on February 1, 2016. An applicant may amend the pending application to limit it to the remainder of the water bottoms that are not encumbered by the private oyster lease, or may withdraw the application and receive a full refund.

g. Any lease executed under this phase shall not be subject to the subordination conditions established in LAC 76:VII.501.A.7, as they were originally applied for prior to July 1,2016.

h. In addition to the official notification of eligible applications the department shall post on the department's website a list of all applicants with pending oyster lease applications eligible for process under Phase 0.

2. Phase I: Right of First Refusal for Non-Renewed Avenal Leases

a. In coordination with the Coastal Protection and Restoration Authority, the department shall identify the leases that were not renewed since January 1, 1996, due to recommendations from the Department of Natural Resources that such leases would be in the operational or impact area of a planned integrated coastal protection project, and those leases whose lessee voluntarily failed to renew the lease between January 1, 1996 and October 19, 2004, and was a party to the class action suit entitled Albert J. Avenal, Jr. et al. v. State of Louisiana and the Department of Natural Resources.

b. The lessee of record at the time the original lease was not renewed shall have the right of first refusal for a new lease for the previously leased acreage.

c. The department shall publish a list of eligible leases on its website for 60 consecutive days, together with notice of the right of first refusal for new leases for the previously leased acreage and the deadline for applying for the new leases under this phase. The deadline for application for new leases under this phase shall be 60 days from when notice is first posted.

d. Any potentially eligible applicant who fails to apply during this 60-day application period forfeits all rights to the lease under this phase.

e. In addition to the official notification of eligible leases posted on the department's website, the department shall also send notice of the right of first refusal for new leases for the previously leased acreage and the deadline for applying for the new leases under this phase in writing via certified letter, to all lessees of record at the time of nonrenewal. The purpose of this measure is to provide additional notice. The posting of the eligible leases on the department's website shall be the official notice. Any claim that the department failed to provide written notice via certified letter, or that such notice was untimely shall not serve to extend the application deadline or be sufficient cause to negate forfeiture of a lessee of record's right of refusal.

g. Any lease executed under this phase shall not be subject to the subordination conditions established in LAC 76:VII.501.A.7 and R.S. 56:423(A)(2).

h. This phase of the moratorium lifting shall not commence until the department has finally acted upon all outstanding lease applications under Phase 0.

3. Phase II: Incorporation of Adjacent Water Bottoms

a. A lessee may expand any lease existing as of January 1, 2016 under this phase by amending the lease to incorporate immediately adjacent water bottom that is not leased.

b. Such expansion shall be limited to five hundred feet beyond the existing lease boundary, and only toward:

i. existing Louisiana coastline as shown on the last oyster lease survey plat on record;

ii. existing Louisiana coastline as of January 1, 2016, as shown by the 2015 NAIP imagery, located within 1,000 feet of the existing lease boundary; or

iii. another lease existing as of January 1, 2016, but only where there is 500 feet or less between the leases.

(a). Expansion between two leases separated by 500 feet or less shall be divided equally between the two applicants.

(b). Allocation for expansion between three or more applicants whose leases are separated by 500 feet or less must be agreed upon in writing signed by each of them under authentic act, submitted to the department within the application period. The area shall be divided according to this agreement. Failure to provide such an agreement within the application period results in a forfeiture of all rights to expansion under this phase for each applicant.

c. The department shall post on its website, for one hundred eighty consecutive days, notice of the availability of lease expansions and the deadline for applying for expansions under this phase.

d. The deadline for application under this phase shall be 180 days after notice is first posted.

e. If a lessee fails to apply for an expansion within this application period, he forfeits all rights to expansion under this phase.

f. Expansions issued under this phase shall be identified and issued as an extension to the existing lease and treated as a single lease, including the conditions and the term governing the existing lease. However, the expanded portion of the lease will be subject to the subordination conditions in LAC 76:VII.501.A.7 and R.S. 56:423(A)(2).

g. No water bottoms applied for in a pending lease application shall be leased if such water bottoms were encumbered by a private oyster lease that was in effect and properly recorded as of February 1, 2016 in the public records of the parish where the water bottoms are located, and at the time of the lease application, are encumbered by a private oyster lease, to the extent of the lease in effect on February 1, 2016. An applicant may amend the pending application to limit it to the remainder of the water bottoms that are not encumbered by the private oyster lease, or may withdraw the application and receive a full refund.

h. This phase of the moratorium lifting shall not begin before the time period for applying for leases under Phase I has expired.

4. Phase III: Right of First Refusal for Lessees under Private Lease

a. For any water bottom claimed by a private person that was under a private oyster lease issued by a private claimant with record title to the water bottom and recorded in the public records of the parish where it is located by February 1, 2016, the private lessee of that water bottom at the time of implementation of Phase III shall have the right of first refusal for a new state lease, including a dual claim lease, on any water bottom claimed by the state within the area of the existing private oyster lease.

b. The department shall post on its website, for 60 consecutive days, notice of the right of first refusal for new state leases, including dual claim leases, within the area of private oyster leases and the deadline for applying for new leases under this phase.

c. The deadline for application under this phase shall be 60 days after notice is first posted.

d. If a lessee fails to apply for a lease within this application period, he forfeits all rights to a state lease under this phase.

e. This phase is the only time where lessees may "convert" privately issued oyster leases located on state claimed water bottoms, to state-issued leases, including dual claim leases, under these regulations. Upon conclusion of Phase III, private leases on state-claimed water bottoms previously recognized as valid by Act 570 of the 2016 Regular Legislative Session will either have been converted to regular state leases or dual claimed leases, or they will cease to be recognized by the department. Continued harvest on state water bottoms after this phase without a state-issued lease, regardless of whether a privately issued oyster lease exists, will be subject to enforcement action. Any portions of privately issued oyster leases on water bottoms not claimed by the state at the time of Phase III applications will not be subject to or affected by Phase III, and will not be afforded any right of first refusal or other priority or preference.

f. This phase of the moratorium lifting shall not begin before the time period for applying for Phase II has expired.

5. Phase IV: First Lottery Phase

a. The department shall post on its website, for 60 consecutive days, notice of the oyster lease lottery and the deadline for entering the lottery.

b. The deadline for submitting an entry shall be 60 days after notice first posted.

c. Any person eligible for an oyster lease under R. S. 56:425 may submit a single lottery entry for an appointment to apply for a single lease under this phase.

i. Individuals may apply multiple times if each application is made on behalf of a separate juridical person. An individual applying on behalf of a non-natural person must submit a certified copy of a filing with the Secretary of State showing that he is an officer or agent of the non-natural person.

d. If any person fails to submit a lottery entry within this application period, he forfeits all rights to a new lease under this phase.

e. Upon the conclusion of the application period, the oyster lease section shall enter each valid applicant into a random selection process using computer-generated randomization software to assign appointment priority.

f. Lottery participants will be given notice of their random priority number following the selection process.

g. The lottery entrants shall be assigned an appointment date and time with the oyster lease section based upon their priority. Appointment times will be assigned strictly by priority and shall not be negotiable.

h. The department shall send notification of the appointment date and time in writing to each lottery entrant at the address provided in the lottery application, at least 14 days prior to the date of the scheduled appointment. Additionally, the department shall maintain an electronic calendar of scheduled appointments and priority queue on its website.

i. A lottery entrant who fails to attend his scheduled appointment, for any reason whatsoever, shall be moved to the bottom of the priority list and his appointment shall be rescheduled accordingly. Failure to attend the rescheduled appointment will result in a forfeiture of all rights to a lease under this phase.

j. This phase of the moratorium lifting shall not begin before the time period for applying for leases under Phase III has expired.

6. Phase V: Second Lottery Phase

a. If after Phase IV, the secretary believes that a second lottery phase is warranted, then he may elect to conduct a second lottery.

b. This second lottery shall be subject to the same guidelines established by the commission governing the first lottery.

c. This phase of the moratorium lifting shall not begin before all applications for leases or expansions under Phases I, II, III, and IV have been finally received by the department.

La. Admin. Code tit. 76, § VII-505

Promulgated by the Department of Wildlife and Fisheries, Wildlife and Fisheries Commission, LR 10:948 (November 1984), amended LR 29:374 (March 2003), LR 33:1397 (July 2007), Amended LR 46598 (4/1/2020).

AUTHORITY NOTE: Promulgated in accordance with R.S. 56:6(10), R.S. 56:422, R.S. 56:425, R.S. 56:429, R.S. 56:432.1, Act 808 of the 2008 Regular Legislative Session, Acts 570 and 595 of the 2016 Regular Legislative Session.