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Regular Session, 2011
SENATE BILL NO. 240
BY SENATOR CHABERT
Prefiled pursuant to Article III, Section 2(A)(4)(b)(i) of the Constitution of Louisiana.
FISH/FISHING. Provides relative to oysters leases. (gov sig)
AN ACT1
To amend and reenact R.S. 56:423(A) and (B)(1), and to enact R.S. 56:428(D) and2
Subsections D and E of Section 2 of Act No. 808 of the 2008 Regular Session of the3
Legislature, relative to oyster leases; to provide for substitution for oyster leases4
under certain circumstances; to provide relative to liability under certain5
circumstances; to provide a procedure for ownership claims to certain oyster leases;6
to provide certain terms, conditions, procedures, and requirements; and to provide7
for related matters.8
Be it enacted by the Legislature of Louisiana:9
Section 1. R.S. 56:423(A) and (B)(1) are hereby amended and reenacted and R.S.10
56:428(D) is hereby enacted to read as follows:11
§423. Property rights, larceny or other public offenses concerning; leases heritable12
and transferable; adjudication of claims13
A. A lessee shall enjoy the exclusive use of the water bottoms leased and of14
all oysters and cultch grown or placed thereon, subject to the restrictions and15
regulations of this Subpart and Part II of Chapter 2 of Title 49 of the Louisiana16
Revised Statues of 1950.17 SB NO. 240
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(1) This exclusive use of water bottoms is subordinate to the rights or1
responsibilities of the state, any political subdivision of the state, the United States,2
or any agency or agent thereof, to take any action in furtherance of coastal3
protection, conservation, or restoration. For purposes of this Subpart, "coastal4
protection, conservation, or restoration" means any project, plan, act, or activity for5
the protection, conservation, restoration, enhancement, creation, preservation,6
nourishment, maintenance, or management of the coast, coastal resources, coastal7
wetlands, and barrier shorelines or islands, including but not limited to projects8
authorized under any comprehensive coastal protection master plan or annual coastal9
protection plan issued pursuant to Part II of Chapter 2 of Title 49 of the Louisiana10
Revised Statutes of 1950. The lessee shall hold the permittee, the state, and any11
political subdivision of the state, and all or any agency or agent thereof free and12
harmless from any claim for any damage, cost, expense, loss, or inconvenience13
whatsoever arising from damage caused by coastal protection, conservation, or14
restoration, except as provided in R.S. 56:427.1.15
(2) This exclusive use of water bottoms is subordinate to the rights of any16
person to engage in any oil or gas exploration and production activity permitted17
by a coastal use permit granted pursusant to R.S. 49:214.30 before the date that18
the original oyster lease application was filed pursuant to R.S. 56:427. The19
lessee shall hold the permittee, the state, any political subdivision of the state,20
or any agency or agent thereof free and harmless from any claim for any21
damage, cost, expense, loss, or inconvenience whatsoever arising from damage22
caused by oil or gas exploration and production permitted by a coastal use23
permit granted pursuant to R.S. 49:214.30 before the date that the lessee's24
original oyster lease application was filed pursuant to R.S. 56:427. This25
Paragraph shall not apply to any lease issued prior to the effective date of this26
Paragraph, or to any lease reissued pursuant to Section 2.B. of Act No. 808 of27
the 2008 Regular Session of the Legislature.28
B.(1) A lessee of oyster beds or grounds who has obtained, recorded, and29 SB NO. 240
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marked lease in compliance with the law shall have the right to maintain an action1
for damages against any person, partnership, corporation, or other entity causing2
wrongful or negligent injury or damage to the beds or grounds under lease to such3
lessee.4
(a) However, no lessee shall have any right to maintain any action against5
the state, any political subdivision of the state, the United States, or any agency,6
agent, or contractor, or employee thereof for any claim arising from any project,7
plan, act, or activity in relation to coastal protection, conservation, or restoration,8
except as provided in R.S. 56:427.1.9
(b) No lessee shall have any right to maintain any action against any10
person arising from any oil or gas exploration and production activity permitted11
by a coastal use permit granted pursuant to R.S. 49:214.30 before the date that12
the lessee's original oyster lease application was filed pursuant to R.S. 56:427.13
This Subparagraph shall not apply to any lease issued prior to the effective date14
of this Subparagraph or to any lease reissued pursuant to Section 2.B. of Act No.15
808 of the 2008 Regular Session of the Legislature.16
* * *17
§ 428. Commencement and duration of lease; renewal; fixing of rental rates18
* * *19
D. Notwithstanding the provisions of R.S. 56:423(D), a private person20
claiming ownership of property subject to an oyster lease pursuant to this21
Subpart may notify the administrator of the state land office and the secretary22
of the Department of Wildlife and Fisheries that he contests ownership of such23
property. The relief available pursuant to and the results of such a notice24
of contest are limited to those in this Subsection.25
(1) The notice of contest shall be in writing and delivered by certified26
mail, return receipt requested to both the administrator and the secretary. The27
notice shall identify with specificity the boundaries of the leased property which28
is being contested. The notice shall explain the basis upon which the contesting29 SB NO. 240
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party asserts ownership, and identify the oyster lease he believes has been1
granted for the contested property and the lessee if known. The contesting party2
shall attach copies of all deeds of ownership and other documents upon which3
he bases his assertion of ownership.4
(2) The notice of contest must be received by the administrator and the5
secretary at least three years before the expiration of the current lease of the6
contested property.7
(3) Upon receipt of a notice of contest meeting the requirements of this8
Subsection, the secretary shall advise the lessee of record with the department9
for the lease within the area of contested ownership that ownership of the10
property covered by the lease has been contested. The secretary shall advise the11
lessee, in writing and delivered by certified mail, return receipt requested within12
sixty days after receiving the notice of contest or at least three years before the13
expiration of the lease covering the area of contested ownership, whichever is14
later.15
(4) Upon receiving a notice of contest meeting the requirement of this16
Subsection, the administrator shall review the ownership status of the contested17
property, and shall advise the secretary as to whether and as to which portion18
of the contested property the state of Louisiana claims ownership. To the extent19
that the state does not claim ownership of the contested property, the secretary20
shall not renew the lease. To the extent that the state may renew the lease in21
accordance with this Subpart, the secretary shall notify the lessee under the22
affected lease, in writing and delivered by certified mail, return receipt23
requested, as to the determination regarding state ownership by the24
administrator and the action to be taken by the secretary pursuant to this25
Subsection.26
(5) The Department of Wildlife and Fisheries shall, in consultation with27
the Louisiana Sea Grant College Program, engage in a comprehensive analysis28
of the state's oyster leasing program with a goal of increasing the total actively-29 SB NO. 240
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harvested oyster lease acreage. This analysis shall include but not be limited to1
the statutory, regulatory, procedural, and fiscal components of the program and2
options for improvements to its management, operation, and financial basis.3
Within two years from the effective date of this Subsection, the department4
shall make a comprehensive recommendation to the Louisiana Wildlife and5
Fisheries Commission for improvements to the program, identifying the6
statutory, regulatory, procedural, and fiscal changes necessary and appropriate7
to such improvement.8
Section 2. Subsections D and E of Section 2 of Act No. 808 of the 2008 Regular9
Session of the Legislature are hereby enacted to read as follows:10
* * *11
D. The rules for final lifting of the moratorium shall allow the leaseholder12
of record for an oyster lease from the state that was in effect on April 20, 2010,13
and that was significantly impacted as a result of the Deepwater Horizon oil14
spill, including operation of freshwater diversions in response to the spill, to15
select and obtain a new lease in substitution for the impacted lease. 16
(1) The opportunity to select a substitution lease shall be provided for a17
limited period of time, and shall become available for exercise after resolution18
of the rights of first refusal provided by Section 2.B. hereof, lease applications19
pending on March 7, 2002, and the lease expansions if any authorized by20
Section 2.C. hereof.21
(2) The rules for substitution leases provided for in this Section shall:22
(a) Provide a methodology and measure for the Department of Wildlife23
and Fisheries to determine leases that were significantly impacted for purposes24
of this Act:25
(b) Provide a methodology for determining the size of substitution leases26
in relation to the size of the significantly impacted lease;27
(c) Provide for a leaseholder who elects to obtain a substitution lease to28
retain his existing lease for three years, to allow for orderly transition to the29 SB NO. 240
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substitution lease. At the end of the transition period, the original lease shall be1
automatically terminated;2
(d) Preclude selection of substitution leases in areas that are determined3
to be significantly impacted pursuant to the methodology discussed in Section4
2.A.; and5
(e) Treat substitution leases as new leases for all purposes.6
Section 3. This Act shall become effective upon signature by the governor or, if not7
signed by the governor upon expiration of this time for bills to become law without signature8
by the governor, as provided by Article III, Section 18 of the Constitution of Louisiana. If9
vetoed by the governor and subsequently approved by the legislature, this Act shall become10
effective on the day following such approval.11
The original instrument and the following digest, which constitutes no part
of the legislative instrument, were prepared by Michelle Broussard-Johnson.
DIGEST
Proposed law relative to oyster leases authorizes leases significantly impacted by the
Deepwater Horizon oil spill to obtain substitution leases. Such substitution leases would be
available for a limited period of time, after resolution of rights of first refusal for reissuance
of leases nonrenewed since 1996 due to coastal restoration projects, lease applicants pending
when the oyster lease moratorium was implemented on March 7, 2002, and rights of existing
lessees to expand their leases up to 500 feet.
Present law authorizes oyster leases and oil and gas exploration activities, concurrently and
on the same areas of state-owned property, without providing for priority of such uses or
resolving conflicts between the uses.
Proposed law precludes liability to an oyster lease arising from oil and gas activities
permitted prior to filing a new oyster lease for the same property.
Present law authorizes oyster leases to be renewed, even when ownership of the leased
property is contested.
Proposed law authorizes private persons contesting ownership of leased property to notify
the administrator of the State Land Office and the secretary of the DW&F of such contest,
requires the Secretary to notify the lessee, requires the administrator to determine whether
the state claims ownership of the contested property, requires the secretary not to renew the
oyster lease if the state does not claim ownership, and authorizes the secretary to renew the
oyster lease if the state does claim ownership, subject to all other requirements for such
renewal.
Proposed law directs the DW&F, in consultation with the Louisiana Sea Grant Program, to
engage in a comprehensive analysis of the state's oyster leasing program, and to make a
comprehensive recommendation to the Louisiana Wildlife and Fisheries Commission for
improvements to the program, identifying the statutory, regulatory, procedural, and fiscal
changes necessary and appropriate to such improvement. SB NO. 240
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Effective upon signature of governor or lapse of time for gubernatorial action.
(Amends R.S. 56:423(A) and (B)(1); adds R.S. 56:428(D) and Subsections D and E of
Section 2 of Act No. 808 of 2008 R.S.)