RÉSUMÉ DIGEST
ACT 595 (HB 902) 2016 Regular Session Leopold
Existing law provides that an oyster lessee enjoys exclusive use of the water bottoms leased
and the oysters and cultch grown or placed on that water bottom subject to certain restrictions
resulting from coastal restoration efforts by the state, any political subdivision of the state,
and the federal government.
New law, for any oyster lease initially applied for after July 1, 2016, or any judicial partition
or renewal of such lease, further subordinates the lessee's right of use to the following:
(1)Any person engaged in any activity authorized by a coastal use permit for which the
coastal use permit application was issued prior to the date the oyster lease application
was issued. New law applies the subordination of right of use to an area 75 feet from
the center of a pipeline or 250 feet from the outside of a well, platform, shell pad, or
facility.
(2)Any person operating, maintaining, replacing, repairing, rehabilitating, or removing
any pipeline, well, platform, shell pad, or facility placed prior to Sept. 20, 1980, and
placed prior to the issuance date for the oyster lease. New law applies the
subordination of right of use to an area 75 feet from the center of a pipeline or 250
feet from the outside of a well, platform, shell pad, or facility.
(3)Any person crossing an oyster lease to access an activity, pipeline, well, platform,
shell pad, or facility through a single access channel identified in the coastal use
permit for such activity or a single access channel identified by the permit holder.
New law applies this subordination of right of use to an area within 50 feet of the
centerline of the access channel and a spoil area previously identified and limited to
80 feet to one side of the access channel.
New law provides immunity for the Dept. of Wildlife and Fisheries for actions arising out
of its consent or agreement to a specific access channel and requires the department to
consult with the lessee prior to approving an access channel. New law further specifies that
these provisions do not apply to any lease initially applied for prior to July 1, 2016, or any
lease issued under certain provisions of Act No. 595 of the 2016 R.S.
Existing law provides that a lessee of an oyster bed has a right to maintain an action for
damages to that oyster bed. Existing law does hold harmless the state, any political
subdivision of the state, and the federal government for activities related to coastal
restoration.
New law adds that no lessee has a right to maintain any action against another person arising
from an activity delineated in the new law above if that person has not violated any coastal
use permit, determination, or other coastal use authorization pursuant to law or any La. or
federal law or regulation applicable to the activity.
New law requires the Coastal Protection and Restoration Authority (CPRA) to determine
areas of the coast where buffer zones between oyster leases and the shoreline may be
necessary to protect sensitive and eroding coastal lands. New law further requires the CPRA
to review each application for an oyster lease or renewal or expansion of an oyster lease to
determine if the water bottom applied for is located in an area where a buffer zone may be
necessary and shall delineate the extent of the buffer zone necessary for each application.
New law requires that, prior to issuance of a lease, the Dept. of Wildlife and Fisheries must
post notice of the application on their website for 90 consecutive days. Authorizes any
person claiming ownership of the water bottoms to be leased to protest the issuance of a lease
on the grounds of ownership. Provides a detailed process and timeline by which the protest
is to be investigated including review and determination by the administrator of the state land
office. Allows the state land office 90 days from the date a protest is filed to make a
preliminary determination of state ownership and 180 days from the date a protest is filed to
make a final determination. Specifies that a lease may be issued only to the extent that the
administrator of the state land office determines that the water bottom is owned by the state.
Specifies that the determination by the administrator is not appealable under the Administrative Procedure Act but may be appealed to the 19th Judicial District Court.
Authorizes an applicant for an oyster lease to withdraw the application and receive a full
refund within 120 days after the department posts notice of the application on the website,
within 30 days after a determination by the administrator, or within 30 days after a final
judgment in any proceeding for judicial review of the determination. Prohibits oyster leasing
on right-of-way purchased by pipelines.
Existing law provides relative to default in payment of oyster leases. Requires rent to be paid
punctually on Jan. 1st each year or within 30 days thereafter. New law changes the 30-day
time period to 60 days.
Prior law provided that after 30 days the lease would be in default and could be taken back
by the department and opened for lease to the highest bidder. New law removes the ability
of the highest bidder to lease defaulted lease acreage. New law further requires that on or
before Feb. 1st each year, the department publish a notice of each delinquency in the official
journal of the parish where the lease is located. Any lessee who pays the rent on or before
Feb. 1st shall pay the rent plus an additional 10% penalty.
Existing regulation adopted by the Wildlife and Fisheries Commission on March 7, 2002,
placed a total moratorium on the issuance of new oyster leases by the Dept. of Wildlife and
Fisheries.
Prior to commencement of any of the phases delineated in the legislation, new law requires
that the state land office make a determination of state ownership of all water bottoms for
oyster lease applications submitted before the imposition of the moratorium, and the
department take appropriate actions resulting from the determination. Also establishes a
process to allow preferential rights to be claimed or forfeited in the following order prior to
the lifting of the moratorium:
Phase One – applies to those leases that were not renewed since Jan. 1, 1996, due to the lease
being located in the operational or impact area of a planned coastal project and to those that
were voluntarily given up between Jan. 1, 1996, and Oct. 19, 2004, and were a party to the
class action Avenal suit. Provides that the lessee of record at the time the lease was not
renewed be given right of first refusal for a new lease for the previously leased acreage.
Requires approval by the secretary of the Dept. of Wildlife and Fisheries and the secretary
of the Dept. of Natural Resources. New law changes the approval from the secretary of the
Dept. of Natural Resources to the executive director of the CPRA. Requires the Dept. of
Wildlife and Fisheries to post on their website for 60 days a list of non-renewed leases
eligible for re-leasing. Applications for the re-leasing of those water bottoms must be filed
prior to the end of the 60 days.
Phase Two – Incorporation of adjacent water bottoms. Authorizes a lessee to expand an
existing lease by incorporating immediately adjacent water bottom. Limits the incorporation
to 500 feet beyond the existing boundary and only toward previously existing coastline as
of Jan. 1, 2016, as shown in the 2015 U.S. Dept. of Agriculture, Farm Service Agency, Aerial
Photography Field Office, National Agriculture Imagery Program 4 band aerial imagery for
Louisiana, 1 meter resolution (the 2015 NAIP imagery), located within 1,000 feet of the lease
boundary, or another existing lease. Prohibits expansion toward another lease that is more
than 500 feet away. If there is 500 feet or less between two leases, the incorporation area
shall be divided equally. If there are more than two leases, the lessees must provide to the
Dept. of Wildlife and Fisheries a written, signed agreement for dividing the area among the
lessees. Requires the Dept. of Wildlife and Fisheries to post on its website for 180 days
notice of the availability of lease expansions. If a lessee does not apply to exercise the right
to incorporate adjacent water bottoms within that period of time, he forfeits his right to do
so.
Phase Three – Right of first refusal for leases under private lease. Specifies that for any
water bottom claimed by a private person that is under a private oyster lease recorded in the
public records in the parish where the water bottom is located by Feb. 1, 2016, the lessee of
that water bottom will have the right of first refusal for a new state lease on any water bottom
claimed by the state within the area of the existing private oyster lease. Requires the Dept.
of Wildlife and Fisheries to post on its website for 60 days the notice of such right of first
refusal ability. Any lessee that does not apply for a state lease within the 60-day time period
forfeits his right to a state lease under this phase. Phase Four – First lottery for appointment for new leases. Requires the Dept. of Wildlife and
Fisheries to establish a lottery system for submitting applications for new leases. Requires
posting on the department website for 60 days a notice of the lottery and deadline for
entering the lottery which shall be the 60th day of the posting. If a person does not apply
within the 60 days, he forfeits his right to apply for a new lease under this phase. Requires
the department to randomly assign a priority to all lottery entries and schedule appointments
to receive an application for a new lease. If the lottery participant misses his scheduled
appointment, he can be rescheduled after all other lottery participants have completed their
appointments.
Phase Five – Second lottery for appointments for new leases. Authorizes the department to
establish an additional lottery that will be conducted in the same manner as the first.
New law requires that each phase be taken in order and that each phase cannot begin until
all applications under the previous phases are received. Limits the availability of water
bottoms eligible for leasing under the two lottery phases to those water bottoms for which
there is not a pending application under any of the earlier phases.
New law requires that upon implementation of all phases outlined in this Act, the La.
Wildlife and Fisheries Commission promulgate and implement the rules necessary to lift the
oyster leasing moratorium.
Effective July 1, 2016.
(Amends R.S. 56:423(A) and (B) and 429, and Sections 2(B) and (C), and 3 of Act No. 808
of the 2008 Regular Session; Adds R.S. 56:425(F) and 427(F) and (G))