La. Admin. Code tit. 43 § XXXI-205

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

Section XXXI-205 - Provisions Applicable to all Agreements

A. Discretion of the Executive Director

1. Subject to approval of any agreement by the House and Senate Committees on Natural Resources, the executive director shall have complete and final discretion regarding whether to enter into any agreement, and if so, regarding the terms of the agreement, including but not limited to the location and configuration of lands, water bottoms, or subsurface mineral rights affected or conveyed by the agreement and the nature and extent of any interests affected, established, or conveyed by the agreement.

2. An agreement may contain any term that is within any authority of the executive director, when the executive director determines that inclusion of the term is in the best interests of the state.

B. Determination of Boundaries

1. The owner shall consult with the administrator of the Office of State Lands to determine whether a boundary for existing or emergent land is disputed as between the state, the owner, and any other owners that may be affected by the agreement.

2. In the event of a disputed boundary between the state and other owners, the executive director may require a boundary determination pursuant to R.S. 41:1131-1136, whether as a prerequisite to negotiating or entering into an agreement, as a means of finalizing or updating a boundary for emergent land, or for any other situation when a boundary is disputed.

C. Required Terms. Any agreement shall include the following:

1. identification of the ownership and boundaries of lands or water bottoms affected by the agreement;

2. legal descriptions of the boundaries of existing land and eroded land affected by the agreement, acquired land acquired pursuant to the agreement, lands as to which the owner compromises its reclamation rights pursuant to the agreement, and subsurface mineral rights established, compromised, or conveyed pursuant to the agreement;

3. plat depicting lands, water bottoms, and boundaries of existing land or eroded land affected by the agreement. Unless otherwise agreed by the executive director, the plat shall be prepared by a surveyor currently registered by and in good standing with the Louisiana Professional Engineering and Land Surveying Board and shall depict and label the following:

a. location and boundaries of existing land, eroded land, and water bottoms affected by the agreement, as of the most current data available, showing Louisiana grid coordinates of all corners and angle points and identifying the source of data used;

b. location and boundaries of any acquired land acquired pursuant to the agreement, showing Louisiana grid coordinates of all corners and angle points and identifying the source of data used;

c. location and boundaries of any lands as to which the owner compromises its reclamation rights pursuant to the agreement, showing Louisiana grid coordinates of all corners and angle points and identifying the source of data used;

d. location and boundaries of any subsurface mineral rights established or conveyed pursuant to the agreement, showing Louisiana grid coordinates of all corners and angle points and identifying the source of data used;

e. ownership of existing land, water bottoms, acquired land, and subsurface mineral rights affected by the agreement, both prior to and as affected by the agreement. The last owners of eroded land affected by the agreement, immediately prior to its erosion, shall also be identified.

f. existing shorelines, as of the most current data available, and identifying the source of the data used;

g. shorelines or coastline as of July 1, 1921 or as of the earliest time for which data is available, identifying the date and source of the data used;

h. coast of the Gulf of Mexico, as that coast is defined in the decree of the United States Supreme Court dated June 16, 1975, in United States v. State of Louisiana, No. 9 Original (Tidelands Case);

i. all parish, town, city, and similar boundary lines within or in the vicinity of the lands or water bottoms affected by the agreement;

j. all roads within or in the vicinity of the lands or water bottoms affected by the agreement;

k. graphic scale, north arrow, and township, section, and range; and

l. any other matter required by the executive director;

4. stipulation that the acquired land shall remain available for the principal purposes of the acquisition and that the state may enforce the stipulation by specific performance and by mandatory and/or prohibitory injunction. For a type 2 agreement, the acquiring authority will pay all of the states reasonable attorney fees, expenses, and costs involved in enforcing this stipulation if the acquiring authority fails to enforce the stipulations as determined by CPRA.

D. Negotiation of Agreements. The executive director may negotiate an agreement by any means and in any manner permissible under law that he deems appropriate and in the best interests of the state.

1. The executive director may designate a person, section, or division within the CPRA to receive requests for agreements.

2. The executive director may designate a person, section, or division within the CPRA to negotiate each agreement.

3. The executive director may notify an owner that he seeks an agreement, and he may request a meeting to negotiate the proposed agreement. Such notification may, but need not be, in writing.

4. If any person possesses or reasonably appears to the executive director to possess an interest in existing land or eroded land that may be affected by the agreement, the executive director may include such person in the negotiations and any agreement.

E. Suspensive Conditions. An agreement or term thereof may be subject to a suspensive condition, and in such cases the agreement or term shall be of no force or effect until the condition occurs. Where a suspensive condition is imposed by operation of law, it need not be stated in the agreement. For example, the establishment or conveyance of ownership of subsurface mineral rights in emergent land pursuant to an agreement must be contingent upon the emergence of such land. The parties should explicitly agree as to whether the terms and/or other consideration provided in the agreement constitute sufficient cause for the parties mutual undertakings.

F. Resolutory Conditions. An agreement or term thereof may be subject to a resolutory condition, and in such cases the agreement or term shall be of no force or effect upon occurrence of the resolutory condition. Where a resolutory condition is imposed by operation of law, it need not be stated in the agreement. For example, ownership of subsurface mineral rights in emergent land established or conveyed pursuant to an agreement terminate upon the re-erosion of such land; except the effects of R.S. 9:1151 et seq. shall not be affected thereby. The parties should explicitly agree as to whether the terms and/or other consideration provided in the agreement constitute sufficient cause for the parties mutual undertakings.

G. Use of Surface. Unless otherwise agreed, any person granted a perpetual, transferrable ownership of subsurface mineral rights pursuant to an agreement shall have a perpetual, transferrable servitude to use the surface of any such land for the purposes of locating, accessing, extracting, and transporting those subsurface minerals with the same freedom, and subject to the same restrictions, as an owner of the surface. However, the parties may agree to compromise this right; and no such right may be exercised so as to impair, contravene, and/or interfere with the integrity, features, and/or purposes of any integrated coastal protection project.

H. Provision of Information. Any owner or acquiring authority sought to be included in an agreement shall provide all information deemed necessary by the executive director to consider and reach final decisions regarding any matter addressed in this Chapter.

I. Notice of Final Decision. If the executive director makes a final decision not to enter into a proposed agreement, he shall mail written notice of his final decision, designated as such, to any person requesting the agreement at such persons address as provided to the executive director. Such notice shall be sent by certified mail, return receipt requested.

J. Payments in Lieu of Taxes. The executive director may require a provision in any agreement that the owner or acquiring authority shall pay to the political subdivision or parish governing authority a certain amount in lieu of taxes to be paid to that governmental entity as to existing land conveyed to the state or an acquiring authority or to eroded land rights acquired by the state. The payments in lieu of taxes shall not exceed the amount that would have been paid in accordance with the local property tax assessments prior to entering into an agreement. The amount and duration of the payments shall be negotiated by the parties, and the executive director may consult with the political subdivision or parish governing authority in relation thereto.

K. Limitation to Coastal Area. Agreements under this Chapter shall pertain only to lands and water bottoms within the coastal area as defined at R.S. 49:214.2. However, the executive director may waive this limitation in extraordinary circumstances, if he determines that adequate measures are included in the agreement or otherwise available to the CPRA to protect the public interest in the lands and water bottoms affected by the agreement.

La. Admin. Code tit. 43, § XXXI-205

Promulgated by the Office of the Governor, Coastal Protection and Restoration Authority, LR 451581 (11/1/2019).

AUTHORITY NOTE: Promulgated in accordance with R.S. 41:1702.