§700.4. Disbursement of funds; eligibility; hearings
A. Payments may be disbursed by the undersecretary of the Department of Natural Resources as authorized by the secretary from the fund to compensate commercial fishermen for actual property damage suffered as a result of hitting or snagging an obstruction or hazard in the territorial waters of the state within the boundaries of the fund but shall not be extended to speculative loss such as anticipated profit or income.
B. In order to be eligible to receive reimbursement from the fund, a commercial fisherman must show that he has a valid claim. A valid claim shall be established by the hearing examiner, based on evidence that the following conditions have been met:
(1) The fishing vessel was being used for fishing in Louisiana territorial waters within the boundaries of this fund.
(2) The fisherman made a report to the Department of Natural Resources on the location of the obstruction postmarked within ninety days of the loss. If good cause is shown, the secretary of the Department of Natural Resources, when there are extenuating circumstances, may waive the ninety-day limit on the reporting period, such waiver period not to exceed forty-five days; and
(3) The fisherman has made a good faith effort to locate the financially responsible party. Evidence of a good faith effort shall be established by regulation, and shall include attempts to identify the responsible party with the assistance of the Department of Natural Resources where necessary.
C. The provisions of Subsections A and B of this Section notwithstanding, no payment:
(1) Shall be made by the fund when the damage set forth in a claim was caused by materials, equipment, structures, or other items attributable to a financially responsible party and unless evidence is submitted that the party responsible for the obstruction can not be determined;
(2) Shall exceed five thousand dollars for any incident; or
(3) Shall be made unless the claimant shows by a preponderance of evidence that he is free from contributory negligence in causing the loss.
(4) Shall be made for any claim at a site that has been certified by the assistant secretary of the office of conservation for the Department of Natural Resources as having been cleared under the Louisiana Underwater Obstruction Removal Program, R.S. 30:101.1 et seq. Once a site has been cleared under the Louisiana Underwater Obstruction Removal Program, the assistant secretary shall certify that the site of at least two hundred yards in diameter is free of obstructions and future claims at a site so certified shall be denied. Whenever four or more claims are reported after a site has been certified as clear, the site shall be revisited and the new or leftover obstruction shall be located and, if the department determines it is feasible, removed.
D. Upon receipt of a claim against the fund, the secretary shall assign the matter to a hearing examiner for disposition. Claimants shall submit such documentary evidence as the hearing examiner requires to prove a valid claim justifying payment from the fund. In the event that a dispute arises over any claim that cannot otherwise be resolved, the hearing examiner shall hold a hearing, after giving public notice. At such hearing, the claimant and any other interested person may submit evidence. The hearing examiner shall have the power to administer oaths and subpoena witnesses and books, records, and other evidence pertinent to the issue. The hearing shall be held in the state at a place and time determined by the secretary. After the hearing, a prompt decision shall be made, all in accordance with rules and regulations adopted pursuant to this Part and the Administrative Procedure Act.
Added by Acts 1979, No. 673, §1. Acts 1983, No. 705, §6, eff. Sept. 1, 1983; Acts 1988, No. 33, §1, eff. June 10, 1988; Acts 1999, No. 11, §1; Acts 1999, No. 599, §2, eff. July 1, 1999.