11 AAC 63.110. General lease provisions

An aquatic farmsite lease must contain at least the following provisions:

(1) A lessee shall operate so as to cause no significant damage to land, public trust resources, and public uses of public trust resources.

(2) A lease is subject to all applicable federal, state, and local law, including statutes and regulations in effect on its effective date; statutes and regulations placed in effect after its effective date, to the extent constitutionally permissible; and the public trust doctrine regarding the public's right to use navigable waters and the land beneath them for navigation, commerce, fishing, and other purposes.

(3) A lessee shall obtain and remain in compliance with all other federal, state, and local authorizations necessary for lawful operations.

(4) A proposed amendment to the lease development plan for the lease must be submitted to the department for approval before a change in development occurs, and must be accompanied by the application fee required by 11 AAC 05.010. However, under this paragraph

(A) the following changes do not require an amendment of the lease development plan nor do they constitute a significant modification requiring a new determination of consistency with the Alaska Coastal Management Program:

(i) any change in the species or number of shellfish or aquatic plants being raised if the change is permitted by the Department of Fish and Game;

(ii) a change in the number or type of rearing structures authorized within the lease boundaries, if the change does not increase obstructions to navigation or to other public use;

(B) the department will not authorize a proposed amendment to the lease development plan for a "change of use"; for the purpose of this subparagraph and AS 38.05.083 (d), "change of use" means a change from the raising of shellfish and aquatic plants to any other use; and

(C) the approval of an amendment of an aquatic farmsite lease does not relieve the lessee of the obligation to obtain other necessary authorizations.

(5) A lessee and its invitees may not use an aquatic farmsite for any unlawful purpose.

(6) A lessee may use an aquatic farmsite only for the purposes authorized by the lease, and the state reserves all other interests in the site. The rights granted by the lease must be exercised in a manner that does not unreasonably interfere with the rights of the state or of its permittees, lessees, or grantees, consistent with the principle of reasonable concurrent uses as set out in art. VIII, sec. 8, of the Alaska Constitution. A lessee shall pay for any damages that are payable by reason of the lessee's failure to comply with the requirements of this paragraph.

(7) A lessee shall comply with the approved development plan. Failure to comply with the commercial-use requirement set out in 11 AAC 63.030(b) is a default and cause for revocation, unless the lessee shows to the commissioner's satisfaction that the failure is due to circumstances beyond the lessee's reasonable ability to foresee or control. The lessee shall report annually to the department, no later than January 31, on sales during the previous year of shellfish and aquatic plants raised on the lease site, not including sales of commercially harvested wild stock that had been stored at the lease site. If the lessee provides this sales information to the Department of Fish and Game in an annual report, by copies of fish tickets, or by other means, the lessee may fulfill this paragraph's requirement for a sales report by asking the Department of Fish and Game to give a copy of the information to the department.

(8) A lessee's failure to timely comply with all express or implied provisions of the lease constitutes a default. If a lessee fails to cure the default or to begin and diligently continue to remedy the default within 60 days after written notice of the default and an opportunity to be heard, the commissioner will order suspension of site development or operations until compliance is achieved, or will take other action that the commissioner finds appropriate, including revocation of the lease or attachment of the site restoration security.

(9) With the commissioner's written consent, a lease that is in good standing may be relinquished.

(10) A lease that is in good standing may, with the prior written approval of the director, be assigned. The assignee shall promptly and diligently seek to obtain all authorizations necessary for lawful operations. The assignee is subject to all provisions of the lease in the same manner as the original lessee.

(11) The department reserves the right

(A) of reasonable access to the leasehold for purposes of inspection, including inspection of the lessee's improvements and rearing structures; when the department inspects the lessee's rearing structures, the department will not lift or handle underwater rearing structures without prior notice to the lessee; the notice to the lessee may include notice by the Department of Fish and Game in accordance with AS 16.40.150 (b);

(B) upon 10 days' prior notice, to inspect records of the lessee that are necessary to verify the lessee's compliance with the lease provisions.

History: Eff. 7/1/89, Register 110; am 6/15/98, Register 146; am 2/8/2001, Register 157

Authority: AS 38.05.020

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