Regulation on Rights of Private Land Owners (FDA Regulation 110-07)

110 Forestry Development Authority Regulation No. 110-07 Regulation on Rights of Private Land Owners WHEREAS, the National Forestry Reform Law of 2006 establishes a transparent framework for the use, management, and protection of forest resources that balances the commercial, community, and conservation priorities of the Republic; and WHEREAS, Operators under a Forest Resources License have a duty to prevent harm to the property of Private Land Owners resulting from forestry Operations, and, when such harm does occur, a duty to compensate Land Owners for the harm; and WHEREAS, Operators from time to time have a legitimate need to seek rights-of-way from Private Land Owners in order to conduct forestry Operations in an efficient and lawful manner; and WHEREAS, a streamlined administrative process can be used to fairly and efficiently resolve disputes involving alleged harm to Private land and efforts to secure rights-of-way, while also safeguarding the rights of Operators and Private Land Owners; and WHEREAS, the National Forestry Reform Law of 2006 authorizes the Forestry Development Authority to issue regulations and other rules necessary to implement the law (Section 19.1(a)), including regulations that establish procedures for dispute resolution with respect to the management of Forest Resources (Section 17.1); and, specifically, regulations that establish appropriate procedures for the hearing and determination of petitions to intervene when a Land Owner has refused to grant permission to the Holder of a Forest Resources License to conduct Operations (Section 11.4(b)); NOW, THEREFORE, the Forestry Development Authority does hereby rule and regulate as follows: PART ONE: DEFINITIONS; PURPOSE; EFFECT Section 1. Definitions In this Regulation, the following terms have the meaning indicated, unless the context otherwise requires: (a) Authority: Forestry Development Authority. (b) Managing Director: Managing Director of the Forestry Development Authority. (c) Operation: Any activity or process carried out pursuant to a Forest Resources License. (d) Operator: A Person harvesting or making Commercial Use of Forest Resources under a Forest Resources License, including a Person working as an employee, contractor, or other agent for a Holder. (e) Private: Includes any Land Owner that is not a government entity. 111 Other terms used in this Regulation have the meaning established in the National Forestry Reform Law of 2006, as amended. Section 2. Purpose This Regulation establishes the responsibilities of the Operator with respect to the rights of Private Land Owners and provides for a right of compensation to Land Owners harmed as a result of Operations. Section 3. Effect (a) This Regulation does not limit the Government’s authority to bring suit against, or otherwise seek redress from, an Operator— (1) For violation of any law or regulation; or (2) Under the law of tort or contract. (b) This Regulation does not limit the liability of an Operator in any legal action instituted by a Private party, subject to the conditions set forth in Paragraphs (1) and (2) of this Subsection. (1) A Private Land Owner’s recovery of compensation from an Operator under this Regulation for harm caused to the Land Owner by Operations bars the Land Owner from instituting any legal action based on the same harm. (2) A Private Land Owner may obtain no more than one recovery for each harm caused to the Land Owner by any Operations. (c) Nothing in this Regulation may be construed to allow the Operator to interfere with any tribe, town, person, or group of persons, or with the legal or customary rights of any tribe, town, person, or group of persons to use or access Timber or Forest Products. Section 4. Alternatives to Written Notice (a) Where this Regulation requires the Authority to provide written notice, the Authority shall ensure that the notice is fully understood by each party to whom the notice is directed. As necessary, the Authority may employ alternative means of notice suitable to the local or community context. (b) Where this Regulation requires a party to provide the Authority or another party with written notice, the Authority shall, upon request, assist the party in preparing the notice. (c) The Authority shall not reject any claims, petitions, attempts to provide written notice, or other submissions made pursuant to this Regulation solely on the ground that the writing is insufficient. Sections 5 to 20. Reserved 112 PART TWO: DUTY OF THE OPERATOR TO PREVENT HARM; COMPENSATION REQUIRED; PROCEDURES Section 21. Generally—Preventing Harm to Private Property (a) The Operator shall take all measures necessary to prevent harm to the property of Private Land Owners resulting from Operations, without limitation. (b) If Operations cause harm to the real property of a Private Land Owner, or to personal property located on that real property, the Operator shall promptly and fully compensate the Private Land Owner for the damage, injury, or loss. (1) The Operator is liable for harm caused to the Private Land Owner by the acts or omissions of any contractor, employee, or other agent of the Operator. (2) The Operator is liable for harm caused to the Private Land Owner, regardless of the degree of care exercised by the Operator or the Operator’s agent. Section 22. Compensation—Informal Negotiation (a) The Operator shall, within 48 hours of when the Operator realizes, or reasonably should have realized, that Operations have caused harm to the Private Land Owner’s property— (1) Notify the Land Owner in writing of the incident; and (2) Offer to enter into informal negotiations with the Private Land Owner, with the aim of achieving full, fair, and prompt monetary compensation for the harm caused. (b) If agreement cannot be reached between the Operator and the Private Land Owner, the Land Owner may invoke the procedure established by Section 23 of this Regulation. Section 23. Compensation—Dispute Resolution by the Authority (a) The Private Land Owner may, within 30 days of when the Land Owner realizes, or reasonably should have realized, that Operations have caused harm to the Land Owner’s property, submit a written notice of claim to the nearest office of the Authority. (b) The notice of claim must contain the following information— (1) A brief description of the property; (2) A brief description of the alleged damage to the property; (3) The name of the owner of the property; (4) A monetary estimate of the damage caused; and (5) The name of the Operator. 113 The Private Land Owner may attach supporting documents, or provide additional information, if any, tending to support the claim. (c) The Authority shall, within three business days of receiving the claim, conduct an inspection of the property to assess the nature and extent of the alleged damage. (d) The Authority shall, within ten business days of receiving the claim, issue a written notice to the Operator and the Private Land Owner to appear on a date, and at a time and location, specified in the notice. (1) The Authority shall attach to each notice a copy of the notice of claim and supporting documents, if any, submitted by the Private Land Owner. (2) The specified date shall be at least 30 days, but no more than 60 days, from the date the notice issued. (3) The specified location may be the nearest office of the Authority or the nearest office of a local government official or community leader, but in no event may the location be farther than five miles from the property. (e) On the specified day, the Managing Director or his representative shall hear the Private Land Owner and the Operator, or their respective representatives, and after considering any facts and argument presented by each, determine— (1) Whether the Operations of the Operator caused the harm and damage alleged; and, (2) If so, in what amount. (f) Upon making this finding, the Managing Director or his representative shall assess the amount that the Operator shall pay to the Private Land Owner and record all findings in a written order. The Operator shall pay the assessed amount to the Land Owner within ten days of the date of the written order. (g) If the Managing Director or his representative is unable to resolve a dispute as to the nature or extent of the interest in, or ownership of, the land, or the extent or valuation of the damage caused by the Operator, or if the decision of the Managing Director or his representative is unacceptable to the Operator or the Land Owner, then either may bring suit in a court of competent jurisdiction in Liberia. (h) The Private Land Owner is not required to seek compensation under the procedure established by this Part and may instead pursue other legal remedies. Sections 24 to 30. Reserved 114 PART THREE: DUTY OF THE OPERATOR TO NEGOTIATE FOR RIGHTS-OF WAY; COMPENSATION REQUIRED; PROCEDURES Section 31. Seeking Rights-of-Way (a) The Operator, in carrying out lawful, Forestry-related activities, may enter into negotiations with a Private Land Owner to secure a lease, easement, or other form of right-of way required for the activities. (b) If the Operator is unable to reach a satisfactory agreement with a Private Land Owner over the terms of such right-of-way, the Operator may file a petition with the Authority. (c) The petition must contain the following information— (1) A description of the property required for the right-of-way; (2) The name of the owner of the property, or an indication that this information cannot be obtained; (3) The type of right-of-way requested by the Operator; and (4) A description of the negotiations, if any, undertaken to date. The Operator may attach supporting documents or provide additional information, if any, tending to support the petition. (d) The Authority shall, within ten business days of receiving the petition, issue a notice, in writing, to the Private Land Owner and the Operator to appear on a date, and at a time and location, specified in the notice. (1) The Authority shall attach to each notice a copy of the petition and supporting documents, if any, submitted by the Operator. (2) The specified date shall be at least 30 days, but no more than 60 days, from the date the notice issued. (3) The specified location may be the nearest office of the Authority or the nearest office of a local government official or community leader, but in no event may the location be farther than five miles from the property. (e) On the specified day, the Managing Director or his representative shall hear the Operator and the Private Land Owner, or their respective representatives, and after considering any facts and argument presented by each, shall determine— (1) Whether granting a right-of-way is necessary and appropriate; and, (2) Upon so finding, the amount that the Operator shall pay to the Private Land Owner for— 115 (A) Any loss of the right to use the property for the duration of the grant of right of-way; and (B) Any damages arising out of the loss or destruction of property resulting from granting the right-of-way to the Operator. (f) If the Managing Director or his representative is unable to resolve a dispute as to the nature or extent of the interest in or ownership of the property, or the amount of compensation payable by the Operator, or if the decision of the Managing Director or his representative is unacceptable to the Operator or the Land Owner, either may bring suit in a court of competent jurisdiction in Liberia. (g) If the Managing Director is unable to resolve a dispute as to the nature or extent of the interest in, or ownership of, the land, or the amount of compensation payable by the Operator, or if the decision of the Managing Director is unacceptable to the Operator, the Operator may file an indemnity bond, in an amount designated by the Managing Director or his representative, and may then enter upon the property and undertake Forestry-related activities immediately, subject to later determination by a court of competent jurisdiction of the amount of compensation due the property owner. Section 32. Limitations (a) The Authority shall not grant any lease, easement, or other form of right-of-way, if doing so would substantially interfere with Operations under a previously-issued Forest Resources License held by another Operator. (b) The Operator shall enter upon Private property pursuant to this Part only to the extent necessary to conduct Operations. Sections 33 to 40. Reserved PART FOUR: REPEALS AND EFFECTIVE DATE Section 41. Repeals This Regulation repeals no existing regulations. Section 42. Effective Date (a) This Regulation is effective on September 11, 2007. (b) The Authority shall announce this Regulation and make it available to the public and the media. SIGNED: Managing Director Forestry Development Authority