BILL NUMBER: SB 1034	AMENDED
	BILL TEXT

	AMENDED IN SENATE  APRIL 14, 2010

INTRODUCED BY   Senator Ducheny

                        FEBRUARY 12, 2010

   An act to amend Section 5097.5 of, and to add  Chapter
1.71 (commencing with Section 5097.7) to Division 5 of  
Section 5097.7 to  , the Public Resources Code, relating to
archaeological resources.



	LEGISLATIVE COUNSEL'S DIGEST


   SB 1034, as amended, Ducheny. Archaeological resources: civil
penalties.
   Existing law prohibits a person from knowingly and willfully
excavating upon, or removing, destroying, injuring, or defacing, any
historic or prehistoric ruins, burial grounds, archaeological or
vertebrate paleontological site, including fossilized footprints,
inscriptions made by human agency, rock art, or any other
archaeological, paleontological, or historical feature, situated on
public lands, as defined. A violation of this prohibition is a
misdemeanor. 
   This bill would enact the California Public Lands Archaeological
Resources Protection Act, and would allow a state agency to issue an
order that assesses a civil penalty against a person who knowingly
and willfully excavates upon, or removes, destroys, injures, or
defaces archaeological resources on public lands. The bill would
establish procedures for the assessment of the civil penalty,
including procedures for determining the commercial and
archaeological value of those resources and cost of restoration. The
bill would also authorize the forfeiture of the archaeological
resources that were the subject of the violation and the vehicles and
equipment of the person that were used in connection with the
violation. The bill would allow a state agency to expend the civil
penalties collected pursuant to the act, upon appropriation by the
Legislature, as reimbursement for the costs of implementing the act,
including restoring and repairing the archaeological resources that
are the subject of the violation, except the bill would require the
state to remit to a city, county, or district the civil penalty
imposed by the state, except as specified, and the items seized by
the state, if the violation occurred on, or in connection with,
public lands owned by, or under the jurisdiction of, that city,
county, or district.  
   This bill would, instead, make that violation punishable by a fine
not exceeding $10,000, by imprisonment in a county jail not to
exceed one year, or by both that fine and imprisonment. The bill
would require a court to order restitution to the state agency that
has primary management authority over the public lands where the
violation occurred. The bill would establish procedures for
determining the commercial and archaeological value of those
resources and the cost of restoration and repair. The bill would also
authorize the forfeiture of the archaeological resources that were
the subject of the violation and the vehicles and equipment used in
connection with the violation. 
   Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  Section 5097.5 of the Public Resources Code is amended
to read:
   5097.5.  (a) A person shall not knowingly and willfully excavate
upon, or remove, destroy, injure, or deface, any historic or
prehistoric ruins, burial grounds, archaeological or vertebrate
paleontological site, including fossilized footprints, inscriptions
made by human agency, rock art, or any other archaeological,
paleontological or historical feature, situated on public lands,
except with the express permission of the public agency having
jurisdiction over the lands.
   (b) As used in this section, "public lands" means lands owned by,
or under the jurisdiction of, the state, or any city, county,
district, authority, or public corporation, or any agency thereof.
   (c)  (1)    A violation of this
section is a misdemeanor  , punishable by a fine not exceeding
ten thousand dollars ($10,000), or by imprisonment in a county jail
not to exceed one year, or by both that fine and imprisonment  .

   (2) In addition to the penalty specified in paragraph (1), a civil
penalty may be imposed upon a person who violates this section with
respect to an archaeological resource, pursuant to Chapter 1.71
(commencing with Section 5097.7).  
   (d) (1) Upon conviction, the court shall order restitution to the
state agency, including any department of the state, a conservancy,
or other instrumentality of the state, that has primary management
authority over the public lands where the violation occurred,
including public lands managed by the state under an agreement with
another public entity.  
   (2) When determining restitution, the court shall consider
evidence from the state agency to which restitution will be granted
of the commercial and archaeological value of the property as
follows:  
   (A) The commercial value of an archaeological resource involved in
a violation shall be its fair market value. If the violation has
resulted in damage to the archaeological resource, the state agency
shall determine the fair market value using the condition of the
archaeological resource prior to the violation to the extent that its
prior condition can be ascertained. For purposes of this
subparagraph, "fair market value" means the price that a seller is
willing to accept and a buyer is willing to pay on the open market.
 
   (B) The archaeological value of an archaeological resource
involved in a violation shall be the value of the information
associated with the archaeological resource. The state agency shall
appraise the value in terms of the costs of the retrieval of the
scientific information that would have been obtainable prior to the
violation.  
   (C) The costs considered for restitution may include, but are not
limited to, the cost of preparing a research design, conducting
background research, conducting field work, carrying out laboratory
analyses, and preparing reports that would be necessary to realize
the information potential of the resource.  
   (D) The state agency shall follow the professional standards for
determining commercial and archaeological value, in accordance with
those procedures established in the federal Archaeological Resources
Protection Act of 1979 (Public Law 96-95), as amended, and in
compliance with the Uniform Regulations set forth in Subpart A
(commencing with Section 7.1) of Part 7 of Title 43 of the Code of
Federal Regulations.  
   (E) For the purposes of restitution, the court shall consider the
cost of restoration and repair of archaeological resources damaged as
a result of a violation as well as the costs already incurred for
emergency restoration or repair work, plus those costs projected by
the state agency necessary to complete restoration and repair, that
may include, but are not limited to, the costs of any one or more of
the following:  
   (i) Reconstruction of the archaeological resource.  
   (ii) Stabilization of the archaeological resource.  
   (iii) Ground contour reconstruction and surface stabilization.
 
   (iv) Research necessary to carry out reconstruction or
stabilization.  
   (v) Physical barriers or other protective devices necessitated by
the disturbance of the archaeological resource to protect it from
further disturbance.  
   (vi) Examination and analysis of the archaeological resource,
including recording remaining archaeological information where
necessitated by disturbance in order to salvage remaining values that
cannot be otherwise conserved.  
   (vii) Reinterment of human remains in accordance with religious
customs and federal, state, local, or tribal law, where appropriate.
 
  SEC. 2.   Chapter 1.71 (commencing with Section
5097.7) is added to Division 5 of the Public Resources Code, to read:

      CHAPTER 1.71.  CALIFORNIA PUBLIC LANDS ARCHAEOLOGICAL RESOURCES
PROTECTION ACT


   5097.7.  (a) The Legislature hereby finds and declares all of the
following:
   (1) Archaeological resources on public lands are an accessible and
irreplaceable part of California's heritage.
   (2) These resources are increasingly endangered because of their
commercial attractiveness.
   (3) Existing state laws do not provide adequate protection to
prevent the loss and destruction of these archaeological resources
and sites resulting from uncontrolled excavations and pillage.
   (4) There is a wealth of archaeological information that has been
legally obtained by private individuals for noncommercial purposes
and which could voluntarily be made available to professional
archaeologists and institutions.
   (b) The purpose of this chapter is to secure, for the present and
future benefit of the people of California, the protection of
archaeological resources and sites that are on public lands, and to
foster increased cooperation and exchange of information between
state authorities, the professional archaeological community, and
private individuals having collections of archaeological resources
and data that were obtained before January 1, 2011.
   (c) This chapter shall be known and may be cited as "The
California Public Lands Archaeological Resources Protection Act."
   5097.7.1.  For purposes of this chapter the following definitions
shall apply:
   (a) (1) "Archaeological resource" means material remains of past
human life or activities that are of archaeological interest,
pursuant to the criteria and methods developed by the State
Historical Resources Commission pursuant to Section 5020.5.
   (2) "Archaeological resources" include, but are not limited to,
pottery, basketry, beads, bottles, weapons, weapon projectiles,
tools, structures or portions of structures, pit houses, rock
paintings, rock carvings, intaglios, graves, human skeletal
materials, animal bones, and other human subsistence remains, or any
portion or piece of any of these items.
   (3) "Archaeological resources" do not include nonfossilized or
fossilized paleontological specimens, or any portion or piece
thereof, unless these specimens were found in an archaeological
context.
   (4) "Archaeological resources" do not include an item that is less
than 50 years of age.
   (b) "Person" means an individual, corporation, partnership, trust,
institution, association, or any other private entity or a officer,
employee, agent, department, or instrumentality of the United States,
of a Native American tribe, or of any state or political subdivision
of a state.
   (c) "Public lands" has the same meaning as defined in subdivision
(b) of Section 5097.5.
   (d) "Public lands manager" means, with respect to public lands
owned by, or under the jurisdiction of, the state, the staff of a
department, or the head of any other agency or instrumentality of the
state, that has primary management authority over those public
lands. In the case of public lands with respect to which no
department, agency, or instrumentality of the state has primary
management authority, public lands manager means the Secretary of the
Natural Resources Agency.
   (e) "State agency" includes both of the following:
   (1) A department of the state, a conservancy, or other
instrumentality of the state that has primary management authority
over public lands, including public lands managed by the state under
an agreement with another public entity.
   (2) A public lands manager.
   5097.7.2.  (a) (1) A state agency may issue an order that assesses
a civil penalty pursuant to this chapter against a person who
violates Section 5097.5 by knowingly and willfully excavating upon,
or removing, destroying, injuring, or defacing, an archaeological
resource situated on public lands.
   (2) A state agency shall not assess a penalty unless the person is
given notice and opportunity for a hearing with respect to that
violation in accordance with Chapter 4.5 (commencing with Section
11400) of Part 1 of Division 3 of Title 2 of the Government Code.
   (3) A state agency may remit or mitigate the penalty imposed
pursuant to this section.
   (4) A state agency shall determine the amount of the civil penalty
based on both of the following:
   (A) The archaeological or commercial value of the archaeological
resource involved, as determined pursuant to subdivision (a) of
Section 5097.7.4.
   (B) The cost of restoration and repair of the archaeological
resource and the archaeological site involved, as determined pursuant
to subdivision (b) of Section 5097.7.4.
   (5) The state agency may, in the case of a second or subsequent
violation by a person, double the amount of the civil penalty that
would have been assessed if that violation were the first violation
by that person.
   (6) The amount of a penalty assessed under this section for a
violation shall not exceed the amount equal to double the cost of
restoration and repair of resources and archaeological sites damaged
and double the fair market value of resources destroyed or not
recovered.
   (7) Each violation shall be a separate offense.
   (b) (1) A person aggrieved by an order assessing a civil penalty
pursuant to subdivision (a) may seek judicial review by filing a
petition for a writ of mandate in accordance with Section 11523 of
the Government Code. The petition shall be filed within the 30-day
period beginning on the date the order making the assessment was
issued. The court shall hear that action on the record made before
the state agency and shall sustain the order if it is supported by
substantial evidence on the record considered as a whole.
   (2) If a person fails to pay an assessment of a civil penalty
after the order making the assessment has become a final order and
the person has not filed a petition for judicial review of the order
in accordance with paragraph (1), or after a court in an action
brought under paragraph (1) has entered a final judgment upholding
the assessment of a civil penalty, the state agency may request the
Office of the Attorney General to institute a civil action in the
court for any district in which the person is found, resides, or
transacts business to collect the penalty, and the court shall have
jurisdiction to hear and decide the action. In an action brought
pursuant to this paragraph, the validity and amount of the penalty
shall not be subject to review.
   (c) (1) The state agency may issue subpoenas for the attendance
and testimony of witnesses and the production of relevant papers,
books, and documents, and administer oaths. A witness summoned shall
be paid the same fees and mileage that are paid to a witness in the
courts of the state.
   (2) In case of contumacy or refusal to obey a subpoena served upon
any person pursuant to this subdivision, the court for any district
in which the person is found or resides or transacts business, upon
application by the state agency and after notice to that person,
shall have jurisdiction to issue an order requiring that person to
appear and give testimony before the state agency or to appear and
produce documents before the state agency, or both, and a failure to
obey that order of the court may be punished by the court as a
contempt of court.
   5097.7.3.  (a) All items specified in subdivision (b) are subject
to forfeiture and seizure by the state, in any of the following
circumstances:
   (1) The person's conviction of a violation under Section 5097.5.
   (2) An assessment of a civil penalty against a person pursuant to
Section 5097.7.2 for a violation of Section 5097.5.
   (3) A determination by a court that those archaeological
resources, vehicles, or equipment were involved in a violation of
Section 5097.5.
   (b) The items subject to forfeiture shall include the
archaeological resources with respect to which a violation of Section
5097.5 occurred and that are in the possession of the person, and
all vehicles and equipment of the person that were used in connection
with the violation.
   (c) If an item subject to forfeiture is obtained with respect to a
violation of Section 5097.5 on, or in connection with, public land
that is owned by or under the jurisdiction of a city, county, or
district, the item shall be remitted to that city, county, or
district.
   5097.7.4.  For purposes of issuing an order imposing a civil
penalty pursuant to Section 5097.7.2, a state agency shall determine
the commercial and archaeological value, and cost of restoration
pursuant to this section.
   (a) The commercial and archaeological value shall be determined in
the following manner:
   (1) (A) The commercial value of any archaeological resource
involved in a violation shall be its fair market value. If the
violation has resulted in damage to the archaeological resource, the
state agency shall determine the fair market value using the
condition of the archaeological resource prior to the violation to
the extent that its prior condition can be ascertained.
   (B) For purposes of this paragraph, "fair market value" means the
price that a seller is willing to accept and a buyer is willing to
pay on the open market.
   (2) (A) The archaeological value of any archaeological resource
involved in a violation shall be the value of the information
associated with the archaeological resource. The state agency shall
appraise this value in terms of the costs of the retrieval of the
scientific information that would have been obtainable prior to the
violation.
   (B) The costs specified in subparagraph (A) may include, but are
not limited to, the cost of preparing a research design, conducting
background research, conducting field work, carrying out laboratory
analyses, and preparing reports that would be necessary to realize
the information potential of the resource.
   (3) The state agency shall follow the professional standards for
determining commercial and archaeological value, in accordance with
those procedures established in the Archaeological Resources
Protection Act (ARPA) Uniform Regulations.
   (b) A state agency shall determine the cost of restoration and
repair of archaeological resources damaged as a result of a violation
of Section 5097.5 as the costs already incurred for emergency
restoration or repair work, plus those costs projected by the state
agency necessary to complete restoration and repair, which may
include, but are not limited to, the costs of any one or more of the
following:
   (1) Reconstruction of the archaeological resource.
   (2) Stabilization of the archaeological resource.
   (3) Ground contour reconstruction and surface stabilization.
   (4) Research necessary to carry out reconstruction or
stabilization.
   (5) Physical barriers or other protective devices necessitated by
the disturbance of the archaeological resource to protect it from
further disturbance.
   (6) Examination and analysis of the archaeological resource,
including recording remaining archaeological information where
necessitated by disturbance in order to salvage remaining values that
cannot be otherwise conserved.
   (7) Reinterment of human remains in accordance with religious
customs and state, local, or tribal law, where appropriate.
   (8) Preparation of reports related to any of the activities
specified in paragraphs (1) to (7), inclusive.
   (c) If the violation of Section 5097.5 involves damage to in situ
archaeological resources, the state agency shall determine both the
archaeological value pursuant to subdivision (a) and the cost of
restoration and repair pursuant to subdivision (b).
   5097.7.5.  (a) Except as provided in subdivision (b), a state
agency may expend the civil penalties collected pursuant to this
chapter, upon appropriation by the Legislature, as reimbursement for
the costs of implementing this chapter, including restoring and
repairing the archaeological resources that are the subject of the
violation.
   (b) If a violation of Section 5097.5 occurred on, or in connection
with, public land owned by, or under the jurisdiction of, a city,
county, or district, the state shall remit the civil penalty to the
city, county, or district, but may retain the amount of costs
relating to the filing and prosecution of the civil penalty.

   SEC. 2.    Section 5097.7 is added to the  
Public Resources Code   , to read:  
   5097.7.  Upon a conviction pursuant to Section 5097.5, the
following items may be subject to forfeiture:
   (a) The archaeological resource that was the subject of the
violation, and that is in the possession of the person.
   (b) (1) A vehicle that was used in connection with the violation
if the vehicle to be forfeited was not merely a means of
transportation to the site but was either of the following:
   (A) The vehicle was specifically modified or designed to assist in
the commission of the crime.
   (B) The vehicle was used as part of a pattern or scheme to commit
the offense.
   (2) A vehicle that is subject to forfeiture shall be released to
the legal owner or his or her agent pursuant to the procedures set
forth in subdivision (e) of Section 21100.4 of the Vehicle Code. A
legal owner or his or her agent that obtains a release of the vehicle
shall not release the vehicle to the person convicted of a violation
of Section 5097.7.
   (3) If there is a community property interest in the vehicle
subject to forfeiture, the court shall consider whether there is
another vehicle available to the party with that interest before
ordering forfeiture of the vehicle.
   (c) Equipment used in the violation.