BILL NUMBER: SB 1034 CHAPTERED
BILL TEXT
CHAPTER 635
FILED WITH SECRETARY OF STATE SEPTEMBER 30, 2010
APPROVED BY GOVERNOR SEPTEMBER 30, 2010
PASSED THE SENATE AUGUST 19, 2010
PASSED THE ASSEMBLY AUGUST 12, 2010
AMENDED IN ASSEMBLY AUGUST 2, 2010
AMENDED IN SENATE APRIL 14, 2010
INTRODUCED BY Senator Ducheny
FEBRUARY 12, 2010
An act to amend Section 5097.5 of, and to add Section 5097.7 to,
the Public Resources Code, relating to archaeological resources, and
making an appropriation therefor.
LEGISLATIVE COUNSEL'S DIGEST
SB 1034, Ducheny. Archaeological resources: restitution.
(1) 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, punishable by up to 6 months in county jail.
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, thereby
imposing a state-mandated local program by increasing the term of
imprisonment for such a violation. The bill would require a court to
order restitution to the state agency, conservancy, or other
instrumentality of the state that has primary management authority
over the public lands where the violation occurred or to the city,
county, district, or other local agency owning or having jurisdiction
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 continuously appropriate the restitution funds
received under these provisions by a state agency for expenditure
only for the costs of restoring and repairing the archaeological
resources that are the subject of the violation. The bill would
require the restitution funds received by a local agency to be
expended by that local agency only for the costs of restoring and
repairing the archaeological resources that are the subject of the
violation. The bill would also require the forfeiture of the
archaeological resources that were the subject of the violation and
authorize the forfeiture of the vehicles and equipment used in
connection with the violation.
(2) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Appropriation: yes.
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) 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.
(d) (1) Upon conviction, the court shall order restitution, unless
the court decides otherwise pursuant to subdivision (c) of Section
1202.4 of the Penal Code, to either of the following:
(A) 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.
(B) To the city, county, district, or other local agency owning
or having jurisdiction over the public lands where the violation
occurred.
(2) When determining restitution, the court shall consider
evidence from the state or local 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 or local
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 or local
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 or local 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 or local 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.
(e) If human remains that are determined to be Native American are
recovered as a result of an action brought pursuant to this section,
the requirements of Section 5097.9 shall apply to those remains.
(f) (1) Notwithstanding Section 13340 of the Government Code, the
restitution funds received pursuant to subdivision (d) by a state
agency, conservancy, or other instrumentality of the state, are
hereby continuously appropriated for expenditure by that state
agency, conservancy, or other instrumentality only for the costs of
restoring and repairing the archaeological resources that are the
subject of the violation.
(2) The restitution funds received pursuant to subdivision (d) by
a city, county, district, or other local agency may be expended by
that city, county, district, or other local agency only for the costs
of restoring and repairing the archaeological resources that are the
subject of the violation.
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 are subject to forfeiture in accordance with the
following conditions:
(a) The archaeological resource that was the subject of the
violation, and that is in the possession of the person, shall be
subject to forfeiture.
(b) (1) A vehicle that was used in connection with the violation
may be subject to forfeiture, 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 may be subject to forfeiture.
SEC. 3. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.