BILL ANALYSIS                                                                                                                                                                                                    





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          |                                                                 |
          |         SENATE COMMITTEE ON NATURAL RESOURCES AND WATER         |
          |                   Senator Fran Pavley, Chair                    |
          |                    2009-2010 Regular Session                    |
          |                                                                 |
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          BILL NO: SB 1034                   HEARING DATE: March 23, 2010   

          AUTHOR: Ducheny                    URGENCY: No  
          VERSION: As Introduced             CONSULTANT: Marie Liu  
          DUAL REFERRAL: Public Safety       FISCAL: Yes  
          SUBJECT: Archaeological resources: civil penalties.  
          
          BACKGROUND AND EXISTING LAW
          Under 5097.5 of the Public Resources Code it is a misdemeanor  
          to knowingly and willfully excavate upon, or remove, destroy,  
          injure, or deface archeological resources on public lands. 

          Chapter 1.76 of Division 5 of the Public Resources Code  
          establishes a misdemeanor punishable of up to $10,000 fine  
          and/or imprisonment for destruction of Native American historic,  
          cultural, or sacred sites, or artifacts on that site, on public  
          or private lands. Civil penalties of up to $50,000 may also be  
          imposed by the court for each violation. The civil penalty must  
          be reflective of the extent of the damage. The court may take in  
          consideration the commercial and archeological value of the  
          resource in determining the penalty. All monies collected from  
          these penalties must first be used to repair or restore the  
          resource. 

          The federal Archaeological Resources Protection Act (ARPA)  
          prohibits the excavation, removal, or damage of archaeological  
          resources on federal lands unless a permit has been issued.  
          Violations of this prohibition are punishable with a fine not  
          more than $10,000 or imprisonment of up to a year, or both. If  
          the cost of restoration and repair of the archaeological  
          resources involved exceeds $500, the fine and imprisonment may  
          not exceed $20,000 and two years. Second and subsequent  
          violations have an upper limit of $100,000 and five years. A  
          civil penalty may also be assessed based on the commercial value  
          of the involved archeological resource and the cost of restoring  
          and repairing the damage. A person may challenge the civil  
          penalty through a petition for judicial review within 30 days of  
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          the penalty being assessed.

          PROPOSED LAW
          This bill would allow a civil penalty to be imposed on a person  
          who knowingly and willfully excavates upon, or removes,  
          destroys, injures or defaces archaeological resources on public  
          lands. Specifically, this bill would:
           Specify that the amount of the civil penalty be based on the  
            value of the resource involved and the cost of restoring and  
            repairing the involved resource. The penalty may be doubled  
            for second or subsequent violations. 
           Require that the value of the damaged resource be reflective  
            of its fair market value and the archaeological information  
            associated with the resource.
           Require that the cost of repair and restoration include both  
            costs for emergency restoration and repair and costs to  
            complete the restoration and repair.
           Allow the state agency, which imposed the civil penalty, to  
            use the proceeds, upon appropriation by the Legislature, to  
            reimburse the restoration and repair costs. 
           Require the state to remit the civil penalty to the  
            appropriate city, county, or district if the violation  
            occurred on land under the jurisdiction of that city, county,  
            or district, less filing and prosecution costs.
           Establish a judicial review process to challenge the civil  
            penalty. 
           Allow for forfeiture and seizure of equipment used in  
            connection with the violation.

          ARGUMENTS IN SUPPORT
          The author states, "Current state law does not adequately  
          protect our archaeological resources and provide for adequate  
          restitution when those resources are damaged. The federal  
          Archaeological Resources Protection Act (ARPA) is far more  
          stringent and does a better job of protecting irreplaceable  
          artifacts. Currently, state law contains penalties that are far  
          lower and impart minimal financial burden upon criminals caught  
          damaging archaeological resources on state lands. In addition,  
          state law does not contain provisions for the determination of  
          archaeological value and the cost of restoration. By adopting  
          stricter penalties and aligning state and federal laws, the  
          state will improve its ability to deter illegal excavations,  
          enforce stricter penalties for these illegal activities and  
          ensure that California counties to be a responsible steward of  
          these precious resources."

          ARGUMENTS IN OPPOSITION
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          None received

          COMMENTS 
           Should a financial penalty be assessed on persons who knowingly  
          damage archaeological resources?  The sponsors of the bill claim  
          that unauthorized excavation on archaeological sites, vandalism  
          to historic structures, damage to grave sites, and other  
          cultural properties is a large problem, compounded by population  
          growth that brings people to the edge of park lands, state  
          preserves, state forests, and other public land. They also claim  
          that criminal activities upon archaeological resources have been  
          on the rise. While the author has not provided data to  
          substantiate this claim, the committee may find that it is a  
          reasonable assertion that the threat of a misdemeanor alone is  
          not sufficient to protect vandalism to archeological resources  
          and it is inconsistent to impose civil penalties for damages to  
          Native American archeological resources but not other  
          archaeological resources. 

          Furthermore, under current law, if there are damages to  
          archaeological resources, funds to restore and repair this  
          damage will most likely have to come from the land manager's  
          limited discretionary funds. This bill, by establishing a civil  
          penalty, will create a funding source to restore and repair  
          damage. The committee may wish to require that the moneys  
          collected be first used for the repair and restoration of the  
          damage. [See amendment 1] 

           Expansion closely mirrors portions of ARPA  : This bill closely  
          mirrors definitions in the ARPA, the judicial review process to  
          dispute a civil penalty, and the methods to determine the value  
          of the archeological resources and the cost to restore and  
          repair the involved damages. One noted difference is that this  
          bill requires that archaeological resources be at least 50 years  
          old while the federal ARPA requires that resources be at least  
          100 years old. According to the sponsors of the bill, 50 years  
          reflects practices by the state's Office of Historic  
          Preservation and the current archeological discipline.

           Additional issues to be addressed by the Senate Public Safety  
          Committee:  The "threshold question" before this committee is  
          whether it is desirable policy for a financial penalty to be  
          assessed when an archaeological resource has been damaged. If  
          so, the process of assessing this penalty and the forfeiture  
          provisions of this bill deserve closer scrutiny. The committee  
          should note that there are some process issues that should be  
          resolved should this bill move forward. At a minimum, the bill  
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          should clarify that a person needs to be convicted of the  
          violation before the civil penalty may be imposed. Should the  
          committee pass this bill, it will next be considered by the  
          Senate Public Safety Committee who presumably will address the  
          process and forfeiture issues. 

           Technical amendment  : In the definition of "archaeological  
          resources," this bill refers to only some of the criteria and  
          methods developed by the State Historical Resources Commission.  
          The reference should be expanded to be more reflective of the  
          commission's responsibilities. [see amendment 2] 

          SUGGESTED AMENDMENTS 

               AMENDMENT 1  
               Page 7, line 40, delete "may" and insert "must first" 

               Page 8, line 9, after "penalty." insert "All remitted  
               moneys shall be first utilized to repair or restore the  
               archaeological resources that are the subject of the  
               violation and the remaining moneys shall be available to  
               that city, county, or district to offset costs incurred in  
               enforcing this chapter."

               AMENDMENT 2 
                On page 3, line 24, delete "Section" insert "Sections  
               5020.4 and"

          SUPPORT
          The Society for California Archaeology (Sponsor) 
          California Communities United Institute
          California State Parks Foundation
          Save our Heritage Organisation

          OPPOSITION
          None Received











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