BILL ANALYSIS ----------------------------------------------------------------- | | | SENATE COMMITTEE ON NATURAL RESOURCES AND WATER | | Senator Fran Pavley, Chair | | 2009-2010 Regular Session | | | ----------------------------------------------------------------- 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 1 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 2 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 3 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 4