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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