BILL ANALYSIS
SB 1034
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Date of Hearing: June 22, 2010
Counsel: Milena Nelson
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 1034 (Ducheny) - As Amended: April 14, 2010
SUMMARY : Specifies that excavation, removal, destruction,
causing injury to, or defacement of specified historic or
prehistoric ruins situated on public lands is a misdemeanor
punishable by up to one year in county jail, a fine not
exceeding $10,000, or both, and specifies the individual
convicted of such a misdemeanor is required to make restitution,
as specified. Specifically, this bill :
1)Requires, upon conviction, the court to order restitution to
the state agency that has primary jurisdiction over the public
lands where the violation occurred.
2)Specifies that in determining the amount of restitution, which
is to be based on the commercial and archaeological value of
the property, the court shall consider:
a) The commercial value of the archaeological resource
involved in the violation shall be its fair market value.
b) The archaeological value of the archaeological resource
involved in the violation shall be the value of the
information associated with the archaeological resource,
which shall be appraised by the state agency 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 also include
the cost of preparing a research design, conducting
background research, conducting field work, carrying our
laboratory analysis, and preparing reports that would be
necessary to realize the information potential of the
resource.
d) The state agency must follow professional standards for
determining commercial and archaeological value in
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accordance with specified federal laws.
e) Restitution may also consist of the cost of restoration
and repair of archaeological resources damaged as a result
of the violation, as well as costs already incurred for
emergency restoration or repair work, plus costs projected
by the state agency necessary to complete the restoration
or repair. Those costs include, but are not limited to:
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 and
surface 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 otherwise be
conserved; and,
vii) Reinterment of human remains in accordance with
religious customs and federal, state, local or tribal
law, where appropriate.
3)Specifies that the following property is subject to forfeiture
after conviction:
a) The archaeological resource that was the subject of the
violation, if in the possession of the person;
b) The vehicle used in connection with the violation if the
vehicle was not merely a means of transportation, but was
either specifically modified or designed to assist in the
commission of the crime or was used as a part of a pattern
or scheme to commit the offense. The vehicle will be
released if the legal owner of the vehicle is not the
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person convicted, or if another has a community property
interest in the vehicle and there is no other vehicle
available to that other party; and,
c) Equipment used in the violation.
EXISTING LAW :
1)Prohibits the knowing and willful excavation, removal,
destruction, causing injury to, or defacement of specified
archaeological resources from public lands. Violation is a
misdemeanor. (Public Resources Code Section 5097.5.)
2)Provides that any person who removes without authority,
obtains or possesses any Native American artifacts or human
remains from a Native American grave or cairn, except as
otherwise provided by law, is guilty of a felony and is
punishable by imprisonment in the state prison for 16 months,
2 or 3 years. (Public Resources Code Section 5097.99.)
3)Provides that no public agency, and no private party using or
occupying public property, or operating on public property,
shall cause severe or irreparable damage to any Native
American sanctified cemetery, place of worship, religious or
ceremonial site, or sacred shrine located on public property,
except on a clear and convincing showing that the public
interest and necessity so require. (Public Resources Code
Section 5097.9.)
4)Establishes in state government a Native American Heritage
Commission consisting of nine members appointed by the
Governor, at least five of whom shall be elders, traditional
people, or spiritual leaders of California Native American
tribes. (Public Resources Code Sections 5097.91 and 5097.92.)
5)Provides that if human remains are discovered during an
excavation, the excavation must be stopped and the coroner
must be contacted. If the remains are of a Native American,
the Native American Heritage Commission must be informed.
(Health and Safety Code Section 7050.5.)
FISCAL EFFECT : Unknown
COMMENTS :
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1)Author's Statement : According to the author, "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
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 continues to be a responsible steward of these
precious resources."
2)Argument in Support : According to Elk Valley Rancheria , a
federally recognized tribe, "As recently as April 2010,
looters desecrated burial grounds at the Tolowa village of
Yontocket, the axis mundi of the Tolowa world and a place of
extreme spiritual importance to many of the Tribe's members.
For the Tribe, looting nor only destroys valuable scientific
information, it desecrates places that should be revered and
held sacred and to which our members have strong emotional,
cultural and spiritual ties. In addition to the cultural
damage, looting creates an enormous financial burden to state
agencies, which are responsible for mitigation, damage
assessment and site restoration. The Tribe supports SB 1034
and believes it will create a strong deterrent to looting
crimes by creating tougher penalties for those crimes-
including restitution for state agencies- that are more
consistent with comparable federal provisions."
3)Prior Legislation : SB 1816 (Chesbro), Chapter 1155, Statutes
of 2002, established the Native American Historic Resource
Protection Act for the purpose of protecting specified Native
American historic, cultural, and sacred sites; and makes it a
misdemeanor to destroy, injure, or deface these sites.
REGISTERED SUPPORT / OPPOSITION :
Support
Society for California Archaeology (Sponsor)
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California Association of Museums
California Communities United Institute
California State Park Rangers Association
California State Parks Foundation
City of Roseville
Elk Valley Rancheria
Save Our Heritage Organisation
Barona Band of Mission Indians
Opposition
None
Analysis Prepared by : Milena Nelson / PUB. S. / (916)
319-3744