HOUSE BILL 48
50th legislature - STATE OF NEW MEXICO - first session, 2011
INTRODUCED BY
Paul C. Bandy
FOR THE GOVERNMENT RESTRUCTURING TASK FORCE
AN ACT
RELATING TO EXECUTIVE ORGANIZATION; CHANGING THE POWERS AND DUTIES OF THE CULTURAL PROPERTIES REVIEW COMMITTEE AND THE HISTORIC PRESERVATION DIVISION OF THE CULTURAL AFFAIRS DEPARTMENT.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. Section 18-6-5 NMSA 1978 (being Laws 1969, Chapter 223, Section 5, as amended) is amended to read:
"18-6-5. COMMITTEE--POWERS AND DUTIES.--The primary function of the committee is to [review proposals] determine policy for the preservation of cultural properties. The committee is authorized to take such actions as are reasonable and consistent with law to identify cultural properties and to advise on the protection and preservation of those properties. Among such actions as may be necessary and proper to the fulfillment of these responsibilities, and without being limited hereby, the committee:
A. shall determine what constitutes historical, archaeological, scientific, architectural and other cultural significance for the purpose of identifying cultural properties as used in the Cultural Properties Act;
B. shall prepare and keep up to date the official register. This official register shall be composed of properties identified by the committee as having historical or other cultural significance and integrity, being suitable for preservation and having educational significance;
C. shall prepare and maintain proper documentation of the historic or other significance of cultural properties. The committee is granted access to all state and local public documents that may be necessary for the documentation, and such state and local agencies as have custody of such documents are authorized to allow the committee to examine and reproduce those documents useful for the documentation;
D. shall inspect all registered cultural properties periodically to [assure] ensure proper cultural or historical integrity and proper maintenance. The inspection may be made by an authorized representative of the committee or the historic preservation division of the [office of] cultural affairs department. Such inspection shall be made only with the written consent of the owner or [his] the owner's authorized representative;
E. shall, based upon the inspection of a registered cultural property, recommend such repairs, maintenance and other measures as should be taken to maintain registered status;
F. shall issue [regulations] rules pertaining to the identification, preservation and maintenance of registered cultural properties in order to maintain the integrity of those properties;
G. may delete from the official register any registered cultural property whose owner does not comply with the committee's [regulations] rules or follow its recommendations for repair and maintenance or [which] that, upon presentation of further evidence, does not merit continued official registry;
H. may recommend to the museum resources division of the [office of] cultural affairs department and other public administrators of registered cultural properties measures for the investigation, restoration and protection of such properties;
I. may encourage and render technical advice to private owners of registered cultural properties in order that such properties may be preserved;
J. may encourage and provide technical assistance to municipalities and counties in acquiring, preserving and developing cultural properties within their jurisdictions;
K. shall cooperate with federal, state, local and private agencies and persons engaged in the administration, development or other work relating to cultural properties within the state;
L. shall pursue all activities in a manner consistent with state and federal laws and regulations;
M. may encourage and promote public appreciation of New Mexico's historical and cultural heritage by:
(1) reviewing for accuracy the proposed publication of information on cultural properties; and
(2) reviewing the accuracy and adequacy of proposed marking of cultural properties;
N. may [utilize] use the assistance of individuals, local organizations, state agencies and others interested in the identification and preservation of cultural properties;
O. [may issue, with the concurrence of] shall establish, by rule, guidelines for the issuance of permits by the state archaeologist and the state historic preservation officer [permits] for the examination or excavation of sites and the collection or removal of objects of antiquity or general scientific interest, where such sites or objects are located on state lands, to institutions [which] that the committee may deem to be properly qualified to conduct such examination, excavation or collection, subject to such rules [and regulations] as the committee may prescribe; provided that the examinations, excavations and collections are undertaken by reputable museums, universities, colleges or other historical, scientific or educational institutions or societies approved by the committee, with a view toward disseminating knowledge about cultural properties; and provided that a summary report of such investigations, containing relevant maps, documents, drawings and photographs, be submitted to the committee, which shall in turn submit the report to the appropriate agency or make other appropriate disposition of the report; and provided further that all specimens so collected shall be the property of New Mexico and that prior arrangements be made for the disposition of specimens derived from such investigations in an appropriate institution of the state or for loan of such specimens to qualified institutions in or out of the state;
P. shall provide advice to the state historic preservation officer [in] of the historic preservation division and to the director of the museum resources division of the [office of] cultural affairs department on cultural properties; and
Q. shall make, in conjunction with the historic preservation division, an annual report on its activities to the governor and the legislature. The report may contain recommendations for the more effective preservation of New Mexico's historic and cultural heritage."
SECTION 2. Section 18-6-11 NMSA 1978 (being Laws 1977, Chapter 75, Section 1, as amended) is amended to read:
"18-6-11. PERMIT REQUIRED FOR EXCAVATION OF ARCHAEOLOGICAL SITES--PENALTY.--
A. It is unlawful for any person or [his] the person's agent or employee to excavate with the use of mechanical earthmoving equipment an archaeological site for the purpose of collecting or removing objects of antiquity [when] if the archaeological site is located on private land in this state, unless the person has first obtained a permit issued pursuant to the provisions of this section for the excavation. As used in this section, an "archaeological site" means a location where there exists material evidence of the past life and culture of human beings in this state but excludes the sites of burial of human beings.
B. Permits for excavation pursuant to Subsection A of this section may be issued by [the committee upon approval by] the state archaeologist and the state historic preservation officer [when] if the applicant:
(1) submits written authorization for the excavation from the owner of the land;
(2) furnishes satisfactory evidence of being qualified to perform the archaeological excavation by experience, training and knowledge;
(3) submits a satisfactory plan of excavation for the archaeological site and states in the plan the method by which excavation will be undertaken; and
(4) agrees in writing, upon the completion of the excavation, to submit a summary report to the committee of the excavation, which report shall contain relevant maps, documents, drawings and photographs, together with a description of the archaeological specimens removed as a result of the excavation. Failure to file the summary report shall be grounds for refusing issuance of a future permit to the person.
C. All archaeological specimens collected or removed from the archaeological site as a result of excavation pursuant to Subsections A and B of this section shall be the property of the person owning the land on which the site is located.
D. Nothing in this section shall be deemed to limit or prohibit the use of the land on which the archaeological site is located by the owner of the land or to require the owner to obtain a permit for personal excavation on [his] the owner's own land, provided that no transfer of ownership is made with the intent of excavating archaeological sites as prohibited in this section, and provided further that this exemption does not apply to marked or unmarked burial grounds.
E. Any person convicted of violating the provisions of this section is guilty of a misdemeanor and shall be punished by a fine not to exceed one thousand dollars ($1,000) and, in addition thereto, shall forfeit to the state all equipment used in committing the violation for which the person is convicted."
SECTION 3. Section 18-6-11.2 NMSA 1978 (being Laws 1989, Chapter 267, Section 1) is amended to read:
"18-6-11.2. PERMIT REQUIRED FOR EXCAVATION OF UNMARKED BURIALS--PENALTY.--
A. Each human burial in the state interred in any unmarked burial ground is accorded the protection of law and shall receive appropriate and respectful treatment and disposition.
B. A person who knowingly, willfully and intentionally excavates, removes, disturbs or destroys any human burial buried, entombed or sepulchered in any unmarked burial ground in the state, or any person who knowingly, willfully and intentionally procures or employs any other person to excavate, remove, disturb or destroy any human burial buried, entombed or sepulchered in any unmarked burial ground in the state, except by authority of a permit issued by the state medical investigator or by the [committee with the concurrence of the] state archaeologist and state historic preservation officer, is guilty of a fourth degree felony and shall be punished by a fine not to exceed five thousand dollars ($5,000) or by imprisonment for a definite term of eighteen months or both. The offender shall upon conviction forfeit to the state all objects, artifacts and human burials excavated or removed from an unmarked burial ground in violation of this section, and any proceeds from the sale by the offender of any of the foregoing shall also be forfeited. As used in this section:
(1) "unmarked burial ground" means a location where there exists a burial [or burials] of any human being [which] that is not visibly marked on the surface of the ground in any manner traditionally or customarily used for marking burials and includes any funerary object, material object or artifact associated with the burial [or burials]; and
(2) "human burial" means a human body or human skeletal remains and includes any funerary object, material object or artifact buried, entombed or sepulchered with that human body or skeletal remains.
C. Any person who discovers a human burial in any unmarked burial ground shall cease any activity that may disturb that burial or any object or artifact associated with that burial and shall notify the local law enforcement agency having jurisdiction in the area. The local law enforcement agency shall notify the state medical investigator and the state historic preservation officer.
D. The state medical investigator may, consistent with the statutes governing medical investigations, have authority over or take possession of any human burial discovered in the state, in which case, the provisions of Subsections E and F of this section shall not apply.
E. Permits for excavation of a human burial discovered in an unmarked burial ground shall be issued by the [committee] state archaeologist and state historic preservation officer within sixty days of receipt of application [when] if the applicant:
(1) submits written authorization for that excavation from the owner of the land on which the human burial is located or the applicant is the owner of the land;
(2) demonstrates appropriate efforts to determine the age of the human burial and to identify and consult with any living person who may be related to the human burial interred in the unmarked burial ground;
(3) complies with permit procedures and requirements established by [regulations] rules authorized in this section to ensure the complete removal of the human burial and the collection of all pertinent scientific information in accordance with proper archaeological methods; and
(4) provides for the lawful disposition or reinterment of the human burial either in the original or another appropriate location and of any objects or artifacts associated with that human burial, consistent with [regulations] rules issued by the state historic preservation officer, except that the [committee] officer shall not require, as a condition of issuance of a permit, reinterment or disposition, any action that unduly interferes with the owner's use of the land.
F. Permits for the excavation of any human burial discovered in the course of construction or other land modification may be issued by the [committee with the concurrence of the] state archaeologist and the state historic preservation officer on an annual basis to professional archaeological consultants or organizations.
G. Except when the [committee requires] state archaeologist and state historic preservation officer require as a condition of the permit that any object or artifact associated with a human burial be reinterred or disposed of with that burial, that object or artifact shall be the property of the person owning the land on which that burial is located.
H. Any object or artifact and any human burial excavated or removed from an unmarked burial ground in violation of this section shall be forfeited to the state and shall be lawfully disposed of or reinterred in accordance with [regulations] rules issued by the state historic preservation officer; provided that no object or artifact so forfeited shall ever be sold by the state; and provided further that any object or artifact removed from the land without the owner's consent and in violation of this section shall be returned to the lawful owner consistent with Subsection G of this section.
I. The state historic preservation officer shall issue [regulations] rules with the concurrence of the state medical investigator for the implementation of this section."
SECTION 4. Section 18-6-12 NMSA 1978 (being Laws 1969, Chapter 223, Section 10) is amended to read:
"18-6-12. EMERGENCY CLASSIFICATION PENDING INVESTIGATION.--A cultural property [which] that the [committee] state historic preservation officer thinks may be worthy of preservation may be included on the official register on a temporary basis for not more than one year, during which time the [committee] officer shall investigate the property and make a determination as to whether it may be permanently placed on the official register. If the cultural property is on private land, the temporary classification shall not be considered a taking of private property, but the owner may receive a fair rental value for the part of the land affected if the temporary classification unduly interferes with the owner's normal use of the land. The owner shall be immediately notified of the [committee's] officer's determination. If at the expiration of one year from the time the temporary classification was imposed the owner has not been notified of any [committee] action by the officer, the temporary classification shall lapse, and it shall not be renewed for five years."
SECTION 5. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2011.
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