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, Summary of certain burial law provisions. . . . • • • • !?' Scope of the Draft 2. Cataloged Burial Sites The bill provides statutory protection for all human burial sites in this If a burial site is included in the state burial site catalog,a person may state. The bill does not distinguish between different types of burial only disturb the burial site pursuant to a permit issued by the director. sites. Also, the bill does not make distinctions according to the age of The person must notify anyone listed on the register whom the director the burial site. determines to have an interest in the burial site and must apply for o permit to disturb the burial site. The definition of"burial site" refers primarily to places where human remains have been intentionally interred. The term also includes sites A permit to disturb a burial siu'is issued if the benefits to the where human remains have been buried accidentally, as by a landslide, opplicant in disturbing the burial site outweigh the benefits to any or sites where human remains left in the open have subsequently been other person with an interest in not disturbing the burial site. The bill covered by soil. The definition does not include sites where skeletal includes priorities for the various types of interests in a burial site. A material is found on the surface of the land. person with an interest in a burial site may request a contested case hearing on the decision to issue a permit. Portions of a contested case Reponsibilities of the Director hearing which relate to the location of a cataloged burial site must he • held in closed session,and those parts of the hearing record are not The bill creates new duties for the director of the state historical subject to disclosure as public records. society. The director may delegate•these duties to an employe of the historical society. The primary duties of the director are to:(1)identify If a permit is issued to disturb the burial site,the owner must authorize and catalog burial sites and notify the owner of the property on which a the director or a qualified archaeologist approved by the director to cataloged burial site is located;(2)identify and catalog places where excavate the burial site to remove any human remains. The owner burial sites are likely to be located;(3)identify persons with an interest must allow a reasonable time for the excavation,beginning within 30 in cataloged burial sites and prepare a register of those persons;(4) days after the time when ground conditions are suitable for excavation. administer the new statutes which restrict the disturbance of burial sites;and(5)supervise the disposition of human remains and objects A person who intentionally disturbs or permits the disturbance of a which are removed from a burial site. cataloged burial site without a permit is subject to a forfeiture of not less than$1,000 nor more than$5,000. Information about the location of cataloged burial sites is not subject to disclosure as public records. Disposition of Human Remains and Objects Related to Burial The director also has a variety of other duties, including making If human remains and objects related to burial are removed from a recommendations concerning state or municipal acquisition of burial burial site, the director or the hearing examiner must attempt to sites and mediating disputes between property owners and persons identify persons with an interest in the reinterment or other interested in a burial site. appropriate disposition of the human remains and objects. if such a person is identified,the remains and objects are transferred to the Duty to Report Disturbance of Burial Sites person for appropriate reinterment or other appropriate disposition. The bill includes priorities if n-•rre than one person has an interest in The bill creates a requirement, imposed on all persons, to immediately reinterment or other appropriate disposition. notify the director of the historical society if the person knows or has grounds to believe that a burial site is being disturbed without If the director cannot identify a person with an interest in reinterment authorization. A person who fails to report a disturbance of a burial or other disposition of the human remains and objects,the director site is subject to a forfeiture. provides for reinterment or other disposition. The reporting requirement does not apply to deaths which must be Burial Sites on Public Lands reported to the police or to the medical examiner or coroner. The bill creates an additional protection for burial sites on publicly Protection of Burial Sites owned land. A public body may not convey land containing a burial site unless the transfer is approved by the burial sites preservation board. 1. Uncataloged Burial Sites Remedies No person may intentionally disturb a burial site which is not listed in the state catalog of burial sites unless the disturbance is authorized by The bill requires the attorney general or the district attorney of the the director. The bill creates a procedure for obtaining this appropriate county to investigate and prosecute the violations of the authorization. burial site statute. If the director determines that a proposed activity will not disturb the The bill also creates a private remedy in which a person with an burial site or will disturb a burial site in which no person on the interest in the burial site may bring an action for an injunction to register has an interest,the director is required to permit the activity. prevent further disturbance to the burial site. A person who If the director determines that the activity will disturb a burial site in intentionally disturbs a burial site without authorization of the director which a person on the register has a substantial interest,the owner is liable for damages or other appropriate relief and attorney fees.to must either permit a qualified archaeologist to excavate the burial site any person with an interest in the burial site. or change the activity so as not to disturb the burial site. The owner must allow a reasonable time for the excavation,beginning within 30 Disturbing a Burial Site for Commercial Gain days after the time when ground conditions are suitable for excavation. A person who disturbs a burial site for commercial gain commits a The director is required to enter an uncataloged burial site into the misdemeanor and is subject to a criminal penalty. The monetary state burial site catalog if all human remains are not removed from the portion of the penalty is a fine not to exceed 2 times the gross value site. gained or 2 times the gross loss caused by the disturbance,whichever is greater. The penalty is modeled after the racketerring statues, A person who intentionally disturbs an uncataloged burial site without s.946.84. In addition to or in lieu of the fine, the bill provides for authorization is subject to a forfeiture of not less than$500 nor more imprisonment in the county jail for not more than one year. than$1,000. An owner who intentionally disturbs or permits the disturbance of an uncataloged burial site without authorization after receiving notice of the statutory requirements is subject to a forfeiture of not less than$1,000 nor more than$5,000.