S-4538               _______________________________________________

 

                                         SUBSTITUTE SENATE BILL NO. 4974

                        _______________________________________________

 

State of Washington                              49th Legislature                              1986 Regular Session

 

By Senate Committee on Parks & Ecology (originally sponsored by Senator Williams)

 

 

Read first time  2/7/86.

 

 


AN ACT Relating to archaeological sites and resources; amending RCW 27.53.020, 27.53.030, 27.53.060, and 27.53.080; adding new sections to chapter 27.53 RCW; and repealing RCW 27.53.040 and 27.53.090.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

 

          NEW SECTION.  Sec. 1.     The legislature declares that:

          (1) Archaeological sites are acknowledged to be a finite, irreplaceable, and nonrenewable cultural resource, and are an intrinsic part of the cultural heritage of the people of the state.  As such, archaeological sites and their contents located on public lands are the property of the people of the state to be protected and managed in perpetuity by the state as a public trust.

          (2) The state shall wherever possible preserve and protect the archaeological heritage of the state against neglect, destruction, and misappropriation, with due respect for the multicultural nature of this unique resource.

 

        Sec. 2.  Section 2, chapter 134, Laws of 1975 1st ex. sess. as last amended by section 12, chapter 195, Laws of 1977 ex. sess. and RCW 27.53.020 are each amended to read as follows:

          The discovery, identification, excavation, and study of the state's archaeological resources, the providing of information on archaeological sites for their nomination to the state and national registers of historic places, the maintaining of a complete inventory of archaeological sites and collections, and the providing of information to state, federal, and private construction agencies regarding the possible impact of construction activities on the state's archaeological resources, are proper public functions; and the Washington archaeological research center, created under the authority of chapter 39.34 RCW as now existing or hereafter amended, is hereby designated as an appropriate agency to carry out these functions.  The preservation officer, in consultation with the Washington archaeological research center and other appropriate cultural entities, including Indian tribes, shall provide guidelines for the selection of depositories designated by the state for archaeological resources.  The legislature directs that there shall be full cooperation amongst the office, the Washington archaeological research center, and other agencies of the state.

 

        Sec. 3.  Section 3, chapter 134, Laws of 1975 1st ex. sess. as last amended by section 20, chapter 91, Laws of 1983 and RCW 27.53.030 are each amended to read as follows:

          Unless the context clearly requires otherwise, the definitions contained in this section shall apply throughout this chapter.

          (1) "Archaeology" means systematic, scientific study of man's past through his material remains.

          (2) (("Historic" means peoples and cultures who are known through written documents in their own or other languages.

          (3) "Prehistoric" means peoples and cultures who are unknown through contemporaneous written documents in any language.

          (4) "Professional archaeologist" means a person who has met the educational, training, and experience requirements of the society of professional archaeologists.)) "Archaeological object" means an object that:

          (a) Is at least seventy-five years old;

          (b) Has yielded or is likely to yield important information concerning an indigenous or subsequent culture; and

          (c) Is the material remains of past human life or activity that are of archaeological significance including, but not limited to, monuments, symbols, tools, facilities, technological by-products, and dietary by-products.

          (3) "Archaeological site" means a geographic locality, including but not limited to submerged and submersible lands and the bed of the sea within the state's jurisdiction, that contains archaeological objects and the contextual associations of the archaeological objects with:

          (a) Each other; or

          (b) Biotic or geological remains or deposits.

          (4) "Tribe" means an indigenous cultural group having ancestral ties to the aboriginal inhabitants of this state.

          (5) "Ethnic group" means a representative group of any nonindigenous culture now present in this state.

          (6) "Archaeologist" means a person who has extensive formal training and experience in systematic, scientific archaeology, or who has been so qualified by the preservation officer.

          (((5))) (7) "Qualified archaeologist" means a person who has had formal training and/or experience in archaeology over a period of at least three years, and has been certified in writing to be a qualified archaeologist by two professional archaeologists.

          (((6))) (8) "Amateur society" means any organization composed primarily of persons who are not professional archaeologists, whose primary interest is in the archaeological resources of the state, and which has been certified in writing by two professional archaeologists.

          (((7))) (9) "Preservation officer" means the state historic preservation officer as provided for in ((chapter 27.34 RCW)) RCW 27.34.210.

          (((8))) (10) "Office" means the office of archaeology and historic preservation.

          (11) "Peace officer" means a city, county, or state or tribal law enforcement officer.

          (12) "Public lands" means all lands under the jurisdiction of the state of Washington and any political subdivision thereof.           (13) "Sacred object" means an archaeological object that:

          (a) Is traditionally revered by any ethnic group, religious group, or tribe as holy; and

          (b) Was or is used in connection with the religious or spiritual service or worship.

 

        Sec. 4.  Section 6, chapter 134, Laws of 1975 1st ex. sess. as last amended by section 14, chapter 195, Laws of 1977 ex. sess. and RCW 27.53.060 are each amended to read as follows:

          On the private and public lands of this state it shall be unlawful for any person, firm, corporation, amateur society, or any agency or institution of the state or a political subdivision thereof to knowingly alter, dig into, or excavate by use of any mechanical, hydraulic, or other means, or to damage, deface, or destroy any ((historic or prehistoric)) archaeological resource or site, ((American Indian or aboriginal camp site, dwelling site, rock shelter, cave dwelling site, storage site, grave, burial site, or skeletal remains and grave goods, cairn, or tool making site, or to remove from any such land, site, or area, grave, burial site, cave, rock shelter, or cairn, any skeletal remains, artifact or implement of stone, bone, wood, or any other material, including, but not limited to, projectile points, arrowheads, knives, awls, scrapers, beads or ornaments, basketry, matting, mauls, pestles, grinding stones, rock carvings or paintings, or any other artifacts or implements, or portions or fragments thereof)) without having obtained written permission from the preservation officer for such activities on public property or from the private landowner for such activities on private land.  A private landowner may request the preservation officer to assume the duty of issuing such permits.  The preservation officer must obtain the consent of the public property owner or agency responsible for the management thereof((,)) and must consult with any interested tribes or ethnic groups prior to issuance of the permit.  The preservation officer, in consultation with the Washington state archaeological research center, shall develop guidelines for the issuance and processing of such permits.  Such written permission shall be physically present while any such activity is being conducted.  The provisions of this section shall not apply to the removal of artifacts found exposed on the surface of the ground nor to the excavation and removal of artifacts from state owned shorelands below the line of ordinary high water or within the intertidal zone.

 

        Sec. 5.  Section 8, chapter 134, Laws of 1975 1st ex. sess. as amended by section 15, chapter 195, Laws of 1977 ex. sess. and RCW 27.53.080 are each amended to read as follows:

          Qualified or professional archaeologists, in performance of their duties, are hereby authorized to enter upon public lands of the state of Washington and its political subdivisions, at such times and in such manner as not to interfere with the normal management thereof, for the purposes of doing archaeological resource location and evaluation studies, including site sampling activities.  Scientific excavations are to be carried out only after appropriate agreement has been made between a professional archaeologist or an institution of higher education and the agency or political subdivision responsible for such lands and any interested tribes or ethnic groups have been consulted.  Notice of such agreement shall be filed with the Washington archaeological research center and by them to the office.  Amateur societies may engage in such activities by submitting and having approved by the responsible agency or political subdivision a written proposal detailing the scope and duration of the activity.  Before approval, a proposal from an amateur society shall be submitted to the Washington archaeological research center for review and recommendation.

 

          NEW SECTION.  Sec. 6.     (1) A person shall not excavate, injure, destroy or alter an archaeological site or systematically remove an archaeological object located on public lands unless that activity is authorized by a permit issued under RCW 27.53.060.

          (2) A person shall not sell or purchase, or offer to sell or purchase, any archaeological object that has been removed from an archaeological site on public lands or obtained from private land without the written permission of the landowner.

          (3) A person shall not sell or offer to sell any archaeological object unless the person furnishes the purchaser a certificate of origin to accompany the object that is being sold or offered for sale.

          (4) As used in subsection (3) of this section, "certificate of origin" means:

          (a) If the archaeological object was acquired after the effective date of this act, a notarized affidavit attesting to:

          (i) The location from which the archaeological object was removed; and

          (ii) That the object was obtained in accordance with RCW 27.53.020 and chapter 27.44 RCW.

          (b) If the archaeological object was acquired before the effective date of this act, a notarized affidavit stating that the object was acquired before that date.

          (5) The certificate shall be filed with the preservation officer within thirty days of sale or transfer of ownership.

          (6) A person shall not excavate an archaeological site on privately owned property unless that person has the property owner's written permission.

          (7) This section does not apply to a person who disturbs an archaeologically related human interment.  A person who disturbs an archaeologically related human interment for any reason shall comply with chapter 27.44 RCW.

 

          NEW SECTION.  Sec. 7.     (1) All property, real or personal, including money used in the course of, derived from, or realized through conduct in violation of a provision of this chapter or chapter 27.44 RCW is subject to civil forfeiture to the state.  The state shall dispose of all forfeited property as soon as feasible.  If property is not exercisable or transferable for value by the state, it shall expire.  All forfeitures or dispositions under this section shall be made with due provision for the rights of innocent persons.

          (2) Property subject to forfeiture under this section may be seized by a peace officer upon court process.  Seizure without process may be made if:

          (a) The seizure is incident to a lawful arrest or search or an inspection under an administrative inspection warrant; or

          (b) The property subject to seizure has been the subject of a prior judgment in favor of the state in a forfeiture proceeding based on this section.

          (3) In the event of a forfeiture under subsection (1) of this section, a forfeiture proceeding shall be instituted promptly.  Property taken or detained under this section is not subject to replevin, but is deemed to be in the custody of the peace officer making the seizure, subject only to the order of the court.  When property is seized under this section, pending forfeiture and final disposition, the peace officer may:

          (a) Place the property under seal;

          (b) Remove the property to a place designated by the court; or

          (c) Require another agency authorized by law to take custody of the property and remove it to an appropriate location.

          (4) The attorney general, any county prosecuting attorney, or any state agency having jurisdiction over conduct in violation of this chapter or chapter 27.44 RCW may institute civil proceedings under this section.  In an action brought under this section, the court shall give priority to the hearing and determination.  Pending final determination, the court may at any time enter such injunctions, prohibitions, or restraining orders, or take such actions, including the acceptance of satisfactory performance bonds, as the court deems proper.

          (5)(a) The defendant or an injured person may demand a trial by jury in any civil action brought pursuant to this section.

          (b) An injured person has a right or claim to forfeited property or to the proceeds derived therefrom superior to any right or claim the state has in the same property or proceeds.

          (6) A final judgment or decree rendered in favor of the state in any criminal proceeding for a violation of this chapter or chapter 27.44 RCW shall estop the defendant in any subsequent civil action or proceeding brought by the state or any other person as to all matters as to which such judgment or decree would be an estoppel as between the state and the defendant.

          (7) A criminal or civil action or proceeding for a violation of this chapter or chapter 27.44 RCW may be commenced at any time within five years after the conduct in violation of this chapter or chapter 27.44 RCW terminates or the cause of action accrues.  If a criminal prosecution or civil action or other proceeding is brought, or intervened in, to punish, prevent, or restrain any violation of this chapter or chapter 27.44 RCW, the running of the period of limitations prescribed by this section with respect to any cause of action arising under section 13 of this act which is based in whole or in part upon any matter complained of in any such prosecution, action, or proceeding shall be suspended during the pendency of such prosecution, action, or proceeding and for two years following its termination.

          (8) The application of one civil remedy under this chapter or chapter 27.44 RCW does not preclude the application of any other remedy, civil or criminal, under any other provision of law.  Civil remedies under this chapter or chapter 27.44 RCW are supplemental and not mutually exclusive.

 

          NEW SECTION.  Sec. 8.     (1) At any time after property is seized under this chapter but before the entry of judgment, the owner of the seized property may require the return thereof upon giving to the court a written undertaking, executed by sufficient surety, approved by the court to the effect that such surety is bound in double the value of the property as determined by the court, for the delivery thereof to the plaintiff, if such delivery be adjudged and for the payment to the plaintiff of such sum as may, for any cause, be recovered against the owner.  The owner shall file such written undertaking with the clerk of the court for the county in which the seizure occurred and shall serve a true copy thereof on the county prosecuting attorney.

          (2) If confiscation or forfeiture of such property is required by a judgment of the court under this chapter, the owner shall return the property to the plaintiff.  If the owner fails to return the property, any peace officer may maintain an action upon such undertaking.

 

          NEW SECTION.  Sec. 9.     (1) Any archaeological object or objects seized under this chapter shall be preserved and retained in the custody of the preservation officer.  At the time the court sentences the defendant or orders bail forfeited in the criminal prosecution, the court may order that any archaeological object or proceeds from the sale of an archaeological object seized under this chapter shall be forfeited.  Any archaeological object seized under this chapter shall be retained by the state and deposited in an appropriate location until such time that further disposition is determined.

          (2) If the archaeological objects or proceeds seized under this chapter are not subsequently forfeited, they shall be returned to the person from whom they were seized.

 

          NEW SECTION.  Sec. 10.    A person who disturbs any human interments at or associated with an archaeological site shall reinter those remains as provided in chapter 27.44 RCW.

 

          NEW SECTION.  Sec. 11.    (1) The preservation officer shall, in consultation with the Washington archaeological research center, the department of natural resources, and any interested tribes, develop guidelines for the identification of sacred objects.

          (2) If a person who is conducting an archaeological investigation on public lands according to this chapter or on private land with the owner's written permission finds a sacred object, the person conducting the archaeological investigation shall notify in writing:

          (a) The office; and

          (b) Any potentially interested ethnic group, religious group, or tribe that the sacred object is associated with.

          (3) If a sacred object is recovered on public land, the office shall return the sacred object to the group with which it is traditionally associated.

 

          NEW SECTION.  Sec. 12.    (1) Any person who conducts an archaeological excavation shall notify any potentially interested tribe or ethnic group, including those  in other states whose cultural areas included land in this state.  The notification shall include, but not be limited to:

          (a) The location and schedule of the forthcoming excavation;

          (b) A description of the nature of the investigation; and

          (c) The expected results of the investigation.

          (2) After notifying any interested tribe or ethnic group under subsection (1) of this section, the person conducting the archaeological excavation shall consult a representative of the tribe or ethnic group to establish a procedure for handling sacred objects and human interments recovered during the archaeological excavation.

          (3) A delegate from the interested tribes or ethnic groups may be present during the excavation.

          (4) If requested, the preservation officer shall assist a person in locating potentially interested tribes or ethnic groups.

          (5) At the conclusion of the investigation, the person conducting the excavation shall prepare and forward a copy of a report on excavation findings to the preservation officer and to the appropriate tribe or ethnic group.

 

          NEW SECTION.  Sec. 13.    (1) Any person or the attorney general, on behalf of the state, may institute a civil proceeding against a person who violates this chapter or chapter 27.44 RCW.  In such proceeding, relief shall be granted in conformity with the principles that govern the granting of injunctive relief in other civil cases, except that no showing of special or irreparable damage to the person has to be made.  Upon the execution of the proper bond against damages for an injunction improvidently granted and a showing of immediate danger of significant loss or damage, a temporary restraining order or a preliminary injunction may be issued in any such action before a final determination on the merits.

          (2) In any proceeding brought under this section, the court may allow the prevailing party to recover costs, expert witness fees, and reasonable attorneys' fees at trial and upon appeal.

          (3) The attorney general may, upon timely application, intervene in any civil action or proceeding brought under subsection (1) of this section if the attorney general certifies that in the opinion of the attorney general, the action or proceeding is of general public importance.  In such action or proceeding, the state shall be entitled to the same relief as if the attorney general instituted the action or proceeding.

 

          NEW SECTION.  Sec. 14.    Sections 1 and 6 through 13 of this act are each added to chapter 27.53 RCW.

 

          NEW SECTION.  Sec. 15.  The following acts or parts of acts are each repealed:

                   (1) Section 4, chapter 134, Laws of 1975 1st ex. sess. and RCW 27.53.040; and

          (2) Section 9, chapter 134, Laws of 1975 1st ex. sess., section 4, chapter 82, Laws of 1975-'76 2nd ex. sess., section 16, chapter 195, Laws of 1977 ex. sess. and RCW 27.53.090.