HOUSE BILL REPORT

EHB 2335

BYRepresentatives Silver, R. Fisher, Prince, Anderson, McLean, Pruitt, Smith, Hankins, Rector, Jacobsen, Winsley, Schoon, Wolfe, Fraser and Kirby

Regulating preservation of historical and abandoned cemeteries.

House Committe on State Government

Majority Report:  Do pass as amended.  (9)

      Signed by Representatives Todd, Chair; Anderson, Vice Chair; McLean, Ranking Republican Member; R. Fisher, Hankins, R. King, Morris, O'Brien and Silver.

House Staff:Barbara McLain (786-7135)

AS PASSED HOUSE FEBRUARY 9, 1990

BACKGROUND:

Cemetery Board.  The Cemetery Board oversees the creation or transfer of ownership of private cemeteries in the state, except those operated by a recognized religious denomination, and regulates owners/operators of cemeteries (termed "cemetery authorities").  The board also has authority to examine the financial status of all endowment care or prearrangement trust funds created by cemetery authorities.

Once a plot of land is titled in the county records as a cemetery, the property is dedicated as a cemetery in perpetuity, to be used for no other purpose. Cemeteries are defined as burial parks, mausoleums, or columbariums.

Historic Graves.  Historic graves are defined in current law as graves placed outside a dedicated cemetery, except Indian graves.  Any person who knowingly removes, mutilates, or injures any historic grave, except in the context of law enforcement, is guilty of a class C felony.  The maximum penalty for a class C felony is incarceration in a state correctional institution for five years, a fine of $10,000, or both.  The penalty does not apply if the person can prove that the acts were accidental, that reasonable efforts were made to preserve the discovered remains, and that the discovery was properly reported.

Office of Archaeology and Historic Preservation.  The State Historic Preservation Officer heads the Office of Archaeology and Historic Preservation, which is a division of the Department of Community Development.  Permission for removal of any records or materials from historic graves or Indian burial places may be granted by the Historic Preservation Officer for archaeological or scientific research.

A gross misdemeanor carries the maximum penalty of one year in county jail, a fine not to exceed $5,000, or both.

SUMMARY:

"Abandoned cemetery" is defined as a burial ground where: (a) the county assessor can find no record of an owner; (b) the cemetery authority has ceased to exist and the title has not been transferred; or (c) the last known owner is deceased and title has not been transferred.

"Historical cemetery" means any burial site which contains human remains buried prior to November 11, 1889.  Historical cemeteries do not include cemeteries that are still in operation, are owned or operated by a recognized religious denomination, or are controlled by a coroner, city, county, or cemetery district.

For the purposes of this act only, "cemetery" is given an additional meaning of any burial place where five or more human remains are buried.  Unless otherwise designated by the records of the county assessor, a cemetery's boundaries are a minimum of 10 feet in any direction from the burials therein.

Any cemetery, abandoned cemetery, or historic grave is considered permanently dedicated as a cemetery.

The Office of Archaeology and Historic Preservation may grant, on application, authority to maintain and protect an abandoned cemetery to a preservation organization incorporated for that purpose.  These corporations are entitled to possess burial records, maps, and other historic documents.  They may establish care funds under the law, subject to review by the Cemetery Board.

Preservation corporations are not liable to those claiming burial rights, ancestral ownership, or other form of control over a cemetery.  They are not liable for any reasonable alterations made during restoration work on an abandoned cemetery.

The following penalties are established for unlawful actions in a cemetery:

            (1)Willfully destroying, mutilating, or tearing down any tomb, plot or marker in a cemetery or any enclosure around the cemetery is a class C felony;

            (2)Willfully destroying, cutting, or breaking any tree, statuary, or building within a cemetery is a gross misdemeanor; and

            (3)Willfully opening a grave, removing any effects or contents, damaging any containers, or transporting remains from the cemetery is a class C felony.

Any person who violates a cemetery in these fashions is liable in a civil action in the name of the Cemetery Board to pay all damages caused by their actions.

Fiscal Note:      No Impact.

House Committee ‑ Testified For:    Paul Elvig, State Cemetery Board; Ralph Munro, Secretary of State; and Jake Thomas, State Historic Preservation Officer.

House Committee - Testified Against:      No one.

House Committee - Testimony For:    There are over 800 abandoned or historical cemeteries in the state, some with early pioneers buried in them.  Many are neglected and vandalized.  Dedication of all these cemeteries means the land can not be used for anything else without a superior court order. Giving groups the authority to maintain abandoned cemeteries would encourage non-profit involvement in historic preservation.

House Committee - Testimony Against:      None.