Introduced Version
House Bill 2366 History
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Key: Green = existing Code. Red = new code to be enacted
H. B. 2366
(By Delegates Perdue, Marshall and Caputo)
[Introduced February 13, 2013; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §29-1-8a of the Code of West Virginia,
1931, as amended; to amend and reenact §37-13-2 and §37-13-4
of said code; and to amend and reenact §37-13A-5 of said code,
all relating to clarifying procedures for protection of graves
and burial sites, clarifying when disturbance is a crime and
enhancing the opportunity for public access to cemeteries on
private land and for public involvement in petitions to
excavate graves.
Be it enacted by the Legislature of West Virginia:
That §29-1-8a of the Code of West Virginia, 1931 as amended,
be amended and reenacted, that §37-13-2 and §37-13-4 of said code
be amended and reenacted; and that §37-13A-5 of said code be
amended and reenacted, all to read as follows:
CHAPTER 29. MISCELLANEOUS BOARDS AND OFFICERS.
ARTICLE 1. DIVISION OF CULTURE AND HISTORY.
§29-1-8a. Protection of human skeletal remains, grave artifacts
and grave markers; permits for excavation and
removal; penalties.
(a) Legislative findings and purpose. --
The Legislature finds that there is a real and growing threat
to the safety and sanctity of unmarked human graves in West
Virginia and the existing laws of the state do not provide equal or
adequate protection for all such graves. As evident by the
numerous incidents in West Virginia which have resulted in the
desecration of human remains and vandalism to grave markers, there
is an immediate need to protect the graves of earlier West
Virginians from such desecration. Therefore, the purpose of this
article is to assure that all human burials be accorded equal
treatment and respect for human dignity without reference to ethnic
origins, cultural backgrounds or religious affiliations.
The Legislature also finds that those persons engaged in the
scientific study or recovery of artifacts which have been acquired
in accordance with the law are engaged in legitimate and worthy
scientific and educational activities. Therefore, this legislation
is intended to permit the appropriate pursuit of those lawful
activities.
Finally, this legislation is not intended to interfere with
the normal activities of private property owners, farmers, or those engaged in the development, mining or improvement of real property.
(b) Definitions. --
For the purposes of this section:
(1) "Human skeletal remains" means the bones, teeth, hair or
tissue of a deceased human body;
(2) "Unmarked grave" means any a grave or location where a
human body or bodies have been buried or deposited for at least
fifty years and the grave or location is not in a publicly or
privately maintained cemetery, or in the care of a cemetery
association, or is located within such cemetery or in such care and
is not commonly marked;
(3) "Grave artifact" means any items of human manufacture or
use that are associated with the human skeletal remains in a grave;
(4) "Grave marker" means any tomb, monument, stone, ornament,
mound or other item of human manufacture that is associated with a
grave;
(5) "Person" means any individual, partnership, firm, society,
association, trust, corporation, other business entity or any
agency, unit or instrumentality of federal, state or local
government;
(6) "Disturb" means the excavating, removing, exposing,
defacing, mutilating, destroying, molesting or desecrating in any
way of human skeletal remains, unmarked graves, grave artifacts or
grave markers;
(7) "Native American tribe" means any Indian tribe, band,
nation or organized group or community which is recognized as
eligible for the special programs and services provided by the
United States to Indians because of their status as Indians;
(8) "Cultural affiliation" means the relationship of shared
group identity which can be reasonably traced historically or
prehistorically between a present day group and an identifiable
earlier group;
(9) "Lineal descendants" means any individuals tracing his or
her ancestry directly or by proven kinship; and
(10) "Proven kinship" means the relationship among people that
exists because of genetic descent which includes racial descent.
(c) Acts prohibited; penalties; exceptions. --
(1) No person may excavate, remove, destroy or otherwise
disturb any historic or prehistoric ruins, burial grounds,
archaeological site, or human skeletal remains, unmarked grave,
grave artifact or grave marker of historical significance unless
such person has a valid permit issued to him or her by the Director
of the Historic Preservation Section: Provided, That the
supervising archaeologist of an archaeological investigation being
undertaken in compliance with the federal Archaeological Resources
Protection Act (Public Law 96-95 at 16 USC 470(aa)) and regulations
promulgated thereunder is not required to obtain such permit but
shall notify the Director of the Historic Preservation Section that such investigation is being undertaken and file reports as are
required of persons issued a permit under this section: Provided,
however, That projects being undertaken in compliance with section
106 of the National Historic Preservation Act of 1966, as amended,
or subsection (a), section five of this article is not required to
obtain such permit for excavation, removal, destruction or
disturbance of historic or prehistoric ruins or archaeological
sites.
(2) A person, who, either by himself or herself or through an
agent, or his or her agent, who intentionally excavates, removes,
destroys or otherwise disturbs any historic or prehistoric ruins,
burial grounds or archaeological site, or unmarked grave, grave
artifact or grave marker of historical significance without first
having been issued a valid permit by the Director of the Historic
Preservation Section, or who fails to comply with the terms and
conditions of such permit, is guilty of a misdemeanor and, upon
conviction thereof, shall be fined not less than $100 nor more than
$500, confined in jail for not more than six months, or both fined
and confined.
(3) A person, who, either by himself or herself or through an
agent, intentionally or his or her agent, who excavates, removes,
destroys or otherwise disturbs a grave or human skeletal remains of
historical significance whose existence is known without first
having been issued a valid permit by the Director of the Historic Preservation Section or a permit issued pursuant to article
thirteen, chapter thirty-seven of this code, or who fails to comply
with the terms and conditions relating to disinterment or
displacement of human skeletal remains of such permit, is guilty of
the felony of disinterment or displacement of a dead human body or
parts thereof under section fourteen, article eight, chapter
sixty-one of this code and, upon conviction thereof, shall be
imprisoned in a state correctional facility not more than five
years.
(4) A person who intentionally withholds information about the
excavation, removal, destruction or other disturbance of any
historic or prehistoric ruins, burial grounds, archaeological site,
or human skeletal remains, unmarked grave, grave artifact or grave
marker of historical significance is guilty of a misdemeanor and,
upon conviction thereof, shall be fined not more than $100, or
confined in jail not more than ten days, or both fined and
confined.
(5) A person, who, either by himself or herself or through an
agent, or his or her agent, who offers for sale or exchange any
human skeletal remains, grave artifact or grave marker obtained in
violation of this section is guilty of a misdemeanor and, upon
conviction thereof, shall be fined not less than $1,000 nor more
than $5,000 or confined in jail not more than one year, or both
fined and confined.
(6) Each instance of excavation, removal, destruction,
disturbance or offering for sale or exchange under subdivisions (1)
through (5) of this subsection shall constitute constitutes a
separate offense.
(7) A penalty may not be imposed against a person for the
unintentional disturbance of a grave or human skeletal remains,
including disturbance where the existence of the grave or human
skeletal remains was unknown or not readily observable, if, upon
discovery, the person engaged in the farming, development, mining,
improvement or other activity ceases all such work immediately,
causes no further disturbance, makes reasonable efforts to prevent
further disturbance and complies with subsection (d) of this
section.
_____(7) (8) It is a complete defense in a prosecution under this
section if the defendant can prove by a preponderance of evidence
that:
(A) The alleged acts were accidental or inadvertent; and that
(B) Reasonable efforts were made to preserve the remains
accidentally disturbed or discovered; and that
(C) The accidental discovery or disturbance was properly
reported; and
_____(D) The defendant complied with subdivision (7) of this
subsection and subsection (d) of this section.
_____(8) (9) This subsection does not apply to actions taken in the performance of official law enforcement duties.
(d) Notification of discovery of human skeletal remains in
unmarked locations. --
Upon the discovery of human skeletal remains, grave artifact
or grave marker in an unmarked grave on any publicly or privately
owned property, the person making such discovery shall immediately
cease any activity which may cause further disturbance, make a
reasonable effort to protect the area from further disturbance and
notify the county sheriff within forty-eight hours of the discovery
and its location. If the human remains, grave artifact or grave
marker appear to be from an unmarked grave, the sheriff shall
promptly, and prior to any further disturbance or removal of the
remains, notify the Director of the Historic Preservation Section.
The director shall cause an on-site inspection of the disturbance
to be made to determine the potential for archaeological
significance of the site: Provided, That when the discovery is
made by an archaeological investigation permitted under state or
federal law, the supervising archaeologist shall notify the
Director of the Historic Preservation Section directly.
If the Director of the Historic Preservation Section
determines that the site has no archaeological significance, the
removal, transfer and disposition of the remains shall be subject
to the provisions of article thirteen, chapter thirty-seven of this
code and the director shall notify the circuit court of the county wherein where the site is located.
If the Director of the Historic Preservation Section
determines that the site has a potential for archaeological
significance, the director shall take such action as is reasonable,
necessary and prudent, including consultation with appropriate
private or public organizations, to preserve and advance the
culture of the state in accordance with the powers and duties
granted to the director, including the issuance of a permit for the
archaeological excavation or removal of the remains. If the
director determines that the issuance of a permit for the
archaeological excavation or removal of the remains is not
reasonable, necessary or prudent, the director shall provide
written reasons to the applicant for not issuing the permit.
(e) Issuance of permits. --
Prior to the issuance of a permit for the disturbance of human
skeletal remains, grave artifacts, or grave markers, the director
of historic preservation shall convene and chair an ad hoc
committee to develop permit conditions. The committee shall be
comprised of the chair and six or eight members representing known
or presumed lineal descendants, private and public organizations
which have cultural affiliation to the presumed contents of the
site, the Council for West Virginia Archaeology and the West
Virginia Archaeological Society. In the case of Native American
sites, the membership of the committee shall be comprised of the chair and six or eight members representing the Council for West
Virginia Archaeology, the West Virginia Archaeological Society and
known or presumed lineal descendants, preferably with cultural
affiliation to tribes that existed in the geographic area that is
now West Virginia.
In the case of a site of less then five acres, which is owned
by an individual or partnership, the ad hoc committee must be
formed within thirty days of application for same by the property
owner, must meet within sixty days of such application and must
render a decision within ninety days of such application.
All such permits shall, at a minimum, address the following
conditions: (1) The methods by which lineal descendants of the
deceased are notified prior to the disturbance; (2) the respectful
manner in which the remains, artifacts or markers are to be removed
and handled; (3) scientific analysis of the remains, artifacts or
markers and the duration of those studies; (4) the way in which the
remains may be reburied in consultation with any lineal
descendants, when available; (5) methods for the respectful
curation of recovered items; and (6) such other conditions as the
director may deem necessary. Expenses accrued in meeting the
permit conditions shall be are borne by the permit applicant except
in cases where the deceased descendants or sponsors are willing to
share or assume the costs. A permit to disturb human skeletal
remains, grave artifacts or grave markers will be issued only after alternatives to disturbance and other mitigative measures have been
considered.
In addition, a person applying for a permit to excavate or
remove human skeletal remains, grave artifacts, grave markers, or
any historic or prehistoric features of archaeological significance
may provide to the ad hoc committee information he or she deems
appropriate and shall:
(1) Provide a detailed statement to the Director of the
Historic Preservation Section giving the reasons and objectives for
excavation or removal and the benefits expected to be obtained from
the contemplated work;
(2) Provide data and results of any excavation, study or
collection in annual reports to the Director of the Historic
Preservation Section and submit a final report to the director upon
completion of the excavation;
(3) Obtain the prior written permission of the owner if the
site of such proposed excavation is on privately owned land; and
(4) Provide any additional information the ad hoc committee
deems necessary requested by the ad hoc committee in developing the
permit conditions.
The permits shall be issued for a period of two years and may
be renewed at expiration. The permits are not transferable but
other persons who have not been issued a permit may work under the
direct supervision of the person holding the permit. The person or persons to whom a permit was issued must carry the permit while
exercising the privileges granted and must be present at the site
whenever work is being done.
Notwithstanding any other penalties to which a person may be
subject under this section for failing to comply with the terms and
conditions of a permit, the permit of a person who violates any of
the provisions of this subsection shall be revoked.
As permits are issued, the Director of the Historic
Preservation Section shall maintain a catalogue of unmarked grave
locations throughout the state.
(f) Property tax exemption for unmarked grave sites. --
To serve as an incentive for the protection of unmarked
graves, the owner, having evidence of the presence of unmarked
graves on his or her property, may apply to the Director of the
Historic Preservation Section for a determination as to whether
such is the case. Upon making such a determination in the
affirmative, the Director of the Historic Preservation Section
shall provide written certification to the landowner that the site
containing the graves is a cemetery and as such is exempt from
property taxation upon presentation of the certification to the
county assessor. The area of the site to receive property tax
exempt status shall be determined by the Director of the Historic
Preservation Section. Additionally, a property owner may establish
protective easements for the location of unmarked graves.
(g) Additional provisions for enforcement; civil penalties;
rewards for information. --
(1) The prosecuting attorney of the county in which a
violation of any provision of this section is alleged to have
occurred may be requested by the Director of the Historic
Preservation Section to initiate criminal prosecutions or to seek
civil damages, injunctive relief and any other appropriate relief.
The Director of the Historic Preservation Section shall cooperate
with the prosecuting attorney in resolving such allegations.
(2) Persons convicted of any prohibited act involving the
excavation, removal, destruction, disturbance or offering for sale
or exchange of historic or prehistoric ruins, burial grounds,
archaeological site, human skeletal remains, unmarked grave, grave
artifact or grave marker under the provisions of subdivisions (1)
and (2), subsection (c) of this section shall also be are liable
for civil damages to be assessed by the prosecuting attorney in
consultation with the Director of the Historic Preservation
Section.
Civil damages may include:
(i) (A) Forfeiture of any and all equipment used in disturbing
the protected unmarked graves or grave markers;
(ii) (B) Any and all costs incurred in cleaning, restoring,
analyzing, accessioning and curating the recovered material;
(iii (C)) Any and all costs associated with recovery of data, and analyzing, publishing, accessioning and curating materials when
the prohibited activity is so extensive as to preclude the
restoration of the unmarked burials or grave markers;
(iv) (D) Any and all costs associated with restoring the land
to its original contour or the grave marker to its original
condition;
(v) (E) Any and all costs associated with reinterment of the
human skeletal remains; and
(vi) (F) Any and all costs associated with the determination
and collection of the civil damages.
When civil damages are recovered, the proceeds, less the costs
of the prosecuting attorney associated with the determination and
collection of such damages, shall be deposited into the Endangered
Historic Properties Fund and may be expended by the Commissioner of
Culture and History for archaeological programs at the state level,
including the payment of rewards for information leading to the
arrest and conviction of persons violating the provisions of
subdivisions (1) and (2), subsection (c) of this section.
(3) The Commissioner of Culture and History is authorized to
offer and pay rewards of up to $1,000 from funds on deposit in the
Endangered Historic Properties Fund for information leading to the
arrest and conviction of persons who violate the provisions of
subdivisions (1) and (2), subsection (c) of this section.
(h) Disposition of remains and artifacts not subject to reburial. --
All human skeletal remains and grave artifacts found in
unmarked graves on public or private land, and not subject to
reburial under the provisions of subsection (e) of this section,
are held in trust for the people of West Virginia by the state and
are under the jurisdiction of the Director of Historic
Preservation. All materials collected and not reburied through
this section shall be maintained with dignity and respect for the
people of the state under the care of the West Virginia State
Museum.
CHAPTER 37. REAL PROPERTY.
ARTICLE 13. REMOVAL, TRANSFER AND DISPOSITION OF REMAINS IN
GRAVES LOCATED UPON PRIVATELY OWNED LANDS.
§37-13-2. Action; contents of petition.
Any owner of private lands, may, as plaintiff, institute an
action for the purposes set forth in section one of this article by
filing a petition before the circuit court of the county in which
the lands affected are located. Such The petition shall show the
title to such the lands, the condition of the graves in question,
the interests of all persons in such the lands and in the remains
in such the graves, so far as known, the reasons why removal is
sought and the proposed disposition of such remains. The petition
shall further show that plaintiffs have made reasonable and diligent effort to ascertain the identity of each deceased and each
deceased's surviving next of kin, heirs-at-law, administrator,
executor or personal representative. A copy of the petition shall
be provided by electronic means or regular mail to the historic
preservation section of the Division of Culture and History and to
the state Genealogical Society at its last known address. The
court may, if deemed considered necessary, appoint a guardian ad
litem to protect the interests of known or unknown persons in
interest, whether living or dead.
§37-13-4. Hearing; discretion in granting or refusing relief;
order.
No sooner than three six weeks from the filing of such the
petition, the court shall take evidence upon relief sought together
with any evidence presented in opposition. thereto. In granting or
denying such relief, the court shall consider, as well as other
evidence adduced, evidence as to the wishes of all persons
concerned, whether living or deceased, including evidence offered
by the historic preservation section of the Division of Culture and
History, the state Genealogical Society or the National Historic
Preservation and shall exercise a sound discretion in granting or
refusing, in whole or in part, the relief sought. If the court is
satisfied with the propriety of the relief sought by plaintiffs, it
shall enter an order granting the same, either in whole or in part.
ARTICLE 13A. GRAVES LOCATED UPON PRIVATELY OWNED LANDS.
§37-13A-5. Cause of action for injunctive relief.
(a) An authorized person denied or threatened with the denial
of reasonable access under the provisions of this article,
including the denial of permission to use vehicular access, may
institute a proceeding in the magistrate court or circuit court of
the county in which the cemetery or grave site is located to enjoin
the owner of the private lands on which the cemetery or grave site
is located, or his or her agent, from denying the authorized person
reasonable ingress and egress to the cemetery or grave site for the
purposes set forth in this article. In granting relief, the court
may set the frequency of access, hours and duration of the access.
(b) The court or the judge thereof may issue a preliminary
injunction in any case pending a decision on the merits of any
application filed without requiring the filing of a bond or other
equivalent security.
NOTE: The purpose of this bill is to preserve and protect
family cemeteries by clarifying procedures for protection of graves
and burial sites, clarifying when disturbance is a crime and
enhancing the opportunity for public access to cemeteries on
private land and for public involvement to petition to excavate
graves.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.