SECTIONS 5097-5097.7 - California Statutes

PUBLIC RESOURCES CODE

SECTION 5097-5097.7

5097. As used in this chapter, "state lands" means lands owned by,
or under the jurisdiction of, the state or any state agency. It does
not include lands owned by, or under the jurisdiction of a city,
county, or district, or fire trails under the jurisdiction of the
Division of Forestry in the Department of Conservation.

5097.1. Prior to the commencement of construction of any major
public works project on any state lands, the state agency proposing
to construct the project, or on whose behalf the project is to be
constructed, may submit to the State Department of Parks and
Recreation general plans sufficient to indicate the nature of the
project, its location, and the excavations which will be undertaken
in connection with the project.

5097.2. Upon receipt of plans for a proposed construction project
upon state lands, the department may conduct an archaeological site
survey on the affected state lands in order to determine whether the
lands may contain any historic or prehistoric ruins, burial grounds,
archaeological or vertebrate paleontological sites, including
fossilized footprints, inscriptions made by human agency, rock art,
or any other archaeological, paleontological or historical feature.
The department shall submit to the state agency, by or on whose
behalf the project is to be constructed, its recommendations
concerning the preservation, photographing, recording, or excavation
for, any archaeological, paleontological, or historical features
which may be located upon the lands.

5097.3. The state agency, by or on whose behalf public works are to
be constructed on state lands, may undertake such surveys,
excavations, or other operations on the state lands as it determines
to be necessary to preserve or record any archaeological,
paleontological, or historical features, including rock art, which
may be located on the lands, after receiving the recommendations of
the department, or the state agency may contract with the department
to undertake those operations. The department may carry out the
operations.

5097.4. No archaelogical program conducted by the Department of
Parks and Recreation shall impair, impede or delay any state
construction project.

5097.5. (a) A person shall not knowingly and willfully excavate
upon, or remove, destroy, injure, or deface, any historic or
prehistoric ruins, burial grounds, archaeological or vertebrate
paleontological site, including fossilized footprints, inscriptions
made by human agency, rock art, or any other archaeological,
paleontological or historical feature, situated on public lands,
except with the express permission of the public agency having
jurisdiction over the lands.
(b) As used in this section, "public lands" means lands owned by,
or under the jurisdiction of, the state, or any city, county,
district, authority, or public corporation, or any agency thereof.
(c) A violation of this section is a misdemeanor, punishable by a
fine not exceeding ten thousand dollars ($10,000), or by imprisonment
in a county jail not to exceed one year, or by both that fine and
imprisonment.
(d) (1) Upon conviction, the court shall order restitution, unless
the court decides otherwise pursuant to subdivision (c) of Section
1202.4 of the Penal Code, to either of the following:
(A) To the state agency, including any department of the state, a
conservancy, or other instrumentality of the state, that has primary
management authority over the public lands where the violation
occurred, including public lands managed by the state under an
agreement with another public entity.
(B) To the city, county, district, or other local agency owning
or having jurisdiction over the public lands where the violation
occurred.
(2) When determining restitution, the court shall consider
evidence from the state or local agency to which restitution will be
granted of the commercial and archaeological value of the property as
follows:
(A) The commercial value of an archaeological resource involved in
a violation shall be its fair market value. If the violation has
resulted in damage to the archaeological resource, the state or local
agency shall determine the fair market value using the condition of
the archaeological resource prior to the violation to the extent that
its prior condition can be ascertained. For purposes of this
subparagraph, "fair market value" means the price that a seller is
willing to accept and a buyer is willing to pay on the open market.
(B) The archaeological value of an archaeological resource
involved in a violation shall be the value of the information
associated with the archaeological resource. The state or local
agency shall appraise the value in terms of the costs of the
retrieval of the scientific information that would have been
obtainable prior to the violation.
(C) The costs considered for restitution may include, but are not
limited to, the cost of preparing a research design, conducting
background research, conducting field work, carrying out laboratory
analyses, and preparing reports that would be necessary to realize
the information potential of the resource.
(D) The state or local agency shall follow the professional
standards for determining commercial and archaeological value, in
accordance with those procedures established in the federal
Archaeological Resources Protection Act of 1979 (Public Law 96-95),
as amended, and in compliance with the Uniform Regulations set forth
in Subpart A (commencing with Section 7.1) of Part 7 of Title 43 of
the Code of Federal Regulations.
(E) For the purposes of restitution, the court shall consider the
cost of restoration and repair of archaeological resources damaged as
a result of a violation as well as the costs already incurred for
emergency restoration or repair work, plus those costs projected by
the state or local agency necessary to complete restoration and
repair, that may include, but are not limited to, the costs of any
one or more of the following:
(i) Reconstruction of the archaeological resource.
(ii) Stabilization of the archaeological resource.
(iii) Ground contour reconstruction and surface stabilization.
(iv) Research necessary to carry out reconstruction or
stabilization.
(v) Physical barriers or other protective devices necessitated by
the disturbance of the archaeological resource to protect it from
further disturbance.
(vi) Examination and analysis of the archaeological resource,
including recording remaining archaeological information where
necessitated by disturbance in order to salvage remaining values that
cannot be otherwise conserved.
(vii) Reinterment of human remains in accordance with religious
customs and federal, state, local, or tribal law, where appropriate.
(e) If human remains that are determined to be Native American are
recovered as a result of an action brought pursuant to this section,
the requirements of Section 5097.9 shall apply to those remains.
(f) (1) Notwithstanding Section 13340 of the Government Code, the
restitution funds received pursuant to subdivision (d) by a state
agency, conservancy, or other instrumentality of the state, are
hereby continuously appropriated for expenditure by that state
agency, conservancy, or other instrumentality only for the costs of
restoring and repairing the archaeological resources that are the
subject of the violation.
(2) The restitution funds received pursuant to subdivision (d) by
a city, county, district, or other local agency may be expended by
that city, county, district, or other local agency only for the costs
of restoring and repairing the archaeological resources that are the
subject of the violation.

5097.6. Expenditures to carry out the purposes of this chapter
shall be made only pursuant to legislative appropriation for these
purposes or by contract with other state agencies.

5097.7. Upon a conviction pursuant to Section 5097.5, the following
items are subject to forfeiture in accordance with the following
conditions:
(a) The archaeological resource that was the subject of the
violation, and that is in the possession of the person, shall be
subject to forfeiture.
(b) (1) A vehicle that was used in connection with the violation
may be subject to forfeiture, if the vehicle to be forfeited was not
merely a means of transportation to the site but was either of the
following:
(A) The vehicle was specifically modified or designed to assist in
the commission of the crime.
(B) The vehicle was used as part of a pattern or scheme to commit
the offense.
(2) A vehicle that is subject to forfeiture shall be released to
the legal owner or his or her agent pursuant to the procedures set
forth in subdivision (e) of Section 21100.4 of the Vehicle Code. A
legal owner or his or her agent that obtains a release of the vehicle
shall not release the vehicle to the person convicted of a violation
of Section 5097.7.
(3) If there is a community property interest in the vehicle
subject to forfeiture, the court shall consider whether there is
another vehicle available to the party with that interest before
ordering forfeiture of the vehicle.
(c) Equipment used in the violation may be subject to forfeiture.